have broad discretion to limit the right when it's out rule outweighed by other considerations such as when defense counsel has a conflict of interest when it's clear that the defendant is somehow trying to game the system and delay the trial or where there would be a substantial negative impact on the court's docket or prejudiced the defendant in some way but none of those things happened in this case when mr happy requested a short two day continuance so that both of the attorneys he hired could be present at his murder trial the trial court denied the request based almost entirely on its observation that the attorney who had showed up james gust was experienced and that in the court's opinion he would be an effective advocate during the trial in affirming the michigan court of appeals i could these concerns and after citing outdated u s supreme court precedent held that mr habeas wish to have both of his lawyers present at trial was quote insufficiently legitimate reason for asserting the right now our contention is that both of these state court rulings are unreasonable applications of supreme court precedent and specifically united states versus gonzalez lopez and in the alternative versus certified oh i mean let me just share with you a concern i have about your argument in light of the fact that this is an  case and that is that none of the cases that you're citing and that you've talked about involve two lawyers that the defendant wanted to have represent obviously there has to be clearly established supreme court precedent that is unreasonably applied in the case and why why couldn't the calculus be significantly different in a case where the defendant has hired two lawyers his lead lawyer is there and i think the record shows it was definitely a secondary person on the team his lead lawyer is there  and you know he gets late notice about some conflict with the secondary lawyer and he says we're going to go for i mean maybe on direct review you win but why don't you lose in an advocate as well that's a good question and i have several responses to that first it's not accurate that we have decided anymore to pull counsel cases i believe that we have cited a good number of any court cases not supreme court cases kind of what we're limited to but here's the difference if we're talking about applying it balancing test then that's absolutely correct under and within the ed the framework then it's tough to make that argument argument though based on guns all this lopez is that there was a direct misapplication gonzalez this lopez gonzales lopez is holding that not only the ultimate holding which was that a wrongful denial is a structural error that warrants automatic so the first point that the fairness thing should have been consider right let's not get diverted on that because i think that's a discrete point from the one on raising isn't there an absence of supreme court authority that would show that you have to take the  conflict the on availability of the second and secondary lawyer as seriously as the court takes the on availability of the soul or primary lawyer in those cases it is absolutely and i think that their opinions are certainly instructive on that point but no to go to your point judge catholic there is no discrete supreme court case law saying you have to honor this right absolutely as a bright i your candor and your brief does a really nice job of laying out the authority and so on but doesn't that leave you with first of all a substantive standard which as you said and i applaud your candor gives the trial court broad latitude number one and then number two because the standard in the lack of a specific holdings in this area affords the st courts even more discretion doesn't that really put you in a corner in this case that's tough to get out of in one respect when you're talking about sort of a balancing test in the context of broad discretion and yes it makes it an uphill battle but i think really the poor argument that i want to get across is that the supreme court in gonzalez lopez is saying that this analysis is x not y and you have the state courts and the lower federal court saying the analysis is why to me the matter i mean my experience and i remember being on the short end of a case where i thought the rich should be granted is that the validity of the state courts reasoning itself is not relevant really at the end of the day it's whether there was a lawful rationale or arguably lawful rationale that could have supported the ruling isn't that isn't that the test here well i think there's plenty of case law that says when we're evaluating cases like this that all we have to go off of is the record and the reasons that the trial court judge gave on the record so in this case when the reasons given by the trial judge in the state court of appeals are directly contrary to the holding of the u s supreme court then i would say that that is a much more of a straightforward violation  start getting into a balancing test but also as a prejudice case how does that alter of the north what i would have thought was the normal rule that you show up with two council you want a continuance because you want your second council there was the supreme court case or any case that says the trial court doesn't have discretion about whether to grant that continuance they absolutely have said that trial courts do have that discretion and we've never argued that they don't but what the supreme court's ruling in this case that this is you're in a two layers of deference it's doubly deferential it's a little bit like ineffective assistance where you have deference to whether there was ineffective assistance and then you add that post so it's two layers of difference is that true here where you have discretion or a nature of whether to do the continuance and then ed looking at that through the lens of at i think there's a key difference judge sutton because gonzales lopez the port took the analysis out of the ineffective assistance period which would create that do barrier but correct me if i'm wrong i thought it was a prejudice case i didn't you ultimately holding what was whether there was what the how the right to counsel worked certainly the ultimate holding was about prejudice but when the supreme court first announced the right the explicit right to the counsel of one's choice versus simply the generalized right to counsel that was in a case called wheat and the court said in that case that this initial aim of the a moment is to guarantee an effective advocate for each criminal defendant rather than ensuring he will be inexorably represented by the lawyer whom he prefers the supreme court backed away completely from that rationale because if it stayed within ineffectiveness paradigm then you couldn't get to the end point which it reach on prejudice because the ineffectiveness is worth i'm not trying to throw this into ineffective assistance i'm not saying that i'm not saying that's how you look at whether there was a violation of the right to counsel that's not my point my point is it's an analogy they're not the exam but the analogy is whether to grant a continuance to account for having your second counsel the trial is discretionary i think you're agreeing with that even though it implicates a constitutional right so that's one layer of deference and then the second layer of deference is that  in the u s supreme court has been very tough when you get yourself into two layers of deference you're a bit of a magician as a lower court judge if you can find your way around all that and so you have to be really helpful to us if you want to do that and i certainly appreciate that judge sutton and have used at good to my benefit many times arguing from the other side so i mean i am acutely aware of the barriers that it wrecks so i think though that our best argument here is that there was this straightforward misapplication of what the court says the analysis has to be you're right that there's great discretion afforded to a trial court and there's the hurdle posed by the just overall at the framework it's an uphill battle for sure to argue against the idea of thing to be specific about is what's the actual thing the machine court of appeals did wrong in thinking about why there should have attorneys present was an insufficiently legitimate reason for asserting that right that runs directly contrary to the language in gonzalez lopez that says defendants have a right to be represented by counsel the counsel he believes to be best far does guy there too just to make sure the appellate persons could be protecting my record to do as a trial judge then have to sit there and say ok give me the schedule for all of your lawyers and make sure they're all available on this day and where's the end game to that and where  about two lawyers number one the short answer is cons always doesn't and the end game is or three wars right so obviously if you have a rich defendant you have sort of it o j type scenario where there's a huge dream team then that's where the district courts discretion came it comes in and the supreme court has acknowledged that courts have discretion to control their docket and the more lawyers certainly you know as that moves further down the continuum  then i would submit that the trial court would have even more discretion but it's important to recognize that that's not the case here where we had to to lawyers this is the most serious offenses someone can be charged with and the request to delay was only two days the seventh the seventh circuit has said recently that given the significance of this right to the choice of counsel a delay of up to a month was legitimate and getting that's a one counsel case though i don't know off the top of my head no decision is rodriguez versus chandler the decision i'm talking about is united states versus sellers that was a row of nerve opinion with justice o'connor sitting on the panel and that the court there said that generic concerns about continuances are not enough because of the significance of this cost of a said there was a constitutional right to a continuance of up to a mob there were tell me exactly have your second lawyer present as opposed to me what was that what were the what was the reason for the continuance you know the reason for the continuance i don't remember the specific reason but the court's the court's exact quote was even the convenience even the inconvenience of pushing a trial back month or so can easily be outweighed by defendant's interest in having counsel of choice now i don't remember specifically if that was a two counsel choice we have cited multiple to counsel cases i would refer the court to united states versus laura a decision from the third circuit where the counsel that showed up was lead counsel and the counsel that did not participate was simply local counsel so similar to our case and that gust had characterized himself as lead counsel all along have a rever based on abuse of discretion flavored with right to counsel with respect to the second council yes yes and united states versus war and i'd say that's one of the most hopeful cases and we we quote that extensively and or opening third circuit which is third circuit and the seventh circuit one seventh circuit case that i just referred to as united states versus sellers dollars ok that i don't i do not believe is cited in our priest the rodriguez versus chandler case is the easterbrook opinion that i was talking about and that's that's not about continuances that's just about you know why would the government restrict you if you want to have as many councils you want and there was a broader question of what was the significance of gonzalez lopez and  the panel was facing the same organ meant that you're facing now that this is just a case about prejudice but he said no cons all this lopez is not simply refinement of harmless error analysis that it was a decision that addressed both the defendant's legal find anything about this in the record and out you know part of the issue here is so the record isn't with us in the previous case to the record isn't well you'd want to be when i was and there is all this off the record discussion and some of it gets memorialized on the record and some of that is probably on the trial judge some of that probably on your client's counsel because they really need to have the obligation to make a record to preserve an argument but this is a question maybe you know the record better than i've been able to study it but what became of piazza so it's in this case the judge  remove piazza piazza just attended to his other business did he ask for a continuance in the other case is there anything the record that tells you whether he tried to show up here there's nothing in the record about what he did in the other case and i have searched the record  intently to see what his role was going forward in this case i was unable to find that he had any participation that put him on the record you know to the extent that he was making arguments that were transcribed but i  think the basic point is that given guston piazzas arguments when they were arguing for a continuance never said that he refused to do the record to represent mr abbey and i think it's clear that had the court allowed the continuance that mr p would have been involved in the trial but there is no evidence and the record to answer your question judge doubt that that piazza was involved later on after the trial or that he told the judge a two day trial and your client's trials a seven day trial and there's nothing in the record that shows piazza showed up on day three nothing i could find so if you're telling me you're confirmed that then at least i know my reason i haven't seen it and i wasn't there but i know nothing that would have caused addressing requests for continuances including the morris we slappy rule which said that only an unreasoning arbitrary denial of a request for continuance could violate the right to counsel so we really do have the sort of double deference case  some amount of those building up through these this theory right he's got this third circuit case and seven circuit cases i know it sounds like one of them wasn't cited so maybe you don't know it but you know about either of these cases either of third or seventh circuit while i'm aware there are some lower court cases that deal with those issues and also aware that there is no supreme court precedent on point that addresses that which i think is the critical point for the the defense appeal here and i think what is important is what the record shows about what the trial court had in front of it when this request happened it's a very short sort of oral opinion from the court but we are i think appropriately to look at the whole record to see what the court had in front of and i think the most important fact that the court had in front of it as an address this request is the fact that mr gust was present and mr gust was in fact counsel of choice for the defendant he was the first attorney that the defendant had retained he was there and he was prepared to present the trial  i mean the downside of a delay is awfully modest well that that's not clear from the record i know the defendant characterize it as just a two day continuance but the record is not clear that that would have been the result of a continuance here piazza schedule was such that he could have showed up in two days it's not clear whether there's any one way or the other in the record that that would work on the court schedule the court had this set for a two week trial that's a pretty big block of time to try to move around on a trial court schedule two weeks that's ten trial days the defendant notes that it only ended up being a trial days but of course the trial judge didn't know that was going to be the case at the time he was facing the request almost times longer that's almost two weeks r experience is certainly been there more likely to go longer than shorter and so it's not clear that it would have been easy for the court to move this two week block into another place on its calendar just just two days back the prior adjournments and there had then three others all who have the case back three or four months at a time go he was not being forced upon mr abbe he was the attorney of his choosing don't you think there is a constitutional right to more than one counsel that that question might be presented if you had a situation where you had an attorney a defendant who able and willing to pay for private attorneys and had to in the court through some error of law prevented him from having a second attorney something like ins i was lopez where the court erroneous lee applied ethical rules and prohack beach and mission rules to wrongfully need just it's a second attorney if you have a constitutional right more than one it's your two couse councils of choice there is no evidence in the record that mr abbey intended mr piazza second attorneys do anything other than observe the trial he indicated trial counsel he talked about how he respected him how he honored his work on his behalf and all he said about mr piazza that he just wanted a second attorney there to cover all the angles and what the record shows is that there was this division of labor at least understood between the attorneys that dust was trial counsel and that piazza would handle motions which he had done already defendant indicates that he may not have been fully aware of that division of labor but he also never objected to it he never said he did speak directly to the trial court about this he never said wait a minute i thought piazza was going to cross examine this witness or examine this witness or take some other active role in the trial the indicated the only indication even now in the in the appellate briefs is that well it would have been nice to have him there because if he was handling motions he might have a better sense  for you know how to handle the motions much like judge how your question about the the legal attorney and the appellate attorney and so on there may be some advantages to that but again those have to be balanced against the court's right to control its docket but he never indicated they  right to more than one counsel i don't understand why why it should make such a difference that someone is quote lead counsel i mean you could you could have john w davis as your backup counsel and the reason he's there is you don't want to do the cross examination you can't pay for that but you want  tell you when you should stop the trial and accept the cli so that judgment is probably more important than anything the so called lead counsel is going to do i think that the fact of designating someone perhaps as a second attorney or a motion attorney or something like that is relevant as one of the factors the court can consider under the broad latitude it has under morrison preserved under gonzalez in deciding whether or not this is a reasonable request whether or not it's one the court is going to grant and it also goes to the question of the unreasonable miss of the delay in the timing this was a last minute request and this came up on the morning of trial and the defendant characterizes beings or something beyond his control that he was surprised and i think that there should be some truth to that in that you know he was subjectively surprised that morning but on the other hand i think the record is clear that he does bear at least some of the fault for their slow timing here these were his privately retained attorneys he had retained mr gust fifteen months earlier he had retained mr piazza ten months earlier if he had not in all that time communicated to them his desire or his direction that he wanted them both to be present at trial he certainly has to bear at least some of the fault for that delay yesterday was all i'm sorry please go ahead is there some significance to the fact that the trial judge did not remove the second counsel p s i think those two i mean in a sense we don't know what happened in the record and i mean obviously you go back and you wish the record were different you wish there was something record that said what he said piazza down the hall of the other judge to ask a continuance there because that's a two day trial and he had a two week trial that to me you know if you're trying to work this out among judges that's what you might do we have nothing in the record of that but what we also don't have is this trial judge removing p x and he sort of left it on p s it seems to me to either get a continuance or you'll have to live with the fact that you won't be here in this trial but is that is that legally signify i think it's highly significant because that's how it distinguishes the case from gonzalez lopez where the removal of the attorney was based upon a legal error by the court who misapplied the ethical  misapplied the proxy change mission rules and took away from the the defendant first choice of counsel that he wanted to have at the trial there is none of that here and again i look for the same things in the record to try to see what happened there's no indication that i can find the record as to whether mr piazza was apparent was appearing afterwards on the third day and beyond or frankly what direction he had from the defendant about that from that point forward so we had all these factors present we had the fact that this was the fourth request for a continuance we are now fifteen months past the individuals arrest on the fourth trial date looking at a fifth trial date not at all clear that it would have been as easy as defendant suggest to move this two week trial and i think in light of all of this and again i think most importantly the fact that the defendant did have trial counsel of his choosing there and i understand your argument you're saying that the supreme court has since held that there is no constitution there would be no constitutional violation when a prosecutor mr berger khans argument it is that at the time of this trial there was a sit there was a circuit split on this issue are circuit had said it is a constitutional violation mr should have known that and he should have objected and there was no strategic reason whatsoever to objecting to this so called running theme throughout the prosecutor's comments why isn't that the same holding in the evans vs hudson case that it was cited and i guess the the short cut to the analysis is simply to say well what's the remedy i mean if you say that it was ineffective assistance because you didn't make this objection that's now invalid to send it back for another trial where he's because in the end where is the prejudice if you send it back for a new trial if that's the remedy for the constitutional violation in the exact same trial including that evidence including that argument could be presented again because under the law that will be controlling at that new trial it's perfectly acceptable and there's no measure prejudice i thought we measure prejudice kind of within the bounds of the record in the trial that happens not some trial that might happen i mean let's say there was some you know critical witness who  it or there's you know some you could have all kinds of intervening circumstances that would change the record in a second trial so that you could have a different outcome for some different theories right well the supreme court of law says that that's the rule and this morning  strickland where there was evidence of the flesh and d n a of the victim on a saw that he had borrowed on or about the day the individual disappeared and where his fingerprints and palm prints were on in the bags that contain the victim's body parts i think it would've been a very difficult prejudice showing in any case it just you know back to the first argument just out of curiosity how would this case of come out everything's the same except this and he asked for continuance for p r the judge has come a very got the jury here don't make me do this and then he says you know i spoke paid this guy a million dollars and he's not my lead counsel but i've invested a million dollars in this guy i need him there i trust his judgment so forth and so on so sorry the million dollars is gone and a million dollars a way to expect mr piazza to work harder and go to the other track which are and i have but if you did it i think it i think it would be it be a factor for the court to consider but i think that's a given in essence that the we're talking about paid counsel in these cases to begin with so it's recognize gust was my my client's counsel of choice it's been clear throughout the record that gust and p r were mr abby's car he chose gust let's put it that way he did choose him but that's only stating half of the equation because he also independently hired piazza and i think it would be a very different situation if gust on his own accord brought piazza and if it was maybe an associate or gust had an arrangement hey i need some extra help with this briefing we have to understand that mr person and when a person is facing a murder charge and they want to defense team they envision their lawyers being active at trial and actually the record there's nothing in the record up until the excuses that attorneys made on the first day of trial when piazza didn't show up that suggested that piazza would not be active in the trial in fact mr piazza was heavily active in the pretrial proceedings when the court was rescheduling the trial at one point because of a continuance it did it around m schedule so that he could be present at trial mr gus never indicated that he would be trying the case own and even during the trial when this was being discussed gus said quote that it was clear and plain that piazza intended to participate in trial so it's very important to acknowledge i think when we start talking about yes he had one of his choices there then we're sort of collapsing the analysis back into sort of ineffectiveness analysis because we're saying that well one of these attorneys could do a good job and the supreme court spent a lot of time talking and gonzalez lopez about the the the reason that it's a structural error to deny counsel choices because we can't really quantify how things would have gone differently if the other attorney wasn't present and in this case mr p aso was the attorney that by all indications took the lead role with legal issues and motions prior to trial certainly it should be obvious why that would be helpful during the trial for purposes of formulating objections or in just for giving mr gus general advice about how to proceed with the trial i'd also like to say that i'm not sure it's an important distinction that the court didn't make an outright legal error such as in gonzalez lopez denying an attorney pro hockey admission when that was clearly not the case i think the right can be violated without an outright legal error such as in this case it's not just there's broad discretion but the discretion is not limitless we wouldn't have the rule that that sort of mindless here is to scheduling constitutes a violation of the rule if the disc was endless and so our point was here that even aside from gonzales lupus which we contend was directly misapplied on the information that the trial court had that this was an