which is somewhat similar to to this particular case the counsel for apparently has referenced in their brief the that we had the district court in this case denied summarily so there was no hearing there is the question as to what was said in the petition that we filed then subsequently in federal court with my client's declarations indicating that the plea would be open he was advised by counsel that the plea would remain open whereas in the state court his declarations indicated that the plea would always be there i don't i think it's a matter of semantics when we're dealing with those kind of terminology the bottom line is what was represented to him by his trial counsel was that the plea would always be there what was it about the nine and that it was a ninety seven percent chance that it was going to succeed and if it didn't then they could consider the plea my client's history that the plea offer the clothiers well still be open correct correct asked his attorney to accept a plea at that time which was quite a bit later the attorney advised him that the plea offer had been withdrawn when they filed and filed the motion and i think  reasonably competent attorney would know that it's a standard thing nobody wants to do a lot of work that's the practicality so once the motion is spiled that you've got an offer on the table the author is likely or could be hearing ties into this because we don't have a chant present everything fully the of the declarations but it apparently according to the declaration of my client that was submitted it was withdrawn when the motion w consistent with what he says that his attorney told his attorneys that let's do the motion first ninety seven percent chance which is our but whatever ninety seven percent chance that it was going to succeed and if it doesn't out the motion was denied and then the attorneys and then your client says what about the twelve year offer exactly as what i would have accepted or i he's that let's take the offer and the attorney had not told him it was withdrawn at that exactly but if you look if he has a pattern of pleading i believe there were maybe two cases that he took to trial but almost every case he had pled in so he's obviously a weird but that there was an offer and he was treated he felt that maybe he should take it at that point in time how nsel is the one who then discourage that instead you know this let's do this first it will always be open so not advising him escalated it to as a felony personally when i read the you know the motions i didn't quite see it as being that strong and you know i don't think that i would have advised a client of it was a ninety seven percent chance quite frankly in my my own personal opinion i think any attorney who gives a client that kind of an assessment that you know they're they're going to have to come back to them i don't think competent counsel should ever give clients you're going to win you know that is not there's no sure thing in the law there's no sure thing in any case so  prosecutor either by the injective prosecution motions selective prosecution some means to challenge if you read the facts in the declarations of set forth this started out as a traffic stop my client was not involved in any criminal activity in any way shape or form he was driving his ex wife's car that didn't have a front license plate he was stopped they ran his license and found out that he had a warrant for driving a suspended license i believe it was something of that nature the officer patted him down found a switchblade in his back pocket said they had some discussion he cited him for arrested of started in for misdemeanor possession of a switchblade two weeks later about to leave something in that range he is then rearrested after an indictment for felony possession of the concealed weapon and the background of the case is what is where the the questions are and why my client felt that it was important to challenge the conduct of the prosecutor he was a former gang member there was  perjury trial against another gang member the children wasn't going to testify and then at that point fortunately for him and hurt the case that old you never had to testify but there is a three strikes panel in santa cruz we've you know i found that out we've alleged it that reviews all three strikes cases this was started as a misdemeanor and the prosecutor shook the case obviously for various reasons now the question is not how the district court and the state court just didn't correctly but the state court looked at it as if we were saying that they're making the making the motions the question we have right now and we don't know at this point in time because it's so far removed what would have been disclosed what discovery would have revealed what investigation i've talked to a few people and i legit in the declaration that have told me some of the things that have gone on in how they're treating these particular cases this was the gang gang related cases and it was the task force and they were using lots of tactics to try and get different gang members or former gang members to testify against their former members and we don't know exactly at this point we're kind of strapped in a position because we we don't know what  it's harder now to do it had they done it at that point in time counsel would have been in a position to make an assessment an accurate assessment of whether or not there was something there five million dollars bail for possession good morning your honor is larry sullivan for the state attorney general's office representing just the issues here the main issue i think is the plea bargain offer the district court judge fogel found that there was neither gone by the wayside because there's absolutely no evidence that the two weeks between the making of the author and more accurately the character of how it was conveyed correct your honor and i think the important point to make here is that it is not just a matter of mr cordova having been around the post a few times yes for strikes from the many many felony convictions and even more misdemeanor convictions it's a fact that he was around the post before in plea bargaining these cases with this attorney with mr right it may well be true that you or i or anybody else who walked in called with with a client and said by the way two weeks ago there was a twelve year offer in this three strikes case let's go for this motion to dismiss it always be there even may not put it that way when when your client is a cold quiet you never met this person before but that isn't the case here these people are experience a plea bargain is nobody's claiming the never any evidence that these people being the burglars had experienced a similar  statement that it will always be there and it has been there is no there is no record in showing whether the defendant ever believed that in fact he had just been  she you can file a nine hundred five and if it gets denied you have the right to enter that plea for nobody is claiming that he's saying all he told me was it will always be there that's a judgement by counsel that's based on experiences ye other things have happened if different statements have been made if somebody had gone back to the prosecutor and all that's a lot of hindsight which is utterly irrelevant to strickland the only thing we have in this is what judge fogel has found is that there is no evidence either by declaration or allegations otherwise thirty one isn't an open offer when it was conveyed to mr wright and when mr wright conveyed it to the petitioner that's what the record shows that's not a violation of witness that it was an open offer the argument i am making here is that the record shows no evidence that it was anything other than an open offer at that time it was conveyed to the defense counsel and at the time defense counsel conveyed it to the petitioner that's a little different from saying it will always be there well i think in practice it's the same your honor because what else can it mean nobody in this gentleman's any time unless they've made some kind of representation to a court that i think wilma but there's no such allegation here prosecutor can withdraw an offer at any time for any reason i am saying certainly before he has offered before a plea is entered and accepted by the court of course there is case law to that effect both state and federal i believe in fact boarding herschel versus hasan would be the u s supreme court case so i'm not mistaken well raise the problem for the other side under twenty two fifty forty two and getting it have an injury hearing because due diligence would suggest that they go to aspen didn't it or in any event the fact that we know what they are claiming he did say that it will quote always be there doesn't amount to anything since by his own by petitioners own statement in his own declarations what led him to believe was that he could take it quote at a later time not that he could take it at any time not that he could take it after a motion to dismiss was denied but that he could take it at a later time and in fact that was true that was true he could take it at a later time you  know he wasn't led to believe something falsely by counsel or he wasn't talked into believing by counsel as if i'm telling you the client don't worry because no matter what happens down what the allegations of this petition are the allegations of the petition are he said no more no less than it's a twelve year offer it will always be open he didn't say it's a twelve year offer the prosecutor has told me that he will not w it or the prosecutor will give you that process that offer no matter what happens in this case including a motion to dismiss didn't make those kinds of representations maybe the defendant inferred a lot into it maybe he read a lot too much into that statement but that's not counsel being ineffective that's not falling below the reasonable performance standard as far as the prejudiced standard goes we have absolutely nothing that suggests that the prosecutor was going to extend this offer and frankly it's very odd to think that in a case where by the way judge pleasure it was the first question of first impression at least one of the issues on the nine and five we argued this on direct appeal in the state courts a lot of years ago now and one of them was an argument that six fifty three k of the california penal code superceded for this kind of object this not particular knife superseded and preempted a prosecution not just a conviction but a prosecution play in these fields i guess you could say we're deeply involved in trying to determine exactly what a dirk or dagger was and what kind of objects it was that was a hot issue in the ninety's and there are a lot there were a lot of published a fair number of rock solid winner we make those kinds of judgments and we make decisions like that both prosecutors and defense attorneys all the time sometimes you have to you know there's a there's an underlying issue here that i think needs to be pointed out it's not true in california that when someone conveys an offer to a defense attorney that they go up and say it's twelve years it's for the following period of time it will be open it will be so on and so forth they don't set out some kind of paper this is not a u s attorney's office we're dealing with we're not we're not dealing with a four page is it doesn't change we're going to work it it was a little bit more complicated than that we might be avoiding these kinds of issues would be nice but we don't have time for that we got we got hundreds of these cases three strikes is not uncommon  ok and the reality is what probably happened and here i'm off the record i want to be clear someone said it's twelve years now what is the defense attorney do with it is he supposed to say does he have to say well police or please tell me the following things if i bring a  nine five and it is denied would you be continuing that offer placed or if i bring fifteen thirty point five to suppress will you be doing you know and give me all the contingencies so that i can tell my client well there's a word or experience with this client and he made the best you know decision he could make under the circumstances as they existed at that time that's reasonable but it did represent that it would always be open even after the denial the motion was that in effect as i would i would disagree your honor because it could be that he thought in my experience that wal mart trigger in my best judgment that will not trigger a response by the prosecutor he may have been wrong about that and let's assume let's assume that the outside chance let's assume which what's not in the petition the allegations that the defense attorney said sir here's here's what's going to happen we're going to refuse it now we'll take it up later we'll talk about it when the motion is denied and you know i believe you got that twelve years and that's that's that's it you're going to get that twelve years no better no worse that's all that's left in hindsight yeah it's only in not have been prosecuted for that animists and now we're saying if what if in not that he would have been prosecuted but he wouldn't have been prosecuted for a felony three strikes case he had a misdemeanor he would have taken that he probably should have that time was the gang case she wasn't doing anything else it was a task force her and her husband they were the two attorneys who were handling the gang cases so a misdemeanor case coming in would have come to her and even if it had been a three strikes and normal three strikes that had come it would have come to her because we alleged in the interest in my declaration and again this is serious that would have to have been discovered and explored in the course of investigation didn't do it and we can't discover at this point in time what the other ultimate motivation was but i want to get back and make a comment in response to the claim council just spoke about  judge vocals statement that there is no evidence that was not open ended when it was made that really is kind of irrelevant in that in the scheme of things because we're not concerned if it wasn't open ended but counsel knew this client he did represented him two or three times before they were pleas involved now you could look at that it two ways you could look at it was experienced but we don't know there's nothing in the record nothing anywhere that indicates that he never dealt with a situation where the plea offer was withdrawn or likely he could have pled in the first instance in each case it's never been an issue but the fact that he had this attorney and was represented by attorney who had a relationship with he would be more inclined to go with the advice of counsel as to what he should do and mcmahon versus richardson talks about when dealing with the plea and the advice of counsel it has to be within the range of competence demanded of criminal defense attorneys and if you have a client who has a history with you you know they're going to trust you you have to be cautious with what you advise them you have to be cautious with saying this is this has a good chance of success we do have you after such a study it'll always be open beyond what is competent advice it's not within the range of what a normally competent attorney would give a client that they know would rely on everything they say and i just want to read the declaration collection it's all oh i'm sorry thank you thank you very much this