this case resigns or requires an exploration of the relationship between forty to fifty twenty to fifty for the two in one reasonable without deciding whether there should have been an evidentiary hearing then we have to decide that first because i believe that he made out a case that he was in fact the night this fundamental right by his attorney the record the way i read it and i may be wrong is a black hole on that we really don't know what was said our first let me stop you right there that he was denied by the attorney for the right that's not the issue that's been certified in the certificate of appeal that's a different issue completely the issue the issue is whether his counsel was in effect the constitution why is there has been on your part to indicate what his plans should have been because there is nothing in the record per se that indicates what the defense would have been  he did not isn't that they were to his case no i believe that's the kind of information where the kind of evidence that should be developed at an evidence or hearing but that's the strickland standard in order to has an absolute right testify in his behalf or not and the prejudice goes beyond prejudice is being denied that right is beyond the harmless er and would have pointed out the following that's the have to do i mean this is basically the issue before us these issues before us is well yes that's the that's the issue before us in the end my and whether that's enough whether what he said was enough to meet the standards for an evidentiary hearing under if in fact the state court granted him an evidentiary hearing based on his petition or his certification and at that point at the hearing he didn't come forward and recollection of the closing argument is that well it could be self to france and i i i concede that under the circumstances the court would not find self defense under these self defense and his mind yes but for legal reasons the judge is going to tell you so self defense does not work as a family i have a different approach to this but don't we have to determine whether the this three the state court this is he b s corpus we have to go here the post conviction court on the basis of that argument of the statement of the of the judge i'm sorry the attorney same idea of a attorney trying to get that statement where he said to mr harris your honor i'd like to have you read the defendant's election not to testify charged to my client so that we can make a decision on that all right that court  oh so that we can make a decision on that that that meant that the counsel and the client we could discuss whether or not to testify and when you're talking about whether think putting aside the question of whether it was improper for the lawyer to insist that he not testify but the question is what meaning other than that given by the post conviction court can we have to that expression so or some of that we can make a decision on that on whether that he would charge should be read during and the next thing that happened in the trial charged to my client so that we can make a decision on that so they were then given an opportunity did make a decision and the record showed that they did there was a pause that they they did  question that i put to you then you haven't responded to was that a reasonable interpretation by the court no it was not was an interpretation that offended the supreme court decision not it was an unreasonable determination in light of the facts on on on my right what interpretation would you put if that was if you if you were in is just as likely that the decision was whether to read the election charge to the jury and in some way highlight that he was not election the charge if the defendant is not the defendant doesn't have to testify ok ok but the other part of that is that you have the right to testify but have but he he may not know that you know in effect that you have to show that your client was prejudiced by reason of the deficiency or i showed prejudice so establish prejudice you must show there's a reasonable probability that but for counsel but we really don't know what's going on in the jury's mind when the friend and rest without putting any of it we don't we don't know what's in their minds but you know i disagree with campbell versus burris which requires that both problems of strictly be established state court he asked counsel asked for a few minutes for the judge gave him the trial judge gave him a humanist and he said i want to consult with my client now and then he said w deciding on that now you said i'm going and there's something in the record to support it that what they were conferring about was the proposed char would give the jury with respect to his right not to testify that's correct ok and that doesn't really answer the question before us which is whether he knew or wasn't vies by his lawyer that he had a right not to testify and if one reads it very closely there's nothing in the discussion before the state court that supports the claim that he was told or wasn't told by his lawyer whether he had a right to testify that's now what do you point to but you also have to in a claim of in effect of assistance of counsel as judge you also have to show not only that the lawyer was in affective which would be that the lawyer didn't tell him that he had a right not to testify that he was prejudiced by the failure and i think where we are right now is why has he said or sharon that he was prejudice and you say well he would have that he shot in self defense and i think the issue before us is what more does he have to say then i would have testified in self defense class he have to do more fact doesn't answer the question before us now which is really what do you have to show in the state court in order to be entitled to an evidentiary hearing i mean that's really reach the prejudice front but you're an ass you want us to say the district court was wrong because the district court accepted what the state court did yes and in order to do that we have to reach the question as to whether the state court acted contrary to the demand the requirements of the law as are a set forth by the state and then we'll come back to you and see how you rebut you the issue why should let me put it the other way why shouldn't the friend in the criminal case who wants an evidentiary hearing be required to say any more than if i have an evidentiary hearing i will show that i acted in self defense his evidence into the affidavit when he says i do have a defense and my defense is self defense or i acted in passion why does he have to say and because x was pointing van at me or then we also have a gun because x provoked me i mean why does why should we say that as a matter of sixth amendment law and that is a facts that if proved it entirely untrue relief well the facts or any defense i mean if he had acted in self defense that would have gone at least to mitigate the aggravated  because there is there's a reasonable state court procedure that's in place that he's got to make otherwise would have a hearing on every single case without any without any showing w accident back the person who got shot was her his friend person who was with him not anybody on the other side so why bessie i'm giving you your opportunity give us an example of under the court all you're required to verify a petition and you have to get back into court with with something that is of some substance in new jersey isn't the court required to ask not be defined by a lawyer such as yourself did you discuss with your client the right well he's right not to testify it's not a requirement for the court to do that this is all he's done is savage says that it imposes a duty upon the lawyer to discuss it but it doesn't in my view go as far as to say that the court must make inquiry a probably is a better practice but it might not be but that doesn't answer the question that bothers me but it which is whether he should have done more it seems to me that we have to pass we have to have the by the district court for the the state in a want to just say if they committed a mistake or committed a violation we have to see what was before the state court i mean i'm still back there and i haven't you have i think mr latimer hasn't really told us more i think mr latimer says it's enough just to say he would have claimed self defense and the legal question i mean and otherwise what you have to show to be entitled to an evidentiary hearing in the state that's that my where i started with i don't know the answer to that either then that i'm not getting any help if he had gotten up his hands and it was self defense because they were big burly men and five foot three i mean and therefore i was worrying they never said anything right do you do you have any new jersey case that says in order to get an evidentiary hearing in new jersey on the p c r a you have to do more than the blanket  is so the court must then be chairman whether in the light of all the circumstances of the time at that time then the court is the expression  identified errors were so serious that they were outside the wind range of professionally competent assistants and i would say that basically under if we're district court kid and the supreme court decisions but when you're talking about identified errors i think at a minimum you have to identify the errors before you can get a  it doesn't talk about self defense but it does talk about having and it's an option witness case and it says that if you've got the submit affidavit showing these witnesses that there's no doubt that ultimately it's a lawyers responsibility to speak to a defendant and discuss the right to testify or not to testify i would agree with that's what new jersey says and you don't you don't have to put it on the record as i just spoke to my client and he decides not to testify and you don't have to put that on the record but it sure would help ensure that yes i would have helped in this case but as a matter of procedure you don't have to do so courts rely on what happened in this case in other words the transcript seems fairly accurate as to what new jersey law requires is that right yes i would say it's it's accurate except that it may not reflect well it could have been a better job may i have hel gleaned from me that the defendant was testified and there was no conclusion that the procedure was was wrong or unconstitutional any of min didn't my lawyer never said and didn't say on the record and i couldn't infer it from what the trial court told the jury assume though all that in your favor you still haven't answered the prejudice problem in order to be entitled to a hearing in state court how much does he have to say about prejudice and then he this case it's chance to testify so you game the system you can have it both ways you get i think that's precisely the reason that the new jersey supreme court in savage said we're not going to impose this is a constitutional requirement but of why dear one of the federal it's not like this is the better practice and i think that's i think your concern is exactly the reason that the supreme court did that oh ok thank you thank you we'll take this case und ok thank you all thank you well i