the court counsel my name is eric well i represent fred thompson the petitioner and appellate in this case mr johnson is here for two issues he's asking you that you were first the decision of the district court in ny and his amend in motion to vacat e for two reasons one issue being his fifth and sixth amendment rights were violated during cletus questions and negotiations of all sentencing and then secondly the second issue that he received ineffective assistance of counsel so by way of background fred thompson was indicted on two counts count one being conspiracy to possess with the intent to deliver and then secondly the use of a firearm during drug trafficking crimes so just so you're aware when they made the agreement the plumet basically did two things it minimized the mandatory minimum on count one down to i believe five years and then a count two it took off the mandatory life sentence that he was facing at that and he decided to reject that cleary met proceeded to what he thought was a pretrial conference or as you know the court engaged in kind of a lengthy discussion this is actually fred thompson's he took a direct appeal authored by judge kelly previously where he raised some and she was just so the court's aware i just kind of want to paraphrase basically what happened there they started out he knew that the player game was rejected the courts advised him of mandatory minimums and maximum the things like that but then he began to explain you know what the cleveland did characterizing it you know if you actually are go to court you understand that you have a mandatory life sentence and if you lose that means you will die in prison you know and then he kind of mr thompson says yes i understand i still want to proceed but the judge comes back again and you know saying but you have you understand i will have no choice i have to send to do that mandatory and of course fred thompson again says yes i am understand i want to go to trial but still the court comes back again and start talking about well this is kind of a high risk strategy you understand one hand you have twelve here's the other hand you're looking at life and again mr thompson says yes i understand i want to proceed and the court is that one more time saying basically if we're going to trial starting at noon the train leaves the station you know this is your one chance basically to look at the twelve years instead of the life and mr townson against as yes so finally they move on to some pretrial matters today basically summarizing you know what happened in that fifteen minutes he recessed with his attorney and his attorney then said you know i think that you should plead guilty and the reason i think you should plead guilty is because as you heard the judge is saying right now you're looking at possibly twelve years and of course his attorney said well now he can explicitly say to you yes i'm going to give you twelve years but that's kind of what he's indicating based on that conversation that end result return to the courtroom mr  mistake of counsel's interpret what the judge meant it's kind of to answer that question it's very convoluted basically in this area because what happened with counsel there was i understand it wasn't a reasonable expectation for that attorney to be saying you know that's not his interpretation of what happened he was on adopting what the court did which mr thompson argues was inserted itself into clean it discussions and appropriately indicating  yes the twelve sentence will happen again and secondly you know he uses that to persuade the attorney basically mr thompson's arguing you know above and beyond that he didn't tell me you know what rule eleven was or what it mant and that the judge couldn't be engaged in those conversations you know in that fifteen minutes did they really go back over the entire plea agreement where he was saying you understand that this life sentence can be hanging over your head and i'll get more to be an effective assistance of counsel really that's just the most significant portion of this is kind of what we're saying because without his attorney there who is meant to protect him and safeguard you know his right to be represented understand the problem is his attorney wasn't necessarily explaining to him you know what those rules are what those procedures are and said he basically adopted what the court was saying or indicating that this twelve years and says is there anything  i think i know the answer to this but was there anything offered by mr thompson post fifteen minute hearing another words look once i saw the pre sentence report i again talked to basically the short answer to that and as in your opinion and on the direct appeal there are some bad facts that we're looking at how you know mr thompson just basically kind of went along with everything you know after that he didn't object but again when we're talking about th this please change hearing you know he didn't know that this rule eleven existed and he's thinking that ok i know the judge can't say that but my attorney said that's kind of what he's saying is kind of the improper issue there you know we're kind of operating underneath the ra is the problem i'm going to try to relate to you and then secondly it's just i understand that then he went to sentence you need an object or anything like that there's a pre sentence investigation that are some bad facts there for him but howard in the search that and i understand that plays you know to the role but that's where this and effective assistance of counsel religious sastre bates the fact mostly because his attorney basically advised him i think you should take the deal this judge is a good judge i know he can't story and that's kind of what we're doing here on collateral view as you know on the court preferred ineffective assistance of counsel on collateral attacks under twenty two fifty five because it allows us to open the record further so now we do have an a or he indicates you know what actually happened during that fifteen minute recess why he was actually persuaded that he actually did see this as a promise of twelve years which was later breached and you know the fact that you know his attorney wasn't saying hey but let me caution you you're still looking at a life sentence you know you still have to consider the other terms of the police the i'm at least laugh to be aware you know instead i think what council did there it was go a little bit further and kind of cross the line in saying oh there are these back handles that were operating let me tell you i know this judge he's a good judge and has you know the a b a sanders don't allow you to put forth that appearance of impropriety i know that those aren't always enough to say no that's not you know a reasonable standard of practice but it still i think speaks volumes expression we're talking about the credibility of this individual sitting before the court deciding in a vulnerable position you know ok i want to go to trial knowing he he could be looking at a life sentence you know and then you have the judge at their reminding you over and over again that this is a high risk strategy and it's just something you need to be aware of now he goes back to his counsel the one person who's post lay everything out for him is advising him just specifically that take the deal and he doesn't explain you know that that was improper he just basically says take the deal he's a good judge i know he can't say it's twelve years but that's what he's indicating and i thought what's a good case for what you're proposing there are several cases basically involved here and a lot of them unfortunately come from the fifth circuit the fifth circuit talking about specifically you know how over and over again things like that basically amount to persuasion or advocating for a certain extent and or as judge kelly indicated in her original pinion when you're talking about high risk versus you know a life in prison type thing that kind of amounts to what rodriguez is calling  advocating for one point which gets onto you know whether or not the judge actually indicates do you have a good case or indicating you probably don't have a good case and so but then we're talking about ineffective assistance of counsel their own brother here is if you're talking about kind of taking into consideration of everything here and as you know that's kind of what they're talking about brady and that's kind of the things that they're talking about when the supreme court is talking about the vulnerability of a defendant you know of them being unknowing in the law and just kind of preparing a meal for you know a lesson learned advice for the law so basically fred thompson is asking you not just to look at the rule of violations again as the united states will tell you collateral tracker a lot of the case it's different here because we're asking you to look at the rule eleven you know as far as his knowing and unintelligent waiver of basically pleading guilty under those terms so at this time i would just ask you to talked about and when you're talking about it after and just you know again the vulnerability and that line crossbeam when obviously he started the trial no plea on the table and something in you know within that half an hour or whatever changed but as you saw you know in the courtroom he said no i'm not going to do it i want to continue the trial so it doesn't really get down to that fifteen minutes and what occurred there and mr thompson clearly tells you and that time if it wasn't for his attorney and what his attorney advised him to do he would have believe so i think a standard here when we're talking about pleading guilty under a plea agreement is whether or not the advice of counsel runners that knowing involuntary that being said would you have pled guilty had you not had this advice then i think that's basically where we would be now so with that i like to reserve a few minutes for  a legal mail system is available at his institution as it is here at u s pima credit he must take advantage of that legal mail system and use the legal mail system to have the benefit of the prisoner mailbox who of mr thompson has had two opportunities befor does the person at that point when you're on lockdown is the regular mail system and the special legal mail system basically the same thing in your church calendars and if you look at the affidavit was submitted from sheila mattingly the  honor with respect to the in fact is what claims we've covered this from here just forty five and forty six of our brief most of the claims of what we would pay all the claims raised on appeal were not in the amended twenty to fifty five below ensure that the court had our views on those matters when you've got a situation like this where you've got fifteen minutes where there's only two people that were present why not hold a hearing in the district or do you think  true the fact that he brought forth accepting those as true he is not entitled to relief in cases like that there's no need for an evidentiary hearing we will start a case is a brief to that effect that for the purposes of resolving these issues in well question post the fifteen minute hearing whether there's anything in the record that the defendant continue to believe he was going to have twelve year sentence and as well as are probably the answer is no question your question she referenced the fifteen minutes is a short time to go through an entire plea agreements and to make an intelligent decision i would note that the record shows that further with your question as to whether there is anything after the fifteen minute recess and the facts are essentially the same at this court noted on the direct appeal that there's nothing in the record when they came back into the court judge erickson and for mr thompson that the jury was ready he's under no obligation to feel guilty that the court was not bound by the guy by the in my collection it would be a calculation it would do its own calculation the state of the court could still sentenc objections going wait a second i thought i was getting twelve years my attorney predicted twelve years in the sentencing memorandum there's nothing about any expectation of a sentence the contested career offender they argued about organizer leader but there's nothing about of sentence during the sentencing hearing the defendant asked for fifteen years that would suggest that he had not protection of twelve years didn't object to that and when he had an opportunity immediately after that recommendation to address the court he did  deficient performance or difference between an inaccurate prediction of twelve years and an inaccurate prediction where you're not going to get life judge we found no we found no case where an  inaccurate prediction standing alone constituted deficient performance whichever whichever one of those it might be yes we didn't find any case where that alone was deficient performance as we noted our brief most cases that we've come across the defendant knew the sentencing parameters he knew what the maximum was he knew it was available and there's no question of course in this case that he didn't know as the court addressed at some length of the direct appeal and as the contemporaneous record shows have already addressed you have jurisdiction and that it was a timely notice of appeal next the state continually the united states continually says you know a lot of these issues were barred they were appropriately raised they're not involved in the certificate of appeal ability but i just want to read for you quickly what that the order from the district court says as far as appeal ability is that based upon the entire record before the court dismissal of their motion is debatable reasonable subject to different outcome on appeal basically says issues of certificate ability that aren't actually in the appeal expression we consider that the petitioner pro se basically wrote the initial brief and that the certificate of appeal ability let's just view it broadly is what i ask that you would actually consider that and then just getting them back to some of the concerns of the square are talking about basically the direct appeal and you know getting back to those bad facts but i just want to remind the court that it specifically one noted significance of that fifteen minutes and the need to kind of know what happened during that time and mr thompson had provided that by affidavit under the rules you're allowed to consider the offer david it's part of the record the united states didn't get anything from mr gant gassed based on you know what he said happened in that which is exactly why i believe if you don't you think mr tompkins affidavit is sufficient to establish this prejudice when he's saying he only pled guilty because of his attorney and because of what happened and you know with the district court and that involvement then definitely this does that this requires a remount to go back down and get an evidentiary hearing so we have an educated guess so that the district court isn't saying well this is a debatable issue whether or not it should be should go back and consider whether or not it was a rule eleven violation and how that coerced him or persuaded him to accept the deal we should also consider whether or not in his mind the police agreement he signed an open for it was actually different in the plea agreement that he had explained in at with his attorney you know the night before that he'd already rejected whether or not there was that twelve your promise and then we have to definitely consider the advice of counsel or how counsel basically failed him in this matter and was ineffective  express our appreciation for your willingness to serve in that capacity or thanks both counsel for your presence in argument and consider the case admitted going to decision in due course thank you