nothing but the problem is is that the the state and the judge prevented that evidence from coming forward at the hearing and this is in the record starting at page six ninety one but and then mr kennedy response i'm not coming in on behalf of mr mansi on just coming in to explain what happened because these things have to do with how i represented him and the court says i think i could just make some findings here why don't i just do that i think that'll take care of it and let's go through the motions motion for criminal counselors tonight and then he goes through a few of the other things and then he sa against mr kennedy for ineffective assistance of counsel i've gone through and it looks to me like mr kennedy has done a very good job as a matter of fact representing him in the case and all the points are made so i find there's no basis for that whatsoever to help deal with that or bring him down so he can at least be there to represent himself at this hearing but he completely cuts mr kennedy often doesn't allow him to make any of these representations to the co conservative and this is a deal that you want to think about that's the problem here is that it is because he will be back you're leaving about something that didn't happen for him to say i would have accepted that offer puts him in a state of mind of having to say what he would have done about events that never occurred and so i suppose we do have to grapple with the difference between the words i could accept which is a truthful thing he was deprived of that opportunity to even say whether he would have accepted it or not and i would have accepted it which is a judgment about what he would have done if something had occurred which didn't occur which is kind of the speculation and it's  hindsight statement which he would be making in light of subsequent events which would've taken place at the point where he would be saying i would have accepted it so it's a the fundamental problem here is without having informed him about the offer he was deprived of an opportunity to do anything and then the question is whether or not that deprivation is so fundamental in light of what happened and even if we ignore what happened to  burns for about ten minutes before the people are alerted it burns for another ten minutes it never even makes it into the house there's some smoke damage in the house there's nothing in the living room nothing in the bedrooms all of the people come out of the house at the same time whatever and setting for the house when he did it knowing that they are sound asleep i'm not sure and i mean this is eight thirty on a sunday morning i'm not sure that that i know about it that would be objectively and reasonable and what nancy on a was or wasn't told is obviously something that's between him and his attorney will be no way to peer into that other than what the two of them have said but the finding of fact that we discussed earlier at if i'm recalling correctly what nancy i know says in his affidavit to the nevada supreme court is that it was at that time that a public defender informed of the substance of this offer which apparently mirrors what he's claiming he currently was that it was two to ten years in exchange for some charge in the attempted murder charges would be dismissed so it appears to me that he knew that at the time that he prepared to state this petition if he was serious about that offer or if i guess my point is to get really existed what he could have done is put it into his stat petition and presented it to the court at that time the other thing is that you're right that kirk kennedy his trial counsel was at that hearing and you know there's two ways to look at it obviously but i think that if he has a strong notion that this offer was made me want to tell the court about it there's nothing stopping him from doing that he didn't say anything about it at that time it's only down the road of this claim continues to develop and becomes more factual predicate for the claim develops as we go along it's when he gets done about a supreme court suddenly although here's the substance the claims to the ten  is that true person who made the offer that evidence was that's potential evidence that could be presented as well as the evidence of the person who received the offer now not only one but two ok and the question of whether or not it was communicated all of that would be lawyer at the time i thought that the record was that this person came to him as someone appointed me says no no no you do not represent me i have a lawyer so he never heard an offer from someone who was his lawyer now is the way i read  in fact he did have the public defender at that point said i'm hiring a private attorney and i don't want to discuss this with you but at that point time that the public defender was in fact his attorney and from what we have from nancy i know he was conveyed the offer at that time he knew what the predicate for it that having a lawyer present of course of course it would approve if you bring an attorney into it you know you reached you reach a better way of saying it but there is no right to counsel in these types of proceedings so that isn't something we should pursue against  sure i want to agree with that necessarily nancy when i was the one saying that and you know i i take it for what it is now the courts obviously want the easier way and i realize i'm making the more difficult argument here to look at the prejudice proud of the whole scenario and i can certainly take a look at that right the concern that the first thing that pops out obviously is his use of the word could instead of the word what and i don't want to get into a gigantic english lesson here today the concern is simply if you're rewarded a little that it take a look at a different and effective type of claim now  said well i trial counsel them to object to something that happened at trial if you had i could've been found not guilty it sounds entirely speculative when you view it in that kind of context and i heard the discussion earlier and i guess i would just leave that quote is not the same as w at even if there is some instance where you can interchange those two words they're not one hundred percent interchangeable and put the rule is if there's a gray area that the nevada supreme court's opinion could have ended up in and it did and they applied strickland we defer to that decision and i think you ever use i would have accepted something that you never knew about well you know it towards where this is going i don't want to say that these types of errors are structural i think they clearly are not we've had this isn't the first time this has come up before the ninth circuit where someone claims i wasn't told about an offer and we have play lock and i think jones was cited in our answer and both of those cases went into the hall well what would you have done you still need to affirmatively show prejudice if you want to satisfy strickland i would just  know there's there's a proper usage of these words there's there's no evidence that man's you know doesn't know what he's talking about a lot of this violence we're gigantic i mean he had thirty forty claims to originally begin with here what does educational background see a person that would know those terms are not to be us to say i would have accepted it or i would have considered it not while i realized in his reply at the state a g s level he says i would have considered it to me that is exactly the same thing as saying i could have taken the offer that the only thing you saying you would do is think difficult claim for someone in my position if you have said what there would be a much more difficult discussion but thankfully i'm prepared to go a little step further and suppose that you know if we wanted to dig deeper see what he really was thinking he said is there any chance that he was confused and then what i don't think there is yes and i'm sure you've done that yourself never once suggested that the state would not only cut him this wonderful deal in light of the charges and evidence against him but also allow him to avoid having to admit his guilt in the open court but my concern is that the allegation is that he did ever alleges that he would actually plead guilty that's sort of punishing him for what may be very candid honesty because what he's saying as i understand it is i don't know what i would have done because it never got to the point where something was presented to me as an option and if you tell me that i need to now declare what i would have done if an option had been presented to me and ignore what ultimately happened to me that's a very difficult burden for me to carry all that he has to prove is reasonable probability that it would have made a difference reasonable probability and if he says having it in front of me i could have then made an informed decision but my lawyer deprived me of that ability that's as far as he can go if he says i would have accepted it again this is not a unique claim the ninth circuit has passed on this type of thing at least twice in the last decade the concern is that he has to affirmatively show prejudice and that just hasn't happened where he's playing from the beginning of time that i didn't do this even even to this day in federal court he claims i based on that were able to say all right they they applied a state court case that uses jackson v virginia they applied the correct standard evaluated the evidence and concluded that there was sufficient evidence on all charges i think that's how they conclude so you know they didn't break out in bags when he came out the house with them i believe that under nevada law deliberate intent to kill can be inferred from the fact that he started the house on fire and that he knew the people were sleeping inside it and that the nevada supreme court opinion debatable now especially considering the fact that the maddest report had the record of what happened at trial before it when it considered these things it's apparent what their decision was based upon i find it to be a reasoned decision on  so to speak but that would be my view of it of course you know and let me let me pass one more thing on the severity of what happened you know it to have an attempted murder charge i don't think you mean that there wasn't a deliberate intent to kill when he went and did these things started the garage on fire it was you know the garage was consumed in flames by the time the fire department arrived and i think there's a reasonable inference that the house would continue to burn obviously if not for the arrival of the fire department which that's exactly what happened in this case therefore there should be no granting of any relief there's nothing further i'll conclude he was rich thank you