understanding there is a motion pending with this court requesting that mr harris be allowed to file a supplemental and x that supplements the record with documents that were not in the district court record if the court were to grant that motion we will need to file paper copies with a certificate of service i was not the originally appointed counsel on this case but rather my former associate michael murphy was and then i was appointed for the oral argument and as i read the initial briefing in this matter some time ago i kept thinking about what were the parties in the state circuit court trying to accomplish in this case at the time of mr harrison's plea win to be a worthwhile endeavor to make the final result and they appeal be the result d that the parties thought that they were entering into when mr harris was sentenced in his state case here it is clear that the state prosecutor wanted their dangerous felony conviction but both the prosecutor and the court authorized mr hearers to serve his fifteen years state sentence concurrently with his already imposed twenty five year federal sentence every party in the state case was fine with this versus demanding a sentence that would ultimately cause harris  forty years in prison which was later turned into just over thirty years sentenced to do a change in federal law so this forty or thirty year total sentence was a mistake and a result that was not contemplated by the parties who a deal and announced in open court on the record on what they believe to be a just sentence in the case including the having this sentence run concurrently to the federal sentence it is adequate of all to make this right versus simply saying no your attorney got it wrong so now you have to deal with it mr harris's constitutional rights were violated and that his guilty plea in state court was not voluntarily knowingly or intelligently entered into when his pleas counsel was ineffective for informing harris that his fifteen year state sentence would run concurrently with his r v imposed twenty five year federal sentence and that he would be returned to federal custody following his plea in state court harris also agreement was breached or unfulfilled based upon a mutual mistake regarding to state sentence being served concurrently with is already imposed federal sentence these two points are similar but not the same of the voluntariness of a guilty plea ineffective assistance of counsel is plenary because it involved makes questions of fact and law subject to independent review ineffective assistance of counsel issues are to be reviewed to no claim that you started your argument with the plane that his counsel was ineffective for indicating recommending or telling him that the sentences would run concurrently yes judge i believe the missouri attorney general argues that mr harris had failed to properly present this claim of ineffective us of the out clique council by having this argument somehow buried in the facts supporting an unrelated ground for relief however this argument is unfounded because the facts are right there in the ground one titled pleat counsel was ineffective to wit here is provided the list of how this was accurate he  are often provided in the department of corrections and then added supplemental pages they clearly showed that harris was made to believe through his plea counsel statements that the fifteen year sentence would be swallowed up and that with that was a term or word asking this court to do well number one to find that he did in fact raise that and that was that was in his ground one if we fight let's say we were to to whether or not plead counsel's advice about the concurrency of harris's state and federal sentences and the impact that the advice of counsel have on harris pleading guilty in the state or we would welcome that really if we would all seems like there's a couple of steps there is one did he raise it right and then if there are some kind of a procedural bar right i don't eat and not sure that we can conflate though that that that it's the same answer is not necessarily attached to both of those i think correctly or i believe did he raise it for the st time in the twenty to fifty four and the answer to that is no he did it  because it's clear under the court of of the southern district of missouri court of appeals clearly shows d d that his appellate counsel at that time had raised it but the court of appeals in the state of missouri had said that well we can address that because you're raising it for the st time on appeal but the problem is going back to the p c r counsel you know there are there are two different counsels we have to look at here st we have to look at the police council and the police coun s advice and what she had instructed d her adviser and do which ultimately induced harris to enter into his plea of guilty but then also you have the p c r counsel that you have to look at that when the initial timely sentence would be swallowed up by the twenty five year federal sentence but also that he was in primary federal custody and so therefore he would have gone into service federal sense right away but under the martina's versus ryan exception what we have here is a five now to get back to just how his question out i guess or question as to even under under the viewpoint of sending it back down what we would send it back down for and you're getting at the point that she was making which is several different places where what what she has stated what her believe this but then looking at just the record as well as as far as what the p c r council did and again that that is raised court has the ability to be able to make the decision as to whether in that the p c r council was in fact ineffective and i think the record does reflect that the p c r council filed a boiler plate motion without any facts to support the claims however there is harris's claims on the issues raised here are obvious there is substantial and they raise a legitimate claim for ineffective assistance of counsel and not only his plea but then now if it is possible that if this forward or amanda baggs down to the district court level for a hearing to determine whether or not the the plea council and the p c r council were ineffective then more evidence could be presented at that point even though we believe that there has been enough evidence presented just not only in the record to show that both the pl council and the p c our council were ineffective plead guilty they waive a lot of rights but when the police violates the due process clause and a guilty plea is not entered into knowing that it is not entered into knowingly voluntarily and intelligently  that is when a defendant is not reasonably informed of the consequences of his plea which includes any amount of additional jail time or person or serve that has real sex amendment ramifications and voluntariness him implicate would more than double d the amount of time in which a person was serving in prison such as harris that is a direct consequence that should have been made known to him prior to his guilty plea being accepted by the circuit court bar for his failure to for these issues have been brought up previously because i believe we have shown in our brief senate shown and in fact the record that this was not the st time that this had been brought up and  in the harris's reply to the responded to show cause order these issues weren't buried in the pleadings rather it was plainly stated and is two thousand two hundred and fifty four dollars petition and these were not just simply a story  would like to preserve just a little bit of time so if anybody doesn't have any questions i'll stop at this time right thank you and mr crane we're ready to hear from you may please the court to go right to judge strauss's question do we know enough here on this record to answer any of this procedural substantive questions before the court the answer is no unless you resolve them in the state's favor and that's because harris failure to plead particularized facts that support is grounds for relief mean that the only conclusion from the record can be he did not plead enough in support of his claims to merit further review under the heightened pleading standards that apply to is a separate claim for relief then in that claim for relief harris never pleads any particular action the trial counsel took counsel took to convince him of that belief and he never pleased that he would have insisted on going to trial but for  counsel's actions and if we don't assume that's a separate claim that somehow merged with the st claim then we have to deal with the fact that in state court harris's allegations that he would have proceeded to trial for better by simply counsel were found specifically to be incredible after he admitted that he had lied to federal courts to get them to accept his guilty plea in other cases the record conclusively demonstrates a great reason for the state court to doubt his credibility credibility terminations that couldn't be disturbed by th so there are serious factual problems prepares allegations in his petition that would prevent this for from ruling on any of those issues in his favor and would prevent the district court from granting further proceedings on his cla way there's a few reasons that the nd claim does not per person please enough facts to get through the martinez hurdle and that's st of all it doesn't allege any specific thing that post conviction counsel did that was ineffective as to the underlying playing and that's a big problem here because a claim that the underlying claim is about clique counsel's advice right and please counsel only advised harris and harris is the only person who could have known about how clean counsel advised him and yet and his pro se motion and in his pro se amended motion he doesn't mention anything about plea counsel advise ing him that his federal sentence would swallow estate sentence that quote only comes from the post conviction evidentiary hearing and context looks like that something that harris already believed when he insisted on pleading guilty at that court appearance over his plea counsel's advice who said she would have advised him to why don't we prepared offense why don't we consider going to trial but harris insisted on pleading guilty  doesn't plead that she did so he only says she caused him to believe but doesn't say any advice she gave him and the only citation he makes to the record is from the post conviction evidentiary hearing which of course any statement that she made at the post conviction evidence  hearing could not effect of this guilty plea because it's long over by then so it doesn't allege that fact either as the martinez question or to the police counsel underlying claim question what did his counsel's do wrong as to the claims that he's raising those facts simply aren't in there and the fact that the district court would need to branson evidentiary hearing and he also doesn't believe facts that show he would have gone to trial especially considering the evidence in the record which is that his previous allegations that he would have gone to trial in a different claim were found specifically to be incredible emotion court recounted that he that harris was facing the possibility d of life without probation or parole d on a case where there is very strong evidence against him and although this claim wasn't specifically addressed by the district for the record were very out in a claim where he confessed in there i highly aggravating facts so in the face of the state court record where the most important term and he would not have gone to trial he has to plead failing to provide enough facts to proceed further so because harris hasn't alleged enough facts that's the only decision that this court could come to on this record but all that assumes that we can move past the initial pleading deficiency which is failing to designate this as a ground for relief rule to see requires parents to specify all grounds for relief not simply state you must state them with particularity and lay them out and other circuits have found that that requirement means that he must lay them out in a way that can't be misunderstood by the district court and that's simply not what happened here harris provided his claim at the bottom of the factual basis for another claim on an attached page his initial petition did not make any reference to see attached pages it did not the reference that there were multiple grounds for relief in one page and harris failed to fill out the form sections that are required to set forth the claim for his relief if you assume that this unprecedented claim is its own ground for leave he didn't say where phrased it before or why he failed to do so and other situations and harris is clear that he raised around one and his pro se i meant and amended motions in the missouri post conviction quirk and the one presented claim was not raised in those motions so it's clear that the questions that answered that harris answering about ground one do not apply to the un present a claim so because he's answered that this it to the facts and that and that word or it makes it it gives clear notice from the face of the petition that round one is about the claim that he did preserve and present in state courts and not the claim that he didn't present in state courts and just to clear up a discrepancy here opposing counsel is now ar claim isn't procedurally defaulted because it was presented before in a state court appeal but that the question isn't whether it's ever been presented before the question is whether the state court decision below relies on a procedural reason for denying it and it certainly does below the missouri court of appeals denied this claim in the post conviction and feel because it wasn't present it during the post conviction motion process they denied it soley for procedural reasons and didn't reach the merits under coleman vs thompson and the court's re decision franklin versus colleen from a year or two ago that bats and quit independent and adequate state law grounds for denying the claim so because it rests on procedural denial below the claim is procedurally defaulted despite the fact that he did try to raise these kinds of allegations in his post conviction appeal for the st time but harris doesn't note that his claim is procedurally defaulted in the petition it doesn't say ground one is value and addressed them at face value this report can't be required to disregard the petitions allegations in order to make his claim bet that simply wouldn't satisfy the heightened pleading standards that apply in the section the appeal from the denial of his post election motion then he had counsel so when he filed the pro se motion he didn't have counsel so the initial post election action but he was appointed counsel who filed an amended motion and he claims they included that amended motion would have been preserved so he had counsel to present concurrency and he still refused to raise it there's no allegation like that and that allegation is necessary because those conviction counsel couldn't have raised this claim unless harris informs post conviction harris's lack of allegations heiresses pro se motions that are around the same time none of them mention bad advice as to the concurrency of the federal sentence so there is no simply no evidence that harris asked post conviction counsel to rais specifically and if there were that kind of evidence perhaps the district court could or sorry if there were that kind of allegation the district court could order some sort of further proceedings to determine whether review would be brokered under martinez but where there is no allegations that would support review under martinez the district court can't simply jump past the facts that petition and then see if the claim is procedurally defaulted and out and out later counsel i want to ask you so so much understanding of the record and this gets to judge foreman's question is that i don't think based on the record he didn't know at the time it was on appeal on those conditions that these are running consecutively and not concurrently and so there would have been no petition he doesn't lead in the petition i didn't raise this claim because i didn't know at the time and if he did that might be an allegation of cost right but would also be an allegation that specifically refutes the martinez argument if no one knew that the senses were consecutive or concurrent and he mailed let's things in other courts about it but he didn't put in his petition that i didn't know at the time so left with these lack of allegations that could support harris's claim the district court's only option on remand would be to dismiss for a lack of factual pleadings and even if this court could move past that there  several other problems with it but just to address the remedy if this court finds that he's pled enough it should remand for the district court only to address his claims and determine whether there's enough facts to proceed further to some sort of evidentiary hearing it wouldn't be appropriate to go ahead and order evidentiary hearing relief or deal with those issues because we have to decide the threshold question whether there are enough facts that's all my time thank you thank you for your argument r counsel was ineffective again these are these are things he was sitting in a state court earlier i'm sorry a state prison that case your counsel should have known that his time was not running concurrent even though it had been set on the record and everyone was still under the believe again it's the p c r council is in the same position as the trial council or the police council and that they should have known and there were ways for them to have known that the sentence would be consecutive just by the language that was in the federal judgment and sentence the federal law there are a lot of indicators here that would have told them that no that sentence was going to be counsel comes and goes hey wait a minute this is all brought up and so that's when it's race for the st time act it's not equitable that you would be barred to be able to argue this and be able to go back in front of the district corps and actually have an evidentiary hearing where