made the court my name is sally pay and i represent the appellant mr david cloyd i would like to reserve three minutes of time for about your money the district court should have granted mr mccloy an evidentiary hearing on his claim that his lawyer thomas lowe provided ineffective assistance of coun by failing to fully advise him about a favorable plea offer under section twenty two fifty five b an evidentiary hearing is mandatory unless the motion and the files and the record of the case conclusively show that the prisoner is entitled to no relief and hear mr  more than enough by way of specific factual allegations and supporting evidence to meet that lenient standard nothing conclusively shows that mr mccloy cannot prevail now with respect to deficient performance the record doesn't reflect much less conclusively show that lho provided the assistance that the sixth amendment requires in the circumstances in the plea bargain in context a lawyer must not only communicate the plea offer his terms and the first of all the fact that a plea offer had been made but most must also give legal advice and guidance about the likely consequences of if that contradicted statements before the court during the january hearing well mr macleod statements during the january hearing arkansas are not inconsistent with his allegation that mr lowe didn't provide all of the well under the sixth amendment the lawyer must not only and vice about the terms but must also explain for example here here mr lowe should have told mr mccloy that the sentence that was recommended under the plea agreement was for eleven to fourteen years with the possibility of cooperation which could have made it less than ten years and that the sentence had apparently been calculated on the basis of a quantity of cocaine which is about five to fifteen kilograms but mr mr mccloy would have in the back of his mind some something about a five year sentence and there's some evidence in the record that he was not really interested him and eleven to fourteen year until after he got hit with a thirty year think that he wasn't really interested in the eleven to fourteen and was responsible for one hundred fifty to yes for one hundred fifty to eight hundred kilograms of cocaine which would have made the likely likely sentencing range more on the order of thirty years to life and had mr mccloy known about that at the time that the government had offered him the eleven to fourteen year plea i think it's perfectly possible that he would have accepted it it's difficult to imagine a rational properly advised defendant rejecting an eleven to fourteen year but with not just that he didn't know about the plea he didn't know about the full risk his attorney did not cover him about his pool exposure yes precisely here and there's nothing in the january thirteenth transcript to reflect that mr low did advise going back to question judge the answer to each of those questions in the affirmative at the hearing yes at the hearing mr mccloy provided yes or no questions to the district court yes or no answers to the district are now the question is that is the balance by that are you trying to say no despite him got some authority you can cite is to say that despite his answering to the district court that he had discussed the agreement with his lawyer and all that and he reviewed the agreement with his attorney that he's not bound by well for example there is the there's no particular case that's exactly on point in these situations but the blackledge case by the supreme court that's blackledge against allison states that the record of the plea hearing is an insurmountable and specific factual allegations that are contradictory to the record can overcome the statements made on the record when you say not contradictory to the record if part of the record is that you have discussed it with your attorney i understand that isn't that somewhat contradictory to saying that we didn't adequately understand it or are you trying to do we go through the phrase something like adequately or fully well the question before this court and again the relevant question is whether whether the record conclusively shows that mr lowe provided all of the is all of the advice that goes where we have to judge you might say whether looking carefully at what he admitted to in court does that conclusively close all the avenues of not being fully informed you know really the issue yes that's that's really the question and again the standard under twenty two fifty fifty is quite lenient holding out for a five year deal well for he would no matter even if there whatever his lawyer did or didn't tell him about the eleven to fourteen year offer he wouldn't have except the well that question is a question that  using the phrase failure of his lawyer to tell him about the deal as i understand it even if it was just a few minutes before he was told about the eleven to fourteen year nature of it because that's what was discussed in court right and we had the previous deal for fourteen to seventeen that he had rejected and it so it wasn't that this eleven to fourteen deal you know went in a drawer and never got to him that's what the hearing was about weren't those sort of the same things that were at issue in the earlier deal that is the fact that he could get a really big sentence so he should have had that background from the lawyer previously or is that not in just to clarify which deal are you well i'm sorry i was referring to you made a point and a legitimate point that if you reject the deal and go to trial they may hit you with a much larger amount and therefore you may get thirty years i'm asking that's not a new fact that's a fact he would have been advised when the previous deals were offered and rejected the previous deal was not in the record i think mr mccloy may have been under the impression that he was going to get a five year deal but i don't think there's anything to corroborate that i thought there was a and tell me if i'm wrong i thought there was a clearly a previous offer at fourteen to seventeen your honor that was after the eleven to fourteen year plea after yes it was after the second superseding indictment was in may but why would why would you offer fourteen to seventeen if he's yes your honor that he should have gotten ok yes that the hearing could address for example the communication difficulties between mr mccloy and his lawyer mr loeb the possibility that mr loeb was holding relief at this stage of the proceedings and the question is rather simply whether the district court should have conducted an evidentiary hearing so that mr mccloy could develop the factual record on his ineffective assistance of counsel what are you asking for  us to do to reverse and just send it back with an instruction for the disregard to have an evidentiary hearing yes your honor and the standard for obtaining such a hearing is is extremely lenient in these as this court has recognized on occasions if there are no further questions i'll reserve the remainder of my time for a bottle good morning your honor patricia katie kieffer the united states district court is not required to hold a number to enter hearing on the twenty two fifty five motion if the allegations are inherently incredible or because the allegation in the original habeas petition was that his attorney told him there was an offer for eleven fourteen  years but he says he had previously rejected an offer for ten years because he thought he had a promise of five years based on something his brother's attorney had told  im and even if i even buy from that that's absolutely true that still doesn't address the point that i made which is we don't know whether counsel coun him that you have the risk of getting mail with thirty years if this goes wrong and that's part of the critical information that counsel and that then that that th be counsel about and that plea process not just not just the elements of the deal but the broader exposure we don't know at that point in time whether his rescue was thirty years on of th know well he knew what the statutory max was he had been arraigned he knew what the statute of x was actually life in prison right there no question about that question is what were his got what was his guidelines exposure at that time right and we don't know that he knew about the possible enhancement that would get into the thirty and that's why i think based on what you told me how do we know i mean how can we say that with contradictory or in conflict with the record of the district court i asked him if you understood he was exposed to a sentence of one thirty five to one sixty eight and he said yes the district court asked him if he had reviewed the proposed rule of an agreement with his attorney and it was clear from that transcript that everyone in that courtroom had a written rule love and agreement there they were not talking about in her belief or your head not i mean at least if we take if we take his statement and i take it it's not contradicted by something in the record that the lawyer only told him about it as they walked into court he says the lawyer only told him about it as he walked into agreement with his attorney the judge asked him do you understand that it included a proposed cooperation agreement he says yes do you understand that it the guidelines in that agreement  one thirty five to one z that's what would be fourteen do you understand that there's a minimum statutory minimum sentence of one hundred twenty months and he says yes do you understand that i won't have any discretion to go below that statutory minimum unless you accept this plea agreement he says yes the part where do you get to the three sixty and what you're what you're reading to us man well the court not tell him that there's a possibility of three sixty but it seems to me it's implicit in the fact that this is a plea bargain and that his exposure is somewhat higher than one thirty five to one sixty eight we also know that at the end of the higher but right double but i don't think we have to show that his attorney even knew that it could be as high as three sixty we know that it could be higher at the end of this proceeding there's a discussion about the likelihood that there's going to be a superseding indictment so no nobody knows whether additional drug quantities are going to be a agreement or that even if you accepted the plea agreement they could still file additional charges on the same transactions no if he accepted the plea agreement that would have been the end yeah that's what i thought so i mean it if he rejected the plea agreement but there was a trial date which was only three weeks hence ok so you're saying that he knew that if he rejected it all sorts of bad things might happen that he couldn't control but let me ask you about the the ten year and maybe this is why i was confused with your adversary is there any basis for saying that they heard earlier been a ten year deal that was rejected is just his own statement in the complaint that's correct it's his own statement and nobody nobody nobody else as a prosecutor at cetera no and then the fourteen to seventeen that i was confused about that was the deal that he ultimately signed later on no he never signed a plea he went to trial it was for more time and he rejected and he rejected that one as well i also want to note that when mr loeb was withdrawing from representation after this there was a hearing on the record and mccloy sad well yes i've been talking to other  attorneys where we're having a breakdown in the attorney client relationship i've been talking to their attorneys because he's not preparing hard enough for my trial he never says because he promised to talk to me and explain agreement that we had that hearing about that he didn't explain to me enough before that hearing in fact not in any of these twenty two fifty five never said that my attorney was standing there whispering in my ear that i need to say yes to those question to the lawyer during that hearing that judge i'm having difficulty communicating with my client because he haven't paid me and i and i can't communicate because he hadn't he hadn't fork over my fee that ever come out in the record but the lawyer did cite that i think will roll about not being paid in on him to continue representing a client when you're not paid  saw i think that at the hearing is said that in his motion to withdraw that that was a that was later right that's different than the hearing but i think even in his so i believe it's the reply  that lho didn't and he repeats again that loeb didn't have a meeting with them before that january said his hearing and that he promised to make an appointment to talk to him about it later and he says due to a lack of payment there was a breakdown in communication that's in the written submission that's in his right to sixty five the reply brief and then he complains about his that record you know and the reality is we know that which gets back to my point earlier about your statement that certain things were not inconsistent with the record i think we have to look at the record and we have to draw reasonable inferences from have that they've met the prejudiced prong but i just want to be clear that you know the record is what it is and there are missions in that adversary says that mccloy learned for the first time the government had made him a formal written plea offer of eleven to fourteen years and that was the subject of the january thirteenth hearing will you can't you refu by saying look at the transcript of the hearing and then it says upon reviewing additional materials he learned that the government later made him a second plea offer and that seems to allege that he never knew about that  one do you have a response to that that's not true either and that was one of the claims in the twenty to fifty five well that was a judge do we know it's not true and you may be right  do i remember which i know that that and that second offer is where i got the fourteen to say and that's why i got the time sequence wrong but at least as according to the brief it's an allegation that there was this second offer that he never knew about and when that alone be enough to get you a hearing well for one thing that's not within the certificate of appeal ability but because it was it was raised in the twenty to fifty five but that was the one that he complained about with mr weiss i mean basically he says they didn't know about any plea offers until after trial when margaret raven was appointed to represent him and he started early there was very hearing we've talked about the nature of it there was not a similar hearing about the hearing does the court of their questions oh and one other thing i wanted to mention i don't believe that his lawyer had to know or to be able to explain to him that his exposure ultimately would be thirty years i think his lawyer needed to be able to explain to him that this was a favorable deal and there's no reason to think he did in fact he tells the judge that he did  t along those lines defendant's initial petition admits that he sat through a reverse proffer with the prosecutor and the dea agent and most of the co defendants had agreed to plead guilty by then so he says himself that he had sat through this reverse proffer so one should assume that he had a pretty good idea what the evidence was against him before that offer was made and when you say that the lawyer didn't have to advise him of the might say the actual consequences he just had to give him good yes or no advice is there some cases that say that in other words it sounds like you're saying ok there are all these considerations and the lawyer carefully thought about the considerations and gave him the right advice but he didn't tell of all the considerations and that seems kind of odd to me because you would think effective assistance means not only telling him what he ought to do but accept but telling him why you're telling of that i think there the case law is that it's not necessary to know what the ultimate guidelines have a case for that i don't write we can look it up but i also think that the record shows that this client was in court and plead guilty no matter what i mean if you look at the excerpt of the grievance response from his second or third lawyer that he himself attached to his original twenty two fifty i mean that's a reasonable inference for you to draw the question is those that conclusively show that he would have rejected a plea offer if he had been fully advised wise lawyer of the consequences of the risk and that's what evidence you're hearing is supposed to sort out that wasn't done here thank you your honor i just like to begin the rebuttal by responding briefly to the government's argument just just a few moments ago that the lawyer doesn't need to only need to advise about you know basically a yes or no yes yes take it or no reject it sort of advice about a plea offer and there's actually case law that's precisely to the contrary that's this court's decision in smith against united states three forty eight f thirty five forty five six thirty eight two thousand and three and in that case the court  quite clearly set out the responsibilities of a lawyer to advise the defendant about the likely sentencing guidelines that would apply and here i'd also like to clarify that at the reverse proffer the government revealed overwhelming evidence  about the about the charges and that should have indicated to mr low that mr mccloy would be likely facing a thirty year to life sentence based on the quantities of drugs that were at issue here   in fact it's maybe helpful to bear in mind that if mr mcquade had accepted the plea deal and had cooperated today he might be halfway through his sentence by now but instead he's facing more than two decades more of imprisonment when he testified is this from the complaint perhaps in his affidavit yes and under this court's case law that's the griffin case that's enough to obtain and evidentiary hearing and in addition to the fact that there is this there is the very significant disparity in the sentencing under the plea agreement things on both sides here and that's precisely why we need an evidentiary hearing it's a low bar for this petitioner to meet and we have we have easily met the standard for an evidentiary hearing and so unless this court has further questions