court granting mr saddam hussein requests for certificate of a bill appeal ability on his claim that the trial counsel had rendered constitutionally ineffective assistance in the plea bargaining process we are here today asking for that's the court's decision i misread the c e o a i did not see any language in there that required me to address the underlying procedural issue that the trial judge addressed the court granted the certificate of appeal building on this issue and i beat this issue on the merits and if the court concludes that i expect anything up by not addressing the procedural issue then i don't know how to respond and i did not address the procedural issue mr sanders did inform me that if saddam who had remained unrepresented would be entitled to the indulgence of the court liberally construing his his filings which might mean that his brief should have been treated as a motion to amend to add a laugh or claim that's correct or are everything that was filed in this matter prior in your court in this court prior to the issu i would suggest as appropriate there is an important distinction between pleadings and briefs and if if that mistake had been made in a council brief it would it wouldn't suffice but you have an opinion or an argument to make as to whether it should have sufficed in light of mr saddam in those then proceed status well you are i guess initially i would ask if if the things are proceeding away i think they are right now that maybe i could be given leave a court to file some type an amended or a brief to address the procedural issue but yes mr saddam was working pro s and his brief was filed in a timely fashion i'm sorry his motion was but the subsequent motion to leave a court to a man to add the laughter clane certainly came after the one year period has expired  i thank the court for indulgence yes your honor it's mr saddam has allegations in this process a documents that trial counsel failed to explain to him the difference between his sentencing  in the event that he was found guilty at the trial and in the event that he pled guilty he alleges that the government offered him a guilty plea of thirteen yet because the plea negotiations whereby he would spend thirteen years in jail  rejected that he went to trial as a result of his convictions of the counts after the jury trial should sheraton sentenced him to thirty nine years in federal prison he is now seventy five years of age obviously a thirty nine year jail sentence is a life sentence for him your honor he complains specifically of several things that truck outs will fail to do during the plea bargaining process and those items are as follows that counsel did not explain to him in complete detail what the offer of thirteen years matt how did this credal sense and guys would calculate the guideline range imprisonment according to the charges he was facing how the judge had to consider all seven sentencing factors under eighteen s code section thirty five fifty three and also the mandatory minimum of ten years which one can consecutively in the event that he was convicted of the eighteen us c one hundred twenty four c charge for  there was no hearing before judge sheraton on the twenty fifty five but at some time during that process that transcript should have been placed into the record the transcript also could have been placed in the record prior to we appearing here today the government chose not to file our response to mr saddam who was pro se motion for issuance of a c o eight in this court they had plenty of opportunity to do so they failed to do so so your honor it's my argument that that document although may be relevant at some future proceeding is certainly not relevant or unmissable before this court today on one of the other things that trial counsel failed to advise our argument that counsel failed to do so in this case the allegations made by mr saddam and his pro se proceed from pleadings must be taken as true by the court unless there is evidence in the record that  contradicts those allegations once again my position is that the late filing of that transcript is not admissible makes that transcript not admissible and therefore is not part of the record today before your court that would be the argument you counsel thank mr sanders i'm sorry to jump right in before you can even make an argument but i can't resist should we just send this back down for merits hearing him because the  memorandum in support filed by pro se litigant tried to make a laughter claim and that should have been construed liberally which the government in their march twenty first two thousand and seventeen letter a pleading right look at the third now let's say we disagree with that let's say we agree with the notion that a brief is not a pleading but we also say that because pro se filings need to be liberally construed the fact that a pro se litigant style something is a brief rather than a pleading is not fatal well if your court at this court says that it will be the first i mean at least know you've got you've thrown this stuff for the transom at the eleventh hour and i don't know the propriety of that but regardless it seems like it would be a fairly quick perfunctory hearing if we were supposed to be clear avoid the futile there that's another forfeiture by the government but in hindsight if we had to go back and do it again i think we would have said to the district judge this is untimely and it's also se motion by mr donnelly including statements by have counsel the only count by the way who was counsel for him when there was a plea offer neither counsel who fought there to counsel who followed mr malone by that time to put up or been rejected and no other position was there because we he had a motion pending we had a position right the just the court rejected that we often take positions in the disappoint that are rejected and then are left to defend that it's a court judgment on appeal and we're doing that here you may get your disagree and i guess i will go talk to my superiors but i would if you i mean if we're going to get to this point sounds like we're past labor but i'd like to say a couple things about the wa i'm just struggling with how it's a proper efficient in just to allow that waiver of counsel to put by by a court appointed lawyer to put so donna would a worse position than he would have been in and had he just slapped the blue blue cover on on his own brief that it's an unprecedented situation in my experience  and it strikes me that the the more proper thing to do is to put him back into the position that he would have been in had he remained pro se and then have the district court take a look at this on the merits and we all know where it's headed when it when it gets addressed on the merits o two thousand and again that's not the response that argument because it's not really i mean i guess we could have anticipated perhaps that that would be the pack of court chose which was to  i received the transcript that we were discussing earlier last friday on monday i called mr c sanders and made a couple proposals one was exactly what the court's referring to i asked him if he would simply simply agree to a re man and get the matter over before judge cheriton as quickly as possible he said what he told the court today has to go up the chain of command secondly i asked him if he would agree to continue today's or argument so that i could contact mr savannah by telephone at his prison in south carolina to see if when i've already mailed him the transcript it will take some time for him to get it i put that in the mail last friday to see if he would be willing to withdraw all the appeal based on a review of that transcript that will take some time i don't have so do you want us to hold up when i would wish the court to do with the court i think is leaning towards because i don't know that mr sodano would in fact agree to withdraw all the appeal he seventy five years old