to morning it please the court parker rhodes on behalf of petitioner appellant james smith mr smith is serving eighty four years in prison and effective life sentence on convictions that violated the constitution for at least three reasons st mr smith received ineffective assistance of counsel from his attorney of the arm and gal who was himself being prosecuted for rape and sexual assault at the same time in the same court that he was representing mr smith and who failed to give smith any advice regarding the state's final twenty seven year plea offer an offer to a sentence more than fifty years shorter than the one that smith eventually received a trial nd even setting aside the flaws in his representation the circumstantial evidence presented at trial was constitutionally insufficient to convict smith beyond a reasonable doubt of each of the twelve robberies for which he was eventually convicted whose primary similarity was just that they were all committed by a black man with a gun robbing a restaurant around closing time and rd the admission of numerous stipulations purporting to describe how absent witnesses would have testified violated smith's rights under the confrontation clause which he never knowingly and voluntarily waived for each of these reasons smith's convictions must be set aside to begin with a violation of smith's right to effective assistance of counsel that violation occurred in two separate ways both with respect to the trial prong the state court did not decide the deficient performance issue and so the standard does not apply as to the nd prong in our view the state's determination was contrary to law because it applied the wrong standard for prejudice and so given that the state's determination was contrary to law this quarter of you should be denied and your argument that they applied the wrong standard is because in one place they said that this trickling standard was that they would have found rather than there was a reasonable probability that they would have found that's correct but isn't it true that in sentences coming both before and after that they stated this and the standard correctly your honor i believe in the blockquote in which the court describe the strickland standard they did give the standard correctly and then immediately after that what the ohio court of appeals said is that an appellate court must find that the outcome would have been different with competent counsel and i believe that is the last place in which they applied t standard so there were only two points in which the standard was mentioned it was correct in the initial blockquote and then it was incorrect in the court's actual analysis and we have case law i think that suggests that stating it as long as you state it correctly enough for us to discern that the state court applied the right standard that that's sufficient that using a short hand once doesn't constitute applying the wrong standard your honor i don't believe either the supreme court's case or this court's case law goes that far i think in for instance the johnson versus genevese court that this decision that this court recently issued the question was whether the state court's opinion could be read as applying a preponderance of the evidence standard to the factual allegations not to the broader question of what's necessary to show prejudice and i think the most important thing in the case law here is of course williams versus taylor in which the supreme court specifically identified this error as the type of error that would make a presumption of regularity and williams versus taylor didn't address these facts in the underlying facts of that case but the court presented the hypothetical of a state court that says we are applying a would you lose a parent who applies on this particular point no your hon don't believe we do i think even if the at the standard applies here and even if this court is required to defer to the state court of appeals decision this court could still find that the finding of no prejudice was an unreasonable determination of the could therefore grant relief on that basis and why is that what is it that mr smith would have done differently if mr armen gal had not been his counsel so what i mean i understand you  claim that there's there's an inherent conflict of interest but they were rep they were prosecuted by different prosecuting authorities so i'm not sure what the prejudice is what is it that you think would have been done differently with different counsel i think your honor what could have been done differently with different st a more extended pretrial schedule that would have allowed our men go out to investigate the facts of each of the robberies and present a coherent defense as to those robberies in this case the pretrial schedule was only six months and a case that involved one thousand dollars different robberies each with its own set of facts and nd and perhaps more importantly i think competent counsel would have advised smith with respect to his confrontation clause rights and would not have agreed to stipulations that allowed the admission of testimony so let's so let's talk about that and your confrontational claim seems to rest on our precedent in carter which says that personal rights so in order to get there we would probably have to say did no review so st of all it did that did the ohio court of appeals decide this question on the merits no your honor i think what the ohio court of appeals did was to misunderstand smith's claim on the merits here so what presented then we would review to novell and i suppose if we review did no go we would run into carter which is our president that says that confrontation rights are personal for the defendant  every other circuit has held to the contrary we are the only court that has held that confrontation rights are personal for the defendants and that right your honor i'm not sure if every court has addressed the question but in any event of course every court that has addressed the question is held to the contrary i'm not aware at the moment of any court that has taken the same view although i believe the th circuit may have cited other opinion supporting it but in any event your honor i believe that the supreme court's precedent is on point on this issue and does treat the confrontation clause as a attorney who had agreed to a procedure which the supreme court just scribe has a prima facia case in which the defendant would not have a right to have the witnesses against him cross examined the attorney very plainly agreed to that in open court but the defendant himself did not agree to that and the court said that the waiver was not sufficient that this was not a knowing involuntary waiver of the confrontation clause right under the standard and of course the supreme court has since then said that these are standard applies to the waiver of confrontation clause rights and that's the same point i think that this court was making in carter as well if you acquiesce though after the exchange let's just say hypothetically the lawyer does it without engaging the client let's just say that's what happens then the trial unfolds and it's pretty darn what's going on and how the stipulations are working which seems to me very much what was happening in this case and so why would that be acquiescence you know i think the problem with that analysis is even if there were to be some kind of  would still have to be knowing involuntary in order to meet the johnson standard so if smith had been advised of his confrontation clause rights by arm again if he'd been properly instructed you have a right to see the witnesses against you and you have a right to have me cross examine those witnesses on your  and then you know smith maybe didn't personally stand up and say i'm willing to waive those rights but he nevertheless sat and watched his attorney not cross examine those witnesses in that situation you could have that kind of knowing and voluntary  this case armin down never actually advised smith with respect to his confrontation clause rights and never had that key conversation that would make the waiver knowing involuntary your position that in every trial criminal trial conducted in america when the prosecution puts on a witness and defense counsel in the trial court asks defense counsel would you like to cross examine and the defense counsel says no your honor no questions the judge must now stop and have a personal conversation with the defendant and ask whether he understands it's covered ation rights and would like to assert them over his lawyers just like i don't mean just like a product like that is your theory is that it's like a protocol it's true that our theory is that this is like a forever claim but our theory doesn't extend as far as the hypothetical that judge larson posed for the reason that what happened here was a stipulation to a presentation of the testimony of a completely absent witness so we're not talking about a situation in which the defense counsel makes a decision not to cross examine the witnesses actually present in the room we're talking about the admission of the stipulation well that's the what's the principal difference between the two i mean either way the right to confront the witnesses is th parts of the right to confrontation were being denied it was both the right to actually see the witness against you testify the personal face to face confrontation and also the right of cross examination so because in this situation both parts were denied i do think the court needs to take the extreme step of saying that every time that a defense attorney chooses not to cross examine a witness that would be some court site some kind of denial accounts assuming the courts that don't follow our rule that they get at this problem through ineffective assistance that would i suppose someone asked what i'm curious about is what gaps does that leave and why why is that such a terrible way to think about this that you know the lawyer has some responsibility this is a pretty big choice and if you're if you're the lawyer the kinds making the choice without any input that's a problem with the lawyers just doing it in a foolish way that's a problem why does an ineffective assistance get out all of the things you're nervous about your honor i think the answer to that is simply that these are two separate and distinct rights in the constitution the right to effective assistance of counsel and the right to confront the witnesses against you are each separate constitutional protections and they used i get the point that if you're right about carter you you you you went on that but i'm making the point that we seem to be very out there by ourselves we're nervous about that we're not sure it's consistent with later u s supreme court decisions so in thinking about whether we are where we're where we should be i have this inclination to say you know we're in the wrong side of this let's s supreme court decisions that seem to be inconsistent with right so so for example if you look at the language of gonzales versus the united states which is the two thousand and eight decision the court talks about says that trial management is the lawyers province some decisions are reserved for the client notably whether to plead guilty waive the right to jury trial testify once behalf and forego an appeal that talks about what arguments to pursue whatever dench area objections to raise and what agreements to conclude regarding the admission of evidence those are all for the lawyer for the client so why is that intervening supreme court precedent that tells you in our view is contrary to the previous decision in brokers as janice but in any event the kinds of waive all rights that the court is talking about gonzales so evidentiary objections and the admission of evidence none of those speak to the kind of constitutional objection what agreements to conclude regarding the admission of evidence and sounds to me like a stipulation that's certainly true with respect to many stipulations and we have no objection to stipulations that the sun rises in the easter stipulations as to any sort of facts the key issue here are stipulations with respect to the testimony of absent witnesses which goes directly to the heart of the confrontation clause which again because it's a constitutional right we think is different in kind from the kinds of simple statutory evidentiary objections are evidence your objections under the rules that we believe the court was talking about guns ok just just one for the question the eight the rule can't be all constitutional rights because if it's all cuts to show rights then the other piece of the confrontation clause which is the piece of it the example of do you have any questions for this witness that would also have to be encompassed your honor so it can be it's just a constitutional right therefore it belongs personally to the defendant i think that's a fair point your honor and i think my response to that would be that what we have here is the kind of fundamental right involving both face to face confrontation and cross examination that falls on the fundamental side of the line that the court was drawing in gonzales and that that supported by court carter as well and from a lawyer under  indictment yes your honor i certainly think that that should affect this court's analysis and just real quickly on that one you know you still have a presumption of innocence what's supposed to happen to the lawyer i mean we we start with the assumption that this is a flawed indictment what is supposed to happen what's your view of that your honor we're not arguing here for a per se rule that every lawyer who's accused of any crime in any court therefore becomes constitutionally incapable to represent clients but here i think where you have a case of incredibly serious criminal charges that are brought against a lawyer in the same court in which his client is being prosecuted and which were brought initially by the same prosecuting authorities even though they were later prosecuted by a separate arm of the state in that situation the conflict is sacirbey the same judge hearing both cases but maybe it is mean judges understand the presumption of innocence i think that's correct your honor but i think that having it brought in the same court just increases the perception from the attorney's perspective that what he needs to be doing is putting himself forward as an accommodating person that the judges on the court should respect and know well and should you know that the kind of attorney who's not going to cause trouble and this lawyer act that way in this case well your honor i think the agreement oh i don't know  did it all you really what your honor our position is that an effective attorney would not have allowed for instance all of these stipulations which on questionably shorten the length of the trial and allow the prosecution to introduce testimony that otherwise would not have been admissible without cross examination cross examination that necessarily would have extended the length of the trial and drawn out the time for the proceedings and have a lot of victims in front of the jury your honor it's true that there are aspects of the case that may have allowed the stipulation to make sense but i think the critical point here is that this was a case that was solely about identity and in that context it's critical to have a cross examination that can draw out the flaws in the witnesses testimony the unreliability of the descriptions of the robber and as we've said in our papers the evidence here in our view was constitutionally insufficient to allow conviction at all but it was all the more important to be able to draw out those flaws through cross examination rather than simply stipulating to so i'd pop lies to each and every one of these claims and that's procedural default her friends even that deferential review because up applies this court must affirm the district court so what about i mean it is really strange where you don't see this every day a lawyer under indictment for very serious charges and then representing somebody with very serious stakes and it does it is an unusual situation and it is certainly unusual but it's not one that this court hasn't confronted before and so  brower which is a case that cited in smith's briefs this court did or did face that issue and they're sad that you can't presume prejudice when even when an attorney is being prosecuted in the same county on felony charges while representing the defendant and so you can presume prejudice no court that i'm aware of it's never said you can presume deficiency when you have something like that as you look to see whether the actual performance that was rendered by the attorney was deficient and whether that caused prejudice and the important point here is that the state court looked at the prejudice problem and that's all that just the only problem it had to look at it determined that there was no prejudice here from the fact that army guy was being prosecuted in that same court about all the stipulations and it is funny it's an identity case and it's true there's a downside to having one victim after another testify about a traumatic incident but how are you going to pull codes and the identity issue if you don't put these people up there and say well you said this but you know what was the light laker of you give your glasses on and so forth the typical things you would do in importantly for every robbery there was at least one of those witnesses so in it that was presented in court that the defense counsel had the opportunity and then did cross examine so you did have cross examination there but what's also important is that negotiated the stipulations he already put into each of these deflation so varying  descriptors that the witnesses gave and from what was already in the stipulations he was able to say this was not my guy you have stipulations that talk about a way to the color of skin and different different facts that were different and that's what he used to poke holes in the identity so i think there was nothing at all unreasonable in stipulating nothing in those stipulations everything that was  stipulation is one is what the police had before they were able to identify a suspect they were not able to identify a suspect based on what was in the stipulations themselves the only way they were initially able to identify brian smith as the robber here was when they caught him of the property so the stipulations were reasonable choice the state court said that when in discussing the confrontation calls can claim the state court also say that there was no prejudice from those stipulations so you think that they you agree that the confrontation claim was addressed on the merits or i guess you disagree with counsel but why is that i mean the claim that smith made he said that the trial court erred by failing to ensure that is confrontational waiver was knowing intelligent and voluntary and what the court of appeal said is if their rd assignment of air argues that stipulations in general constitute a denial to a criminal defendant of the right to confront a witness we don't see this is being so because there are efficient basically so how is that at all responsive to the claim that mr smith actually made it so how can call it an error it's very specific but he opens up that assignment of error by saying that there is a confrontation clause violation here because they are his defense counsel entered into stipulations to stop you there i very skeptical of having people read my opinions based on what the lawyers argued in their briefs and that pretty out there as a way to interpret an opinion well i think that's a reasonable if it's reasonable to read the state court as it being  question so there they say this isn't a personal right and to defend the defense counsel me waive it for the defendant so long as it is a reasonable trial strategy in the defendant doesn't object and so here you have  reasonable trial strategy it is in general and it was for this defendant in particular if i give the pressure of you know as for review are you in trouble i mean given carter how do we deal with that so if i could just one quick point give reasons for the rest of the claims you still have to those cases yes that's right you have to presume it was adjudicated on the merits and i think that when you see language addressing part of his claim and not the rest that the same thing would apply there but if it is the noble review then i  there there was a critical bit deposition that was conducted on the president's either to offend or his counsel and there the state had argued that the defendant and waived his th amendment rights by failing to attend after the attorney was there and also i would point out that the holding in carter seems to be based at least in part on the kentucky constitution so if you look in a footnote there they say well that's in the same day the supreme court of kentucky sad in a different case that this is a personal right to the defendant and so we don't see any reason to treat this case differently so i think that case that it wasn't necessary  hoping it was something that was at least partially based on a kentucky constitution rather than a u s constitution but then as you discussed with my opponent there is not a subsequent supreme court precedent which i think is very an independent and adequate state ground i mean that's the stated standard we don't have a lot of guidance on what it means to be independent but it seems to me that if your argument is well he entered into these stipulations that lead the court into the error if there is such an error of of allowing him to waive his confrontation right you see how that's not necessarily independent from the underlying claim it's bound up with the underlying claim so i'm wondering what were does independent do i get that it could be an adequate state ground invited error but is it independent here of the underlying claim i think  her in a whole number of contacts is not limited to a context like this so sure it's just that in this case your argument is he invited the error by stipulating and his argument is yeah but the stipulation led the court to not tell me what my rights were and i didn't know what my rights were so how could i have not entered into this stipulation i didn't know what my rights were i mean his claim is the court had to tell him what his right so i guess a i'm struggling with independents well i think if you want i don't know if this answered your question if you want to be more explicit way that it is that they invited the error then i think you should look to   invitation for the court to just accept stipulations without doing more than that but i think if the court does have doubts about that about the procedural default kentucky constitution but but that does it does seem a stretch to say that carter turned down state law don't you think that's a stretch it is at least one of the reasons that he gives for that holding yeah but i mean this is this is like the reverse of michigan versus long if you're not sure her if the state and federal are merged we always assume it's federal that's what michigan law versus long says so don't we have to assume it's a federal decision i mean you're a very clever getting bring in  state constitution you knew i'd take the bait i did it now i'm just now i'm spitting it out so you have to tell me why i shouldn't spit it out in michigan be long obviously talked about a rule for when a state court isn't analyzing this and   but the supreme court has said that you have in these cases that it's wrong to take short hand like that out of context and to use that to say that this is contrary to and so that happened in holland the jackson it happened it would for a very busy id where someone's i probably rather than reasonably probable or probable rather than reasonable you probable and i'd also note that this would have been different is a very common shorthand in decisions of this court as well many times where this court will step forth the correct standard apply the standard then use the would have been different as a shorthand back to the initial correct recitation that wouldn't be prisoner has not established by a preponderance of the evidence that the result would have been different there's no need to williams's retailers not talking about specific wording that it's a court use but about the standards that they actually apply so i think we'll need to be tailor is an before he was wearing gloves to use up to two robberies before that his phone records put him at each of those other robberies as well there's certainly more than enough evidence for any rational juror to determine that and certainly it wasn't unreasonable for the state court to on is just a few brief points on rebuttal focusing on the confrontation clause issue primarily st with respect to the question of invited her we think judge large and me we think judge larsen is exactly correct that this is not an independent question from the underlying constitutional violation and in any event we think that the doctrine of invited error simply isn't applicable by its terms here if this had been a situation where the trial court had tried to advise or where to try to advise smith of his rights under the confrontation clause and smith and then said oh no no no i don't want to hear about my confrontation clause rights i'm confident that this is the right choice then perhaps he could have invited the error of failing to ensure that his waiver was no involuntary but the simple fact of his attorney agreeing to the stipulations can't invite the error of failing to inform him about the rights that the stipulations according to the state of the nd with respect to the question of whether the confrontation clause issue was addressed on the merits by the ohio court of appeals opinion i think the opinion is clear on its face that it misunderstands the claim it says that smith was attempting to raise a claim that all stipulations violate the confrontation clause and that's not at all the claim that smith is in fact raising here the only question is whether a waiver of confrontation clause rights has to be knowing involuntary and for the rd point again both carter but actually as stipulations are practiced currently that is without advice all stipulation as current currently practiced would constitute a denial to the criminal defendant of the right to confront the witnesses i disagree with the premise that stipulations are generally practice without any kind of advice to the defendant i think what normally happens especially in a case of a stipulation to the testimony of absent witnesses like the one here is that the council does in fact speak with his client and say you know here is what we're giving up by agreeing to the stipulation we have the opportunity to bring these witnesses in in fact you have a right to confront these witnesses but horse no no that honor the court that defendant as a general matter it's certainly true that these kinds of policies aren't on the record between the lawyer and the client but i think the fact that there haven't been claims like this coming up just demonstrate that as a general rule again in this small an extreme situation where testimony is being brought in by stipulation from absent witnesses something that strikes at the core of the confrontation clause right these conversations are in fact happening between the attorney and the client and so there is no ground for this kind of thing to be raised here it's only in this again extreme situation where you have both ineffective counsel and then also these kind of stipulations that essentially agree to a trial by stipulation rather than the trial by jury that's promised and finally from my last point i would just reinforce the exact language of carter which we think addresses this directly and is supported by regardless of janice where this court said the district court found that carter nonetheless affected a waiver of his right to convert inserting to confrontation that's right the courts referring to through the actions of his attorney who cared for the deposition in the departed we find this conclusion inconsistent with served in the court goes on to make the point in greater detail following that thank you very much better thanks to both of you for your excellent briefs and arguments and thank you for answering our questions we always appreciate that  mr rhodes i see your court appointed counsel mr smith is very fortunate to have you whatever else we do in this case i can promise you one thing we will not say there was ineffective assistance and maybe a claim on appeal that seems to have been established in the last thirty minutes so thanks to both of you for exxon arguments appreciate