ineffective assistance of counsel on two issues first that my counsel had been advised by his attorney that he too to stipulate that the drugs involved in the underlying occurrence constituted the plot for causation of the death of the third party of the group of people involved in the transaction even though there was a toxicology report that reflected that  there were a combined number of drugs causing the death and second that my client was advised that under the slow durst the case from the second circuit my client was simply guilty and that there is no point in time there after my client filed this twenty two fifty five petition so regarding the first issue but for causation of the bill and understands that the mere fact that his codefendant got a better outcome is not probative of whether he got ineffective assistance of counsel it does demonstrate however that the government failed to achieve whether there was an actual distribution of the drug as it was within the group of three parties at the transaction my client was deprived of the opportunity to try to raise reasonable doubt as but for causation is counsel repeatedly advised him that that simply was not a viable or even realistic alternative that my client relied on that advice and for it and his trial counsel was actually provided affidavit submitted as part of this record to indicate they repeated discussions about what for cause a should and that it was necessary for him to tell him over and over and over it has not been to my knowledge explicitly embraced by any other circuit but it has not been explicitly rejected by any it's or if either of the cases that ever address have distinguished subsequent cases from sort of risky usually on the grounds that the persons involved in actually using the drugs they're after at least one of them was not present at the actual transactions so therefore someone who was present at the transaction somehow constituted a link to distributing that drug through the person who was not present at the transaction right and even it's one thing to tell your client the law on this area is murky over unsettled but it's something altogether different to just tell him flat out you don't have a steward or the defense right and you have a excluded that defense certainly this court has not excluded that that is correct and of the importantly and i have tried to find other cases similar to do with one issue that comes a ploy is the fact that in our case the client got out of the car and went there based on those d p later facts were pure that the other occupants of the car were as close to the transaction as i am to you right now so under or at least raise one that he was present as well as mr roth and this field and under some dirt there can't be a finding of distribution of between the three of them there is no dispute that all the drugs purchased at the time were consumed or by the three pockets there are some record that my client simply didn't use some of the drugs and then pour it down the sink because he thought it was there was too much for me handle but there's no evidence of any distribution beyond the three people who went to and were present for the actual transaction of the drugs the verdict in the fields case again it appears that the jury that there was not sufficient proof of distribution other those circumstances it sort of stands to reason that my client or he would have benefited similarly also there's a lack of clarity the government as brief been apologizing for not having found it in my initial submissions of the court united states versus fear it's a fifth circuit case and while here the court declined to grant relief based on  reason is telling there were four purdy's involved in the actual use of the drug three of them were present at the actual transaction which took place again one car parking right behind the other and one of the occupants getting out receiving the drugs from the occupant of the first car getting back in the reason that relief was not given to that fourth party was that that fourth party was not present at the transaction but the court called perhaps undeveloped as they are indicate that this would be applies when all of the users were actually present and that all the drugs purchased were they actually used for personal use it was not a gay quantity sufficient to implicate god distribution beyond those three persons so for those reasons we had argued that the district court should be reversed and  i'm saying here's what the government regards as a queue language quoted on page eight of my supplemental response i'm quoting the case of a us to be wallace the rule announced limited to the passing of a drug between joint possessors and here's the key language your honor who simultaneously acquired possession of yes what that's what so preposterous the notion that the three of them  into the car of the dealer and simultaneously take the drugs from him they're all grabbing at the three arms or grabbing at the dealers drugs and no sir no no sir if i might elaborate further how is that different from what happened here from one of them takes the stuff and you know shares it with the other to the degree of participation between the defendant weldon on the one hand and miss fields and the dead man mr ross on the other are just diametrically opposed in just resty and magically opposed i don't understand you they go they part behind the dealer and one of them goes in and gets the drugs and brings them back so i'm saying well are you arguing all three had to go into the dealers car and you say no so tell me what it is what is the line between distribution and just sharing the dead men what with the dead man ross ask well them to contact his dealer weldon did so that's not into spear the man gave them money for this purchase through weldon that's not in disappeared then the three of them drove to the dealer that weldon had selected and whom only well the new and well done alone got out of the car and made the handle and exchange well then was the only one who took that took the risk that the police would intervene at that point the other two didn't it was not simultaneous possession it was well done by himself and the other two what if the police came along and arrested well then and then in his car there are two other people who think the police are going to ignore them i don't think they would and they were going to find out of course that it was not all three of them together doing this well it's speculation your honor but i would suggest that if the police came upon a hand to him deal in progress that they would arrest well then and now what have you got the people in the car have no drugs and no course was prosecuted although she was left off when you say she was involved having injected wroth with the drug i i would not have asked the grand jury to return an indictment had i not your honor i prosecuted miss field as well distinctions well there was a classic middle manager here only it was in the classic middle man these are friends he's not and he's not selling to anybody they're pals selling of course people go what your honor the bar analogy we've got the drinker and the man who may be distributing right if the drinker to make it to make the facts similar to weldon's case the drinker there's no bartender on if i when they when the car pulls up with the three of them behind the dealer they're not all going to crowd into the car into the car in front of them that would be ridiculous one of them goes to get the stuff but he's getting it for all three of them he's not distributing it he's not selling that they're on him how else your honor if i might honestly well i know i'm trying their nonsense if i might your honor i don't agree with the courts why how do you define distribution i for defining distribution as acquiring and distributing not necessarily do it define for me what you mean by distribut in this case you know not in this case what is distribution mean to you just any time you give some you hand someone to someone else that's distribution no what is if you abuse in regard here are you what is distribution acquiring a controlled substance and delivering it and just distributing it to someone else not in this you know but if you just hand the control substance to someone else say here take this cocaine i've had enough  weldon contacts weld and steel or when they pull up behind the dealer only weldon knows that's my that's my dealer do you think that the dealer who knows weldon would sell the dope to someone he doesn't know to with your question is it logical that this dealer who knows only a well done would have done business with a stranger that he does not know if you said it well when the person from whom we got the likelihood would have not done business with two strangers well then was the person who had the relationship with the dealer well that was the only want to have a new the dealer was what weldon did was unique and highly differentiated from what fields and the dead men ran right and that that may be the case but these are arguments for a jury on both sides of the question of distribution and the material question here is whether the defense counsel's advice that there is absolutely no viable argument on distribution here so you should plead guilty was faulty advice there was a viable defense to the distribution charge and that may or may not have made a difference to this defendant we don't have a decision on that point from the district court there was no discussion of whether he would have pleaded guilty but for this erroneous advice  and that's that's the open question that remains but clearly it was erroneous advice there isn't a viable defense there's arguments against it to the suv which posited here but it's not it's not a lock one way or the other every your honor weldon was looking at a twenty year mandatory minimum that's the prejudice question and that we have we don't have a ruling on that so so you don't want to go there i'm talking about whether there's viable arguments on both sides of the distribution question here your honor with all respect if you read the five cases i cited in the government supplemental around them every appellate court that considers this matter has rejected this with jersey analysis on these facts well on facts that are distinct from this case because them were present at the transaction and without going into speculation as to what would have happened had the dealer seen the other two i'm not an expert on how the illegal drug market works with the notion that drug dealers don't look for new customers i think was right most people was on realistic right and that all goes to the qualitative evaluation of you know whether this defense is likely to succeed whether it's worth it to take it to a jury or you should take the better deal you're going to go in hand or take the risk and roll the dice i mean that those are all qualitative points that are particular to this case and so it remains that this was at least an available defense y