our final case of the day's united states against williams mr henderson good morning they place the court my name is peter henderson i represent charles williams charles williams was convicted and sentenced to prison on a guilty plea that violated the constitution  opportunity to move isn't that the thing to be proven rather than the thing to be assume and i think the government's conceded that i think that they don't read the government as conceding that well mr williams government the government contends a plausible defense no so unless we were to take the view that every change of law after a guilty plea means that the police violates the constitution even without any reason to infer prejudice there would be a big you can't say there was a violation of the constitution and the supreme court has actually addressed that question and held that there is not a violation  in a case neither side bothers to cite its brady against the united states holding that under those precise circumstances there is no constitutional well i'm not prepared to address brady you know for nobody's mentioned it here what i would say though i think there's a difference between whether there's a constitutional error and whether it needs to be remedied and i think the prejudice is about the  problem is you sensually who is who needs to show something on the view that there was a constitutional violation the prosecutor has to show it's harmless beyond a reasonable that but if on the other hand one  sentially needs to show that there is a fair and just reason for withdrawing plea then the burden is on the defense and as i say one can't just say there has been scream court's decision not anticipated by this defendant and therefore there's a constitutional violation that's brady there is no constitutional right so i think there might still be a fair and just reason to withdraw the pl that the question i suppose is was the plea knowing involuntary and no brady would directed that seem to well i mean i am very disappointed that neither side talked about neither side talked about brady in the briefs that led to our recent decision in the delatour a case if you don't discuss controlling decisions of the supreme court things go off the ra understood i suppose what i would say then is let's let's assume there's no constitution the question is what happens when the law changes and the defendant has no opportunity to put into the record hear things in that you can supplement the record under appellate rule ten well i don't believe this would be an appropriate sort of material to under that rule under is is it your position that such an affidavit that your presumably has explained all of what's going on and what the consequences and cetera are that's that defeats the government's burden to prove that they're harmless beyond a reasonable doubt the other way to think about it though is if it's really a question of timing if mr williams had pleaded guilty and then repaved comes out before sentencing he would have had a chance to move to withdraw his plea under rule and the district court would have only been able to deny that if you could not or his burden persuasion that there was a fair and just reason to withdraw the plea if the burden stays on you can you meet the requirement to establish a reasonable probability based on the record before the court now that your client would not have guilty of the three no because there's there there was no record because there is no need to make a record i suppose if the court says under rule ten in this situation you can supplement the record by submitting new evidence to the court of appeal that would be a way to get that evidence in the record where we could show a reasonable probability we have a sworn statement it's utter i've never read the will tend to allow that didn't sound but so the question now on timing because relief came out not just after the guilty plea but after the final judgment the question is if the district court had considered that motion would it have abused its discretion in finding there was no fair and just reason and we know limited remand to a district court to find out what it would do had it no one about some subsequent decision of the supreme court that's right and that's exactly what the court did after booker and this this case is a little bit like what happened after bailey so we've got abdullah in the leak case and somehow we need to in my opinion allow mr williams the chance at least to make a record about what he would have done had he known the elements of although they are the two controlling supreme court cases and brady is smack on point with little  he would have acted differently saying there is no way i would have pleaded guilty had i known that the prosecutor had to bear the burden of proof and persuasion established by rico and the district judge says i believe you you may don't believe you but so far the district judge hasn't had a crack at that that's true but in this case that crack wouldn't go very far because the friend i mean the fact this case are about as strong as they can be the defendant was convicted of murder obviously a crime punishable by a term of imprisonment exceeding a year he was sentenced to thirty years and he was his son's was later reduced to twenty five years he's actually served fourteen years it's just not possible that the defendant was not aware of his previous club actions look the district judge might not believe it you've only because defendants normally do everything they can not to put the and it's it's really just impossible to view that as an actual basis here for finding that the real hype air the air in accepting the guilty plea in this case was actually take and he did not but it this might be a situation where the twenty to fifty five would have been the more appropriate basis to raise the issue i haven't thought about it until i'm standing right here and i don't know whether you know i think i might  be desperate to have on direct appeal and not on collateral and that's that's probably correct your honor and i don't know as i stand here right now whether i agree with mr henderson though that we normally that in this case the plane or standard does apply and it is it is not possible for the defendant to meet here i don't think that an affidavit would which change that  fact given all of the other nd and it's not really just a question of whether the court would believe that the court may believe that as he stands here today this is this is what mr williams thinks he would have done i suppose that could be true but but the question of whether he actually would have acted differently is is something completely different and on these facts it's just it's  really a credible possible claim so this would be i guess it sounds like you're thinking the district judge might say you've said you wanted to jury to learn you were a murderer but i don't believe  that and i don't actually believe you when you say that this is important to you know and that it doesn't make sense for it to that sounds like a decision for a district judge or not for the court i think that it sounds right when you consider that this court does apply a plane or standard on the plane or standard on these facts it depends i have a hard time seeing how plain error can be the standard when there wasn't any claim that the district judge made any decision at all and therefore couldn't have made an error this is something where the supreme court has a decision that post dates everything that happened in the district court was never asked to say anything about the elements of this  pleaded guilty threats it's very difficult to see that the district court committed a plain error in allowing the defense to plead guilty and i that we agree with you that's our position we don't  certainly will be cases where on to record view it would be inappropriate not tight enough and i just i guess my point is not clear i have a hard time seeing how there can be playin error when there was not any relevant decision of the district requirement recognized him or he and failing to obtain a factual basis for the plea that included that knowledge requirement and expressed the statement regarding that knowledge requirement that's that's the air that's the question here and so it can be played could be plain in some circumstances it's not plain here that's the defendant or that's the government's position that's what i'm saying when i say how could be plainer are you saying judge that you did you find it hard to understand why plain air review should apply and is there and i'm not asking you to go back and look at the solicitor general's brief in the fine case in the violin case which applied plain error to the acceptance of the guilty plea the solicitor general argued that no review it all was permitted and the supreme court said if any review was permitted it would be plain error but we are not holding it as we are not reaching the solicitor general's argument that no review at all is permitted because there was no error you have a centrally conceded a way appoint the solicitor general to talk to the supreme court now the department of asking and so where i'm suggesting that we file a twenty a j letter addressing them or a supplemental break if you prefer addressing the cases that you've made if we think we need that assistance we will  less able to refresh my recollection on brady so maybe we can address that as i understand brady the law changed in regard to what what the permissible penalty was and the supreme court rejected an argument that said you guilty plea is not a basis for finding the guilty plea to be unconstitutional so i asked the holding of brady right i am i may disagree with that reading of brady it is what the supreme court said i certainly understand that i don't think that's what the supreme court said obviously you get to decide what the support said no the supreme court gets to decide what the supreme court said well you get to interpret but  the there's a difference between penalties and elements and what the supreme court keeps saying is that element you have drawn that you can try that line but brodie rejected that proposed distinction again perhaps my friend suggestion that we don't we if we think it is relevant we will let you know that that sounds fine to me apart from that again i agree part of maybe what we're talking about too is when there's a change in the interpretation of a criminal statute by the court that's it's presumed that that is what the law always meant and so that again it's like bailey where they change what what use means that means it's not just the people who come after bailey who have to admit to themselves that's what the law is required well at least this is fully retroactive on direct appeal that's one of the reasons why i said that you would  want to have this resolved on direct appeal and not on collateral review that's exactly the it's retroactive on collateral review is would be a much harder question that's exactly right and i think the heart of this case is just where do you draw the line where when is a conviction final and its final after direct written and so up until that point if there is a fundamental problem we think it's a constitutional problem with the knowing involuntary nature of the plea we should be able to