morning ladies and gentlemen and we proceed with the arguments in the order listed divide your time if you like and you need not ask for me just manage your own time when it turns red and you want you to be able to address with so my mind thank you i looked at the briefs and i thought wow i don't know how the judge avoided an evidentiary hearing here says that the lawyer told me i had nothing to lose it's ten years either way might as well go to trial but then i look at the letters and sheet and i look at the affidavits and really in his mother never really say what the lawyer said they said they more say what they understood and felt as a result of what the  they didn't say that and then i read his letters and it would be a matter where he said he says alibi won't work because you say you can't even remember where you were saudi won't work it but it's the only thing we've got so i'll give it a shot if you want but don't do it you're looking at twenty years if we go to trial and ten if you plead out so i just see why the judge denied an evidence rehearing it looks it's going to be ten years either way is not  he went to trial and was convicted gets twenty years if he goes to trial and he wins he gets zero years so i mean a lawyer might think it's ten years either way or say something like that thinking it's a ten year swing either way depending on whether you win or lose and the client hears it like you're going to get ten years either way whether you win or lose that's you know pretty speculative but i don't really think we should be speculating i don't understand why the judge didn't and his mother were completely misinformed why the lawyer as to what the sentence was or if he was told by the judge at the time that he entered the plea or at the time that he had his initial would again are you that this decision this would be a unique situation there was no reason for her gently about a lawyer underestimating what the court's going to do it because he had given an accurate assessment for seven months before this fifteen minute hallway conference there was no reason to ask for del if he wanted to withdraw the plea the judge didn't ask him if he wanted to withdraw he accepted the conditional plea agreement he gets pulled out in the hallway and asked hey do you want to withdraw  same kind of a colloquy that you do when you take the plea of even assuming that that that i still would mean that at least an evidentiary hearing was required and the intoxication defense argument would still be a viable argument says it is therefore highly unlikely that donovan actually made the statements attributed to him it is almost certain that we're going to smother simply misunderstood why shouldn't i read that as a finding of fact based on the documentary evidence the judge had affidavits and documentary evidence and that this is a finding and the standard of proof that the judge used that was near certainty as opposed to mere preponderance i right and i think that we can all there's things that can be inferred from what he didn't say for example he didn't monitor not to withdraw his plea which he had to do go on his mother say is that is not that donovan said anything different from what he said they're very carefully worded and undoubtedly they're prepared with the aid of counsel so the care is professional fair and they don't say what he stepped they said i understood him to be saying in retrospect i n that he that he thought he may have said something different from what he then understood he said and then he says although i am uncertain as to exactly what donovan said but i'm certain about him for the fourth time with the mother says  the way he described it i thought that there was nothing to lose neither of them say what donovan said so i'm thinking the judge can treat this as the evidence for an evidentiary hearing and what he's got is  evidence from which he can make a finding of fact to a high level of certainty and he did it because these people were so careful not to say that donovan said anything different well i would argue a case on summary judgment where you've got you know verified declarations and authenticated exhibits and the court looks at the papers and i think the point that just points of getting at is kind of where i'm coming from judgment declare there is not a disputed issue of material that here and credit be under a but it's statement by the lawyer that what he said to them was consistent with the written think that that really with all due respect i don't think that is the argument i think the argument is there was no case law on point was nothing but a sole dissenting opinion from a twenty one time a twenty seven year old case that misconstrued the majority opinion majority opinion and telling like much want like much want to me it seems kind of metaphysical do i care to waste my time with a totally ineffectual defense or does the judge shut me down before i waste my time with a totally ineffectual defense again i think i don't think that never been recognized in the ninth circuit and i'm relying on the sole dissenting opinion and i was disposition that's an entirely different calculus and he was entitled to have that information before he made his choice and i just  was dealing with just the firearms the nine twenty four speed claimed but the briefing if if you look at the original motion of a cane and then the second motion and then the response assistance rather than focusing on what what a defendant thinks he believes wants to believe you know what if we based the question of ineffective assistance on the state of mind of the defendant you would see a lot more cases appear because defendants are always is what he didn't say and i don't know that the if that's satisfactory or not but i mean the whole issue was was what was said to the defendant based upon the allegations that the defendant is making that he thought that he was going to get a ten year sentence either way raised the fact factually disputed issue he's going to case what he understood but he but mr donovan denies what any saying anything like that or giving him any reason to believe that so you can actually having believe it and have mr donovan  indicating that he didn't say anything that would lead him to that conclusion and that is not disputed i guess the way the client could believe it even though gone again did not say it would be the clients it skated for the numerous violations that made him i'm sorry it wasn't the lord court senile he isn't a competent witness anymore the other evidently defense counsel presented him with an affidavit and he didn't sign it right your honor so there's no i and we certainly could have had a hearing i mean we don't know neutral witnesses testimony of you know what the lawyers kind of self serving affidavit and i don't mean this to be critical of the lawyer but you know he's put on the spot by a claim in effect your honor i just think that something about this hearing yesterday after i read the letters from donovan through his client where he was so carefully and thoroughly explained why that alibi defense was couldn't be put on and why  some other dude did it defense going to be put on and why that too intoxicated to form a criminal defense it criminal intent defense was a loser and my reaction was if i had an evidentiary hearing and we're going as mother said the lawyer told him this and the lawyer testified that he told them that i just wouldn't leave anything different from the letters after reading the letters and what i'm wondering is do we have any nights circuit law that says whether a judge to do an evidentiary hearing has to actually have the witnesses testify live or can a judge i know that in a recent cases we have a decision act called kearney that says a judge can try the case have an actual trial conducted on the written record with no live testimony and i'm thinking if in a rich a case  excerpt of record page eighty five which is second order regarding the motion to vacate the following an evidentiary hearing not required for the issue of credibility can be a legal basis for not holding a hearing i don't know that it does so factually from the standpoint of if they have the whole question is is there a dispute or is there not a dispute in other words if the fenced in his mother took the stand and the one alcohol counselor who c makes no record of what he's advised his client and then just cash or take his word for it this is a defense attorney who took great pains on several letters to give his client black and white indications of what the circuit worked and what was going on know we went way over thank you council estate i'm on our behalf if you want to thank you for taking this case on a pro bono basis the court very much appreciate