Legal Case Summary

We will hear argument next in case 12, 4, 14, but versus Titlow. Mr. Bush? Thank you, Mr. Chief Justice, and may it please the Court. No Court has ever held that Ed Putt and Strickland can be satisfied by presumption based on a silent record. Yet that is precisely the approach the Sixth Circuit adopted in granting habeas relief here. The record doesn't say how attorney-toka investigated or what advice attorney Toka gave. But based on that record silence, the Sixth Circuit assumed Toka was ineffective and under Ed Putt and Strickland, the presumptions run the opposite way. Now, if there is one thing that the Court takes away from the oral argument this morning, I hope that it's this. How upside down the Sixth Circuit's analysis is when it says on page 19a of the petition appendix that Toka was deficient because the record contains no evidence that he advised Titlow about elements, evidence, or sentencing exposure. The correct question is whether the record contains evidence that Toka did not do those things, and that record silence is dispositive in favor of the State Unhabious Review. Now, if we could pull the curtain back and see what really happened here, it may be the case that Toka gave the proper advice that he advised Titlow about all the perils of going to trial, and that Titlow continued to maintain her innocence. Under Strickland, we're supposed to presume that Toka did exactly that, especially when it's Titlow's burden to satisfy the burden of proof, and she failed to do that. So I'd like to begin with our first issue, which is Ed Putt's deference and the performance prong of Strickland. Kagan, I just asked a question about what you just said. The record just showed that this Toka came into the case very late in the day, and he asked to have a postponement because he said, I have to get up to speed. I don't know anything about this case. So Toka himself is saying, I'm not acquainted with the case. Well, I don't think he's saying that, Justice Ginsburg. He's saying, I'm not prepared for trial yet, but he says, I've got a lot of materials here. He goes through a very sophisticated sentencing analysis with the sentencing court in this plea withdrawal hearing. If you understand Michigan sentencing, if you've got a manslaughter charge, there's a grid, and there's all kinds of different boxes that this could have fit into. And he would have had to have analyzed the evidence in order to determine that the two to five range was appropriate for a manslaughter conviction and to be able to then negotiate with the prosecutor about whether that was or was not appropriate. And so we know that Toka did a lot of work. What's the sentence that was ultimately imposed after the trial for the second degree murder conviction within the guidelines, within the Michigan guidelines? Yes, it was. What do you know what those guidelines were? I don't recall, but it's something on the range of 15 to 20 years. And when we're talking about guidelines, it's important for the court to understand the difference between what the guidelines called for for manslaughter and what was in the plea agreement because Michigan's got this indeterminate sentencing system where you've got a range for the lower end. And so the plea deal was seven to 15 years on the lower end. And a manslaughter conviction, that is, if they had gone to trial and lost for manslaughter, that lower end was two years to five years. And so it was entirely reasonable from an objective perspective for an attorney looking at this record at the time the plea was withdrawn to say, yes, if you want to maintain your innocence, the most likely bad result that trial is most likely better than the plea deal that you already have

. Sure, there's a risk that something worse could happen, but this Court has said in Strickland and Laffler and other places that bad predictions are not deficient performance. And so really when you get down to it, it's really a problem with both the advice being reasonable, but also the failure to carry the burden of proof. It's just the case that TITLO has not come forward to demonstrate as he was required to do, she was required to do, on the record. What TITLO or what TOTCA did to investigate and what advice TOTCA actually gained? When we're asking whether the advice was reasonable, what force do we give to the proposition that a well-counseled defendant was now insisting that he wanted to change his plea? And there was only three days. How do we factor that in? If we look just at what the council did, I think that's an important thing. It may lead us to one answer, but if we know that a previously well-counseled defendant had now changed his mind and wanted to withdraw, how do we factor that in? I think that's a significant factor because as you point out before the ink was even dry on the plea agreement, TITLO was already in prison saying, I'm innocent, maybe I should be withdrawing this plea, setting in motion a chain of events that resulted in her firing the first attorney and then hiring a second attorney. And I don't think that the Court of Appeals, the Michigan Court of Appeals, articulated any kind of a per se rule about that. Certainly, we all understand that the ethical obligation of the lawyer is that if your client insists that they want to maintain their innocence, you have to allow them to do that. But what the Court of Appeals did at Hage's 100 to 101A of the petition appendix, it looked at that, but it also looked at the other evidence. It looked at the Strickland presumption that TOTCA did his job. And then it says that the very conclusion of that sentence, based on all the proofs and arguments presented, TITLO failed to satisfy her burden. If you can. The innocence was one part of that. Could you explain the procedural situation before the Michigan Court of Appeals? There was a motion by the Respondent for a remand to the trial court to create a record as that correct on the issue of ineffective assistance of counsel. And so the question that the Court of Appeals had to decide was whether the materials that were submitted by the Respondent were sufficient to justify the hearing. That's correct. The Court of Appeals, I gather, said they're not sufficient, incited among other things or principally the fact that the Respondent had claimed innocence, and that was a reason for the change of attorney. So the issue really wasn't that that was before them. It was really not entitlement to relief, but in the course of deciding whether there should be a remand, they necessarily got to the issue of whether there was an entitlement to relief. Is that correct or do I not? Just to be clear about Michigan procedure, the defendant has an opportunity to ask for what's called a ginsere hearing in Michigan, and that's this evidentiary hearing to develop a record for an ineffective assistance claim. TITLO did not ask for that hearing in the trial court. She did ask for it in the Michigan Court of Appeals, but under the Michigan Court rules, this is 7.211 C1A2, she was required to make a proper to justify that hearing on this motion to remand. And so the Court of Appeals, before it issued its merits opinion, issues a one-sentence order that says that motion to remand is denied because you have not profored enough evidence to demonstrate that a hearing is warranted. And that makes sense because the only proper was the polygraph, the lusstigaffa david and the Pearson affidavit. It would have been entirely appropriate, this often happens, that TITLO herself would have submitted an affidavit saying, this is what TITLO knew, or I'm sorry, this is what token knew, this is what token advised, and I relied on that. Or it sometimes is even the case that the previous Defense Council is willing to submit the affidavit that says, this is what I knew, this is the advice that I gave. None of that was there. And so that's why you have this denial of the motion

. So now in the context of that record and Justice Kennedy, the claim of innocence, and this whole thing being said in motion by that claim of innocence, it was quite easy for the Michigan Court of Appeals to say that on the proofs presented, and in light of the Strickland presumption, there was nothing objectively unreasonable about allowing TITLO to call her plea. Kagan, just thinking about that Michigan Court of Appeals decision, there's one sort of troubling line in it to me. It says, when a defendant proclaims his innocence, it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty, no matter how good the deal may appear. And one way to read this is it's a kind of categorical rule which says that when a defendant says he's innocent, basically your obligations to properly advise him about a plea go away. Now, I understand you not to read it that way. So could you tell me a little bit about what you think of that question and why you read the sentence the way you read the sentence? Yes. I think it would be very difficult to defend the opinion if that was the only sentence of analysis because we do not agree that a simple claim of innocence by your client relieves the attorney of any responsibility to do anything. That's not what happened here. Four sentences before the sentence, you just read on page 101A. The Court of Appeals talks about the Strickland presumption that the attorney is doing his or her job. Two sentences after that sentence you just read on page 102A. The Michigan Court of Appeals specifically says on the proofs and arguments offered by defendant, there's no ineffective assistance here. And so that was part of a larger discussion about attorneys who do their job when their clients are claiming innocence and you have to put all that together. And I think it's significant also that the Michigan Court of Appeals was giving Titlow the benefit of the doubt here because on page 100A, just one page earlier, it assumes Titlow's position. That is, that Toka actually gave the advice to withdraw the plea. We don't even know that because we don't have credible evidence in this record. We don't have an affidavit from Titlow. We don't have an affidavit from Toka that indicates that Toka ever gave that advice. Again, if you could draw the curtain back, it may very well have been as we assume under Strickland that he totally and completely advised about all the risks of trial before the plea was withdrawn. K. Can you clarify something from me about habeas corpus law? Yes. So I have to imagine the facts. So let's take it as a hypothetical. That the U.S. to the district attorney says this lawyer was adequate and really two factors make that obvious. The first factor is that the client said that she was innocent and taking that into account with the other things, that could have justified adequately. His withdrawal of the plea and not convincing or not to. Second, the sentence that the district attorney wanted to give was more than a year greater than the guidelines for manslaughter

. And that could have justified it. Now, it writes the court then, writes in its opinion only the second reason and never mentions the first. Now we go to habeas. And the habeas court thinks that second reason is pretty flimsy there. Gee, she was exposing herself to murder, et cetera, pretty flimsy. The first isn't so bad, but they didn't rely on it. Okay, so now what is the habeas court supposed to do? Is it should the defendant have gone back to the state court first? Is the habeas court supposed to have its own independent hearing and make up its own mind? How is this work? That's a delightful question. No, I'm glad I'd love to have you answer this. And I want to start with a record response to distinguish our case from your hypothetical and then address the habeas question. Your hypothetical assumed that the state court only mentioned one of the two reasons. And here, obviously the Court of Appeals talked about innocence. We've discussed that at length. But on page 100A of the opinion, the Court of Appeals also notes that the defendant moved to withdraw her plea because the agreed upon sentence exceeded the sentence and guidelines range. So they're both here. But assuming you're hypothetical that we only had one and not two, the question is really easy under 2254. Because so long as the decision was not a misapplication of this Court's clearly established precedent, there's no violation, even if they're reasoning might not have been as strong as it could have been had they mentioned the other reason. So next habeas question, does the defendant get an opportunity to have a Federal habeas hearing to further develop the record about what happened? And the answer is no. Because under 2254, you won an E2. There's a presumption of correctness about everything that was found in the State Court system. And there's no right to get a Federal evidentiary hearing if you have not adequately pursued your ability to develop the record in the State Court. And as Justice Alito has already pointed out, it was Titlow's failure, not the State's failure, to properly proper evidence to get the game through hearing. What do you make of the fact that at the change of plea hearing, the first attorney didn't mention the claim of innocence, only mentioned the fact that the sentence was above the guidelines? I don't think that's significant because those two things are not mutually exclusive. The defendant could believe in her heart of hearts that she's innocent, and at the same time, the attorney could acknowledge that there are facts in the record already admitted that a reasonable jury could conclude that you were guilty of manslaughter. And so it would not be inconsistent for that attorney to argue for a lower guidelines range in the plea. And so there's really nothing inconsistent about that. But the important thing to understand here is just the failure of the burden of proof. The Sixth Circuit is upside down when it reads into the record silence in effective assistance. When you say the record silence, silence, I'm looking at a joint appendix aged 295, and this is Chitlow's statement. I would have testified against my ad, and I not been persuaded to withdraw my plea agreement because an attorney promised me he would represent me, he told me he could take my case to trial and win

. So that sounds like she was persuaded by Mr. Chowkha to go to trial because she could win. And he hadn't at that point not made any appraisal of the case. Well, first I have to disagree with the premise of your question, Justice Ginsburg, because there's no doubt that Toka made an appraisal. He had the quote from the plea withdrawal hearing as a lot of materials, and he made a very sophisticated argument about what the guidelines range should be, and that range was lower than the plea actually offered. But what you need to understand about this testimony from Titlow right here, this was a plea for leniency at sentencing. This was not part of the proffered of the Michigan Court of Appeals as part of the motion for remand. What Titlow could have done was submit her own affidavit or the affidavit from Toka establishing whether this was actually true or not. In addition, you've got to take the context of this and juxtapose it against the other things that Titlow is saying at this very same sentencing hearing. And it's remarkable, really, that she says both of these things. She says she feels sorry for her aunt, Billy, for being this manipulating an evil person, and thanks God that she did not do what Billy asked her to do. And she says it was only because of her, Titlow, that the truth came out. So somehow it's still a claim of innocence, even after trial, even after there's been a conviction. If there are no further questions, I will reserve the balance of my time. Thank you, counsel. Ms. O'Connor? Mr. Chief Justice, and may I please the Court? There are two primary points that the United States would like to make. First, when evaluating Strickland prejudice in the context of a rejected plea offer, the statement of a convicted defendant that she would have accepted the plea absent deficient advice should be viewed with skepticism and to support a finding of causation, the statement should be judged based on all the objective circumstances. Second, when a Federal habeas court finds a Sixth Amendment violation in the rejected plea context, it should not categorically require the government to reoffer a rejected plea deal. That decision should be left to the sentencing court and requiring the government to reoffer a rejected plea deal in a context like this case where the plea agreement required the defendant to do something other than plead guilty, give testimony against her aunt. It doesn't make sense, and the government should not be required to make the reoffer. Every defendant who rejects a plea offer and then is convicted after a trial will have an incentive and will want to revert back to a plea deal that she rejected beforehand. The statement of a convicted defendant that she would not have withdrawn her plea absolute years ago, one of my colleagues, if not on this bench, but a different one, said to me, you know, there's much to do about judges basing credibility on demeanor. And he said, no one does that. What you base it on is the internal consistency, logic of the testimony, and how it's corroborated by circumstances. And he said, otherwise, you just rarely hear anybody say, story makes sense. Nothing corrupt, story doesn't make sense. The story's not corroborated, but the guy looks like he's telling the truth

. I'm reading all the decisions that you cited for me, and not one, including in this circuit, relies simply on that kind of statement. Every one of them is based on comparing the testimony to other factors. It's a logic to evidence to objective. So I don't know what rule it is. What objective evidence means. You need corroboration the way you need to prove a murder. Is that what you want us to announce? I don't, we're not asking for any kind of a special rule that there has to be, you know, a certain amount of corroborating evidence in addition to the defendant's statement. I do think it is just a general rule that you have to expand out to all the objective circumstances to evaluate the credibility of the defendant. And what the six circuit said in this case is, unlike some circuits, this court does not require that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence. It said it, but it didn't do it. Well, to the extent that the court was saying that the defendant's statement should be credited or not credited alone without necessarily looking at everything, that's wrong, and to the extent that it looked to other evidence in the record into corroborating circumstances, the ones that it pointed to were two week, and they were also very selective. The court pointed to two things to support. Well, that's what Jury's doing all the time, selectivity. That doesn't move me. What I want to know is why do we announce a rule that somehow suggests a limitation that can't exist, meaning what judges look to to determine credibility relies on factors that you can't sum up in one word? All we're asking the court to announce or to clarify on this question is that the subjective statement or the self-serving statement of a defendant in these circumstances should be viewed with skepticism and that the court every court says that. Well, to the, there could be confusion on what the Six-Sirkit's rule is. I mean, there is the Six-Sirkit believe that it was announcing a rule. Are there rules in this area? I didn't think. Are there rules? I mean, doesn't every judge, whenever that judge is deciding a factual matter or the jury, taken to account from every witness, whether that witness is making a pretty self-serving statement? That's a factor. And I guess we could have some situations, some time in some place, where a witness got on the stand and said something that was totally in his favor, but when you heard it, and you knew the case, hmm, it's right. And then that could happen with this kind of witness to it. Could happen. I'm not saying it very often does, but it could. So why should we have any special rule for these witnesses and not for any other? We are not asking for any kind of a special rule. We are just asking that the Court clarify if it addresses the second question that what the Six-Sirkit is saying that you essentially, if you interpret it to mean that you don't have to look out to all the objective circumstances to determine the credibility of the defendant that that's wrong. Well, you need to give us some examples of things that don't count. I thought it was in your brief that you would say, look, the fact that it turns out to have been a very bad deal. You know, the bargain was one year in the sentence after Gilly was 20 years. That, I take it, you say, is not a corroborating factor

. Not in this case. The disparity between the sentence that a person receives after the plea deal and the sentence that they receive after a trial is going to be present in every case. In fact, it has to be for prejudice. That could be a corroborating circumstance or something to support the defendant statement in a case where, like some of the Court of Appeals' descendants, the defendant was misadvised on sentencing exposure. The lawyer said, well, you should reject this plea deal for 15 years because the maximum that you could get at trial is 20, and so it's worth the risk. But this defendant understood completely and said multiple times on the record that she understood that the potential sentence for a murder conviction was a life sentence and that that was back on the table if she withdrew the plea offer. On the question of this sentence, what do you think were the range of the range of reasonable sentences that could have been imposed in compliance with our recent decisions? So you have the sentence that was offered before the trial, but that was predicated on a testimony and b, not having to go to trial. Then you have the sentence that was imposed after the trial when there was no testimony and there was a trial. So what do you think a trial court could reasonably do in that situation? Just split the difference? Well, I think the trial court has a lot of discretion under the court's opinion. But I think what should have happened in this circumstance is to go back to the sentencing court, not require the government to reoffer this plea deal, which just simply can't be, can't be offered and accepted anymore. In fact, in the record, when you see it being reoffered, they're saying we're offering manslaughter in exchange for her testimony to trial that already happened. It doesn't make sense. In this case, there should be no reoffer. We should go based on the conviction after trial because of that. And perhaps there could be some kind of a reduction of the sentence within the district court's discretion. Why, why, you made the point that this plea bargain could not be carried out once, I mean, the number one condition, the prosecutor said, you testify against your aunt and then we'll give you this deal. So once the aunt is tried and she doesn't testify, there's no plea bargain. So why isn't that enough to decide this case that you can't tell a prosecutor to renew a bargain that can't be carried out that is becoming possible? Well, I mean, we think that's right. I don't know that it makes sense to say that there because there's no remedy that the court shouldn't address the first or second questions. I mean, maybe if the court thinks that there's definitely no remedy in that this 20 to 40-year sentence should remain in place. But exactly. We don't think that the government should be required to reoffer the plea agreement in these circumstances. The lawyer in a position now aren't we where the State Court can do exactly that. It can say the circumstances have changed and so leave everything undisturbed. Yes. One of the problems here is that the Sixth Circuit sort of took as a given that in circumstances like this, that the original plea offer has to be reoffered. And what we think the court was saying in Lafler is that that's one thing that's on the table. It's not necessarily required in every case. There could be other creative remedies like there could be a defendant who can no longer who missed the opportunity to give the testimony she was supposed to give

. But perhaps she has information on somebody else and so maybe we could do a renegotiation of the plea. The Sixth Circuit, we do not think should be just requiring after it finds a Sixth Amendment violation that the government reoffered a plea agreement in circumstances that are different from those in Lafler. But is it that, I mean, the Court didn't say that the Court below, the Sixth Circuit didn't say that the Court below had to accept the reoffered plea agreement. It seemed inherent in Lafler and Fry that what the Court was saying is that the Court below has to use its judgment on whether, excepting the plea is right or giving another remedy is right, all of these arguments should be before that court, not before us, as an absolute rule. That's right. And we simply think that the decision whether to require the government to reoffer it in the first place should also be something that's left up to the sentencing court. So that's your only point, which is that that should be an issue for the Court below. Yes. That this should all be left to the discretion of the sentencing court to come up with an adequate remedy. But some remedy has to be offered. Well, if there is a violation. The Court's opinion in Lafler, I think, leaves that question open, says that it could be the circumstances that the sentencing judge determines that the most fair result is to leave the conviction and the sentence in place. But the sentencing court has that discretion. Thank you. Thank you, counsel. Ms. Newman? Mr. Chief Justice, and may it please the Court. There is no question that the Michigan Court of Appeals erred and created an end run around Strickland in finding the professed, that if a defendant professes innocence, that there's no need to look any further to say that defense counsel provided effective assistance. There is also a agreement with you in Soto-Jurevice. But he says there is nothing in this record to show what research was done or not done. The fact that the prior counsel's record wasn't reviewed doesn't say that he didn't talk to the prosecutor, doesn't say that he didn't look into other record evidence, any of the discovery that had been filed with court or any of the other circumstances that put him in prison adequately. That's partially true, Justice Sotomayor. The record does show that at every turn when Mr. Tocca stepped into the courtroom, he asked for more time and indicated he wasn't ready. The record does show that as soon as the plea was withdrawn, Mr. Tocca said, I need more time. I'm not ready to go to trial on an all fairness. My client deserves to have a fair trial

. I'm not ready. If he's not ready to go to trial, he doesn't have a good handle on what the record is. My brother counsel makes an argument that Mr. Tocca made a very sophisticated sentencing analysis and therefore had a grasp by the record. I would disagree with that interpretation of the record. Mr. Tocca came in and said that the guidelines were two to five on the minimum sentence. The prosecutor said, I don't know what the guidelines are and I don't care. We don't even know if his recitation of what the guidelines range was accurate. So there's nothing on this record to show that Mr. Tocca even knew anything about the appeal. Well, you're arguing that. He needed to have enough material and to have familiarized himself enough with everything that's relevant to the case, to be able to go to trial before he could move to have the previous plea withdrawn. No, my argument does not go that far. What I'm asking. All right. Well, but I don't understand what the argument was. The argument is that Defense Council has a duty to investigate. The defense attorney has a duty to be able to inform the client of the risks of either accepting a plea withdrawing a plea, whatever the case. In this case, it's withdrawing a plea that's already been accepted by the Court. This is a very significant step in this matter. Well, that's true, but you have the duty or counsel for the defendant as the duty to show that counsel did not do that. It's, you know, it seems to me you're putting the burden on the other side to prove that the counsel knew all of this. That's not the way that it's not the way the game has played. I agree with that, Justice Scalia, and we're not putting the burden on the other side. There is, if the, I will refer the Court to the Pearson affidavit, which is in the joint appendix at page 298. That affidavit, in particular, paragraphs 67 and 8 indicate that at an arbitration hearing, we're mistitled, testified, and Mr. O, or Deputy Sheriff's Deputy, testified, and at arbitration hearings, witnesses are put under oath. And the affidavit is a sworn affidavit from an attorney

. So it is, and notarized affidavit from, about testimony that was taken under oath, that indicates that Mr. Toka approached Mr. Titlow while she was in jail, while she was represented by counsel, that the approach was you should reject the plea and not testify against her aunt. That's the evidence that we have in the record. And that is not just Mr. Titlow. The Court could be clear, isn't that after Titlow had asked for an attorney because Titlow had talked with the jailer who encouraged Titlow to plead innocence. So this, so that you had to include that preface to this statement, or it's quite incomplete, or correct me if that's wrong. I would say that's wrong, and that's where the Court of Appeals was wrong again, and why the State Court's findings aren't at all to no difference. Because the State Court took that affidavit from William Pearson and turned the words on its head. That the affidavit does not state that Bonnley Titlow approached the Sheriff's Deputy and asked for a new attorney. The affidavit states that the Sheriff's Deputy approached her. He told her she should consult with his attorney because his attorney was really good, and his attorney would be able to help her. And so it's the Sheriff's Deputy, unequivocally, from the Safidavit because it's the only place that this evidence comes from. It's the Sheriff's Deputy, I'm sorry, where you're looking, it's on page 298 of the Joint Appendix and William Pearson's affidavit, is the Sheriff's Deputy that sets everything in motion about innocence. Why does he do that? Because he's in the courtroom when the plea is entered. And what is part of the plea? Part of the plea is that Bonnley Titlow passed a polygraph. What do a layperson, what does that mean? You passed a polygraph, you're innocent. You didn't do the crime. Well, in this case, that's not the situation at all. The passing of the polygraph cemented her guilt in participating in this crime. But what she passed in the polygraph was that she was an aiter in a batter. So it was her aunt who took the pillow and smothered her uncle, not Miss Titlow. But she was present, she participated, she accepted money after the crime. So everything that happened in the Michigan Court of Appeals took the actual facts and turned them on its head, which is why the factual findings are not entitled to death. Is it unreasonable to read the Pearson affidavit and use subit at that? Isn't that correct? Correct. All right. To read it to me that there were discussions between Deputy Ott and Titlow. And Titlow said she wasn't guilty

. Ott said, well, if you're not guilty, you shouldn't plead guilty. I will refer you to an attorney if you want me to. I could ask somebody to come and talk to me. That seems to be a direct quote from Titlow, isn't that? So isn't it reasonable to read it that way? Just as little, that's one part of what you said I would agree with that there would do, it does state in the affidavit certainly that he had an attorney that was really good and could ask somebody to come talk to me. But the rest of the statements I would argue are inferences and not fact. And we have that in the affidavit. The point is that there has to be some evidence. You're saying that the Court was wrong when they said your client said she wasn't guilty. Now, this affidavit doesn't show that. I mean, paragraph 6 doesn't say who spoke first, but Common Sense suggests that Deputy Sheriff wouldn't have made that statement unless she spoke first. I mean, does he go around saying to everybody just generally, oh, you know, if you're not guilty, you shouldn't plead guilty. I mean, it says they had discussions. And during the discussions, he told us she shouldn't plead guilty if she wasn't guilty. It also says without due respect that Deputy approached her. Kagan, he said, we're approached her and discussions with her. It doesn't say why he approached her. I mean, I just don't think people normally do that. They go to every person in jail and say, you know, if you're not guilty, you shouldn't plead guilty. I mean, somebody might, but something triggered that advice. And the affidavit doesn't tell me what triggered that advice, so I could infer that what triggered the advice was her statement she wasn't guilty, or I could infer. This is an unusual situation where for some reason unknown, he brought it up. I don't know from reading paragraph 6. So who's burden is it? Kagan, I would argue that it's an inference that doesn't matter. It's an okay. In this case. It doesn't matter. Why doesn't it matter? Because if she went, she said, you know, I'm not really guilty. He said, well, you shouldn't plead guilty. She said, well, I have a lawyer that will get rid of your guilty plea. If it went something like that, and then we assume the lawyer was told about this, doesn't say that it's a rat-reasonable assumption. And then the court opinion of the Michigan seems to make sense that that was a reason. That was one of the reasons that made his conduct in withdrawing the plea or, you know, not strongly advising her against it. That was one reason why that wasn't an end to how to put assistance with counsel. Now, where have I made my mistake in this? Well, in paragraph 8 of William Pearson's affidavit on page 298, it indicates that it was Frederick Tocque who encouraged her to reject a plea agreement to testify against the end. So again, we have the attorney who is not Ms. Titlow, who's saying, I want to withdraw my plea. It's the attorney who is saying to her an encouraging her to reject a plea. Now, this may be the first case that I've been involved in as a judge, and there might be others, but myself personally, where in a situation like this, the defendant has not put in an affidavit to explain what happened. There is some force to your adversary's argument that there's a really harsh record here, and Epidepharence requires the burden on you. You can't deny that. I guess I don't know if you were responsible, but what are the circumstances that would occasion a defendant not saying, this is what I was told? Right, I was not the attorney. I came into the case at this level. So I did not do any of the litigation below. However, there is record evidence to support not what, there is record evidence that supports the claim, and maybe was a strategic decision by the attorney not to submit other affidavits, because the attorney was simply looking for a hearing to expand the record. So we have both asked for the hearing in the court below. They only asked for it at the court of appeals. The way Michigan works is within 56 days of getting the transcripts you can file in the trial court. If you fail to make that 56-day deadline, then your alternative is to go to the court of appeals and ask for a remand. So we don't know when the case got to the attorney. So I don't think that there's any inference that can be drawn from the fact that within that very short time period there was no motion filed in the trial court. Who was the attorney at that stage? It take it. It wasn't the trial attorney because the big part of the claim before the Michigan Court of Appeals was that the trial attorney was also ineffective. Right. It was in a pellet attorney, Liz Jacob, was the attorney at that stage. And she's with your office or she's in a- She's not with my office, but she was appointed. I don't know if she was appointed or retained, but she's not with my office. May I ask you, Newman, if you would agree that the Sixth Circuit was wrong, at least to this extent, is there what is the argument for directing a prosecutor to make a plea offer that was never previously made? The offer that was made is impossible to carry out now. The offer was conditioned on her testimony at her and her trial

. If it went something like that, and then we assume the lawyer was told about this, doesn't say that it's a rat-reasonable assumption. And then the court opinion of the Michigan seems to make sense that that was a reason. That was one of the reasons that made his conduct in withdrawing the plea or, you know, not strongly advising her against it. That was one reason why that wasn't an end to how to put assistance with counsel. Now, where have I made my mistake in this? Well, in paragraph 8 of William Pearson's affidavit on page 298, it indicates that it was Frederick Tocque who encouraged her to reject a plea agreement to testify against the end. So again, we have the attorney who is not Ms. Titlow, who's saying, I want to withdraw my plea. It's the attorney who is saying to her an encouraging her to reject a plea. Now, this may be the first case that I've been involved in as a judge, and there might be others, but myself personally, where in a situation like this, the defendant has not put in an affidavit to explain what happened. There is some force to your adversary's argument that there's a really harsh record here, and Epidepharence requires the burden on you. You can't deny that. I guess I don't know if you were responsible, but what are the circumstances that would occasion a defendant not saying, this is what I was told? Right, I was not the attorney. I came into the case at this level. So I did not do any of the litigation below. However, there is record evidence to support not what, there is record evidence that supports the claim, and maybe was a strategic decision by the attorney not to submit other affidavits, because the attorney was simply looking for a hearing to expand the record. So we have both asked for the hearing in the court below. They only asked for it at the court of appeals. The way Michigan works is within 56 days of getting the transcripts you can file in the trial court. If you fail to make that 56-day deadline, then your alternative is to go to the court of appeals and ask for a remand. So we don't know when the case got to the attorney. So I don't think that there's any inference that can be drawn from the fact that within that very short time period there was no motion filed in the trial court. Who was the attorney at that stage? It take it. It wasn't the trial attorney because the big part of the claim before the Michigan Court of Appeals was that the trial attorney was also ineffective. Right. It was in a pellet attorney, Liz Jacob, was the attorney at that stage. And she's with your office or she's in a- She's not with my office, but she was appointed. I don't know if she was appointed or retained, but she's not with my office. May I ask you, Newman, if you would agree that the Sixth Circuit was wrong, at least to this extent, is there what is the argument for directing a prosecutor to make a plea offer that was never previously made? The offer that was made is impossible to carry out now. The offer was conditioned on her testimony at her and her trial. That didn't happen, so there is no plea bother and offered. And yet the court instructs a renewal, instructs the prosecutor to renew an offer that doesn't exist. Justice Ginsburg as the court decided last term in Lafler, V. Cooper, the point of the remedy is to put the defendant as closely as possible back in the position he or she would have been in but for the ineffective assistance. In Lafler, V. Cooper, the court recognized that there's going to be situations where circumstances have changed and there's going to be circumstances where that is not possible to do that exactly. In this case, of course, she cannot testify against her aunt because her aunt was acquitted and is deceased. How could the court order the prosecutor to renew an offer that can't be made? Well, it is an offer that can be made if you remove the conditioned precedent. So the offer, the premise of the offer is a charge reduction. But the first thing you have to do is to make this bother, once he wanted the testimony, so how can that this, I've never seen anything like this where a court orders a prosecutor to make a plea offer that was never made? Well, again, referring to Lafler, V. Cooper, the remedy goes that the Sixth Amendment right attaches to the defendant, not to the prosecution. So the goal here is to remedy if the court finds and agrees that there's a Sixth Amendment violation to remedy that Sixth Amendment violation. If there's an unequal burden to be borne by one side or the other, it has to be borne by the government. And so therefore, the way to remedy the Sixth Amendment violation, it was a charge reduction, is to reoffer the manslaughter plea, which has already been done in this case, by the way. My client has already accepted that plea. And then it's up to the trial court now whether or not to accept the plea, reject the plea, or do some sort of modification, which is exactly what the Sixth Circuit ordered and is exactly what this court ordered in Lafler, V. Cooper, to allow the trial court to have the discretion in fashion and the remedy that both will take care of the Sixth Amendment violation and can balance the concerns of the prosecution and what's been lost in that process, but still be able to craft a remedy. I don't know that it's a strange to make the prosecution submit an offer that can no longer be accepted. I mean, it doesn't seem to me anymore strange than to make the prosecution submit an offer where the situation was at the beginning. You do this, and I won't, you know, I won't prosecute. The could pro quo as you avoid the possibility of conviction. But here she's already been convicted. She had a trial, you know, by 12 fair impartial jurors, and she was guilty. That's what the jury found. So it seems to me just as strange to make the prosecution know that we know she's guilty submit that prior offer. So I mean, it seems to me quite weird in any event. So one incremental weirdness is not so bad. Kulia, though, I think you hit the point on the head. She was always guilty

. That didn't happen, so there is no plea bother and offered. And yet the court instructs a renewal, instructs the prosecutor to renew an offer that doesn't exist. Justice Ginsburg as the court decided last term in Lafler, V. Cooper, the point of the remedy is to put the defendant as closely as possible back in the position he or she would have been in but for the ineffective assistance. In Lafler, V. Cooper, the court recognized that there's going to be situations where circumstances have changed and there's going to be circumstances where that is not possible to do that exactly. In this case, of course, she cannot testify against her aunt because her aunt was acquitted and is deceased. How could the court order the prosecutor to renew an offer that can't be made? Well, it is an offer that can be made if you remove the conditioned precedent. So the offer, the premise of the offer is a charge reduction. But the first thing you have to do is to make this bother, once he wanted the testimony, so how can that this, I've never seen anything like this where a court orders a prosecutor to make a plea offer that was never made? Well, again, referring to Lafler, V. Cooper, the remedy goes that the Sixth Amendment right attaches to the defendant, not to the prosecution. So the goal here is to remedy if the court finds and agrees that there's a Sixth Amendment violation to remedy that Sixth Amendment violation. If there's an unequal burden to be borne by one side or the other, it has to be borne by the government. And so therefore, the way to remedy the Sixth Amendment violation, it was a charge reduction, is to reoffer the manslaughter plea, which has already been done in this case, by the way. My client has already accepted that plea. And then it's up to the trial court now whether or not to accept the plea, reject the plea, or do some sort of modification, which is exactly what the Sixth Circuit ordered and is exactly what this court ordered in Lafler, V. Cooper, to allow the trial court to have the discretion in fashion and the remedy that both will take care of the Sixth Amendment violation and can balance the concerns of the prosecution and what's been lost in that process, but still be able to craft a remedy. I don't know that it's a strange to make the prosecution submit an offer that can no longer be accepted. I mean, it doesn't seem to me anymore strange than to make the prosecution submit an offer where the situation was at the beginning. You do this, and I won't, you know, I won't prosecute. The could pro quo as you avoid the possibility of conviction. But here she's already been convicted. She had a trial, you know, by 12 fair impartial jurors, and she was guilty. That's what the jury found. So it seems to me just as strange to make the prosecution know that we know she's guilty submit that prior offer. So I mean, it seems to me quite weird in any event. So one incremental weirdness is not so bad. Kulia, though, I think you hit the point on the head. She was always guilty. And as my brother, counsel, stated, this case in some ways is very, very similar to Cooper. You have comments on the record by Frederick Toca that the prosecution has made comments and they referenced this in the appendix. They referenced a newspaper article. The prosecutor talks about the fact that this is nothing more than a manslaughter case. This is, we're charging first-degree murder, but really it's sort of a, uh, in sheep's clothing. It's really just manslaughter. And Frederick Toca is saying on the record, this is just a manslaughter case. Why should my client accept an above guideline sentence of a seven-year minimum and have to testify against a codifier and a defendant? She's going to go to trial and the prosecutor has already admitted this is nothing more than a manslaughter case. So she'll be convicted of manslaughter and she's going to be in a better position following trial and conviction just like in Cooper. There was no question, Mr. Cooper was going to be convicted. There was no question at all. Defense counsel gave the same advice. You can't be convicted of the charged offense. You're going to be convicted of a lesser offense. And following that conviction, you will be in a better position for sentencing. Then you will be with this plea. If that's the case. Sex are in all fours. I don't know. Your argument seemed to be had a head on collision. If this is nothing but a manslaughter case, then why was, what argument do you have the Toca was ineffective in saying, let's go to trial. So if you convicted a manslaughter without the plea, you'll get your guideline sentence on the manslaughter case. Because this, for the same reason, in Cooper, he was absolutely wrong and he was not aware of the evidence that had been martial art against Mr. Tittle, including the manslaughter case. So I thought you were just saying it's a manslaughter case. I'm saying that his representations on the record are similar to the representations made by Mr. Cooper's attorney on the Russian. That you will, in response to the Justice, she was convicted of second-degree murder, right? She was convicted of second-degree murder

. And as my brother, counsel, stated, this case in some ways is very, very similar to Cooper. You have comments on the record by Frederick Toca that the prosecution has made comments and they referenced this in the appendix. They referenced a newspaper article. The prosecutor talks about the fact that this is nothing more than a manslaughter case. This is, we're charging first-degree murder, but really it's sort of a, uh, in sheep's clothing. It's really just manslaughter. And Frederick Toca is saying on the record, this is just a manslaughter case. Why should my client accept an above guideline sentence of a seven-year minimum and have to testify against a codifier and a defendant? She's going to go to trial and the prosecutor has already admitted this is nothing more than a manslaughter case. So she'll be convicted of manslaughter and she's going to be in a better position following trial and conviction just like in Cooper. There was no question, Mr. Cooper was going to be convicted. There was no question at all. Defense counsel gave the same advice. You can't be convicted of the charged offense. You're going to be convicted of a lesser offense. And following that conviction, you will be in a better position for sentencing. Then you will be with this plea. If that's the case. Sex are in all fours. I don't know. Your argument seemed to be had a head on collision. If this is nothing but a manslaughter case, then why was, what argument do you have the Toca was ineffective in saying, let's go to trial. So if you convicted a manslaughter without the plea, you'll get your guideline sentence on the manslaughter case. Because this, for the same reason, in Cooper, he was absolutely wrong and he was not aware of the evidence that had been martial art against Mr. Tittle, including the manslaughter case. So I thought you were just saying it's a manslaughter case. I'm saying that his representations on the record are similar to the representations made by Mr. Cooper's attorney on the Russian. That you will, in response to the Justice, she was convicted of second-degree murder, right? She was convicted of second-degree murder. And in this case, in Cooper, the defense attorney never filed a motion to quash. So we never challenged the efficiency of the evidence. In this case, attorney number one, Mr. Lustig, did file a motion to quash. He tested its efficiency, the legal sufficiency of the prosecution's case for first-degree murder. Now, there's no question. You have my head spinning. I thought you were making the argument that there's nothing unfair about requiring acceptance of, about the imposition of a manslaughter sentence because this was a manslaughter case. I thought you were making that argument. I'm not making that argument. I don't understand that. I'm not making that argument. I thought you were making that argument. There is a reason that they spoke about, which was, well, she said she was innocent. Now, as to that one, what they wrote, is the record discloses that the second attorney's advice was set in motion by defendant, State, and to share a step that he did not commit the offense. Now, you say that's just contrary to fact, you should point to the affidavit. The affidavit I read, I think it's a little more rather ambiguous in that respect, and I can overturn that, or a Federal court can only if this factual statement I just read you is clearly wrong, clearly. So I have a tough time saying it's clearly. And I know they overstated it because they said, it automatically. That's good. Well, maybe in overstatement, you have to read it in life of that sentence. But then you're making a second argument. I caked it, if this is right. Your second argument is, anyway, he was incompetent for a completely different reason. He didn't read the record. And if he'd read it, he never would have made the statement that this is just a man's slaughter case. He would have seen that if she withdrew her guilty plea, she'd be tried for murder, and then she'd get a really long sentence. So that's an ineffective assistance of counts. Now, what does the Court in Michigan say about that? Nothing

. And in this case, in Cooper, the defense attorney never filed a motion to quash. So we never challenged the efficiency of the evidence. In this case, attorney number one, Mr. Lustig, did file a motion to quash. He tested its efficiency, the legal sufficiency of the prosecution's case for first-degree murder. Now, there's no question. You have my head spinning. I thought you were making the argument that there's nothing unfair about requiring acceptance of, about the imposition of a manslaughter sentence because this was a manslaughter case. I thought you were making that argument. I'm not making that argument. I don't understand that. I'm not making that argument. I thought you were making that argument. There is a reason that they spoke about, which was, well, she said she was innocent. Now, as to that one, what they wrote, is the record discloses that the second attorney's advice was set in motion by defendant, State, and to share a step that he did not commit the offense. Now, you say that's just contrary to fact, you should point to the affidavit. The affidavit I read, I think it's a little more rather ambiguous in that respect, and I can overturn that, or a Federal court can only if this factual statement I just read you is clearly wrong, clearly. So I have a tough time saying it's clearly. And I know they overstated it because they said, it automatically. That's good. Well, maybe in overstatement, you have to read it in life of that sentence. But then you're making a second argument. I caked it, if this is right. Your second argument is, anyway, he was incompetent for a completely different reason. He didn't read the record. And if he'd read it, he never would have made the statement that this is just a man's slaughter case. He would have seen that if she withdrew her guilty plea, she'd be tried for murder, and then she'd get a really long sentence. So that's an ineffective assistance of counts. Now, what does the Court in Michigan say about that? Nothing. Nothing. So now I wonder. Maybe nobody made that argument to them. Or maybe they made it and they rejected it, sub-Solendu. That's why I asked my first question. Okay? So, and you heard the response. Even if they were had heard that argument and they said nothing about it, they don't have to mention every argument made. If they just deny, we assume they deny it. And what we do is see whether they were within their rights to deny. That's how we're supposed to look at it. Does it clearly violate Supreme Court law to deny it? And there's going to be a factual part of that and a legal part. All right. How do we deal with that? Well, 2254 has separate provisions for the legal aspect of the matter. Well, first of all, did anybody make the argument as clearly as you have made it? I saw what it was. I think. So, did anybody make that argument to the Michigan Court? Not that I'm aware. Okay. Well, that's the end of that, isn't it? I mean, what you're coming or you have to proceed by asking for reopening in the Michigan Court and then see if they say it's too late and then, you know, it's after they're all spilled out in this opinion, which I can't remember, Colin or Pinnholtz or something. And this isn't an argument for us now. It's just a factual argument trying to respond to the Court's questions about what happened in this case and about what is contained in the record and what Mr. Toka did to the Court. If I could move beyond the particular facts to some of the broader points that the Solicitor General has raised, if you don't have the requirement of at least some corroboration, then all you have in every case is a completely self-serving assertion. I wouldn't have pled guilty if, you know, I'd known this or I'd known that. And everybody will raise that argument. Everybody raises ineffective assistance of counsel. Anyway, and they'll just add on to it this plea assertion. I mean, shouldn't it be, the Sixth Circuit really went out of its way and saying there's no requirement of corroboration at all? Mr. Chief Justice, there's no question the Sixth Circuit in Dicta said that we don't require it, but it exists in this case. And the reality is, as we discuss in our brief, that every circuit looks, it's a strict discipline analysis, just like every other strict discipline analysis

. Nothing. So now I wonder. Maybe nobody made that argument to them. Or maybe they made it and they rejected it, sub-Solendu. That's why I asked my first question. Okay? So, and you heard the response. Even if they were had heard that argument and they said nothing about it, they don't have to mention every argument made. If they just deny, we assume they deny it. And what we do is see whether they were within their rights to deny. That's how we're supposed to look at it. Does it clearly violate Supreme Court law to deny it? And there's going to be a factual part of that and a legal part. All right. How do we deal with that? Well, 2254 has separate provisions for the legal aspect of the matter. Well, first of all, did anybody make the argument as clearly as you have made it? I saw what it was. I think. So, did anybody make that argument to the Michigan Court? Not that I'm aware. Okay. Well, that's the end of that, isn't it? I mean, what you're coming or you have to proceed by asking for reopening in the Michigan Court and then see if they say it's too late and then, you know, it's after they're all spilled out in this opinion, which I can't remember, Colin or Pinnholtz or something. And this isn't an argument for us now. It's just a factual argument trying to respond to the Court's questions about what happened in this case and about what is contained in the record and what Mr. Toka did to the Court. If I could move beyond the particular facts to some of the broader points that the Solicitor General has raised, if you don't have the requirement of at least some corroboration, then all you have in every case is a completely self-serving assertion. I wouldn't have pled guilty if, you know, I'd known this or I'd known that. And everybody will raise that argument. Everybody raises ineffective assistance of counsel. Anyway, and they'll just add on to it this plea assertion. I mean, shouldn't it be, the Sixth Circuit really went out of its way and saying there's no requirement of corroboration at all? Mr. Chief Justice, there's no question the Sixth Circuit in Dicta said that we don't require it, but it exists in this case. And the reality is, as we discuss in our brief, that every circuit looks, it's a strict discipline analysis, just like every other strict discipline analysis. The Court looks at the entire record and makes a determination based on the record. And this Court is always a shoot, hard, fast, bright-lying rules in terms of telling courts what has to exist in order to make a specific line. So you think the Sixth Circuit was wrong in what your characterizing is Dicta, do you think it was wrong to say that? And that the other circuits which require something in addition that that's the rule that we should adopt? I don't think, no. I don't think that any particular rule should be adopted. I think the rules that exist under Strickland are fine for the circuits. The rules have existed for decades, and the circuits have no trouble figuring out when the threshold is met and when it's not. Well, I thought, maybe I'm misremembering, but the Sixth Circuit distance itself from the other circuits, didn't it? Yes. It did distance itself by state. Well, now you're telling me the circuits have always done this. So the Sixth Circuit at least thinks it's doing something different. It may think it's doing something different, but in this particular case there was objective evidence that they pointed to, and as the Solicitor General mentioned, there's always going to be sentencing disparity because you're going to have to have a sentencing disparity in order to show prejudice. So in a fact, there will always be objective evidence that will support any subjective statement of a criminal defendant, or you're never going to be able to be a prosecutor. Right. In a subjective evidence, that's like saying you don't have to have corroboration. Right, but for this Court, my point is, obviously the Court can set forth a rule, but in doing so, I think we're going to run into what Justice Surtamayer said earlier in terms of judges do this all the time. They figure out who's credible. I mean, it's never just like, here's these things, but this guy's credible, so I'm going to believe him. It's a totality of the circumstances, and it's always going to have to be a totality of the circumstances. So to say, here's the line, there has to be objective evidence, then what is the objective evidence? How are we going to define objective evidence? So the sixth circuit was wrong when it said we're doing something different than the other circuits. They certainly did not do anything different in this case. And the other cases that I've reviewed from the sixth circuit, I've not seen a case that relied only on subjective testimony. So I can't point to a case where the sixth circuit is doing something different than any other case, and I don't believe anyone else has pointed to a particular case. So they might think they're doing something different, but in reality, they're doing the same thing as everybody else. Can I ask you about, Mr. Tocca's ethical lapses? Are they, do they have illegal significance in this case? There certainly speak to his credibility in, in United States versus Soto-Lopas, there's a very similar case out of the ninth circuit where the court did rely on the fact that the attorney had significant problems, ethical problems. And in this case, Mr. Tocca's actions and his ethical problems go hand in hand. I mean, he approached a representative who was in jail and encouraged her to reject a plea. He did this on a very short timeline, admitting that we're not admitting, but we know from prior counsel that he had not even picked up the phone to speak with prior counsel, who had spent almost a year litigating this case

. The Court looks at the entire record and makes a determination based on the record. And this Court is always a shoot, hard, fast, bright-lying rules in terms of telling courts what has to exist in order to make a specific line. So you think the Sixth Circuit was wrong in what your characterizing is Dicta, do you think it was wrong to say that? And that the other circuits which require something in addition that that's the rule that we should adopt? I don't think, no. I don't think that any particular rule should be adopted. I think the rules that exist under Strickland are fine for the circuits. The rules have existed for decades, and the circuits have no trouble figuring out when the threshold is met and when it's not. Well, I thought, maybe I'm misremembering, but the Sixth Circuit distance itself from the other circuits, didn't it? Yes. It did distance itself by state. Well, now you're telling me the circuits have always done this. So the Sixth Circuit at least thinks it's doing something different. It may think it's doing something different, but in this particular case there was objective evidence that they pointed to, and as the Solicitor General mentioned, there's always going to be sentencing disparity because you're going to have to have a sentencing disparity in order to show prejudice. So in a fact, there will always be objective evidence that will support any subjective statement of a criminal defendant, or you're never going to be able to be a prosecutor. Right. In a subjective evidence, that's like saying you don't have to have corroboration. Right, but for this Court, my point is, obviously the Court can set forth a rule, but in doing so, I think we're going to run into what Justice Surtamayer said earlier in terms of judges do this all the time. They figure out who's credible. I mean, it's never just like, here's these things, but this guy's credible, so I'm going to believe him. It's a totality of the circumstances, and it's always going to have to be a totality of the circumstances. So to say, here's the line, there has to be objective evidence, then what is the objective evidence? How are we going to define objective evidence? So the sixth circuit was wrong when it said we're doing something different than the other circuits. They certainly did not do anything different in this case. And the other cases that I've reviewed from the sixth circuit, I've not seen a case that relied only on subjective testimony. So I can't point to a case where the sixth circuit is doing something different than any other case, and I don't believe anyone else has pointed to a particular case. So they might think they're doing something different, but in reality, they're doing the same thing as everybody else. Can I ask you about, Mr. Tocca's ethical lapses? Are they, do they have illegal significance in this case? There certainly speak to his credibility in, in United States versus Soto-Lopas, there's a very similar case out of the ninth circuit where the court did rely on the fact that the attorney had significant problems, ethical problems. And in this case, Mr. Tocca's actions and his ethical problems go hand in hand. I mean, he approached a representative who was in jail and encouraged her to reject a plea. He did this on a very short timeline, admitting that we're not admitting, but we know from prior counsel that he had not even picked up the phone to speak with prior counsel, who had spent almost a year litigating this case. He had not retrieved prior counsel's file. It appears from the record, those are facts. In terms of inferences, it appears from the record that he got his information from the media. From, this was a highly, highly publicized case. He signed a retainer agreement with a client who had no money, who gave him some jewelry, and the right to promote her story. So he had, every, he violated multiple ethical roles, and those violations lead to the conclusion, a reasonable conclusion that the reason for withdrawing the plea was to make the deal more lucrative. It's not lucrative if she pleads, and she'd already pled. So she'd already entered a plea, and all that was left was sentencing. That's not a very exciting story if your entire retainer agreement relies on the fact that you have the media rights to solve the story. So yes, I would argue that the ethical lapses are very significant in this case, and run credibility to- Well, in what sense is his credibility, does his, did his credibility figure in the decision of the Michigan Court of Appeals? Well, it didn't. There were separate issues raised on ethical violations, and they were denied by the Michigan Court of Appeals, and they were denied by the Federal Court. Do you know whether the Michigan Court was ever presented with this argument that, in fact, he gave the advice he did because of the peculiar fee arrangement that he had? They were specifically presented with the conflict argument, and off the top of my head, I apologize. I don't recall if that was specifically contained in there, but I think it was. I mean, it was definitely briefed and argued that the co-volving- And Mr. Toka now reminds me, to discard for- Yes, to discard. Forever for- Yes. He committed multiple misdemeanors and a felony, and in part was disbarred based on his conduct, in this case. So he's no longer practicing law. The last I checked is no longer practicing law anywhere in the United States. What was submitted to the Michigan Court of Appeals? Not that. I'm not talking about the exhibits that were attached, but there was a motion, a brief, what was it? Yes, it's called, and Michigan is called a motion, a remand. You're required under the Court was to submit a brief in support of that motion, a remand, and you're required to submit a proper. It's not in the, it's not in the habeas record. It's not in the record of the Federal Court, and we've been unable to get it from the State Court, but it does exist. Yes. This motion? Absolutely. Yes. You have to file a motion, a remand, and the Court of Appeals specifically references that motion a remand, and the, and the proper, by the affidavits, in stating that, normally, they wouldn't consider those, the proper substance of evidence, but in this case, unexplicably, they did, which leads to another reason why the Michigan Court of Appeals is, as a decision, is unreasonable, because it's the Michigan Court of Appeals that failed to engage in further fact-finding. And so we take the record as we get it from them, and under Williams and other decisions, if the Court is the one that's responsible for an inadequate record, I mean, we have what we have, and I would argue to this Court that the record that we have supports that the Michigan Court of Appeals erred both legally and factually in its findings, and therefore, neither are entitled to any deference

. He had not retrieved prior counsel's file. It appears from the record, those are facts. In terms of inferences, it appears from the record that he got his information from the media. From, this was a highly, highly publicized case. He signed a retainer agreement with a client who had no money, who gave him some jewelry, and the right to promote her story. So he had, every, he violated multiple ethical roles, and those violations lead to the conclusion, a reasonable conclusion that the reason for withdrawing the plea was to make the deal more lucrative. It's not lucrative if she pleads, and she'd already pled. So she'd already entered a plea, and all that was left was sentencing. That's not a very exciting story if your entire retainer agreement relies on the fact that you have the media rights to solve the story. So yes, I would argue that the ethical lapses are very significant in this case, and run credibility to- Well, in what sense is his credibility, does his, did his credibility figure in the decision of the Michigan Court of Appeals? Well, it didn't. There were separate issues raised on ethical violations, and they were denied by the Michigan Court of Appeals, and they were denied by the Federal Court. Do you know whether the Michigan Court was ever presented with this argument that, in fact, he gave the advice he did because of the peculiar fee arrangement that he had? They were specifically presented with the conflict argument, and off the top of my head, I apologize. I don't recall if that was specifically contained in there, but I think it was. I mean, it was definitely briefed and argued that the co-volving- And Mr. Toka now reminds me, to discard for- Yes, to discard. Forever for- Yes. He committed multiple misdemeanors and a felony, and in part was disbarred based on his conduct, in this case. So he's no longer practicing law. The last I checked is no longer practicing law anywhere in the United States. What was submitted to the Michigan Court of Appeals? Not that. I'm not talking about the exhibits that were attached, but there was a motion, a brief, what was it? Yes, it's called, and Michigan is called a motion, a remand. You're required under the Court was to submit a brief in support of that motion, a remand, and you're required to submit a proper. It's not in the, it's not in the habeas record. It's not in the record of the Federal Court, and we've been unable to get it from the State Court, but it does exist. Yes. This motion? Absolutely. Yes. You have to file a motion, a remand, and the Court of Appeals specifically references that motion a remand, and the, and the proper, by the affidavits, in stating that, normally, they wouldn't consider those, the proper substance of evidence, but in this case, unexplicably, they did, which leads to another reason why the Michigan Court of Appeals is, as a decision, is unreasonable, because it's the Michigan Court of Appeals that failed to engage in further fact-finding. And so we take the record as we get it from them, and under Williams and other decisions, if the Court is the one that's responsible for an inadequate record, I mean, we have what we have, and I would argue to this Court that the record that we have supports that the Michigan Court of Appeals erred both legally and factually in its findings, and therefore, neither are entitled to any deference. And the Six Circus habeas grant should be affirmed in this matter. I know for the question. Thank you, Your Honor. Thank you, Council. Mr. Bursh, you have four minutes remaining. Thank you, Mr. Chief Justice, a few clean-up points. Starting with this idea that the factual predicate was wrong, as we explained in our briefing in the habeas pleadings in this very case, Titlow already conceded that the factual predicate was correct. And Justice Breyer, you asked about the quantum of proof necessary to overcome that assumption the Court of Appeals made based on the record before it, and actually the legal standard under Edpa is not clearly wrong. Under 2254E1, which is reprinted in our blue brief, it's presumed correct, and that presumption can only be overcome by clear and convincing evidence. And we don't have that here. Second, with respect to the advice, my friend on the other side points to paragraph eight of the Pearson-Effodavit. And it's a little ironic that they put all their eggs in that basket now because in their briefing they disclaim it as triple-hares say, and say this Court should not rely on it. And she said some things characterizing that paragraph that aren't in there. There's nothing in paragraph eight or the rest of the affidavit that says, Toka, approached Titlow. I don't know where that comes from. But assume that everything that she says is correct, and that Toka did give the advice to withdraw the plea. That still doesn't mean that it's bad advice when you apply the Edpa and Strickland rubrics, because as Justice Alita pointed out, the differentiation in the manslaughter guidelines and what was actually in the plea actually makes this objectively reasonable advice. And in fact, it's more than that because at the time that the plea was withdrawn, consider all the facts that were known from talking to the prosecutor, looking in the police file, and everything else that Toka presumably did. At that time, no one knew about this critical Sheahen testimony, which only came out at trial, that it was actually Titlow, who held Uncle Don down while he was being smothered. I mean, that completely changes the complexion of this case. And so to say that Titlow was always guilty when all of her testimony up to the point of the plea withdrawal had been, I told my Aunt Billy to stop, and then I left the scene. That's just not credible. Point on the second issue, the prejudice prong, Chief Justice Roberts and Justice Sotomayor, you note that the other circuits all look at objective evidence, and we think that's the right way to approach this. And you're exactly right, Chief Justice, that the Six Circuit takes a different approach. The Six Circuit says, although some circuits have held that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence, we in this circuit have declined to adopt such a requirement. And you can see how that difference played out in this very case, because the Six Circuit didn't look at all the other evidence that was in the record that was contrary to the self-serving statement that Titlow made, that Titlow had the plea in hand, and before the ink was even dry, was already professing innocence and talking to other lawyers. That she fired lusty, and there was no reason to do that unless she wanted to withdraw the plea

. And the Six Circus habeas grant should be affirmed in this matter. I know for the question. Thank you, Your Honor. Thank you, Council. Mr. Bursh, you have four minutes remaining. Thank you, Mr. Chief Justice, a few clean-up points. Starting with this idea that the factual predicate was wrong, as we explained in our briefing in the habeas pleadings in this very case, Titlow already conceded that the factual predicate was correct. And Justice Breyer, you asked about the quantum of proof necessary to overcome that assumption the Court of Appeals made based on the record before it, and actually the legal standard under Edpa is not clearly wrong. Under 2254E1, which is reprinted in our blue brief, it's presumed correct, and that presumption can only be overcome by clear and convincing evidence. And we don't have that here. Second, with respect to the advice, my friend on the other side points to paragraph eight of the Pearson-Effodavit. And it's a little ironic that they put all their eggs in that basket now because in their briefing they disclaim it as triple-hares say, and say this Court should not rely on it. And she said some things characterizing that paragraph that aren't in there. There's nothing in paragraph eight or the rest of the affidavit that says, Toka, approached Titlow. I don't know where that comes from. But assume that everything that she says is correct, and that Toka did give the advice to withdraw the plea. That still doesn't mean that it's bad advice when you apply the Edpa and Strickland rubrics, because as Justice Alita pointed out, the differentiation in the manslaughter guidelines and what was actually in the plea actually makes this objectively reasonable advice. And in fact, it's more than that because at the time that the plea was withdrawn, consider all the facts that were known from talking to the prosecutor, looking in the police file, and everything else that Toka presumably did. At that time, no one knew about this critical Sheahen testimony, which only came out at trial, that it was actually Titlow, who held Uncle Don down while he was being smothered. I mean, that completely changes the complexion of this case. And so to say that Titlow was always guilty when all of her testimony up to the point of the plea withdrawal had been, I told my Aunt Billy to stop, and then I left the scene. That's just not credible. Point on the second issue, the prejudice prong, Chief Justice Roberts and Justice Sotomayor, you note that the other circuits all look at objective evidence, and we think that's the right way to approach this. And you're exactly right, Chief Justice, that the Six Circuit takes a different approach. The Six Circuit says, although some circuits have held that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence, we in this circuit have declined to adopt such a requirement. And you can see how that difference played out in this very case, because the Six Circuit didn't look at all the other evidence that was in the record that was contrary to the self-serving statement that Titlow made, that Titlow had the plea in hand, and before the ink was even dry, was already professing innocence and talking to other lawyers. That she fired lusty, and there was no reason to do that unless she wanted to withdraw the plea. That she did not have a propensity for truthfulness. At trial, she lied about the fact that she was drunk when she was not the night of the murder. The evidence came out that she asked Shaheen to lie about the alibi, and she hid the murder weapon. And then you've got all these statements at the sentencing hearing and post-reman where she's continually asserting her innocence. It's happening all the time. When you consider all that objectively under the other circuit standards, clearly that would not be sufficient to establish prejudice here. That's the objective evidence. I don't understand what you're saying. The other side says, and I think it's the standard, that you look at the totality of the circumstances. Correct. And what you're saying is they didn't do that here. It's not that they use some objective evidence you're saying they didn't use other objective evidence. I, and here's the connector, Justice Sotomayor. The reason they didn't look at the other evidence is because they have a different rule. They don't think they have to look at it. They did look at things like sentencing disparity as the solicitor general's office explained that shouldn't come into play here because that was a well-known disparity. It wasn't something that was hidden by clients in effective assistance. And the six circuit talks about the fact that she accepted the plea once and then withdrew it, obviously that cuts both ways. So all you're left with is the subjective testimony. And when you look at all the other objective evidence, the evidence that other circuits would look at, there's really only one possible outcome here. So in some of your honors, oh, I guess I do want to mention one of the quick points since my light hasn't gone yet. The book deal, there was no book deal. So look at a page, Joint Appendix 60, and I've seen copyright assignments. That wasn't the case here. They were trying to raise money for the trial. And in this case had nothing to do with the reason why Toko was disbarred. That's at Joint Appendix 302 to 317. It was because he falsely put someone else's license tabs on his license plate, and that was a misdemeanor, and then he lied about it. In some, records silence under Ed Penn Strickland means the state wins, not the convicted murderer

. Thank you. Thank you, counsel. The case is submitted