just a few brief background points if the court doesn't mind before i get to what the issue was that was certified for appeal mr eggers paid his attorney more than twenty nine thousand dollars to take this case to trial the attorney bragged about being a top trial attorney in columbus and promised to take the case to trial this is all in the record there's a dispute about whether affidavits and  evidence should be considered we asked the court to look at that entire record and that includes the information that shows that this was on the trajectory of going to trial instead on a day when mr  to plead not guilty do additional charges or an additional charges excuse me he's told that he has no choice he can't go to trial his attorney is not ready and he should plead guilty against that backdrop the district court certified this issue whether mr eggers statements of inner sense were sufficient protestations of that innocence that would require application of our for the state court said no and the ground for saying no was that mr eggers had quote waited until sentencing an argument is that's a false distinction it's an imaginary line the very first time mr eggers was allowed to speak since saying the word guilty one hundred fourteen seconds later he said i didn't do this i mean it's a little misleading in my view i mean the rule le quite a few questions about what it means to plead guilty i mean technically what you said is accurate because the last part of the whole thing is the guilty plea but there's nothing there's no prohibition against having a guilty plea hearing and a very long set of questions and answers which but he says he knows what he's doing and wants to do what he did i say your honor's point but rule eleven means something to you and i rule eleven doesn't mean anything eggers he doesn't recognize what rule have and means he only knows that he said at the end of that process that takes a while guilty and then the very next opportunity to speak again something magical has happened from our point of view that we're now to sentencing but to the average person nobody knows that we've moved from rule eleven or disagree with you the average person in court under oath asked about the facts of the murder investigation allegation in his ask questions about whether you did it i think the average person really understands what that is and that's a really solid consequential event and i quite disagree with the point that you can assume that when a judge asked did you murder somebody and you say yes after being told all the rights you have if you go to trial the host of this whole system crumbles if we can't trust people to understand those questions and answer them honestly your honor i think alford says when you've got a statement that i'm guilty that's very close to a statement that i didn't do it itself he says at the same time i'm guilty but i didn't do and i'm only doing this to avoid the death penalty he's doing that during the during the colloquy so right there you can't both things can't be true and they had no such problem where you had two things that were opposites being said so the question is  where is where is that line going to be drawn is it going to be the course is gray area right so the question is at the exact same time alford applies if it's three months later at a separate sentencing hearing yes someone certainly waited eggers wait until sentencing is that the reason we say alford doesn't apply more precisely he waited until after he pled guilty if you want to draw a clean line that would be the line in so it how often would apply if someone says i'm going to apply and when when the says i didn't do it but i'm pleading guilty or i'm pleading guilty do you want to plead guilty even though you didn't do it but it says guilty if you just want a line if you don't want to line if you just want to say well they afterwards they can take it back but it's kind of strange that well i think alford has a much more narrow application overall if it's something other than what i think judge rogers you were about to go i didn't do it but i'm pleading guilty what if it's i'm pleading guilty but i didn't do it so it's one second later as judge sutton mentioned does that mean alford doesn't apply now and i think that's our point and we have  published opinion from this court on where that line is and is the state court right that under alford no it can't possibly apply because he waited i quickly speaking i mean you said gray areas in the many say it's a gray area hatless relief you have to show that you're violating clearly established by the u s supreme court i'm not saying that the laws gray i'm saying that alford says when you have eight at the same time we don't have a decision that saying this is not the same time if he just said this state but he did do it the next day you think are good there you know reasonably i have to anything to say mr eggers that i didn't even know i was allowed to talk since i said i plead guilty but now that i can't talk i didn't do this what's your clearly established case for this because we've acknowledged that the alford facts point because when he acknowledges guilt at the same time he says he's innocent so here what's the what's the best case for you that lets this gives us or the authority to grant relief under the hague be a statute i am saying it's because i'm not saying out for doesn't apply i'm saying yes there's a difference of facts but we can't spring courts told us we only do this when we look at clearly established decisions we're looking at closed established holdings and that was and i'm looking at the rule of alford in the rule of alford says you know if it's if you've got a defendant who's saying both i'm guilty and then i i'm not guilty the judge has to take the steps to do it and dish an inquiry as to why that is this a statement of innocence or is this an apology and that's a fact that to certain amount of ambiguity there in there i mean he has i like to apologize that sounds like he's about to make an apology i apologies this is you know i love her you know i didn't do it do you in both of those cases presumably refers to the family right well i mean under normal reading or ok or her i don't know what  says that i didn't do it he could have been meaning that he really meant to shoot her that it was an accidental shooting right i guess when he says and it's i didn't do this even after he said we all know he probably did that dandy did it kill somebody well i mean he tripped he paid his attorney twenty nine thousand dollars to do things like get gun residue test to prove that it was actually someone else on the lawn that the district court certified the issue for this court on appeal that's you didn't do it why is he apologizing to the family well i'm sure he's not happy that she's passed but i mean that the word district court's reason for denying it's wrong but at the core the state court failed to apply all for ok all right thank you very much may please the court i'm holding rosenberg representing the warden i first like to clear up the matter of the so called background facts the background facts those facts concerning what occurred before plea the communications between eggers and his counsel may not be considered on this appeal under the authority of colon versus pin holster which limits the record in a hippias corpus case to the record that was before the court deciding the claim in this case that was they court of appeals on direct appeal they decided the alford issue the affidavit came in during the state post conviction petition proceeding and those are not part of the record in this case underpin holster the allegations there at the petitioner maintained  innocence expected to go to trial but only did not do so because his attorney was not prepared those are only supported by the post it happens it does happen and in this case it was logical for it to happen because the sentence was an agreed and mandatory sentence so it was logical it was no need to get there was no p northern district of ohio it was very similar to this case there was a guilty plea a sentencing and wedged in between a statement that the defendant argued argued was one of innocence and the district court in that case fan that alford inquiry was not necessary because the defendant statement was made after the plea was ready cept it and the reason that that case is important obviously it's not a supreme court you know sort of this kind of thing happens from time to time where the signs for example there's no nothing to debate it's a mandatory sentence what what's this what's the right action for a trial court judge who goes through the rule levon colloquy the answers all seem to indicate it's knowing voluntary exciter of knowledge of the guilt and then the judge says ok we're moving to sentencing you want to say anything instead of you know two minutes it's just right then and instead of it being ambiguous it's crystal clear you know i'm having second thoughts i really do want to exercise my right to go to trial and i don't feel right about pleading guilty to something i didn't do what's was that an offer to to ation is that a judge saying what i think i better let this fellow withdraw the would what's the what's the right action for a state court judge in that setting it well first of all it's an ambiguous as opposed to this case now what well again it's it's not a now for it situation i mean safeguards still do not apply and especially do not apply under the standards for haiti is corpus relief so why does it matter i mean the point of alfred's the same is the it's really sums the same as the test of allowing someone to withdraw the   no it is do you have a mistake here no it is not there's no constitutional right to withdraw a plea and in this case interestingly enough the defendant did not move to withdraw the plea at that point which further in that case that he was not actually protesting his innocence some sense is different from withdrawal of a plea you could have someone who went through it all said i'm guilty and then immediately said and the reason i just pled guilty is to i'm willing to go to jail well the supreme court in alford was concerned with true claims of innocence and it was addressing the problem of whether or not a claim a plea of guilty entered accompanied with a contemporaneous claim of innocence is truly a voluntary  under the fifth amendment and for that reason it held they ought we are going to place a factual basis requirement to ensure they are innocent people do not go to jail even though they are simply unwilling or unable to admit their innocence so the supreme court was was essentially addressing a very particular factual issue as to whether or not  i guess it arguably is not just situations where they are coerced or something sometimes they really voluntarily do it i mean in this case the defendant expressly admitted his where there was no ambiguity yeah i mean if there is no ambiguity there there's still a hospital you could have a voluntarily ambiguous acceptance of killed and just because you don't want someone you love to ever have to go alford makes mention of several times as you have company counsel that helps you deal with that type of situation and hopefully those things are if in fact it's a true claim of innocence those things are discussed before hand and the options are explored with counsel and there is every reason to believe that he had competent counsel on and the in this case and the issue of frankly the issue subject to the certificate of appeal building this case so we have to presume that he was represented by counsel and i would i would argue that that's the type of communication that would would hopefully occur between counsel and if and in dealing with the types of situations that you are suggesting and resolve them in the best way possible and hopefully before you get to the point of the end of the  but again that's not necessarily an unusual situation and curse and all kinds of cases i don't i don't know that that has any special meaning attached  it is basis was his that he was innocent in the court would again have to consider whether he had entered his play voluntarily in deciding the motion to withdraw so there would be a number of factors involved and it's certainly not definite outcome one way or the other but you know it is the offered inquiry really just a repeating of the rule weapon questions i don't know what else you would do and then his counsel questioned him about whether he understood the nature of the charges and what he was doing so if the facts in those cases in that case at least the facts that the supreme court  affidavits the police were looking into someone else but he denied it and he implicated eggers and and this was a felony murder charge the underlying felony was improperly discharging a firearm this that could easily have been and reasonably have been interpreted by the trial just as meaning not i didn't purposely kill julie snyder and it need not have meant that he didn't commit the actual felony murder which occurred as a result of his shooting for bill bullets into a habitation and as approximate result under the felony murder definition he julie snyder was dead if this court doesn't have any further questions thank you thank you two other witnesses testified and then alford got on the stand and then said i'm innocent so i don't know how much time passed when the three witnesses were on the review where you don't think that alford says you got put with us when you have a plea you know you're on and i mention that only because the amount of time that's passing between when mr all for said guilty and when he stated i didn't do this creating the process forward you better find out what the problem is there the process that we're asking that or suggesting that was not followed here mr eggers judge tyler  did a hand written pro se motion to withdraw his guilty plea and again stated his innocence four days after pleading guilty and being sentenced we're not saying that the court has to assume that the affidavits are true we're saying that the entire record must be reviewed and here's why mr eggers argument the reason alford came up is he made a claim that his counsel was ineffective for failing to say hold on used said you were guilty and you just said you didn't do it we should be following out for here and so that this issue comes up through an ineffective assistance of counsel claim at that point the trial court has all those affidavits and therefore they are in the record by the time  issue comes up so although the district court judge isn't using the district court judge below isn't using the phrase ineffective assistance of counsel in certifying the issue for appeal this is an issue that came up only not on direct appeal this issue that alford issue through ineffective assistance of counsel and that is why that entire record is properly before this court brad loker was for the state court i'm sorry after it was you're talking about were before the state court yes there was just one collateral proceeding yes that is correct brad loker was a suspect he was on the lawn at the exact same time that adam eggers was on the lawn when the sh