good morning may it please the court i'm attorney james sterling lawrence and i represent mr gerard williams the petitioner repellant first i'd like to give a small amount of fact to will background about the case mr williams had cousins of him that were gunned down and he took action in revenge he confessed to it the gun was found under the circumstances unless the statement were held to be involuntary he was certain to be convicted the cost circuit court judge ruled that he believed the officers and therefore that ruling was not really subject to being overturned there were a couple of extenuating circumstances that the prosecutor in wayne county legitimately consider and did consider number one the wishes of the family of the deceased and of number two the fact that it was in response to another killing as a result of that they offered the defendant twelve to thirty years plus two years for the felony firearm and the defendant took it for some reason that is not clear he was not it's not in the record that he was not immediately sentenced or sentenced within a short period of time six months later he comes in with attorney barnett marvin barnett and mr barnett has him withdraw the plea and then six months after that when the case is going to trial mr barnett make some statements that we find to be extremely disturbing in the beginning of the district court's opinion they say that this is a case about choices hindsight and regret as if attorney barnett had no influence on the defendant's actions in court the state certainly did regret it miltie mr marvin barnett as an attorney they've disbarred him for his drug use and a bizarre behavior and what i regret is that there has been so far no remedy for people that mr barnett damaged in his representation of course there's only one of them that i'm represent mr barnett comes into court after he has the defendant withdraw the plea and says look  ten to twelve years that's not enough for two lives i'm fighting for everybody here including the family and i submit to the court that that was a conflict of interest the duty of the attorney is to represent the defendant's interests not the interests of the family of the victims the prosecutor certainly could have taken that position that twelve years isn't enough they didn't of the defense lawyer mr barnett went on to say that i don't believe  negotiating with the prosecutor's office appointed or retain not that it makes a difference actually i'm not certain ok so let's assume that we disagree with the government disposition in this case about whether an evidentiary hearing was available under twenty two fifty for you two and we agree with you that one that that the judge could have had the district judge could have had a hearing in this case as you know what the district judge found is that what you want the theory that you have is so thoroughly refuted by the record that the and evidence are here and hearing would've made a difference and so therefore exercises discretion not to have the hearing do you agree that that at least that you may disagree with the conclusion but the analysis is correct the district judge does have the discretion to refuse to hold a hearing that he otherwise could it could have if the claims are refuted by the record and i you give yet when i write so far principle ok but i disagree with applying it to this case that that i understand so when we when we then get to the exercise of that discretion it essentially the claim here is it's just simply implausible implausible that barnett or anybody else actually told him the things that you are imputing from the silly things barnett said and it would in open court because your guy filed motions and never never even alluded to this so what's your response to that ok well up my response is first of all every single thing said by barnett in court backs up what we are saying on the record here it was barnett himself who said ten to twelve years is not enough for today i just thought of this theory or something like well that is i was listening to somebody recently and  theory occurred to me is that in the record well it's something like that what does it mean what what happened what exactly did he say ok what happened was the act there was an aborted first trial because the ditto clime lab had made some mistakes and understand the nature and then right mr about this particular item that i just ma very kind of indicated that this was a recent recent thought well what he what he said was i know this is kind of a stretch nothing in there which says that i got this idea when i heard so and so speak i don't remember that specific item i do remember that he we submitted the defendant's position that  he had told the defendant that the state would be limited to the theory that they had at the first aborted trial and he presented it as an issue and but it mid that i know this is kind of a stretch well shouldn't he tell the defendant that the theory is kind of a stretch well not if he wants to make a name for himself attacking the detroit crime lab the he he stated his desire to show that they are a bunch of incompetent boobs and  understand that that is a reasonable position to take if it has any tendency to help the defendant it's also a reasonable position to take if you're looking for publici the job here though for this defendant is there was zero possibility of his winning the trial let's go back to what your client actually said he filed pro se motions in the state court and he explains in there why he with jury is guilty plea and he doesn't say anything about this erroneous advice from his trial counsel it seems as if frankly it seems as if this idea that somebody has planted in his head that this might be a good way to try to get a new trial came up some time after barnett said silly things in that and in open court all of which then so then your client is in this awkward position about he maintain a certain position up to the owl and now he's got a switch is position and i'm trying to figure out what's the basis for that ok well first of all the pleadings that mr williams wrote by himself were certainly not written by an experienced attorney they were written by an educated man but he's a he's the only one that knew why he withdrew his plea when you think he would have mentioned this if that was really the reason artfully or and actually i don't assume that in an educated defendant is necessarily able to distinguish between which facts are important and which facts are less important that's why we're supposed to have the effective assistance of counsel and i say that any effective counsel would have said you have no chance of winning this case my theory that they have to stick that the prosecution has to stick with the old theory that something i made up that's what he should have said but instead he admitted his own conflict of interest his own cause it's not i'm fighting for the family isn't that a derogation of everything that a defense lawyer is supposed to do let's go back again to what he told the state court and i understand  pro se i get that he told the state appellate court that he withdrew his pleas based on faulty advice about his sentencing exposure and his ability to undermine the credibility of the prosecution witnesses at least that's what judge things that the defendant said on paper but nothing in what was presented in the motion for relief from judgment was contradicted in any way by the things that were said earlier by the by the defendant i have two questions one relates to my earlier question i'm now on the page before the page of the transcript immediately before he says this is a stretch so it's the same hearing right yes he says during this hearing the prosecutor said something that concerns me and now i believe it gives me a basis for a bill of particulars that sounds like this he came up with this theory during this hearing well bill or position then the position that he said about a bill of particulars they're not the same issue i think what we're really focusing in here mr lawrence is a question of timing you're relying upon things that barnett sa the reason for requesting an evidentiary i got it and study it in the meantime then there is a trial he gets convicted he gets a much longer sentence so now obviously he's really unhappy that he withdraw his guilty plea he then files pleadings in state court never mentioning anything that you are now arguing he had an appointed lawyer for the appeal and i argued in the in our repetition and in state court that that lawyer committed assistance performed deficient performance here unless he knew what your client now claims barnett told him and it doesn't seem like there's anything in the record that shows that this even knew about your current claim well it's right in the record when the lawyer stands up there and says i'm fighting for the family this is not a long enough sentence for my client abrogating all of his responsibilities as a defense lawyer and it's right right there in the record ok so that's a slightly different argument than what i think is the basic argument here connection with be having the defendant withdraw a plea that no reasonable attorney would have had them withdraw the trial was completely unwinnable once the judge ruled i believe the officers about the the conditions of the statement as as it comes up to us here we're kind of focused on this this a stoppel argument whatever you want to call it this here stuck with with a number of shooters that's that's incorrect if you broaden it to two other ways in which the advice was bad some of those issues come up to us differently don't they i mean wasn't there  there's so many levels that i'm a little bit fuzzy but well it's not it's this is this argument that was was so was apparently deemed to be precluded when it wasn't precluded at the state level well all of the or those that i know works differently with respect to this issue and the other issues of whether there was ineffective assistance of counsel well we requested an eviden hearing on all the issues judd said i can't do it it's already been decided and i think all the parties agree including the district court that the state circuit judge was wrong the defendant was asked of this issue was wrong statutory hurdle that judge mckee assumes we're getting past what is the standard that we apply to a decision by the court not to have a hearing ok well that's  a real good question and why they pay me and what i would state is that you have an error of law here in that the defendant has shown enough to entitle him to an evidentiary hearing i feel that there is certainly been an abuse of discretion in that oh you say this and you're saying it's or not to have a hearing as a district court if you if you just say i want to hearing does the district court have to give a hearing or does that district court have some discretion not to give a hearing once it gets over that statutory hurdle the district court has discretion to have a hearing or not have a hearing but that discretion is abused where we've presented sufficient cause to be concerned about the conduct of the attorney his conflict of interest and his ridiculously bad advice the district court says is not what or enough to be concerned it's kind of a vague standard if the district court says it's not enough for me to be concerned we review that to know are we review that under abuse of discretion well i'm afraid i don't really have the answer to that stand here thank you thank you discretion i agree i don't think that there was any error of law made by the district court in this case i think there's just a disagreement but my brother counsel with the district court's decision and the  excuse me just a second server muttering i didn't mean no that that that's all right i think that to say first of all he comes to the state court doesn't file a motion for an evidentiary hearing has no offer of proof no  supreme court does the same he comes to the federal court with no affidavit no offer of proof and requests an evidentiary hearing at the at the oral argument in the hearing is the first time an offer of proof is made as to who might testify at the hearing  and it would be dropped williams no offer of proof as to what marvin barnett might say or anybody else might say at the hearing it couple that with the fact that the allegations in the petition are contradicted by the record are not backed up as judge rogers you're questioning taste now looks to me like this attorney's kind of off the wall even i can tell having been a lawyer in that kind of a lawyer to come up with this stretch theory and say you know they're somehow by some theory the facts the facts contradict i think seems weird simming it's kind of weird off the wall why should we assume that it wasn't we're not the wall six months you know crazy people do crazy things repeatedly i mean sure i understand the question and now we've got some evidence that this kind of thing may have been what he was advised why should we have a hearing and find out several reasons your honor first is because as as you're questioning pointed out he actually said on the record this was the first time he was coming up with a theory so that's a sign of he said something the prosecutor said concerns me that's not it doesn't say concerns me for the first time i got a right  sure i understand ok i think that i read the language as saying i'm coming up with the for the first time maybe we can disagree whether it says that second we have the defendant's own words in his pro se standard for brief where he explains the reasons that he withdrew his plea and never mentions this so that that does contradict the idea that it was based on this crazy theory third of all i think that as you describe or not i think is off the wall and i don't i don't think i can disagree with that but i don't think that we can disagree that he was a zealous attorney and i don't think that if he believed eight months earlier that this crazy theory was actually true there's no reason why he would sit on it for eight months he would why don't file this motion why not brief the motion why not bring this crazy theory to the court's attention at the earliest opportunity why sit on it why say i'm not going to even bother briefing iran or it that doesn't fit a crazy zealous attorney can be crazy and zealous repeatedly and if he was crazy and zealous eight months earlier and said mr well what exactly is the standard here but when i come back to what i started with which is mr lawrence has never told us what would happen at a hearing i mean he said that at the oral argument he said that mr williams would testify consistent with the it we can maybe in for something from much there is there from the fact that there's no affidavit from barnett in the district court saying i said something like this six months earlier  no i'm not saying that we draw any inference from it but what i'm saying is that when we review done when we review the district court's exercise of discretion we say given the district court given that the district court had almost nothing to support this just the pleadings which are contradicted by the record and then an offer of proof made an oral argument and just one on one offer of proof since they're not contradicted in the record they're just not supported where you would expect support i think i think we can disagree i think we can agree to disagree on that i think that the statement in the standard for brief where he says this is why i withdrew my plea i think that is saying this reason and only this reason is why i withdrew my plea and if you read it to say well there may have been other reasons why i withdrew my plea it doesn't matter because the prejudice prong of a strickland claim you have to show that but for counsel's inadequate counsel's deficient performance there's a reasonable probability he would have taken the police but if he's saying that there's an independent separate reason he wanted to withdraw the plea then this other bad advice there is not prejudiced by right if there are two independent reasons then he's not prejudiced if one of them is bad so i think it is not that addresses the fundamental question the judge rogers asked you a bit ago which was what is the standard that we used to address this your argument was that he's precluded from having an evidentiary hearing now he only is precluded from an evidentiary hearing if he failed to use diligent efforts to it to develop this theory in the state courts in the state court didn't say that the state court said he had addressed this theory which is obviously incorrect and it looks like he tried diligently to develop this theory and get an evidentiary hearing in the state courts and he was denied for the reasons that we just mentioned so that bar to that that bar which determines the standard doesn't apply in this particular case so then we go on it seems to me to the alternative holding of the district judge in this case that that even if he wasn't barred from having hearing he still wouldn't have a hearing because he's exercising his discretion not to do so so are we simply reviewing this for a pure abuse of discretion or are there cases that say you shall have a hearing and that that would then be an error of law i assume that would be read reviewed to know if you refused to have a hearing so to start with the two bars the statutory bar is a separate bar from from the judges so they're separate arguments and we've been tain that too is a statutory bar to an evidence you're hearing the district judge didn't make a ruling on that question and it is true that the trial court never said that he had not met the requirements for not ensuring but also never said that he had and so i believe that you can actually look at what he did in the trial court to see then the district court has the discretion and it has to be based there has to be some kind of significant showing by the defense or by the petitioner to sort of warrant further investigation has he has he brought enough  and i don't have the exact wording it is an abuse of discretion standard but that discretion has to be exercised based on you know sort of what are the facts that the petitioner is bringing to the case for what the standard is the standard  a case where i think that we i would be willing to stand up and argue that judge lightman would have abused his discretion to grant an evidentiary hearing i understand that's an uphill battle and i'm glad i don't have to make that argument but that's how that's how weak this showing was as far as needing one where you would abuse your discretion if you made an error of law so it's frankly hard to figure out whether mr lawrence is claiming that there was an error of law in the exercise of the in his opinion the record wholly refuting the claim and therefore didn't matter what occurred during evidence or hearing would make any difference right so are we are reviewing that decision  or abuse of discretion no it's still abuse of discretion and that's the arrow done no decision right because that's what happened is is where the the the defendant in that case there the claims were so wholly implausible and refuted by the record that this court held that there was no need to grant and i would ensure a hearing because it didn't have anything to do with the witnesses credibility would it be fair to say we have to look at whether we are firmly convinced that an error was made in the exercise at that discretion on the question of whether or not the record wholly refutes the purpose of the evidentiary hearing i think that's correct and in this case that ruling was not based on credibility determinations really can't be because we can't look at that because that's something that would have been determined at a hearing and it's not based on sort of the judge let me being able to observe the demeanor of the witnesses and judge there whether they're lying or telling the truth or whether the recollection is correct that's all stuff that would be determined that a hearing this decision can be judged based on you know whether the claims themselves are so inherently implausible and refuted by the record and i think that's language right out of her and on know that that that that itself means it was not an advising the defendant to withdraw his plea six months earlier your argument is is interesting is that might be one there's no affidavit where the defendant has even said barnett told him that earlier and second of all after he got convicted he filed pleadings that never mentioned this because that really what it comes down to that is most of what it comes down to what it also the main thing i would add in addition to is newly occurred to him and so that something what that has newly occurred to him are not exact words are but during this hearing the prosecutor said something that concerns me and now i believe it gives me a basis for a bill of particulars references and consecutive pages if there isn't any evidence to tie these things that he said six months later back to the reason for the withdrawal of the put right and especially keeping in mind so what is the significance if any of the absence of an affidavit from this case for mr williams i've always been curious about is it enough for a lawyer to come in and say i see three options the lawyer can come in and say well barnett told him that six months earlier without any support or the lawyer can come in and say well my client told me that this is what the lawyer said six months earlier or the lawyer can come in and say this is our argument and it's based upon this client's courts right and so so the question i think your question is can be applied to both the state court proceeding and the federal court proceeding and affidavit can be evidence and i don't and so i believe that if you had an affidavit you would at least be able to say especially if an affidavit had been filed in state court you could say well we have record evidence maybe it's weak at record evidence but we have some record evidence that barnett actually said this at the time here we have no record evidence that barnett said this at the time we have only the unsupported their allegations of counsel in the pleadings and so i think that's really the difference now when we do have an affidavit from a petitioner we have of course always argue well it's just a self serving affidavit and don't give it much credibility but at least it is something and here in the state court record we have nothing you cite or dando which you quoted as saying that the standard is whether it's highly implausible that what you're saying is and it is i mean not necessarily a hearing unless it's highly implausible that it will turn up anything relevant i think it is that's your case now right now i understand i think that where it is highly implausible or refuted by the record then it is within the judge's discretion to deny hearing now i don't think that it is necessary i think that's sufficient rather than necessary language that he cites a bunch of cases i can't pronounce it truro in the united states supreme court sort of the facts are in dispute standard i just sort of competing lines of cases are going that all be reconciled i think it can be reconciled by saying that he hasn't made that sufficient showing referred to in those cases because haven't adequately shown a factual dispute exactly because if this is an adequate showing a factual dispute i realize this why sound like a probably but it's hard to imagine a petitioner who wouldn't get an evidentiary hearing once they're past the e two bar and again we maintain the two bar holds i understand that might not get a lot of traction but i don't want to seem to concede that but again once you're past the two bar if mr williams gets a hearing i don't know who doesn't so thank  ok well i would first like to speak about the fact that there is no michigan court rule statute or decision that says that an offer of proof must be made by no court has ruled that way not judge kenny not court of appeals not michigan supreme court not judge whiteman so that's really a red herring if you make an offer proof before a judge i made an offer of proof in the pleadings in a state court and in federal court that the record would show that mr barnett was operating with an intolerable conflict of interest and that his it vice was on its face incompetent and that the and that he had told certain things to the defendant and i admit they are not supported by affidavit but there is no state court rule that requires that it was rejected because of the mistaken belief of the circuit judge that the issue had been raised before and the real question here is something is waived here and missing that well if you're saying that we've done something procedurally that makes it impossible to proceed with the issue that's the respond i'm claiming that nothing has been waived here we went to the core we provided officer and a little time on that if you want i don't think anybody's making that very good did the defendant  e petitioner did he know that there was such a legal principle as a conflict of interest did he even know that and if he didn't know that how could be reasonably be expected to raise it concerning the filings of motions by the attorney it's true that mr barnett did not file any sort of motion regarding restricting the prosecution he also didn't file any written motion to withdraw the police he just went ahead and did it there is nothing you seem to be subtly or not so subtly changing your whole focus here from giving in correct advice about the one or two shooters theory as a reason why he should withdraw plea to a conflict of interest so is it both or is it absolutely it's both this attorney had no business representing somebody when he is declaring to the court you're not giving my client enough time it's not enough we and no i don't believe that that can be considered constitutionally adequate representation i tried to reach mr barnett mr barnett wouldn't respond to it i submit that when there is a conflict of interest by the attorney anything that the attorney does is improper and is automatically ineffective assistance of counsel i just want to raise one other thing cited in the rebuttal brief williams v taylor two thousand if for example a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence such findings clearly result in an reasonable in an on reasonable determination of the facts cases that that's terry williams v taylor five twenty nine to us three six two and they cite to taylor v ma it's highly implausible it's not highly implausible there is not one word in the record that contradicts any of our claims and he hasn't mentioned one i want to go back to this issue of you're here claiming you gave them improper advice six months earlier that's w withdrew his plea and you're claiming conflict of interest i don't think that your question of conflict of interest is included in the certificate of appeal ability the conflict of interest is part of the issue of ineffective assistance of counsel and attorney who has a conflict of interest desire to magically acting in effectively we don't have a set or you don't have a certificate of appeal ability on that i have a certificate of appeal specific ineffective assistance claim that you're making about this improper advice that is global claiming that you can then raise anything you want about ineffective assistance any time