are three basic issues in this case there's the exhaustion issue there's the at the issue and there's the underlying due process issue this court only needs to reach the at the issue and so i'm going to begin with that one  forecloses relief and a b s claim if but only if the state court has applied the correct legal standard and has done so reasonably that's not what the state court did hear both parties agree on what the correct legal standard is in this case a guilty plea is valid only if it's made knowingly intelligently and voluntarily which means that the defendant himself must understand the likely consequences of the plea mr king has alleged that he did not understand that his his new sentences would run consecutive to his parole sentence and he presented that claim to the state court rather than addressing whether mr cain did in fact understand that that was true the state court focused instead on its own understanding of what the prosecutor had said earlier it focused on a fair interpretation the prosecutor's statement that consecutive sentencing would not apply and the state court understood that to mean that only that two new sentences the bank robbery sentence and the armed robbery sentence would be concurrent now this violates at by us contrary to clause because the state court applied a legal rule that's directly contrary to a legal that's been clearly established in supreme court precedent for decades  about is the underlying due process issue whether whether mr king's due process rights were violated when he was misinformed or not informed about the consecutive years of concurrent sentences that's not however the relevant question under relevant question or at is whether the state court identified the correct general legal standard and applied that standard where where where in supreme court precedents would we the precedent that is a part of the voluntariness part of this plea proceeding as a constitutional matter is a discussion of circumstances at the particular being in or do you understand what i mean i do understand and i don't think this court doesn't need to identify that specific legal role in supreme court press and i think lastly vs cooper is a good example of this the last letter versus cooper was a strickland case and michigan court of appeals in that case had it actually were cited the strickland standard but then it just totally failed to apply the standard the supreme court held that that satisfied that that mistake the sort of complete failure to apply strickland's just very general standard satisfy the contrary two prong of at and then i proceeded to apply strickland novo and in what turned out to be a very sort of novel situation i think in laughter you couldn't have pointed to a preexisting supreme court precedent that applied strickland to the i think the issue there was the rejection of a guilty plea so i think as that case shows and as the terry williams case shows the question is just whether the state court correctly identified and applied the general legal standard here just the general knowing intelligent voluntary standard viewed from the defendant's perspective that's as far as you need to go for argument of course is a state court didn't even was not advised of the collateral consequences of a guilty plea to the offenses to which he was plea and the collateral thing was the requirement under michigan current sentence with respect to previously imposed it's hard to see how you strap that into it argument that he didn't plead voluntarily well in here so now now we're shifting to the due process issue and i think once the ultimate merits issue which we argue the should be resolved in the first instance by the district court but the but if and i think this is a key distinction here the ed but issue is just did or did not the state court identify and apply the correction general that i don't i don't get what you're calling it in i mean that the standard of proof and that's i think that i actually think that's not right you're on i think this court in rice versus white sort of explain the relationship between perhaps i have well i would urge this court to read laughter versus cooper i think is the clearest supreme court precedent that explains just how this contrary to analysis works i think it's a two step thing the first step is did the state court identify and apply the correct general legal standard strickland in that case knowing intelligent voluntary in this case if it didn't the contrary to prong is met but that doesn't mean that the defendant is entitled to relief you're still just you know as as it's always been since eight hundred sixty seven when congress enacted he's corpus act and the underlying question has always been is is the prisoner detained in violation of the constitution and that's the d process question is the underlying twenty two forty one question and pose just sort of an overlay on top of that a bar that applies only when the state court has adjudicated a claim on the merits of it has an educated claim on the merits then at but doesn't even apply in the first place and then only if the state court identifies and applies the correct general standard and does so reasonably so had the state court here said i'm identifying knowing intelligent voluntary i know i have to look at it from the defendant perspective but what i find based on precedents are based on my own reasoning that the defendant does not need to be advised of consecutive sentencing i think then we'd be in a very different it would be a very different case would be in the unreasonable application category because the state court there would have identified the correct legal standard and it would have applied it would then have applied in a way that i would be arguing that i'm reasonable but it would be a much tougher case here though where the state court completely failed to apply the correct legal standard that alone satisfies at bud's relate a geisha and bar and just removes it from the case and i think because most of the supreme court cases most of this case this court's cases involve the unreasonable application prong of it's easy to take the there's a lot of statements in the stream court case law that says you know only extreme malfunction in the state court process is enough to get relief under at all but i think if you again look back at terry williams the two thousand case that sort of first interpreted at that was very clear that contrary to an unreasonable application are there different standards there's sort of different language and have to be applied differently and in this case country two i think is easier for us to meet than one reason law occasion you also attach some defendant of collateral state consequences but you make the point this is all within one system and i suppose hand in hand with that is the fact that there was apparently a misunderstanding as to the consequences and the long range potential consequences of this in terms of the so called ninety day reference that's in the magistrate this sort of like this is a big deal about nothing because we're only talking about ninety days here and if if your point is valid you say there it's not necessarily the earliest date you might get out but that the date that you might be held to is did you know i think you have stated your position then that one that's correct and it ended up being a thirty year difference on the back end which for a defendant like mr king who has a pretty substantial prior history well i'm going to start at the place different where i was going to start because i think you the courts kind of honed in on one of the more problematic aspects of this appeal and that is what claim are we talking about it's not enough to just go into the state court and say my plea was annoying and voluntary you have to explain why the explanation that was given to the state court was my pleas not knowing and voluntary because i was promised senates would not run consecutive to the sentences that the court is imposing that was the argument that was made in the motion with all the plea as an argument that the counsel made throughout the hearing before the trial court that's even the argument that was made to the district court the federal district court never was an argument made that you should have told me that my parole sentence was going to be consecutive i should have been told that there should have been an affirmative statement about that that's a completely different allegation a different claim than saying i was promised something the clearest indication of that is  that you have different case law that applies to both situations boykin is situation where the issue is did you did you put on the record all the all the you know the information that was necessary so that we know that the defendant understood the direct consequences of his santa bello is what was argued below and in the district court and that case it doesn't matter what was put on the record if there was a promise that was made it has to be kept and it doesn't matter doesn't even matter whether the consequence is whether ultimately made any difference in the sentence that that was received sent to belo the court the  the court in santa bello explained that the state can't come in and say well you know we made this promise but really it was immaterial the trial court said that our promise not to you know not to  r inside the bell of the issue was that they had promised not to recommend a particular sentence and they in fact did recommend that particular sentence the left hand didn't know what the right hand was doing it really doesn't matter you know if the prosecution says that they're going to do something they promised something in exchange for the plea they've got to carry through with it well that's a completely different analysis from the analysis that we're now engaging in which is whether they were misinformed now when the court granted to such a fit of appeal ability this question was stated very broadly did did did mr king understand allegation an emotional withdraw the plea or said well i misapprehended the sentence and they have in the course of the briefing brought us closer back to the it's not a question of silence on the record as to informing him it's a question of misinforming him and i agree with that distinction that's a that is a very important distinction but there's also a distinction between misinforming and promising there one troubling aspect of this case for me is that i think there is in my mind at least there's little doubt that the so called promise was relating to the offenses that were immediately before the court and that that promise was correct on the other hand there is an argument made by your opponents that there is sort of a subjective component to all of this what the what the defendant and just as i am convinced that the bargain that they thought they were making was kept i'm probably equally convinced that the defendant was a little surprised at what turned out to be so in that same vein i thought it was somewhat interesting that the only relief really being asked for here in the brief is to have this go back they're not asking for a writ of habeas corpus issue but to go back to have a hearing and that hearing would be i guess to explore the subjective what was in the defendant's mind and i don't know if you agree that that's even relevant at this point in time it may be it may be relevant what what the defendant thought he was promised but i don't think you can't just come in to court and say i was promised th you have to have something more to support it and that's what the trial court the state trial court was getting at he was saying basically saying i just don't seem the thing here one of the reasons i was sort of approaching this in the way i added and is that the state court did not mean the defendant if i am recalling correctly and sometimes these habeas cases run together in a week of sit and the well they're not the only kind of case that run together but even given that the defendant was not present in state court when his motion to withdraw the plea was discussed and there was no eviden there's no indication from the record we have that there was actually any sort of promise made to the defendant other than the representation sentences in the proceeding before him would not be consecutive so we really and the judge gamut be right but we really don't know from this record and so it seems addresses the question of what indication is there that there was the sort of promise that the defendant contin did at one time and secondly to what extent is there an obligation on the part of the state trial judge to a constitutional obligation to see him about units is that relate to that other leave sex of others  and i think the questions i was asking really got to both of those arguments in that well i only think that the the question of whether parole sentencing is a direct consequence is that the trial court had to inform the defendant of or collateral consequence that he didn't have to inform the defense it of that only comes into play if they raise the boy can claim in the state court to begin with they never made that assertion that he should have been firm of lee told that the assertion was i was told something different that that's a different analysis because it doesn't matter whether it's collateral or direct we actually agree on this doesn't matter whether it's collateral a direct if you misinform the defendant for instance take the l no bonny case which is a perfect example of why it doesn't matter if there are two different sovereigns you're dealing with a federal court the one hand and a federal immigration service on the other and the collateral consequence of of the plea was being deported now if the true if the court or or prosecution had said if you play you won't get deported and then you get deported that's a problem but if they don't say anything about it and you get deported it's not a problem under on the buying that landscape changed  least as the council's obligation and we had a case yesterday in which they're arguing that the judge has the same obligation under rule as you write and it has language there is an amendment to rule i know th in i brought that up illustrate the point that it's a different analysis different claims different analysis it's all falls on the number of you know it was it knowing and voluntary i think but that you've got to drill down to what actually was alleged how would you characterize the claim that they made in that first instance well the claim was that a promise of leniency was made and here's why here's where the promise was made in this document and in this statement that for it doesn't say anything about the parole sentence ok nothing there's nothing about a presence in there so he had to either either he had he must have been in order for him to prison he would have to presume first of all that they were talking about a parole sentence and that presumption suggests that he knows something about the fact that parole senses are normally consecutive which is another explanation for why these are different claims we're talking about here because if if you're saying factual situation and the claim that was certified for appeal here was very broad which is why i brought up the fact the fair presentation issue in the brief now in the course of presenting this brought it closer to what the truck was relayed dressing i think frankly the trial court addressed the misinformation claim in the course of resolving the promise of leniency because it was looking at well how we're you getting this from that  concerned was going to be concurrent and it looks at where if there had been some discussion in the back room then you would have to have an evidentiary hearing but that wasn't the basis for the claim the basis was this a statement made by the prosecutor and the court looked at that and said there's just there's no reference to that i think i'm quoting almost directly there's just no reference to that that being the paro sentence and there being some bargain for it and in fact the plea form so there is no sentencing agreement so i think they failed there i also think they fail regardless of whether  sentence but the case law is clear that if the sentence is it within the maximum that you were told you were you were informed of the direct consequences he knew that he could be in prison for thirty years when he minimum sentence that was assigned for the for the that they're going in and there was an effect on the coming out and there was there was an effect on the coming out in but that effect was within the life sentence he thought he might get if it would have made it would have made a difference if he had had if he had tacked on an additional minimum sentence i think then it might have made a difference if the trial court said are you getting fifteen to twenty five years for the crimes and i'm a can make fifteen to twenty five for ones ten to twenty for the other but they're concurrent so it's effectively fifteen to twenty five but now because it's pro sentence it's actually twenty to thirty that would make a difference not because it was thirty years because he knew he could get that he just didn't know what the talk was going to give him he knew he could get up to life but because it became twenty minimum and that wasn't one of the not sure where the supreme court would come out on that if it were to go up to the supreme court when you have richter on the one hand it says there's a presumption that when you have an unreasoned decision that it was that it was a decision on the merits for a reason if there's a reasonable basis you have to read that into that decision what they want is a presumption that if the trial court relied on that on  analysis that is an unreasonable application of crockery that the court of appeals did too i don't think that's a fair presumption that they may not be but if it isn't it required then the reasoning that the court of appeals has i think judge guy actually kind of got to the crux of the matter here we're asking on appeal just for very narrow relief our claim is very narrow the only question we're asking this court to decide is did the state court identify apply the correct governing legal standard general legal standard from the supreme court's precedents the reasons we've gone over we think the state court did not now again that doesn't necessarily entitle mr king to relief but we think those issues the issues about whether the fact that he was informed of the maximum sentence sort of categorically forecloses any due process claim based on the consecutive concurrent within that sentence or the direct collateral of that is best fleshed out in the district court in the first instance no court has ever addressed any of these fairly i think described as complicated due process issues about what what the defendant needs to understand and in addition not just what that court needs to sort of affirmatively tell the defendant but what happens if the defect from the defendant's perspective  he's misinformed by the prosecutor as we pointed out in our reply really if there's of course a distinction between not being told something and affirmatively being kind of misinformed about something and the sentencing guidelines case i think illustrate that where you don't have to be told what your sentencing guidelines range is going to be but if you're affirmatively mis advised about the applicable sentencing guideline range that can invalidate your how are you going to get around and get the relief you request so in holster i believe was an under reasonable application case never adjudicated the claim in the first place you're certainly not bound by a and you could possibly get an evidentiary hearing entitled to an evidentiary hearing under the ordinary standards in federal court just sort of back the days where you know i have an issue here was by no means automatic but if you met the requirements then you could still get one and i think the key thing here for mr king is that he's never had an opportunity to fully explain how he understood this comment by the prosecutors i think everybody at every stage of the case has agreed it is at the very best ambiguous you know prosecutor just said consecutive sentencing does not apply to a lay person like mr king i think it's very easy to see how he would understand that to mean all of life sentences are going to be concurrent not just these two new robbery sentences so so i think that's why it's important to allow mr king to go back to the district court to kind of fully fleshed out and could very well turn out that you know as as as as people ask questions of him maybe it'll turn out that his counsel did in fact advise him but that i could have concurrent sentencing and maybe they'll be some gannon now you were appointed under the criminal justice act to represent mr king and we appreciate very much your having taken the appointment in your zealous advocacy on your behalf