immediately after the sentencing hearing is there was a notice of no appeal that was signed by the appellant however in his twenty two fifty five petition he alleged certain facts that the government can see that he had alleged enough facts that if true entitle him to relief and that's where we come before this court the district court was bound by the facts of alleged that were not miss about it yes i suppose of the issues involved in it to the claim is the never ineffective assistance quite right yes sir so you have to you have alleged both deficient performance and prejudice and judge cho flav's point is that how can there be any contradicted by the record in the plea column which then there should have been an evidentiary hearing by the district court a lot of this before you today would be easier to resolve had there been an evidentiary hearing in the in the record does not even show that the district court considered document two fifty eight page two and three where mr lacy process alleged that he believed he was signing an appeal document to appeal affirmative document to file an appeal and when the magistrate made its recommendation report recommendation to the district court there was no reference to that document at all it was the chief thing he's on happy about the fact that he he  thought he should be given credit for time served in the county jail not one of the key issues he would have raised on appeal he were a certain sentencing issues pro se judge that being one of them  we're here asking the court to reverse and remained it back for an evidentiary hearing to determine whether or not he did direct his lawyer to let's just let's assume for the sake of discussion that he told the so now we look at prejudice that it's just a guideline issue within the guidelines and he waived all those and that's what the best the district judge would would probably find hearing that the court of appeals would have dismissed the appeal so there's no prejudice but he was still robbed of his autonomy is right to have an appeal your honor and that's the we do not make that argument judge is the appeal waiver that was made otherwise you'd move to set aside and play grimm and that's correct and again the record was developed at the time this court appointed made it to the supplemental brief obviously but he in judge why there was more conflict and that was because his own petition says amended referenced and indicated that he believed it was an appeal document so you had you had conflicts between the no appeal document the colloquy in the record his twenty two fifty five petition and the government did not offer anything to rebut any of that at the district court level there was no affidavit  not offer any testimony from mr harold the trial counsel to rebut it there was no that hearing would have cured the hearing would have been the the way to resolve it this being a case of first impression that the policy reasons why this court should remain different  we just ignore the don't notice of appeal filing altogether say that in your answer we just will ignore it we'll ignore this document that was filed this no notice of appeal notice of no appeal will just ignore it and assume for sake of discussion that the lawyer should have filed a regular notice of appeal what would happen and then what happens to the notice of appeal when it gets to our court and the government says he waived the right to appeal and there are no argument that the waiver of the right to appeal was involuntary or otherwise a valid we would have dismissed the appeal right so  's the prejudice under strickland not your problem it's still a vital stage in the proceedings to have a view about this this court and it's necessary is it is we it happens all the time when a suburb of five thank you on exactly right there would be no prejudice here because if he had had an appeal it worked if he as attorney had filed an appeal for him it would have been waived by his knowing involuntary plea waiver in the plea agreement which went through on the to resolve the case yes your honor however we don't even think that he was entitle to an evidentiary hearing this court obviously has said in general it's better to have these evidentiary hearings and in most cases there has been  remand for an evidentiary hearing however the court has also talked about there are exceptions and in fact two cases recently talked about the can sit or a bolt discretion to decline a twenty fifty five hearing and particularly when it's patently frivolous based on unsupported generalizations and affirmatively contradicted the record and clearly here we have affirmatively contradicted in the record based on the police colloquy based on the filing of the notice of non appeal and also you have the issue of the reported recommendation came out and granted he is a pro se defendant but there was no objection to the reported recommendation either so you've got the district court knew that there was a plea colloquy had the language in  thousand says when counsel fails to follow a notice of appeal no specific showing of prejudice is required because the adversary process itself is presumptively unreliable how do you distinguish that well we h there's florus and then there is the case somewhat similar to that and the d a s case here in the eleventh circuit in those instances you specifically had that it was a fact found by the court that this person the defendant did in fact ask their attorney for an appeal here we don't even have that as being a finding of fact that was an allegation made one time amongst six different briefs that mr lacy filed on his twenty fifty five so i don't think  he may have found that he did potentially so i we just don't think that in this instance under these facts that even rises to the level where the district court was required to have an event you're hearing it and that's because they're your theory is there's no prejudice because he doesn't dispute the play well you know the reason we don't think that she was required to post was required to have the evidentiary hearing and here is what this court's talked about in winthrop read and that the district court has considerable discretion not to have one when they find it's either patently frivolous and we're not saying that the allegation here is patently further west because if true that's not necessarily frivolous but for the just some of the allegation they told  so that is the second part of it is yes there would not be prejudice if the court and mr lacy doesn't explain any prejudice so now he doesn't in terms of whether we would entertain the not he got time served in in the county jail when he was already sentenced in federal court on a previous fraud conviction or one of the claims that was raised that twenty to fifty five the district court didn't have jurisdiction over all this record doesn't have jurisdiction and it twenty to fifty five of a matter that is not it's not challenge that the constitutional action of this three court correct th effect of the systems class yes you're on there was another claim that was not based on the constitution at all so that's a court had no jurisdiction entertain that but we agree yes they looked at it from the whether or not it was ineffective for the prejudice what if he directed him to file the appeal the prejudice is but not found in the appeal according to your precedent or your previous cases in the supreme court's opinion in force or tyga and that's the record before you hit there is there is testament testimony allegations in the record he directed the appeal to be filed and it was never filed i think i just chose last point seems to be is that ok we'll assume you're right that he did  appeals all the time if necessary because they either have not alleged in an issue that the court can reach or because counsel substitute counsel after consultation file been right and half of the result be any different i guess is the question let's assume he had the right to be up here and we're now considering while we've got his plate waiver and he did receive a sentence less than the maximum right i mean within the lower than the even lower end of the range of the guidelines if it is it's he is allege that he told his lawyer to file an appeal and the lawyer slipped a no appeal in front of him i think that would give the court enough to reverse the case and again that's what the evidence you're hearing understand i'm not pursuing an appeal earlier that day he told the district court i understand and waving my right to appeal district court says if you file you know if you're not going to follow an appeal you folks need to file a notice of nonempty district court does that because this this particular defendant had on a previous occasion fallen appeal after pleading guilty right that that that's what happens in the court