client mr torres the consequences of what would happen if he went to trial and lost and i know that the california rules the sentencing laws are extremely complex but it's up to council to really determine what these laws are and in this case trial counsel failed to tell him that he'd be looking at a life sentence if he went to trial last even if that's true the magistrate judge found that the district court the trial judge had told him and he was present when the trial court and by my count i think he said four different times that it was looking at a life sentence mr taught us was present was this i just want to be clear was this is this is th this is the this is in the in the california proceedings here but in the california proceedings it was after the first trial where the first trial hong that the trial court said oh this is a life case might well why would things why would that make a difference why would  why why does that make a difference that was after the first trial hung that the district judge the magistrate fines and cites all of that all of the evidence that the trial judge says in mr bale's presence on four different times this a life case fifteen years to life fifteen years to life so it is fifteen years to life plus potentially another town but i'm i'm just want to be clear is the court saying that that was before the first trial or this is i'm reading from the  magistrate's findings after petitioner's first trial and of the mistrial with petitioner present the trial judge discussed with counsel send the case back to its home court for a retrial ok yes i i know that at that time the court did say this is a life case but at that time the district attorney also said i have been instructed not to accept any offers on this case at all and that's it well that the point is the magistrate judge you use that fact four times that the trial judge said it to find that the the defendant was was not credible in his claim that he would have taken the fourteen year plea deal had he known that the maximum was was life so it was that's the point except when when you actually look at the transcript the court says fifteen years to life but he's talking to the trial attorney and and the defense counsel he didn't say to the client do you realize you were if you lost you'd be looking at fifteen years to life and besides it was too late in this you late even have a choice at that time it doesn't matter it is too late it's a credibility fine it's a credibility it's not whether he got the offer again it's a question of whether he his testimony is is credible but he would have taken the four plea deal in the magistrate judge is making a credibility finding that he sat there and he heard it said four times that it was life and so now it's not credible for him to come forward and say oh if i had known it was life i would have taken the fourteen year deal there's just there's no credibility to the statement that's what the magistrate judge is saying well we're we're we're our concern is basically that his testimony is unrefuted that there's no the prosecution never presented any when the district attorney didn't show up the trial attorney can't remember what was said and i think just in terms of his testimony that that his attorney didn't advise him there's nobody else who says the attorney didn't say well yes i did advise him you're right that's true but there is a trail apparently transcripts in which the trial judge said four times this is a life case this is fifteen years it so we would have to assume that the defendant wasn't paying any attention to what the trial judge was sane and didn't know that it was a life case and then his attorney didn't didn't didn't tell him so assuming assuming that that mr mr toure is didn't know it was a life case after trial number one assuming he knew that ok he found out it was fifteen to life after after trial one the problem is that the district attorney was under instructions not to offer any more pleading else so it wouldn't have mattered let's say he could have said then oh boy this is a life case i would have taken the fourteen year you might be  very very different case the problem is judge smith points out is that that is that he said that he was surprised at the second trial when he got fifteen years to life because he didn't know he that he would he would get a life sentence well and yet and yet he had been told four times by the trial judge at the first trial so he could have been surprised at the second trial that's the credibility finding by the by the magistrate yes except that there is he he wasn't really what could he do that was really nothing he could do at that point well that may be true but the one thing you can do is tell that is tell the magistrate the truth he can say i didn't know my my attorney never told me i heard the trial judge say that but at that point it was too late i've now i've now lost my right to get the plea this is a very different case if that comes out he doesn't he tells the magistrate that he was surprised at the second trial and the magistrate says you couldn't have been surprised you heard it from the trial judge in your first trial four times well i think that a lot of times defendants are surprised when they get a certain sense he says fifteen to life i don't think that it was clearly made that way that the trial judge told him look if mr if mr torres loses this case he is looking at an indeterminate term of fifteen years to life he will go to prison for fifteen years to life so even though he was present in there in the room number one he had an attorney that told him he was only going to get thirty years so even though there could have been a life case was going to get fifteen years this is only turn he said look you're only going to get thirty years so i don't we also have to we have to take this in a larger context don't we and that is not just these these four statements by the trial judge but also what the magistrate judge found was an incredible statement that that had he known if i understand this correctly had he known he was going to be deported he would have taken the fourteen year deal was that like what he was saying i have that right i think there was i'm not sure that deportation was really an issue in this case because he would have been deported normally when you take a plea or you're advised that any plea you take is going to lead to deportation if you're not a citizen here well but it's a question of credibility again the magistrate judge found that that was another factor that undermined his his his credibility as well as it contradicted his own statement that he went to trial because he wanted to fight the charges so so what we're really dealing with is all of these these different facts which undermine his credibility and the magistrate judge makes a determination that this statement just isn't credible because of all this other stuff if i would like to see some time for rebuttal but i did want to respond just very quickly that if we don't believe it matters i mean what matters is why he didn't take the fourteen years and what his attorney told him even though even assuming he lied he said ok i'm surprised i didn't know but the key is if the trial counsel would have properly advised him at the time of that before the first trial then he would have taken the fourteen years and only later did  find out about a life case and that's clear on the record just taking his testimony aside it's we don't see it as a question of credibility we see it as trial court trial counsel's failure to advice him of the consequences of his plea and to adequately advis that's the way we see it so he can come in later at any time and say oh yeah i didn't know i didn't know but the point is it was a patrol council and i think it's important from now on when there is a plea like this to make a clear record make it incumbent upon trial counsel and the court say ok this is your offer this is what will happen if you lose and we didn't really see that at this point so who has an a for the questions i'd like to raise or  with counsel would that have been would that have been noted in the record i believe it would have yes and it was not in the record so the records show that there was no side there was actually an open court all counsel was present position was present and the court had to have th when when he believe use of the tool to have left evans other than the fact that he said originally they didn't know they had the clearly the records show that he was informed so he's not credible on this point then we can say that is not credible and the other point trying to ask you a question about this  is claim about if he had known that there was deportation or subject to deep i was still a little confused about this if he had known that there was deportation he would have been more inclined to take the fourteen year deal i think that's what the claim is when his counsel testified at the evidentiary hearing were there any questions to counsel about about that issue i know that the defendant said well had i known this i hearing we're not we're not clear as to whether just not to call them or even show up but this here was unable to bring any other evidence at the events you're hearing except his own testimony and the district court was able to evaluate that doesn't want to compare that to what he said in the written statement and found that there were and of course court found that the sister had have no credibility as to those statements so therefore he has no credible evidence whatsoever and is famous for kept counsel indicated during the argument for argument that at the time  that he was in court after the first trial that the government was not authorized and the fact that there was a life sentence was mentioned by the judge after the fight the charge before the first trial and that if he had known that he was facing a life sentence that he would have taken the plea offer i believe you want us for they want to fi when he did he didn't say exactly what he was asked why he wanted to go to trial and he said because i want to fight it he didn't say i'm just trying to understand whether his is evidence at the evidentiary hearing was contradictory in that he testified both that he would have taken the plea said that he simply says i want i want to go to trial because i want to fight it found he did not remember the trial judge telling him earlier on march eighth that he would be facing a life where the trial court never told him there was a discussion between a trial counsel and the prosecutor and the court as to what was going to happen next so the trial court never said look you know you're going to get life but in any research it wouldn't matter anyway because it was already too late because the deal had been closed and it was gone so the fact that after the fact he decided he said well i was surprised he probably was because his a trial attorney told him he was going to get thirty years and in fact in the report recommendation on page twenty seven if there's no dispute that he was offered a fourteen year a plea agreement and his attorney told him he would get thirty years if he if you if you feel and fail to tell him he was facing a possible life sentence so we see that as an issue that trial counsel failed in his  most defendants would take a fixed term versus an indeterminate life term he's telling you know you're going to go to jail for the rest of your life if you don't take this fourteen years that that has a lot more of an impact than thirty years and so that's really where our focus is and in terms of credibility of the court did not tell him that he would be facing a life term and even if it did it wouldn't really matter anyway because it was too late so unless of course has any further questions thank you very much