the morning if he's a court counsel statute that neither of the two allegations and of factual basis were true one the allegation that he had to report his nevada conviction was never the case office where the prosecutor at the time of the plea allege that my client had to report that offense as well the other offensive in the arizona conviction was according to  client that as of the time post august thirtieth two thousand and twelve which would have been a time before he them pled guilty he will inaugurate quire to report the arizona conviction my client only found out about this after serving twenty four months in prison been released on supervised release and then reported over to d p s to find out what he always had suspected and that is that he did not have to report in texas after having been convicted of the two offenses having done that my client and this was a pro se submission i came in as appointed counsel by the court after the fact at the hearing he raised the arguments  he would have proceeded to trial so what did his lawyer not do that he should have done because i assume his lawyer recommended did he plead guilty but but where did the lawyer fall then conducted his own analysis of the statutes he did his own quote substantial similarity to us and he came to the conclusion that the statute from the from the arizona and texas convictions were similar enough that he had to report under texas law he did not however research the law he did not call d p s he did not contact any of the analysts who came up with a what actually at the time the only analyst who came up with the conclusion that my client had to report he didn't check with him at all it was a situation that is federal public defender right it's wrong it's appalling so surprises me in a way that he's perhaps falling on was issued on august thirtieth of two thousand and twelve and the fall of pled guilty but ten days later september twenty fourth your honor all right three weeks later yes wrong oh long does it take to get  this kind of information out into the public domain your honor i i don't know yeah i mean that's and that's that's a good question your honor it's a question of well how much to do as a lawyer to find this information well i must say that we have fifth circuit argument all of the time where people do not discover relevant cases they just don't sometimes they do two days before argument but a lot of times they don't see stronger i mean  i would i would add your honor so it's i mean it just seems to me i'm not sure about the involuntary innes of the guilty plea because the client is allowed to rely on his attorney's advice and you know looking at the statute should have with certainly reasonable thing to do i would respectfully disagree rohner it's it's it's certainly something to consider because of the amount of time that passes but my client was not sent until until december there was plenty more time that passes or counsel could have checked with d p s and the point that i'm trying to raise it's did he compare the appropriate statute i mean was he looking at  an incorrect statute to compare with was it deep the statute that he was pled guilty that he pled guilty to and was found guilty of i mean was there an indictment was he looking at another document or something else that might have led him to comparing an inappropriate statute or is there evidence enough to show that it was a correct statute that he was comparing that's that's a somewhat complex question judge because the analysis itself as to whether or not statutes are substantially similar requires some level of comparison between the visiting state conviction and texas statutes it could be several federal sentencing and not the backroom conduct right well that's another interesting point i've read anonymous here on or and randy on thing i believe and this is my my position based on reading anonymous and reading good  which is a court of criminal appeals opinion that laid the law that the pre parties before anonymous i believe the mr they got claims that anonymous was the deciding factor in him given a different decision from his predecessor i don't think that that is accurate anonymous did not change the law anonymous reaffirmed the whole they got to see it all right well let me go back then another step because judge rodriguez the district judge here had really very little trouble concluding that the fundamental elements of the statute to the same and doesn't that make all the rest of this argument irrelevant no your honor respectfully actually it does not under the hill is not the determining factor in determining whether or not counsel was ineffective in representation of a plea well but the fact that they all people claim they misunderstood the law but b they didn't really misunderstand the law adams that what matter loise ultimately what my client had his head and what he understood before he decided to plead guilty i never what's your best case for saying that even though counsel gave advice which in retrospect which might have been counsel thought was correct might have been dubious but other people see is correct that he would have played not guilty and gone to trial ok there what's your best case for the m voluntariness or the hill versus lockhart standard for that plea you're on or you would have to find the counsel is ineffective yeah exactly and i agree with you on that we believe that we have shown that counsel did not do everything he could to find out at some point from d p s that the law changed he could have sent an email to someone he could have done anything like that he could have checked maybe days before the plea has a lot of change he could a research case law he didn't do that either at all and so barring that if the court does not believe that plea counsel is ineffective then we go to the next argument which is the stand alone involuntary this claim which just as math judge mathy recognized as having been raised there is no bar to it and the government never objected to it and it was before the court and she made findings we are arguing that either alone or in combination with a stand alone voluntary his argument this plea was not voluntary and i don't think there's much dispute that this man did not understand what all of what would have made his plea no intelligent no matter i have a real hard tough i mean i have a real hard time thinking that this fellow quote didn't understand given his conduct which was you know displaying himself to  multiple young girls and teenagers and the fact that he was caught three times perhaps understates than what he had done and everybody who does that i think knows their sex offender standard it is nothing easy to do he felt relevant to his state of mind relevant to the law court she was always in the it and the government conceded that he would have gone to trial but it's not simply a subjective test i mean you know you have to have a rational basis for the defendant's decision to plead not guilty your honor he believes he didn't have to served i understand that but if we were if this was just in vacuum and the anonymous case and not come out and you were before us and your only argument is well he he just didn't think he had to register we'd say case closed you know twenty to fifty five dismissed because hilty la carte is not a purely subjective test well it's you know i mean if he freely felt that way he should have moved to withdraw the guilty plea but he never did that but he did know that no i'm moving absent even absent this uncertainty about this anonymous i mean i agree it's not the usual sort of case it's wrong or today that it's not it's not a crime it's not either but the but you have judge gershon judge rodriguez a federal judge saying they're similar and they have an opinion from the state of texas saying no they're been the case though he pled guilty and in how when was the sentence he pled guilty september twenty fourth he was sentenced december you're wrong and from that from the day the plea to the december the attorney could have filed a motion to withdraw the guilty plea so there was an additional couple of months of notice about anonymous for there was time even afterwards the rules allow for a motion for a new trial a new discovered evidence none of that occurred  unfortunate for him but he sat there for two years and found out afterwards that it didn't have to happen other might have any time left you have time for a battle yes your honor briefly  the government out i think it's in the record at page one forty six the government in its response the twenty to fifty five asserted that all these documents have been turned over to defense counsel discovery and mr clarke's testimony at page four fifteen the record he stated that he had received the discovery that he reviewed the arizona statute and the texas statute and found through his analysis that the two crimes were substantially similar which of course is exactly what the d p s had determined that that boy so at the time that the defendant was going through the process of having been a reigning a three eighty three three three eighty seven that at the time that this man was charged d p s had determined that this was a substantially similar crime to the texas office well we know that so we don't need the counsel fall short he did not he was aware that this too often says for similar and in fact the district court later determined that the two officers were similar which supports the fact that the defense counsel here was not  registration and he testified he still had that duty up until the time that d p s determined that he no longer did it so that it was this was what this affected was the defendant's prospective duty to register not whether or not he was guilty of the crime or whether or not he had a duty to register at the time he testified that intel d p s changed that determination and they did not compared him and he would probably find that they were except in this particular case the judgment from them is on the left out the words to a minor but when you look at the arizona statutes the only way that the defendant  end if you look at the earth tone of public sexual indecency statute and the texas indecency with a child statute and you look at the elements of the arizona does not the texas statute requires knowledge regarding the presence of a child the earth that there isn't a statute does not and the texas statute requires a specific intent to arouse or gratify sexual desire and it arizona statute does not so it would seem to me that there is some significant difference between the two statu just fourteen zero three it says a person commits public sexual indecency to a minor if he intentionally or no in the in acts engages in any of the acts listed subsection and such a person is reckless whether a minor under the age of fifteen years defendant pled guilty to count two men did attend to public sexual indecency a class six designated felony and under the arizona skin the only way that public sensual indecency to a minor  be pled down to a class six designated felony is if it's an attempt so basically they admitted count two which was the public sexual decency to a minor in arizona and played it down felony in arizona and the only way you could plead down that particular count of the indictment to an attempt was if it was to a minor but he said he just gave the benefit of the doubt to the defendant and that story in the evidentiary hearing and i believe it's between pages three eighty three and three eighty seven in the record that he makes that comment and i cited that also in my  but so going back to the strickland vs washington analysis the first prong of strickland is you have to determine whether defense counsel was deficient in his performance and here at the time that the defendant was charged at the time the defense attorney examine the statutes it is clear that d p s said the defendant had a duty to report and register  mr adams was not deficient in his performance and when he compared those two statutes and you know where where is the line drawn does the attorney have to have a duty t every subjective change in the g p s his analysis and i don't think stricken with bars that he well yes that is me you say it's a subjective change in d p s this analysis so you're saying the case does not analysis and as the as well word for the day what is the change well according to mr tega he said that the changes that they are no longer required they are no longer allowed to look at the they're only to compare the elements of the office and when he stated he compared the elements of the elephants he basically said i looked at the judgment the judgment left out the words to the minus so i think the defendant the benefit of the doubt but remember too that that happened d p s did not make that determination until after the defendant had been released from prison so it was approximately two thousand and fourteen when they made this decision in the defendant was charged in two thousand and twelve and plead guilty in two thousand and twelve but so going back to district in vs washington analysis and when you interpret the law but the interpretation applies at a minimum to all pending cases because it's you know when the courts are interpretating the law which was the law before and the law after so i i don't i find it hard to accept your prospective retrospective argument but i also have to say if if this came out and changed the law while he was in the process of having final judgment assess then if it changed things which i'm dubious about but you know you  have to say that anonymous would have been relevant if it would have if or tiger would have looked at things differently i blame mr i take it said that anonymous did not change the law that was his testimony at the evidentiary hearing he said it only changed his way of determining whether d's well i understand that but it's a decision that makes a difference because it yet sort of says you don't look at the background facts anymore you only look at the elements of the crime then you know that scene that's the standard you have to go by and it applies to pending cases which is was at the time and according to judge whether it is when he he found that mr take it was simply bob and in fact mr take a did testified basically that it wasn't the elements that he examined it was the judgment and because the judgment used the truncated title of public sexual indecency without adding in the words to a minor that he gave the benefit of the doubt to the device and it so that is not a that's not a comparison of the elements that he did there and i think that's why the judge for the reagan is focused on his analysis of mr take this determination at after in the two thousand and fourteen was was incorrect but i don't believe here that in a twenty two fifty five times context the burden is on the defendant to show that his counsel was deficient that his performance fell below a professional standard here and objective standard here and i don't believe that they have met that threshold requirement of showing deficient counsel here and based on doubt that the court does not need to go forward into turning the second part of strictly but but i think it's clear here that mr adams was was not deficient he did examine the statutes he made the correct analysis and to the district court's opinion supports that  and the defendant was aware of the time that he was pleading guilty of the charges against him the rule eleven play with magistrate mathy was thorough and all the all the bases were covered in she determined at the time that his plea was voluntary and asked to as to the defendant's argument that he was actually innocent of the crime a think it's clear that that is not the case even mr take it testified that they were the ones that had the duty to make that determination anathema time they had made the determination in the defendant had it to teach prejudiced or he said that that determination goes on until they determine otherwise ok i think your argument about what would happen here i don't know what decision we're going to render but if we should decide to grant section twenty to fifty five relief what what would happen to this case what what what would occur in your i believe that the defendant would no longer have a duty then to register in the future  happen would be depending on what the court's opinion here would be think the only thing that's going to change is any prospective to teach about just as a sex offender in texas and  what forty years or something it's a long time he said and that is super his probation in arizona was lifetime his duty to be part of his lifetime and in texas this would be a what they call a post te and so i will go back to the record and point out there randy ortega testified that had he been asked which nobody did back to after eight august thirtieth before my client pled that my client had to report his answer would have been no he did not have to for his statement was that anonymous changed the law not only that he changed his mind but that anonymous changed the law that's what he said i don't think that anonymous did but because of what his motivation was his war is a final word as his motive a i mean his it is subjective his personal interpretation well you may be right about that but i just have to say i mean doesn't make some difference the judge rodriguez had a very simple explanation here for the can grow and between the texas and the arizona statutes and to me it's fully convincing to prove indecency with a child by exposure under texas penal code th state must prove child younger than seventeen accuse exposed genitals knowing child was president present with intent to gratify the sexual desire under arizona thirteen four zero three a person commits public indecency by intentionally or knowing engaging in an act of sexual contact the phrase sexual contact has been interpreted by arizona courts to include a defendant masturbating in public or exposing  in anonymous from the comparison the judge rodrigue has stated and whatever mr ortega said he was saying in cross examination on the stand right or even direct examination well he was testifying as to what he had already written in the letter to my client before which is that he did not have to report my client and he got a letter from our bank and i think i clarified that at the time of the pleas he would have given the same response and what i'm trying to point out here is regardless of how this decision is made in texas which i have a problem with because it does connect with the issue of actual innocence what would happen a trial that would have been a mess i think the fact is the d p s is the final work or thing that was the final wor whether he did it one way or another his word was fine but what did he plead to plead guilty to in arizona and does that make a difference i don't think it makes a difference ultimately judge as far as of my client thought he should have done now one of the major differences that ortega pointed out is that the jet's been nor the plea mentioned the word minor and so even the judgment itself was not clear as to exactly what it was are i do or it's the court to consider though that there is also the argument as a standalone argument that the plea was involuntary there's no bar to it it was raised and it's been substantiated my client understood the whole time he didn't have to underhill under actually under a straight up analysis of whether the pleas voluntary or not it was not clearly he would not a pled guilty had enormous information it just does not make sense that somebody could not know any of this information with the intent of trying this case and years later finds out that legally he was not supposed to he would not apply to it it doesn't make sense but but it does make sense because this is a bit this is a very bizarre set of circumstances and i believe you don't dish love once you have the bone tearing his violation which is a constitutional violation together with a newly discovered evidence clearly a new discovery by the defendant who found out two years later that he didn't have to report together that there was it was more likely than not that a jury may find him not guilty now schlepp there's not a lot out there on that it's been on the books for a long time but it fits this type of weird situation i think i could say neatly and i think that is he had no information and actually misinformation by counsel and i will add to that that we do respect mr adams he misinformed counsel whether it was in good faith or not and i believe that it may happen but that misinformation was never but that's interesting that there is a apparently a there is a process by which you can appeal d p s determination in state court to a district court and so that was not done here but like i said it would have been a difficult case to try  of the difference of opinion between randy if they we think we should receive the benefit my client should get a new trial and then the government can decide they want to go to trial on this case and put the whole system that texas uses out to see if it really works or not because it seems to me like it's extremely subjective maybe even unconstitutional and due process grounds that's all we've got all right well you've done a great job council much pleasure thank you very much