post conviction has so many reveals that mr i've also did nothing behind the scenes to prepare mr lewis so can i just can i just ask you just to clarify on that nd point i understand you to be responding to the government's argument that rap's strategy was to throw his client on the mercy of the court that you think mr rap should have sat down and said look your best bet is to make an effective elocution you should express remorse you should do this but but that kind of conversation never happened i'll bet it's great so the superintendent brings us closer to the next thing which stands for that exact idea which is that if if there is going to be some sort of concession or whatever it may not be ineffective assistance of counsel so long as there was a reasonable strategy use long as that strategy was communicated to the client as long as the client acquiesced to it or accepted explicitly this w is this a chronic case why isn't this a strickland case so our next point actually leads to that which is that bell clearly establishes the rule that went away or does nothing and when there is a complete failure  to subject the prosecution's case to meaningful adversarial casting that chronic applies and that is the case in asc instance do you consider this to be a chronic exception one case or chronic exception to case this would be an exception to case because it's a critical stage of sentencing and that you're saying that section two because mr rap's was physically present in the room i just want to know what you think it takes to get to part one yes mr present in the room and he introduced his client but he was effectively absent because he did not do anything to prepare mr lewis or to put mr lewis's own statement in context right because preparation it's a little different because i understood you to be almost conceding this might not have been an ap situation for adversarial testing of the government's sentencing position but but somehow more broadly he needed to prepare his client even if it was a what i'll call a remorse strategy you need to discuss this with his client it's a little beyond just adversarial testing is a well in order to meaningfully subject the prosecution's case to testing they needed to be some sort of coherent plan and strategy involved simply attending introducing his client and doing nothing else is a is a failure to subject prosecution's case to any sort of casting had there been some indication that he had prepared mr lewis there otherwise formulated some sort of strategy that would indicate that there was some testing going on even if the speech at the actual proceeding was rather limited this bill banks part of the challenge here is that the chronic cases are not always clear  whether exception one is dealing with a portion of the case of the trial whether exception to deals with the entirety of that lawyers representation if we see this rather than a exception to cases an exception one  case there there's been very few instances in which this quarter other courts have found there to be a presumption of prejudice based on exception one if we see this is an exception one case does your client not prevail yes mr aff was effectively absent his performance was on par with total absence he had abandoned his client and so he did nothing there was no actual representation occurring at th to clearly established under law and rd this court has already recognized the chronic a bill that will establish the rule and recognize that when it decided miller a case that the district court said had no meaningful distinction from this case now it is true that this court may not look to its earlier cases to determine exactly what a constitutional rule is over the supreme court has been clear that this court may look to its prior precedent to ascertain whether has already held that a particular rule was clearly established by certain cases do you want to speak ms wilbanks to how schmidt versus foster the court's on bach opinion from eighteen a facts that affects this case different i'll just help you of the difference with the schmidt versus foster and the thing that split the end bancorp but it was held that there was not a complete abandonment of counsel at the critical stage because counsel was available and there was nonperformance at a sentencing hearing under strickland whether to presume that prejudice under chronic this was squarely addressed by bell when the court explained how to determine when to apply strickland and when to apply onic the judgement in that case was that because the particular argument there was focused on specific points of failure that strickland applied but had it been a failure throughout the proceeding cronic would have applied and as i mentioned in the every martin pos of strickland to his claim that his counsel was in effect at sentencing mr drum and i'm sorry no no go on the miller case it's characterized as an exception to case should miller have been an exception one an exception to case or approach of chronic is being modified or is is no longer a valid approach it's hard for me to see if we agree that there are certain parts of the trial that should be characterized as a critical stage and surely sentencing is one of them let me ask you this hypothetical suppose mr ross right before the sentencing hearing began did something even more extreme than what happened in woods versus donald situation such as the one this court considered bank and schmidt where the lawyer was present the judge had instructed the prosecutor had had talked about what the scope of the lawyers participation was likely to be but far as one could tell from the record there was nothing that prevented the lawyer from respectfully asking for permission to do more this lawyer not only doesn't prepare his client for the sentencing but basically says this is mr lewis and zips mouth up why is that effective assistance why isn't that the same thing as my going home and sitting back and watching t v example thought if he only made a gator that was available for the us was to show up or force you don't know yet though it's an eight he didn't behave that way at all he didn't sit down with mr lewis and say what you just said look your only chance remorse here's what you need to touch on in your elocution he doesn't do anything i could i don't even think we would have a case if he had prepared his client said this is our strategy you know i you that as a matter of law there aren't other things we can do but this is what i think alright that's that's what good lawyers do but he doesn't do that he just says this is mr lewis and communicated to the client if it's over it i don't see how it helps him on the on on drawing this distinction between zero and something which is what we're trying to draw you see actually discomfort with even the indiana public court they certainly think the performance is deficient there they're quite clear about that and so then the question is did they render a decision contrary to that's the only reason that's the question we're asking because two hundred and twenty five thousand and forty case did they render a decision contrary to chronic when they didn't sign a chronic either exception wonder exception to we can debate that  problem and they did not i don't see a i don't see your hypothesizing the just record hypothesized that maybe some future supreme court might come out with some decision that narrows chronic that hasn't happened communication with the client this is my advice to you give up that's sure but the record does show that they did not have a good relationship at the table saying saying lewis did not want anything to do with his counsel i understand that lewis was a very difficult man and that is my sympathies go out to any lawyer who has to deal with such people but it doesn't mean though that he can abandon his client and our position is there's no supreme court is so it is a holding in chronic and chronic is the applicable supreme court decision that we need to decide whether the state court somehow stayed within the boundaries very generous boundaries or was it isn't the better way to read that the category one is when you literally don't have a lawyer at the critical stage and category two is you may have you know the proverbial potted plant sitting in the room but that person isn't doing what it what a lawyer should be doing i mean this is a pretty i mean you're you're kind of collapsing them into one thing and also i think doing great silences supreme courts critical stage law question and mr lewis wants to consult with his attorney he's president of the court room with the with his client correct yes and if there was a jackson that would or were to occur say by government cents way to look at that would be a is a unit of measure that the concept the use of the word stage means a part of the proceeding and an exception to it means an entire failing to qualify as an exception to here would the defense counsel have to literally not have done anything for the defendant during the entirety of the trial yes yes that's correct that's all the questions  and then to its role that and lawyers failure in sentencing hearing must be complete for chronics presumption of prejudice to apply and the supreme court has added that lawyers performance must be on par with total absence and the complete denial of counsel can be clearly and we did not believe we can argue contrary to you with regard to strictly right thing and finally i would like to point out that there is a right to an attorney and to representation to every critical stage of a trial including sentencing and if there is a breakdown in communication or cooperation the attorney has responsibility to withdraw having is a focal client or difficult relationship does not excuse when attorneys from their professional responsibilities to provide meaningful advoca y and so in conclusion i would argue that chronic and bell are for these thankfully rare cases in which a lawyer does nothing stricklin is for the cases in which a lawyer does some things but not others as well  because mr graef did nothing this is a chronic case well on stage and mr lewis is sentencing hearing and behind the scenes in preparation for it it is frankly difficult to imagine how much should have could have done last as mr lewis is lawyer without being total act totally