morning your honor may it please the court my name is caroline flynn and i represent the petitioner in this action mr david de this court granted a certificate of appeal ability on mr day's claim that his retained trial counsel provided ineffective assistance when they persuaded him accepted that in cream and said he'd likely be out of prison by now the district court dismissed mr day's claim without even holding an evidentiary hearing but the government has now conceded outright that the attorneys in question performed efficiently and the government also does not december at which point schwartz and chris were his only attorneys those are the attorneys the government has conceded performed efficiently at that point miss foster is no longer in the picture she did not advise mr de about that decision and so at the point at which she was being asked to make a decision about whether to plead and accept that offer he received only deficient performance from his attorneys you are correct your honor they after meeting with mr day they knew the plan that mean was to give them advice about whether to take this offer on the table they told him that he had a good defense that what he was doing was not actually a crime they said that the government's case was insubstantial even though they hadn't reviewed any of the discovery and then they took it down payment months passed and then only once that his father had paid their fee in full so they enter their parents in the case and then ask for a continuance telling the district court you need this continuance because we still point whether he wanted to take that plea offer rather than go to trial in forty days and that's the rejected and he rejected out on on the record and from the district court and then four days after he rejected that plea your honor he ended up pleading guilty with no plea agreement he was he entered an open plea the government agreed to no sentencing concessions and he ended up getting a sense of ninety two months when what he likely would have faced in a forty one and fifty one months the next you know the the one his codefendant the woman he bought the social security numbers from about forty months as well so the government you know the government tries to argue that the nd plea offer was not really a new choice for mr de because the terms of the offers were the same but of course the time the prosecution didn't see it that way because they did present the the only defendant left standing in the case to others played around that time the government had me at santiago proper about what i was going to show about the existence of the conspiracy and of course it was forty days from trial and i mentioned before the court had just denied a continuance of his lawyers that he needed so that was did stand in a different place and think about why the government did ask him again if he wanted to plead rather than go to trial him not to they gave the same advice they give and previously that he had a strong defense that the government's case was insubstantial and that he would win a trial but this is this appeal really isn't about the merits of this strickland claim it's really just about whether he get a hearing to try to carry his burden of establishing that he would have accepted the plea but for the bad advice and retained counsel and that the court would have accepted the recommendation since it was a non argue that he wouldn't have taken this deal anyway i think the record strongly supports us in this regard because he did plead guilty he pled guilty just days after rejecting the plea offer and the only thing that changed during that time is that his counsel changed their advice and said that he was going to be convicted so i think that's a very strong objective indication that he would have taken the much more favorable plea deal had you not been wrongly advised but it's a start with the st party of your honor's question is yes this is this point we're just asking for hearing to resolve that disputed issue of fact and right now the court cannot deny mr de that hearing unless the record conclusively shows that his allegations about whether he would have taken the  how do you plan to go about establishing make sure your honour's so all the district courts ruled on that at this point just saying because this was a non binding plea there wind of he can't show prejudice as a matter of law but the district court  include any facts in its analysis indicating that mr de particular case it might not have followed the government's recommendations had those recommendations been in place and right well that's why i'm asking how you're going to go about establishing that aspect case there's also the fact that he did not you know he didn't put the government to its proof a trial this wasn't a situation where he took a gamble and then made everybody go through a trial and then is now bringing a claim saying he would have pled i think that they calculat  st of all no matter what the plea agreement or the plea agreement gave him three levels for acceptance of responsibility he only got two because he didn't take the plea agreement but i think it's these recently probable that he would've gotten an extra level for acceptance of responsibility so there's really no hearing that's necessary and that aspect of the strickland inquiry in this context it's just a matter of argument i think that's right with respect to the question of whether his sense that there's a reasonable probability the sentence would have been different that would be left to the district court as if they cooper says it's discretion to decide what the appropriate sentence is but i think a hearing unless the government no longer disputes whether or not he would have taken a worry about frankly when deciding this case so for their sandbagging argument to work st of all it's not just it can't just be the case that there are reasonable offer arguments to be made on both sides of the not fleeing the advice not to plead has to be objective le  reasonable just completely below a minimum standard of competence if then they would have to defend it would have to find an attorney who is either willing to manufacture this claim it of ineffective assistance which the supreme court has s issue on a strickland claim where there was grossly on ethical behavior by the feds the retained defense counsel after the state public defender secured a very good plea offer well i hope that's the exception that  honor it does have i mean the incentives are perverse but there's not a lot we can do about it exactly your honor and if i could finish the question but so either we have to find  to manufacture that claim or just the defendants to go out and somehow find a completely incompetent attorney and then for the plan to work would have to go to trial with that incompetent attorney which i make a lot of sense that would you describ morning may please support more and i'm going to go to the united states i'd like to start with a small point of clarification it's important to understand that dazed appointed public defender advised him to take the government's offer but instead of doing that he instructed her to counteroffer and then he went out and hired a new set of attorneys as is his constitutional right to do so he was his own counsel who would take his case to trial that was dazed choice and if that respect to policy i want to raise another issue that i think we're hearing established that though i'm sorry your honor would hearing establish your contention that he wouldn't have taken the plea offer it's not necessary in this case on your honor because we have the unusual instance where the defendant actually didn't accept the plea and the fact that he didn't accept it in september is strong evidence that he wouldn't have accepted it in december because at that point nothing had changed and that brings up an important issue about this case on december th days new attorneys appeared in his case and on december th the next day the prosecutor sent the plea offer that was still on the table over to them so it wasn't a new offer in any sense of the word the terms were exactly the same the it the prosecutor was simply doing what any attorney would do when she saw the new attorneys that appeared in the case is reach out to them and extend the offer that was on the table well what's changed  now he's getting bad advice from the new defense team perhaps so your honor but he was still aware of his previous attorney's advice and we know that because of what his father said and in his affidavit right the  argument you're making is basically that the good advice of the federal defender initially on the case cancels out the later bad advice of the incompetent retained counsel certainly that's the way the six in the right circuits would see it your honor as we see from logan and santa and their progeny i think another way to read this same case though is with a straightforward application of leave the record here conclusively established as he wouldn't have taken and we know so just a few points briefly based on the government's presentation the government started by saying that there is conclusive evidence in this record that mr day one of stuff that the plea but there conclusive evidence was the fact that he made a counteroffer and i you know especially at this stage in the case where we're not deciding who has a slightly better story but we have to say whether the record conclusively shows that his allegations are false the fact he made it a reasonable counteroffer shows that he was negotiating in good faith and that he was very seriously considering taking the offer he also made a proper during the time showing that he was open to cooperating the government also said that the well after saying that they had already rejected the offer before me with swartz and chris that the offer was still on the table in december they alleges that he rejected the offer earlier in the summer after meeting with schwartz and chris so i think the nd offer in december was a new decision points the government was asking him whether or not he wanted to