same time on the morning the very first morning of trial on july twenty fourth one thousand nine hundred five there was a withdrawal of the not guilty plea greta that's not sufficient that it's not sufficient that the circumstances arose at the same are i think those tests are getting at the same issue whether it is the same occurrence or not and in this case i agree that there might not be the same type one is an ineffective assistance of counsel claim the other claim says that the trial court didn't advise him of all the rights he was waiving but but they did arise at the same time and that is sufficient for the non related in one was a pretrial issue and then the other came up during prime time that that's correct so yes those were separate in time variable but the same time and type seems to me if the supreme court wanted to take same type or time same time or type they could have said that but they didn't it has to be the same type and time and common core of the events so operative facts so the what the claim that was made about the decision to forego was not of the same type as you've said so you're suggesting that all they wanted to do was to to focus that well whatever came up in this circumstance of this pretrial motion let us say that even if it wasn't specifically raised as long as they were talking about at the same time as long it's exactly the same time it's not i agree with mike maybe in this case it was certainly very close to about five minutes when he went into the hole there was evidence you're hearing we did hear from from both the parties and he lawyer went into the holding tank before court that very morning and the first thing and it was decided that he advised him about the plea very quickly and then the withdrawal happened  case but i think you would have to go back to the purposes of the statute of limitation to say was there adequate notice to the respondent and if that if that occurrence could be said to be the withdrawal of the plea and usually that the advice to withdraw the plea comes very quickly before the actual withdraw in this case it was probably less than twenty minutes so the encourages the withdrawal of the plea it doesn't happen when doesn't matter what time and tight was a new day in terms of trying to figure out what the supreme court math so what we may have said about allowing all sorts of relational back different types of clients three which puts a different filter him well i'm having trouble getting the given  well thank you i think that the thing to focus on in male versus felix is that it didn't get rid of the preexisting law about relations back in fact it specifically said you know did the rules of heaviest procedure that say the rules of service civil procedure apply to the extent they're not inconsistent with these rules and the court by by majority rejected my argument that that under the reading of the civil rules in other cases that would relate back so they disagreed with the with that portion of my argument but i think that the court did say of his trial counsel in not informing him of the correct law where is the common core that links that of the ineffective claim in terms of what the court said all of those facts are the same facts and so i got to the ineffective assistance part different than the cases relied on by the respondent where one ineffective assistance of counsel claim was saying that you fail to file an appeal and that doesn't relate back to a failure of the trial judge not warning the defendant when he takes the plea that there is a waiver of appeal in the camp a case that i believe they're going to cite to you that happened a very different times the taking of the police you're early on in the case and after sentencing the defendant or the counsel not filing an appeal those are very two different times and you can see very easily that a different occurrence here the occurrences the withdrawal of the guilty plea you wouldn't be able to guess from that question right well your prediction is correct i hope you will allow me a minute or two to talk about the merits of the against self incrimination and tears right to confront witnesses and the ineffective assistance of counsel claim that the trial counsel failed to advise the defendant regarding the correct legal federal rule themselves that it has to rise out of the conduct transaction for occurrence so for them in your current just that took place was his withdrawal of the the not guilty plea that was the operative event out of the event birds emerge one moment part of the attorney for getting him in the position in the first place and in the trial to the state about where the problems may lie it doesn't seem far fetched under normal relations back concepts to say look you know you've got to change it clearly there are lots of things that could them that when he sent them a letter gave him the wrong instructions about the law and the legal requirements and and frankly the claim was centers around the fact that he didn't advise him properly what type of perception here if not for the fact that he decided to change his plea they never would have been a plea allocution that would have been a proceeding that all the love would have been in the council by the court so that would not have happened if not for the fact that type of the connection for the defendant or that you know that the defendant listening to the judge giving him advice and the judge not counseling and correctly about his rights maybe if the judge had counseling correctly about his rise and told we have the right of sure that the defendant understands his rights we can make a reasoned decision whether or not completely empty well that goes to the claim that they had rights from guarding the due process and whether or not he had an informed of when there was a alleged failure of counsel to advice regarding a plea and then also the trial court not making a proper inquiry into the plea and the counsel there tried to argue that it al related to the rights of the people that were being waived and that was rejected under male versus felix because the very fact that it was a separate legal theories and not arising from the same operative facts so now regard it's very similar marry yes on the merits i think the most important thing the court should focus on was the failure of the district court in this case to use the right prejudiced standard the correct prejudice standard when it involves failure would adequately advise on  he would have changed his mind about the plea that's right and not what the district court set out excerpts of record tab seven and page ten whether the result of the trial whether there was a reasonable  at the trial that is not the issue under supreme court authority under the authority of this court the important thing is that he was deprived of his opportunity for the judicial proceeding that he had a right to not whether he would have had that latter claim happens after the sentencing you can appeal before the sentencing it happens a way down the road in the by comparison in this case everything was happening at the time that he was being