louis arch and i could just drive over for argument that's perfect oh you're not from here yet to travel here collinsville illinois oh it's all right good to be here i'm sorry for the inconvenience well but that's it's actually it's not just a humorous story it's part of the new york narrative this is a twenty two fifty five ineffective assistance case and the district court dismissed without a hearing and the my client frausto asked the district court for certificate of appeal ability and the district court course assuming it did right denied it and this court granted it right a certificate of appeal ability and so i had to figure out why i had no idea first looking at this the stilted plea record and figured it out and it looks like it was the right thing to do the only question before this court no question of whether there's twenty to fifty five relief  vailable question is whether the district court erred in denying hearing that's it because section twenty two fifty five b starts with the words unless the motion files records conclusively conclusively show that the prisoner is entitled to no relief the court had a prompt hearing and that's what we're here about it's what we're here about this is an advice of counsel case claims of wrong advice claims of failure to advise thing first want to confess that in my reply brief misled the court find i do that in almost every case well i found it in this one it's on page four of the first page of my argument my reply brief where i say mr frausto does not claim that his attorney was ineffective for failing to obtain expert analysis well yes he does i overlooked that because i was interested in the other part of his argument the part where he also said that his attorney failed to advise him that voice spectrograph and expert analysis was to get relief there wouldn't he have to have proffered some evidence that that the results of an analysis like that showed that it was not his voice your honor that's exactly why i why i mention that that's why my misleading of the court is as relevant if his claim well and if he does he makes both makes the claim that his lawyer should have gotten expert help you make the claim that his lawyer didn't tell him that it was available now as to the first as to the failure to get expert help he can't bring that here he couldn't bring that there in the district court i mean you're right why couldn't he have tach to an expert's opinion that he could have heard or something like that he could have your honor he could have and because he did  not he's lost that claim ok but he also he goes on to claim that his lawyer didn't even tell him it was available for it's a two part claim right but he's got show prejudice right right but it but he pleaded guilty ok so he's got to show that it's less likely that he would have pled guilty and then in the absence of a report that says it's not his voice why says it was his valise why would he be less likely to plead guilty and of course rigoberto is no expert well and wasn't claimed to have heard the conversation now if he said oh yeah i heard him talking on the phone that was my the district court relied on well as well as that sentencing testimony which is get after the fact but why is that not enough here to show that the lawyer was an ineffective there was no prejudice either either side of the coin well your honor the question is whether there's a reasonable probability that had he been properly advised my client would not a pleaded guilty would have insisted on trial so the question is the first question is how was he advised or how was he mr visor not advised that's the first step to find that up and i did not know this coming in but the cases of the circuit teach us that in an advice of counsel case about the first thing you've got to do is find out what was  said it's an unusual kind of case i think that whoever wrote this brief for my client was i mean this motion for my client was kind of a savant because the you realize an advice or counsel case was the way to to go but that's the kind of case that you know that you've got to put together no question i question my client's tactics filing a motion like this question where it's going but as a matter of alleging that he was is conceded and we and we simply assume except for purposes of argument that the appellant was advised exactly as he alleges whatever whatever whatever that allegation is we're going to accept that which i think the second the second part is so what you've got to show that he was prejudiced and without offering some proof of what the voice analysis would show we don't know and we and no one can say that it would have made any made any difference particularly in light of the fact that we've got other evidence that the district court referred to so it's this prejudice aspect that to me is that is where we should be focusing and that's why i wish i had written what i wrote on page four  the results if any of an expert examination would be relevant if the claim was that counsel was ineffective for failing to get expert analysis absolutely but if the claim is i bet we have both if the claim is a failure to advise or mis advice that changes it done the question is whether if he wasn't mis advised if he wasn't unadvised there's a reasonable probability that he would have not pleaded guilty and gone to trial now no it doesn't matter what the test is and doesn't matter there would have been convicted anyway the only question is whether he would have not pled guilty absolutely and sort and the district court made that mistake the outcome would not have been different but even if that's true why is it less likely that he would have pled guilty merely by knowing that this analysis exists when we don't know what the outcome of that analysis is for purposes for this court's purposes for sake of argument which is all we get there's no witnesses here court must assume what i don't i don't think it's enough that he just asserts that he would not have pled guilty i think he's got to put forth some facts from which we could logically conclude that that it's less likely he would have pled guilty if it wasn't an advice case you'd have to come up with something else advice cases or peculiar advice cases you've got court got to assume that if he was properly advised that he would not have pleaded guilty because inherent in his claim is that he was innocent when the what case says we have to assum because i think it's in my brief but i don't want a basically what this is a case where what my client is alleging is that his counsel told him the jury is going to believe that the drug car is yours the voice on the recordings is yours and your nephew cannot testify at your trial now for purposes of this appeal you should assume that my client isn't guilty well given that i think it's undisputed that he was seen in the what is it a ford focus yes seen in that car not in it but i thought he was seen in i don't believe he was in it was following it he was in he was in the yukon you drove or you follow the follow the focus and traffic why what's the materiality of the ownership given his connection somehow with that in any amount he claims that his counsel told him well and by the way that the focus had a drug compartment secret compartment and four pounds of methamphetamine were found next to the focus when when his co defendants were arrested mr frost o claims that his lawyer told him the jury's going to believe the car was yours that car the voice on the recordings was yours and your nephew can't testify for you at trial and so i pleaded guilty even though i'm not guilty i mean that there's nothing wrong with that advice i mean that this is a lawyer saying this is the likely outcome the lawyers are are estimating guesstimating what a jury will do and so i'm saying what's the the problem with the lawyer say that well but big but my client is saying that now i know that that the car that there was evidence that the car was to somebody else now i know that my nephew could have testif that car is yours that's what makes it relevant to the claim of ineffective assistance by the appellate counsel that's not before us no no it's cumulative and as far as i can see thank you your honor me please korten mr bloodgood let me start with judge grounders first question about the the voice spectrographic analysis issue and whether or not  he's required to offer some evidence of the test result i don't know i don't think i cited this case in my brief i think mr bloodgood but this court's case of rodela aguilar versus the united states five ninety six fe the way i read it and i'm quoting a claim of any fact in this based on a failure to consult and call an expert requires evidence of what a scientific expert would have stated at trial and so i think the answer your question is yes you  to make some showing or or how can you valuate the strict unprejudiced set and or the second thing i'd say about the voice issue again this case comes after the submission of the government's brief this court's case and thomas versus the united states just as last december seventh thirty seven fed third twelve o two authored by judge sheppard  prior to the beginning of the trial allegation was that it would have been a good motion and so forth but he says that his lawyer never talked to him well the reason i bring this case up is because of the language in thomas that talks about you know you're not required to discuss with your client your client every conceivable a strategic slash tactical issue that you could raise in a case  and the thomas court said that the fact of the matter is that he wasn't required to discuss that with him so whether he discussed it with it even if he even if the allegation by the defendant that it was not discussed with him the speedy trial issue wasn't discussed it didn't make any difference because it was the kind of tactical decision that you're not required to and the reason i bring that case up in conclusion on this issue of the spectrographic analysis you know really what i think about this last night i thought that's a good way to present this if you get into a situation where a defendant who pleads guilty and then later on thinks about his case in the situation he's in and he says that it would then like the result and he starts looking at the possible experts that there could have been at a trial in this case you're going through the looking glass every dope case well why didn't my large discuss with me having a different a chemist test the dope identification case why didn't my lawyer discuss with me the vagaries of i witness identification and you could take any case and find where an expert might have been called by somebody but to laid the burden on defendant's lawyer to discuss every conceivable expert in every conceivable case is a burden i don't think this quarter or any other court wants to impose on defense counsel and i think that's what the thomas case was same when it said that you don't have to discuss all these issues so again on the spectrographic analysis i think there has to be a showing of what the test result would have been so that you can evaluate stricklin prejudice and the second thing i say about it is that it's the kind of tactical decision that's left to counsel and he's not required to discuss it with his client well that is the focus here is the focus on assuming the allegations that the effect on his guilty plea or the effect on if he had not given a guilty plea do we look beyond that to whether for  whether he would have been convicted or not or do we look at the prejudice that may affect him by whether or not he would have pled guilty i'm not sure i'm getting your question  blood i think what he's saying is that in part is well if if he'd been told these things by his lawyer he would not have pled guilty that's what he's saying in his in his petition yes and you don't look beyond that you just say well that was enough right there to show prejudice because he wouldn't pled guilty you know and yet the court this record goes on and says well wait a minute he would have you know all this evidence tying to the transaction anyway about unifying his voice and so forth well you're you're cases to say that our standard of review for this kind of issue is abuse of discretion but they also say that to evaluate abuse of discretion you have to look behind what the court did in denying the evidence your petition at the specific allegations that he's making to see whether or not the the files records the motion files records of the case conclusively established that it's  his allegations are contradicted by the record or they're incredible or conjectural and so that's what i think we're doing here and that's why that's why when i address the spectrographic analysis issue you have to look beyond the abuse of discretion thing and say well all right is assuming it's true that it's large did not discuss it with them so what we to evaluate but i think the question is is this so wide whether he would have pled guilty or whether he would have been convicted or some combination of those two well he says in his petition he wouldn't have pled guilty but i think well what's the legal requirement call for prejudice in a guilty plea situation i think is the question well what the probability of the would there been a different result this is not a trial case different but the result the difference there we're driving it is the result that we're looking at there would be different trial in the finding of guilty or is the thing that would be different is that he would have put not pled guilty and that's all the farther we look well mr if i'm tracking it all mr blood in his brief in his that the government can't doesn't produce a case of where you're looking at a denial of what hearing on a twenty two fifty five on a guilty plea he says all my cases are trial cases well there are cases  plenty where it is a a guilty plea situation and i wrote one of them down now if i can just find it right here somewhere i would think one of the arguments is just a practical matter if the court made it to the guilty plea then every person that pled guilty could have a second bite of the apple by coming back later and say you know my own lawyer would have told me there's or not told me that which is the third issue here besides the car and by the way before i forget that car had nothing to do with anything and the question is correct the ownership of the car doesn't matter at all he arrived at the denny's restaurant the day you got arrested with his two coconspirators his nephew and the other fellow in that car he was in and he was following no they were they all went together they drove he was in the ford focus yeah when they went to the denny's restaurant and then the other two didn't know about the deal why wouldn't if that testimony could have come in why wouldn't that have made it less likely that he would have pled guilty well if you ask me the question about less likely i think i think the fact of the matter is that he would not have called his nephew to testify he pled guilty a week after his nephew pled guilty he was sentenced nine months after his nephew was sentenced a year after his plea and he did nothing in any of that time to suggest that he wanted to call his nephew to the stay on the nephew's case was over done he had gotten his fifteen years that could be because his lawyer told him that he couldn't testify but when he's when his nephew is there on the stand at the sentencing hearing and in fact if you look at the record in this case the for to the motion for a writ of habeas corpus a test of a condom was issued by his lawyer mr monds on in february five months before the sentencing hearing four months before the sentencing hearing i think i think it's fair inference that he knew his nephew was going to come at the sentencing hearing and try to exonerate him of the four pounds on the day of the arrest which he never did admit so he knew that his nephew was going to testify at the sentencing hearing and the fact of the matter is that when his nephew as you wrote in the original appeal when his nephew identified his voice on the phone calls setting up the first one pound deal why would you why would you call your nephew do to basically help the government's case i just don't i think that's incredible frankly well you know if the rule is that the all the pallant has to say all the petitioner has to say is that if my attorney had talked about this particular top of evidence then i would know pled guilty if that's all it takes then then the petitioner wins every every time because we would just go on his subjective after the fact statement but it is my understanding that the subject of that failure to advise or that misrepresentation of that evidence that the petitioner contains his attorney did not broach with the him has to be favorable and if the case were tried it would have been favorable evidence and that's to me that's what's lacking here on the the voice analysis we don't know whether it would have been favorable and therefore there's no there's no prejudice i agree with everything you just said that's what i was trying to articulate when i said you look behind at the specific issues that he raises about the things that he wasn't told or was mis told and say and asked the question doesn't make any difference or as i ineptly said the few minutes ago so what that's the that's the issue with the spectrographic analysis that's the issue with who owns the car it is there's no there's no probability that that would have changed anything so there's no strickland prejudice there and as far as the nephew is testifying as i just said and as this court said in his initial appeal he identified his uncle as the one setting up the very first deal and if you look at all the phone calls after that deal went down in cedar rapids and then to omaha the phone calls contained calls after that deal before antonio frau stowe came to omaha on january the eighteenth where the conversation between the c and this defendant is were you satisfied with the product how much more would you like and so he set up the second deal to wait because in those phone calls he says i'm not coming home off unless i know what i'm coming to sell  who has the burden of proof you you know i'm not that familiar with the procedures of these things but i think what they're saying is they showed i had a hearing but does the petitioner have the burden of proof number one to come forward with enough evidence to for the district court to say well we need to have a hearing what is the the rule or procedures that you follow well mr mr what articulated that at the very outset in this kind of he said he said kind of deal if if you look at the motion the files and the records of the case and they and they show that the burden  him to show that there's some legitimate issue here that rises to the level of strickland prejudice that's not contradicted by the files and records of the case and that is  something that would have made a difference that he was prejudiced thereby and so he had the burden if i think if i get your question is on the defendant to show that's my point i say well we should have a hearing so we could flights this out that i could prove these things is the procedure that the petitioner has to come up with some allegations or some an affidavit or something ahead of time to prove to prove enough to get the hearing well in this particular case we you know i think it's proper to take his assertions as true that he was never talked with mr bond's on about spectrographic analysis and that mr bhansali said something about the car was i think we are with the question is whether it was prejudiced show whether is prejudice again does he have to come forward with some proof or evidence or at least some reasonable allegations prejudice well i think yes to come forward with with a reasonable what's the word i'm looking for not evidence necessarily but a reasonable conclusion that he would have that there would have been a different result there that there would have been the probability of a that he would have not have planned and i don't think you can do that in this case because the substance of his three assertions car voice analysis and nephew testified are all the lied b the files and records of the case so to send this back i think i just don't see where there be any different result because i think it's clear from what you have available in front of you right now that there would not be a different just a hearing we're not here about whether it gets twenty two fifty five relief it's just a hearing just we're having hearing today should have had a hearing there that's all we're saying as far as burden of proof should he come up with an affidavit he has to he did it his twenty to fifty five it's an hour appendix is a is a his affidavit is is nephew's affidavit did you find the case where prejudice is presumed no but i will cite it i made a note of that no i didn't i should put that in my brief hindsight's twenty twenty year on or probable outcome a trial is irrelevant probable outcome in a trial is irrelevant why is it irrelevant section twenty two fifty five b states unless the motion and files and records conclusively show that the prisoner is entitle to no relief the court judge read a prop hearing their own we'll hear it conclusively shows that because there's  showing of prejudice and your honor just you caught me at the end our supreme court says a defendant satisfies the prov the prejudice prong required to establish that ineffective supreme court yeah and it goes on to say this is cesspit in turn will depend in large part on on a prediction whether the evidence likely would have changed the outcome of trial always gratifying when the court's ready for argument that scored obviously knows this case i would say in response to that that if this court relies on cases other than guilty pleas slash advice of coun cases this court is going to be misled that those are peculiar type of cases that yes the threshold for what must be alleged and sworn claiming that absent counsel's error he would have insisted on trial has to show that the evidence clymer subject of the misrepresentation would have likely proven beneficial to the defendant in a trial right your honor that's why that's he can't he's not offered anything to show that this spectrograph evidence would have been favorable at a trial it's still not part of the test your honor it's what he has to prove is the reasonable probability that it would change his plea and that is the test that's just black and white that's what our supreme court said and that's what this court said in the wilcox case in two thousand  need to cite supplemental authority your honor i will but if that's it i won't well if you have something different you know you're walking is that thank you your honor ok thank you thank you both and we will take it