ineffective assistance of counsel during the pretrial or plea negotiation stage of this case here we believe that is state court's decision that mr barnes was not prejudiced by his lawyers failures preet presuppose a credibility finding was was an adverse credibility finding was found to be an unreasonable application of federal law because that's what it seems to me your big obstacle is here well  i don't know that there was actually a credibility determination made on what i believe to be a critical factor in that is mr barnes understanding of what he was actually facing here as the court knows he was offered a thirty to thirty six month plea plea deal before trial where his exposure if convicted on all fourteen counts on knowledge over two hundred nine months not one of his three lawyers the public defender in the  two they retain later talk to him in any specific terms about what he was facing none of them went over the sentencing guidelines with them two of those lawyers specifically advised him to reject this deal with this is particularly  we what we don't have here specifically that i think is important is is any evidence that any three of these lawyers told him to take the deal in the face of this tremendous risk with what mr barnes testified in relation to what his lawyers testified to at the pretrial at the post conviction hearing i don't know that this there's his big issue of credibility  seems to me that it leaps out at you when he says what he's got to appoint a public defender telling him to take this thirty six month deal he says no i want to retain i wan non buyer's remorse here would judge i don't respect when i don't think the directors actually supports that conclusion this is a public defender told him to take this deal his lawyer conveyed the deal to him on went one case several months before the trial he didn't convey that to him again a week before the first scheduled trial date and that's when he was allowed to give get a continuance to retain counsel private counsel but there's no evidence in the record that mr hand from the public defender told him to take this deal he offered it to my client what he testified to was that mr barnes was not interested didn't seem interested in taking that at that point and in the case did involve prison term i think that that's not necessarily saying anything that this is an atypical of a case in which you represent somebody new gets a first offer that well the state courts determination of that he wasn't prejudice based on these three factors one that he was so mr barnes was aware of the potential of the length of his sense based on his own assessment of the of the case for years and represent thirty six month offer and he didn't he know there are still thirty six months was the minimum statutory minimum for the most serious charge it was it was a good offer in his lawyers should have told him to take the offer and what you also have here is lawyers tell him that if they if you went to trial and lost his exposure was forty six to forty eight months at that point he has nothing to lose really have some legal help or advice in knowing the significance of that his testimony was that the that was the number that he read that he had tane from the criminal complaint itself before he was even before you even had a regarding where my client got that number is in the record i mean he had he had documentary evidence of the correct that story max he was face and most of most of our jurisprudence is you know that's what state court did not make clear and brutally no word the fact that if a public defender made it more aware of the potential sentence because he advised them of the possibility of a longer prison sentence says nothing about whether he would have accepted that offer if it was properly advised what was proper advice if the proper advice is to go over the sentencing guidelines with him to tell him what he would be traces that no federal cases that well i would  lawyers opinions as to the what was more likely at the moment and should lawyers are supposed to rises to that that well he advised them that if you went to trial you would get forty six months he that you have to that but that you have to take the indictment pull out your full action or guidelines manual for the state which is much more advisory and go down here every every nuance conceivable or mistaken improper there's a big difference well then he was given wrong advice mistake or he was he was he was a victim if you want to call later remorse assertion that i would have taken the deal with the face of that record was on i was saying that this state courts application is unreasonable because they didn't consider what advice should have been given to mr barnes hard to trial he should have been told in specific terms what he was facing if infected i don't have a case that says it but but there's plenty of cases that talk about  mean these lawyers specifically told them to reject the thirty six months let's go to trial we'll get a better deal midway through trial the judge will take us back into chambers and give us a better deal in in if i not you're only looking at forty six to forty eight months so at that point if he had been properly advised about what he was facing he could have reevaluated the importance of helping a codefendant i don't think if he knew record in thankfully these these jail phone calls were saved because i think you can see the dearth of his representation here when you when he was told that it was  say that did he did he advised him to take the offer but i thought hammer him said that he told him he was facing a long time he'd he told him that he was facing thirty six months plus  and that it could be substantial but he didn't tell them what that substantial was when you well i i figured it out and i think mr handelman could have figured it out as well simply by looking at the guidelines which are less which have never been mandatory thought no but they're they should still be going over with your client because that's the presumptive sentence is there a minnesota case the in this context i think i don't know that i've cited one in my brief judge but if the court allows i can i can take a look at that because you think there are cases the minnesota cases that say it the the i was present at the post conviction relief hearing and the evidence presented at that hearing was determined by the court as the court in trial court did indeed find that the testimony of mr barnes was not credible and in looking at the federal court the district court order it's clear that basically relied upon her deference to the state court which we are required to do under the statute and under the case law director years his prior comments even during the course of that post conviction relief trial he was measuring the fact of the telephone call between himself and mr robinson indicated fifteen to twenty five years that he was looking at  implying to his client that he should take the thirty six minutes offer made at that time and the fact that he got other legal counsel and was seeking other counsel he also had another counsel if you look at the transcript of the post conviction trial here other legal counsel and their legal counsel he basically did not retain because he didn't like what that legal counsel was telling him in terms of the likelihood of success it is it is it in the record that hammer i'm told in the thirty six months was the minimum  i don't know how but if i thought that's what you just said i don't i don't remember whether he did say minimum i do know that he said because there are a firearm use that that would have been the says he would receive convicted on that offense alone so after some to of way that would have been a minimum if there's two proper consecutive sentences on top of that so so the position of the state is the evidence is fairly defendant relied on other factors specifically he relied upon factors that dealt with other parishioners specifically deal with other factors that he initially indicated to his public defender he did not go to prison specifically he relied on others some testimony post conviction relief that he wanted this trial for the purposes of forum to discuss his ministry there's all sorts of things contained in the testimony of mr barnard post conviction relief which justifies and supports the finding of the trial court and the state court and because it does and because you can make a real determination be our position that this court and the district what was appropriate was appropriate in finding that the second prong of the test was not met and therefore the writ of habeas corpus should be denied there any evidence that any of the attorneys went through the guidelines with him i well know there is no evidence an hammond was much more attuned has to basically the potential mr barnes was looking at in terms of potential sentence my feeling on the case based upon the testimony of the evidence is and what mr robinson testified to is he was hired to try this case mr barr did not want to go to prison he clearly had a trial date the day after he talked to mr herrmann and he got other legal counsel he did not want to basically suffer the consequences of the act here and i think that that evidence is very compelling and so if you're a lawyer representing a client who you know that client has an expectation that he wants to try the case you probably are going to do or you may not do the appropriate due diligence that you're supposed to do but that would be my expectation mr burns a very colorful and strong personality and i think it comes through the transcript of the you know he indicated in his sermon that he did listen to his lawyers i mean respond the again i'm not asking the court to make any determination to that effect if credibility i think those those facts i'm assuming that it is what it is the record that was made there you know  post conviction court in the sort of that we are reviewing says that based on the transcripts and records of conversation makes it clear who makes it clear that the reason mr barnes did not accept the thirty six month plea offer would because he could not get favorable treatment from max's father chuck and i think max is your client is that correct you know with the limited  was rescued so was it over yet what was the son was there and the father was the cool voted him so what are yours there in the record that would allow us to set that binding but i think the court needs to take a look not only what that court made a finding of there but also what what wasn't mr barnes surprised under the circumstances know but this runs to the issue of prejudice as to ineffective assistance of counsel and that's the second factor that we have if you would not just when he was still through i think that's where the focus should be on the prejudice if you look at those transcripts on a few different occasions in there mr barnes expresses a willingness to take that deal you know of course at one point says even if