first the state court has already found that the surrounding received deficient performance by both of his counsel meaning that under strickland they made errors so serious that they were not functioning as the counsel guaranteed by the six of them second any amount of actual jail time resulting from deficient performance constitutes a stricken prejudice that was clearly established by that as its supreme court's unanimous decision in two thousand and one in glover which was not even cited by the state court or the district court or the state in of void an extended term and serve there are there are different ways to sort of slice this but under any realistic scenario he would have would not have done worse than sixty years and he would have done better than six years with him but for the deficient performance that's already been established as a matter of on this case how can we be sure you're right or there's no there's no way to be sure about what would have happened in any prejudice analysis in this a surly involves some sort of counterfactual one is the failure to try to consolidate hamdan in this case and the other is the incorrect advice given by the attorney and by the court that he wouldn't he wouldn't he wouldn't get credit for the time that he had served right yes or ok now which ineffectiveness are you let is the two defense counsel the well the the under the state against phillip which was decided four years before mr out was arrested the rule was amended to say that defense counsel could request consolidation and that should be made d one claim is that the state court made an unreasonable application of and acted contrary to strickland and the other when it didn't even ask the question could he have done better than sixty years instead of the short cut that's not permitted by  been consolidation why would there not have been two or could there not have been to greece to france well there again there are a number of ways to get there if it's certainly and as as an antecedent point have only been on the hook for one graze and i'm challenging that because i don't understand why that's necessarily so yes or that there's a reasonable probability that had these been consolidated early on in the process when canon was offering him twelve y thank you or would have negotiated a global plea under which he would have taken that twelve year flat sentence and camden and and no matter how badly did  you have to in responding to his question i would like you to show that there would be a reasonable probability that he would have accepted a better offer evidence is that he was willing to plead to the canon charge in the beginning the best evidence of which is that he pled to it in one thousand and four he was not maintaining his innocence as a pm of this court recently held in the we were case you know the standard is whether this defendant not just a reasonable defendant would have taken the plea and e again this gets into this this the why the state courts the finding was unreasonable because they didn't even quote the transfer passed we said i want to take the plea except they've they've told me is information about credit time which  be wrong so all of the record evidence was that he would have taken that plea or even potentially a worst plea and again the question undercovers would have been better than sixty could he possibly have been better than sixty five but i have problems with your argument given the real history here that here is a defendant who is not taking his counsel's advice first he chose a in camden a nine year graves act conviction over a twelve year non graze and that was for the first aspect and the second aspect that was his client has his attorney recommended that he take a twenty year graves sentence now this man is not counsel and the question is what difference that doesn't take his counsel's advice what difference would have been there have been on the same day under state law which again the state courts found he would not have been previously convicted and the thirty years that was added to a sentence under the grave that would not have been authorized so that's one way in which consolidation would have made a difference regardless of whether it was right he took his counsel advice but secondly there's more than a result probability that he was looking he was not looking to go to trial and he was looking for a favorable plea and he actually received one and then and again he took the nine with a three instead of the twelve because it wasn't such a favorable plea in light of his decision to roll the dice in the second case and go to trial if it turned out to be disastrous and if if i can follow this isn't a case where he he took another ploy he went to trial and now he's asking us to undo there's no claim that this was an unfair trial or that the sentence was inappropriate in light of the conviction it's he wants us to turn back the clock is if he did not decide to go to trial isn't that what he's asking us to do while you're at it again are you he was offered the twenty year plea before he went to trial in canton and that's the subject of our claim that he would have taken that except for  effective assistance because he wasn't informed of that so material terms of the of the point which is how long it would have to serve why wasn't reasonable for the state court to food that rountree rejected the twenty year offer for reasons other than the misinformation regarding time served given that roundtree confirmed that he had no interest in the you want it that was unreasonable for a number of reasons i listed none of them in not looking at the actual transcript where he said i want to take the zero but they're telling me that my time what the state court wanted and walk quoted a section of the state's brief in which the state presented the transcript as if the offer was presented this roundtree said swear word take me out of here and that was the entire discussion and i actually in the public division there were two briefs i pointed that out and one brief they repeated that misrepresentation frankly and the other brief and then the sta that's under miller l simply on reasonable because the state would have had before evidence which it ignored that's the that's you know then the district in this case did look at the actual transcript and said that well if the state court none of these words but the state court if it had looked at it would have been right for the wrong or would have been right even if it hadn't been about the transcript but and that's where in our brief we discussed why that's just an unreasonable interpretation of that transcript because it's very clear mr roundtree saying he's expressing his want to take this deal and there are no other reasons he expresses on the record the state court you know has to do to keep this going based on the evidence before it under the two and it didn't as far as we can tell from the face of the pinion look at the roman transcript that's per se on reasonable and again even if it had there's simply no fair way to read the transcript in which you say there's no way he would have taken mr gillette would have a remedy here if if we agree with your position should we not hold the case pending the supreme court's decision on friday do you see the cases as relevant here if you prevail on the  camden judge has been and even i think it was just steinberg who was the very judge who suggested consolidation but then rejected the non graves hamden ple in my brief ten different ways they could have worked something out and none of them would have been a deal that resulted in sixty years and again i still haven't heard why glover doesn't apply in this case or i respectfully that that's that's fine united states supreme court and i'm gauging where the court is in the argument and it seems that they want me to focus on prejudiced of course we dispute course i mean i think everybody concedes that there was an effect of this in our briefing and certainly we'd be willing to decide the consequences of the plea and the has to make the plea or not they played well the defendant should be advised by counsel if he was here but mike my feeling is that this is something that occurs particularly where the proof w strong in this case but we didn't have the gun so it's possible that there were some room for maneuvering especially because we had the camden prosecutor who spoke with the essex prosecutor before this offer was was offered was made so the camden prosecutor knew what was what the defendant was facing in essex and that's another reason they may have offered him two different options either doesn't happen a lot in my experience but it's not unheard of to have  alternative pleas that offer offered particularly with the circumstances the defendant was facing and the proofs were let's assume for a minute the cases were consolidated right and they both went to trial please explain for us how that would play out in assume he was found guilty of both what does that mean for certain swing purposes if they both went to trial and he was convicted in the same trial of both offenses  are you saying yes for sensing purposes according to the state court assumption in this case he could have avoided the double graves act if they sentence at the same time but that's an assumption that the secret was making it was not necessarily what the law exposed to you know at least one of these was he would have lose the concurrence you know he would have had more because he would have lost the concurrent well why he would have had the maximum on first degrees to first degrees that's forty twenty that's the possibility that would be six poser well in a consolidated trial all right i'm i'm confused as to why that's the case i must i do must be misinterpreting new jersey law so i need you to help me with that as i understand the new jersey criminal code first degree crimes come with a ten to twenty year sentence second degree five to ten and thirty three three to five cracked so by my calculation if roundtree were found guilty on all the counts it looks like could have been while i mean remember he has five charges in ethics and two in camden the hindering frankly could have been consecutive on its own because at the separate violation and he could have lost the consecutive benefit of all of the  have to do the math with respect that the could of art are helping me we through this my calculations indicate that if he was convicted of everything and trial in a consolidated case he would have been working at thirty six to seventy years with a presumptive sentence of fifty two years and if is presumptive sentence under new jersey law was fifty two years then it would seem to necessarily follow that there's a fair probability that he would have ended up in a better place than he did with the sixty year sentence where am i wrong on that ok a couple of places i would disagree with first of all he did get the maximum after his sentence in ethics after a jury trial there's no reason to believe that wouldn't also have happened after a jury trial where it was consolidated second of all nobody on this record actually contemplated that this really would have been consolidated for a trial even that the camden p c r judges they all said we can't imagine it's not a mix they were talking about consolidating for the purposes of ensuring clean a go she asian and as the rule tells us that these these are not a mix these are different cards and they would not have been tried never would have been tr appearance before one judge in one county right and i think there's a there's a pretty good you know this is like a bad science experiment there are a lot of variables and no controls and i was trying  i was just thinking of it in terms of that there are a lot of variables and very and no controls line has been most the sciences he didn't think but i was trying to think of something on the existing record that would help us with this that might fall with what judge at heart a minute's talking about there's one moment on this record where we know what the defendant could have gotten if consolidation had happened so after the ethics trial he's convicted he's heading to sentencing and the camden county cut counsel reaches out to ethics public defender and says we're prepared to consolidate ask your prosecutor if they're willing and we'll come up for sentencing and they never get a response or it's not documented but obviously the essex prosecutor had no interest in consolidating after they had a win at a jury trial but under the state court assumptions we've got that the motion should have been made it would have been granted they would have avoided the i know would have been granted i don't agree with that this is what the state court assumed so i'm trying to think take out some of the variable and even if the if you go with all of these favorable assumptions the defendant still would have faced a twenty do ten under a plea negotiation scenario again taking out all of the variables he still would have had a twenty to ten at best and he rejected a twenty two seven so there's nothing objective leon reasonable in looking at the clear that he did reject which was even more favorable than the only consolidation scenario they say he rejected it who was his counsel and the court were misinformed as to the effect g a p if the gap between having been arrested on one offense and awaiting disposition on the other you know and this is the doctrine of law in new jersey that's been called a judicial nightmare they quote it on as the riddle wrapped in a mystery inside an enigma this is that entire body of law but in any case i don't agree that that the defendant this was his reason for rejecting the plea for the for the first reason is that the away can't believe according to you know you don't have to credit his assertion given all of the laws the lies that he's told on this record his name his date of birth his address he claimed that he lied under the ninety three plea when he entered that plea he claimed later when he was being sentenced after the campaign trial but he never used a gun and he thought he admitted that he said he lied to get that his his assertions are worthless and in the courts views at more so th appear to me anyway the state court did misrepresent that record i mean the sequence of what happened there when it when he threw the expletive out right he was told iranian slee he was not getting credit and then six years later they gave him credit it was again nice if they'd given him that information earlier i think it's unclear whether it was entirely misrepresented and whether he the jail credit i think was correct that he would not have gotten he got the jail credit on the ethics but not the camden and then why did they give it to him six years later they gave him some of it some of it was actually already given to him after his trial i mean he actually did get some of that in an amended judgment a conviction right after his trial but to answer the question and go back to the question how do we know that that he was not relying on this this offer was first extended to him back when the before he played in essex that the date is four twenty six ninety five he was first told that this would be a twenty do seven offer and the judge steinberg would bend over backwards to give him all the credit he possibly could given he rejected it from that point all the way until the day of trial and it wasn't until the day of trial that he was learning about these credit it simply isn't borne out by the record and that's the defendant's burden particularly where the state court made a factual finding on it and it's entitle to deference of the states may i go back going to be tried in a one proceeding consolidated proceeding with two graves act counts oh if you are frowned guilty of both is that a second a finding of guilty considered a repeat offense the state court actually didn't decide that it still has not been decided under new jersey law so it certainly couldn't have been unreasonable to not anticipate that it still hasn't been decided what the state court did in this case is the assumed it just for the purpose of reaching you would think it would and there was the only person that it says there is a precedent of state versus hocks that without at the time that said we don't care about the chronology of the conviction prior so it's absolutely reasonable to say that this frankly said they thought it would be untenable to avoid it just through consolidation and that would have been the judge that would have tried the case he's the same judge that took the query that did the initial trial that he even name judge in the deficiency and the and the reason is you know that really seems common just let me preface my interest by saying it seems common sense based on my experience that if you can put everything in one roof criminal you're better off than having it spread out with different judges and if you get taken care of all at one time they are almost always redounds to the benefit of the accused so but under the even the join principles the rules in new jersey and this consolidation if this would not have happened if and nobody contemplated putting them in the same trial no for for plea for plea purposes ok get a motion for to consolidate and you know if everybody agrees great if not it goes back to the individual counties what the attorneys did in this case is they started from day one this was all the way back right after indictment and they were absolutely talking with each other about consolidation they were trying to get that global plea resolution talking to both prosecutors talking about counsel talking to the camden judge all the parties were in play this was ongoing defacto consolidated negotiations and the idea you can tell because after the essex trial you can tell that they were just hoping to get the agreement once they got the agreement they would file if expeditious i what's the harm they said in negotiating these agreements and then filing for the moment the consolidation motion if they get it or starting the with the piece of paper and doing what they were already do i see so you see your argument is that the consolidation never really can't understand how we even violated the rule they set up the rule they set up is that council should contemplate consolidation at an early stage if appropriate well in this case they did they certainly contemplated it they were working with these ongoing plea negotiations all the parties were involved that's documented prosecutors and defense attorneys and even after the essex trial you have the memo from the camden public defender saying just find out from your essex prosecutor if they're on board and i'll file the motion everybody else is on board with consolidating for sentencing he was ready to file there is not it's not even a lost opportunity that this defendant missed out on because everything that was happening actually was happening would have happened but for filing for the motion to consolidate all that does is let you start negotiating it doesn't get you anything else again the rule face that's right that's because they were so factually different it was these words that we have are this end of the state these are completely separate victims coming from different parts it's just not done that's not usually how you would use the that the defendant has show prejudice prejudice prejudice existed that if cases have been consolidated for a plea have received a better offer and the camden prosecution than the twenty year offer he rejected and secondly that he would have accepted it on the state court seemed to express doubt about for the first one but he was certain that he would not accept correct now isn't that the heart of this case yes that we don't know is that what you're saying we don't know but we don't know what i'm talking about the issue before us now is whether is whether he would have had a better break if the cases had been formally honor and i'm suggesting that if that's the case he has to prove that if there was a formal consolidation for police purposes he would have affirmative burden under that rigorous strickland standard he had to show what the offer was and we don't know that on this record not because we it's not possible to know but it wasn't proved by the the received and accept an offer of twenty years or better but he has the pardon and he absolutely has the burden to show prejudice to show prejudice that he would have done better than sixty years not twenty twenty is not the benchmark in this case undercover and again the state has failed even to address why that's not so much less reported at the undercover as much as little six months jackal jail time council president has so if he would have gotten thirty years forty years fifty years he was still prejudiced in this and that the again other state courts have sided go over and found prejudice no new jersey court has ever said lover and who i thought i thought that was a winning argument for you but for your able adversary answered my question pretty persuasively i think so tell me tell me why she's wrong when i thought excuse me the state court should have gone through the analysis that i went through with ms  sure about the presumptive fifty two year sentence and fifty two plus and sixty so wouldn't that have been better for your client but but if she points out these two cases could not have been tried together in front of one judge in one county so he's got two trials that's if they went to trial again well all right then do you want to focus just on the guilty plea and forego the trial issue or you know i mean your what's your better argument is this is such a case has so many moving pieces for me anyway real challenge i agree on at the end of the day at the end of day that's why i mean the love i think is all that but the the state court held that the very potential for extended term would've been a reason to plea right but again as counsel pointed out the consolidation can happen immediately following the striking of a deal how do you answer judge elvis or to question about how where does rountree that he would have received a better offer than the twenty year offer he received in the can the prosecution recant and that he would have accepted it yes or this is the state argues that he said he had to crimes they could have worked out a deal at the end of the extended term and made it concurrently he would have gotten twenty or thirty or forty you have to show us that council was in effect us what what a good lawyer would have done all those things but the question is this the record shows that three ignored his lawyer's advice that almost every stage of plea agreements here and and you haven't responded to that with no high school had not even a high school graduate it was as it was councils responsibility to secure for him a plea that what was available for him and again he was the decisions that he made were not fully informed by