after a three man with a bad six so for obesity to pick up there is no dispute over that phrase or rather and the only dispute in this appeal is whether or not a secondary man for filing of an improper six zero forty certificate would be an empty and wasteful or malady i would say that that would be a pretty easy standard for the defense to show that it's not going to be an empty and wasteful proceeding and it would not be most notably because the attorney in this case who represented mr nixon and the priory man proceedings had a conflict of interest in the remain and mr nixon alleged he was entitle to withdraw us guilty plea because of trial he had been in effect for a number of reasons he also allegedly was entitle to or do sentence he cuz i had most notably because the court had relied on a non existent federal firearms conviction at this hearing on the the one subject to the appeal mr nixon was represented by the same lawyer who represented him at the guilty plea and sensing proceedings i mean there's no question that mr nixon have the right to counsel libby's post leave proceedings and that includes the right to a conflict free counsel your counsel had a conflict of interest because he presented evidence that refuted mr nixon's claims he defended himself rather than acting as mr nixon's advocate the most nixon not knowing what was going on fearing there was no strategy to councils unprepared decided to plead guilty and see what he was there for involuntary this and other allegations made defect defense counsel rather defensive he told the court quite bluntly i'm in a tough position because i felt like because of the allegations i'm forced to defend myself in defending himself counsel attempted to refute the claim that  it not gone over the evidence of mr nixon but it seems that counsel really misunderstood the claim he didn't seem to understand that mr nixon was saying what you never discuss the discovery with never tried to formulate a defense with me  apparently believe that mr nixon was claiming simply that he never had the chance to see the discovery at all so mr defense counsel question mr nixon had three man proceedings about a document sign any document but that's that's a minor point what happened then as shortly thereafter the court being alerted that this document asked housel if he could produce a document counsel of actually founded mark to this defendant's exhibit number one  court flat out it's my position that mr nixon did see as discovery the questioning on this subject between counsel and mr nixon was so counsellor the court intervenes said look we're not supposed turn this an argument between you and mr nixon i mean in one sense none of this really matters because nothing that counsel did concerning whether mr nixon had ever seen the discovery really had anything to do with mr nixon's claim that he never gone over the discovery with trial counsel i mean it didn't matter if mr nixon had seen the discovery from some water or didn't conduct his defense but the point is that the defect when you have an actual conflict of interest you've got to show it defective an actual defect in counsel's strategy or tactics and i think what we have here is a huge defect work counsel is at least attempting to shoot down  client's claims rather than dance them so the fact that that mr the trial counsel played households up efforts to defeat mr nixon's claims were in effect it doesn't matter anybody who watched this seating court anybody from the public would realize that mr nixon was not being represented by selous advocate he was being opposed by his own attorney up while the point about the discovery going over the discovery was the most obvious point that wasn't the claim that mr nixon should be able to and he told the court this court should allow him to do that if that's what the court did it's necessary that's not advocacy that's you know really blatant passive town speaking  l didn't even attempt to argue the claims raised in the post sentencing motion which i said most notably was mr nixon contending that he did not in fact have a federal firearms felony conviction councils seem to forgotten that that motion even been filed one it was pointed out to him the only thing he said is that mr nixon's sentence is excessive in light of his criminal record which has nothing to do with the claim of whether or not a criminal record was in correct now at least one court has held that a lawyer can't represent a defendant in a post believe motion where the lawyers ineffectiveness it has been alleged you know here at least whether or not you would doubt that rule we see what that court was concerned about it's clear here that just based on public perception of what happened a remained in this proceeding would not be an empty and wasteful for malady for them reason i would be asking that this  and asking for any further proceedings in the trial court pursuant to any motions new counsel might choose to file unless certain questions i would stand on my brief concerning the issues one three and four thank you thank you addressing defendants contentions of ineffectiveness of the council two times the fed was allowed to testify and two times defendant was allowed to speak asked by court or counsel what issues the court had not yet cocky in regards to a pro se motion and ineffective assistance of counsel as first mr mr nixon seeing the police reports in that my records indicate that on september twenty twenty trial he saw all of the police reports that we find it was doubt what allegations have not been addressed and the council had never shown him discovery came up again so the fent defendant had been called to testify so this is already been addressed the and fourteen hearing on defendant's motion to withdraw money and motion to reduce satins defendant was put on the stand he disputed the facts surrounding the conviction but not the conviction so the court denied that some point in the past although he denies it the claim is that he never went over the evidence his trial attorney never discussed the case with him to formulate a defense that has never been dressed surely talked about whether or not he'd see prior time and for the hearing wasn't buying twenty three but this claim has never been to address and you can you imagine but never a state's attorney that didn't talk to the police well that would go over you know it's substandard performance and it needs to be resolved the state points out it or claims that house was acting in the course of the hess that's an accurate description of what happened the court was only able to ask counsel about this document because counsel him self first brought it up in an effort to prove that his client's claim was no good there's the court did not say hey council have their paper he only said that after council empty and wasteful formality i don't think so even if the only point was to show your servers of court proceedings in the state that the right to counsel means an attorney that's going to defend you