may please the court my name is charlotte taylor i'm appearing on behalf of petitioner appellant paul taurus like to reserve three minutes for rebuttal parties to this appeal agree that the district court applied the wrong legal rule the only remaining issue before this court is whether to remand so the district court can develop the record remand is the ordinary course in a situation like this no state or federal court has ever applied the correct legal standard to decide whether mr to should be allowed to develop the record in support of his constitutional claim normally the district court would make that determination under the corrected rule in the first instance but the state argues that this court should take the unusual step of preemptively cutting off any record development state faults mr torres for relying on an uncorroborated affidavit and it argues that without additional evidence his claims are impossible this get things backwards mr torrens has diligently tried to develop additional facts we cannot be faulted for not already having the evidence in hand to corroborate his affidavit mr choices and titled under federal law to the opportunity to develop the record in his first federal habeas petition  well i think we do rely on tons of the sane and related precedents that say that he's made at the showing that would entitle him to an evidentiary hearing but it's also certainly open to this court to simply remand on narrower grounds of the district court should in the first instance evaluate how to proceed with his with his claims exercised the requisite diligence to try to develop the factual record pertaining to his claim which is also undisputed to be clear the state doesn't even really directly dispute that the alleged facts if true would entitle him to  under strickland what it alleges instead is that the affidavit is facially implausible and we would take issue with that but again that's not the the affidavit because it's not directly contradicted by the response from the state if it develops later that you know that there were allegations concerning martians that the petitioner was attempting to develop then i think the district court does have some discretion to manage his docket now tons in the same does say that an eviden y hearing is mandatory and there are valid precedent present presidents that we rely on that that follow that rule but again this court doesn't need to decide whether in every single case an evidentiary hearing is mandatory that issue would only be for the prosecution to turn over its files here from the defense counsel the trial counsel whose performance is alleged to be inadequate and to get an affidavit from defense counsel and those would be initial steps so that  you know mr tauruses claim could be evaluated again the prosecution has never even been called upon to confirm or deny that there was a plea deal offered because the state court originally islamist took this the the prosecution so there were three central counts in the indictment all of that all of which were sort of drug charges relating to the same underlying conduct and they each carried separate minimum sentences plea deal was that only one of those he would plead guilty to one of those in the remaining counts would be dismissed and the ineffective assistance is that his counsel told him that that was an advantageous plea deal because  the three separate sentences if he was convicted of all three counts at trial would not run consecutively that they would run concurrently so that there was no practical advantage to accepting the plea deal and that is the type of incorrect advice that this court has hel previously and as a matter of law is ineffective assistance during the bargain at least based on that statement sounds like you're saying there wasn't a disagreement as temporary plea deal being offered and what the deal was rather as to the advice he got with respect to that correct well again the state doesn't directly there's no evidence one way or another as to whether the plea deal was offered the state has never confirmed or denied that it's you know in over ninety percent of cases plea deals are offered so it seems very likely and they don't seriously deny that that one was offered but again we don't have the specifics they haven't yet we don't have the specifics and then the further question is what advice was given which is why the district court stated that if it did not apply that she would ask for some sort of response from difficult for them would it be fair to say that if we simply reverse probably what the district court would do would be all for some type of paper response and look at that and then decide if full evidence you're hearing was required certainly that would be what the district indicated that she's likely to do and a sound man after seeing now us attorneys for the past ten years in this district never offered a plea deal you know you might be worse off but he would certainly be worse off and i mean he's he's here to try to develop that record and he and i just that the plea deal was on it let me ask you about this on sort of the more abstract legal basis there are there bases for even getting into this is to say that harrington versus richter says that when a state court  comes to a conclusion i'll be it without reason and that if there is a plausible reason for it then the state wins your counter to that is yeah but here there was not no reason there's clearly wrong reasoning and they say in effect we should extend stretch out here into this has this been raised in other courts were you able to find anything where this argument has been where they held that harrington director would not should not be extended to a scenario such as this there are the fourth circuit and i don't remember that i can get the citation for a battle but they also similarly have indicated that it should not be extended there is some dicta in the seventh circuit opinion in early v packer that we cited that goes that indicated that it would make sense to extend it but then they have also more recently the seventh circuit has indicated that the actual reasons given by the state court should be attended to on sort of the idea that the district court did get it wrong with what the district court did but at one point i do have to dispute which is a slight sort of misstatement of our argument it's not that without of additional evidence he couldn't prove his claim it's that we have enough evidence to no that this claim is implausible on its face and that's the difference and i need to respond to a few things that are in the reply brief most importantly with respect to what happened at the sentencing hearing and with respect to what happened in the michigan supreme court now in the reply brief so we are here at the sentencing hearing he's asked point blank are you happy with the advice your counsel gave you mr t actually sentenced yet so he didn't really know the problem is that the gist of the claim doesn't hinge on his actual sentence but on his potential sentence the constitutional deprivation that he alleges is that he was misinformed as to his potential sentence so he learns from the probation officer your potential sentence is triple what you thought it was right and so knowing that he goes into sentencing knowing that and has asked how he feels about his attorney's advice now his reply brief says well maybe he wanted to wait and see what he got is a sentence that that destroys the laughter claim because if you if you want to ride it out you know i know what my potential is and the reply brief suggests he says in his reply brief well maybe my attorney told me that i could get consecutive sentences but i probably wouldn't well that's not deficient constitutionally deficient performance that's just about prediction he knew that he had triple the exposure that he alleges he was told he had he sentence investigation report which contains the victim's version of the offense the police version the offense the defendant's version the offense the defendant's criminal history is family situation subsoil all the  order to decide whether or not he should order an evidentiary hearing or whether he can rely on the material i don't think it matters because i don't think i think both sides kind of agree that this  probably if if it's not in i mean he alleges that he was told a probation about this consecutive sentence and we don't have any reason to disbelieve that so i mean if that's not true you know that then that just hurts five of the affidavit and i can give you the page idea number if that's if that's helpful it's page id two seventy nine so to say in the reply brief well maybe my attorney told me i could get consecutive sentences but i probably wouldn't that contradicts what's in the affidavit because the affidavit says my attorney didn't ever tell me i could get consecutive  now we've got a statement in the reply brief mr tauruses contradicting his own affidavit plus that undercuts the ineffective assistance claim because a a mistaken prediction is not constitutionally deficient performance and then i want to move on to what happened in the michigan supreme court so we point out in the affidavit he says i would have filed a pro se brief raising this claim in the michigan court of appeals if only i had known that i had the right to file a pro se supplemental republican says well maybe i would not have because maybe i didn't understand how to raise this claim so again we have a statement in the reply brief which contradicts the affidavit because the affidavit says if i had known of this right i would have prepared all the issues i have raised in sixty five hundred motion and would have filed a supplement brief but the reply brief says well maybe i wouldn't have even if i had known about this i might not of prepared this issue so that we've got that contradiction undermines the credibility affidavit also if you look at the application that was filed in the michigan supreme court he's got detailed allegations he's got state law issues he's got a sixth amendment strickland ineffective assistance of counsel claim citing trial transcripts citing sentencing transcript citing case law he was able to prepare six claims in the michigan supreme court proper application to say well maybe he wasn't really prepared to prepare this claim in his supreme court application not only contradicts his affidavit but also contradicts the evidence that we have in front of her which document we're talking about use a rope or application to the refused to talk about this issue and also didn't tell him he could file what we call a standard for brief which is a pro per supplemental brief by a defendant he alleges that but he also alleges that if he had known he could file a proper brief he especially if the just now we don't know if the district court will hold an evidentiary hearing he never asked for one in the district court and the district court never said it would hold what it might as i think you suggested in questioning simply ask for the state to submit more documents it's not overly burdensome but i think it would also encourage the idea that no matter what i mean you brought up the hypothetical of the martians have landed i'm not claiming this is anywhere close to that but the question suggests there's a line and i think there is a line and i think this is over the line and to sit to say that you can kind of just say whatever you don't have to make an offer of proof you don't have to have any affidavits from any other witnesses and what you say in your affidavit can be contradicted by what we have on the record and it could be contradicted with the old arguments your own arguments that you make later and yet you still get a chance to develop the record it 's sort of like an automatic in title meant to develop the record even when you're when you're sort of on the same side of the line as the martians of land i mean not not near  morgan about what was said between a defendant lawyer you're not going to have collateral evidence obviously you work in an argument around the collateral evidence from other filings but in saying he doesn't have something to back it up what his lawyer told him you're not usually going to ever know that's true but i mean he could have he could have called his lawyer and he could have said in in his in his in any of his pleadings i mean this goes back to his diligence right i mean the claim is that it's undisputed that he was diligent in that it's absolutely not undisputed and he was absolutely not diligent he was only diligent if you count from the date of the filing of the motion for relief from judgment in june of two thousand and twelve starting then he was diligent that's two and a half years after he supposedly became aware of this constitutional deprivation really your argument is that up until that point all of his actions lisa by inaction of an injury hearing on ineffective assistance didn't of course raise that sentencing when the judge asked him didn't raise it in the court of appeals didn't raise it in the supreme court waited six months until after the supreme court ruled to finally put it in the motion for relief from judgment from that point on diligent but i don't think that you can start counting at that point i think you have to count you have to look at when when he could have raised this and i last week i think i want to push back a little bit on a point made in the reply brief which is that  this petition that it's somehow significant that this petition survived summary dismissal and that the district court ruled that these claims were were not implausible on their face it's important member of the only thing the district court had in front of it when it issued the order requiring a response is the petition itself no state court record at that time and all the petition says is ground one ineffective assistance of counsel during plea negotiations and that's it there's nothing else in there so to say the i mean the the district court didn't even have the allegations didn't have the affidavit didn't know anything and then also the reply brief says and the state hasn't ever contested that decision well when we could have if we could have we didn't have the state court record because when we were ordered to respond then we order the state court record from the county court and so we couldn't dispute it either all we have is ineffect we have no facts we have no record no allegation so there should be you get the record for you yes we do get it before we file our response but we don't get it in any time to contest the order requiring response which is what the it was made in the reply brief so all i'm saying is this court should give zero weight to the idea that we didn't contest the order requiring response and to the fact that the district court ordered a response rule for review is is fairly cursory you just kind of look at the face of the petition and if it's not clearly time even if it is time they often serve it on ice but if it's if it's clearly time barred occasionally they will dismiss something but typically it just kind of well does it doesn't look like a b s petition served on the attorney general so there's nothing to be read into that i think  that covers the points that i'd like to make and be glad to answer any other questions that you're honestly have no think you're honest you're not raising his claim till the first day collateral proceeding that's contradicted by its waiver procedural default and moreover i think that the the factual arguments that is making so the fact that the state is here again asking this court to draw inferences from the face of the record one way or another about whether this affidavit is plausible just illustrates that these are factual issues that are best decided by the district court on remand i think that the state vastly overstates its case when it says that if this claim is allowed to go forward then every heaviest petitioner will be allowed to go forward there are a number of reasons why that's not true first this is just a garden variety plausible ineffective assistance of counsel claim this is a routine drug offense there was strong evidence against him there were two bias made under police supervision by a confidential informant they executed the police executed a search warrant found drugs in his in his residence and the fact that his sentence exposure if he went to trial as three times what he alleges it would have been under the plea deal so the only rational basis for rejecting that plea offer would have been if you've been incorrectly advised i also would point out that this is again this is not in terms of creating presence this is an unusual case in that it's undisputed does not apply because there was both no factual finding by the state court and also no procedural default so in many cases either that if if it was never raised in state court then it will be procedurally defaulted in federal court if it was raised  commonsense basis and over ninety percent of cases some sort of plea deal is extended and the state has never denied that a plea offer was extended it has simply never been asked to respond one way or another on that question so all the evidence that we have in the  record is affidavit and that indicates that there was a plea deal offered first thing you might find out below as they might say yes he's exactly right you might say no here's a copy of the offer that we invaded it's different right or they might deny it but we don't know until it goes back precisely and i think rather than engaging in the type of speculation that the state asked this court to engage in about all these factual issues what it means that he didn't raise it immediately in the forty five day window less than forty five days that he had to file h