you have five uninterrupted minutes it's hard to imagine your honor we should do it more  christopher boyd pled guilty in two thousand and one in state court to the group of a young man named raymond jones with a baseball bat he entered an open plea and after hearing he was given a sentence of eight to twenty two years in prison he claims that his lawyer did not personally inform him about an earlier plea deal which would have involved a shorter prison term the state courts health that his plea was knowing and voluntary knowing involuntary to say courts also held that boyd had known about his earlier plea heard before he entered his open plea to the magistrate judge judge to derry who i'm sorry to know passed away a few days ago and he will mis magistrate judge hell while boyd's lawyer did not tell him personally about the offer at least not at first when he knew about the earlier offer because his lawyer had told his mother who entered told boy that was the plan and that's what happened the district court however found that that wasn't enough that because a boy's lawyer didn't tell him face to face and immediately about the offer that was per se deficient performance and because he ended up with a longer sentence than the original offer that was per se prejudice now that's not the law and that decision was incorrect for a number of reasons but there are two overarching points i'd like to make at the outset first given the  court would have to hold that it doesn't matter what boyd knew or specifically that he knew about the earlier offer at the time that he entered as a plea and it doesn't matter that boy's lawyer did eventually tell him face to face about the earlier offer and it doesn't matter that the earlier offer was still available at that time and it doesn't matter whether boyd would have rejected the deal even in a face to face meeting and it doesn't matter that the rejected offer was within the guidelines and not obviously a great part the district court held explicitly or implicitly that none of that matters and the law says otherwise the the second overarching point i'd like to make the stake were held  direct appeal that voice plea was knowing involuntary that decision is due deference you're under section twenty three fifty four d of the hevia statute which means it must stand unless an reasonable conclusion is also well supported by the record and the court must defer to any subsidiary factual findings as i understand it boyd now says he's not challenging the ultimate plea and he doesn't contain and that it was not knowing involuntary he says he's only challenging the plea bargaining process but there's no such claim as that once a defendant pleads guilty the only claim that is left is that the plea was nonconsensual apart from  should be reviewed and how it should be reviewed second there are the merits of the claim and third if necessary the remedy to be ordered i almost at the end of my five uninterrupted minutes i pla first to get to the application of the heavey a statute but if this court would want which is a direct me to another one of the questions i'm happy to go there all right thank you for your five minutes i'll start in i gather of criminal procedure none of which is whether the fence attorney counseled him and we know from the supreme court decision in the military and our decisions in day inclusive that counseling in fact the record shows to the contrary well your honor yes i believe that the difference is required your honest question those who claim that the counseling fell below well i can i can show you ronnie that there is evidence that he discussed the guilty plea with his client which is i understand it is the claim that's being made here in federal court the idea that the counseling was not good enough that is he the  told his client about the plea but but basically didn't give him an option there only are options that's a different claim of a case to say and i just want to know where this is in the record according to you that the lawyer has to discuss what a god minds are and what the options are and i can find i'm just wondering whether you can find where it says in the record that seal it told him might provide lines are he says he saying and this is in the appendix it thirty eight i did repeat the offer to him meaning mr boyd after he discussed it with his parents it would have been after way after the fact and after i had basically been for the boys that i thought we could do better a couple pages later he what we're talking about here this is a garden variety claim of ineffectiveness for not giving good enough advice and if that's what we're talking about and stricklin clearly applies and the question under strickland is would he have accepted this or if she had gotten the better advice there's no per se rule of prejudice there's no even if the fishing performance is satisfied under this claim which again i repeat is not exactly the claim we've been litigating up to this point that's right one of the main problems here is that we have two different claims as you mentioned one deals with the failure to assess the possibilities that is whether he should accept the plea or not failure to advise him and the other is failure to communicate or even discuss the offer with that and there is and i think you point out in your brief very clearly the discrepancy between the appellate decisions  on direct appeal and on p c r a of he'll and the use of the previously litigated rule to dispose of some of these issues but let's go could you take us through that analysis so we can figure out whether or not this claim has been addressed on its merits by the state court system yes run or in my view the previous litigation bar ultimately is doesn't change the outcome here but let me explain how it works or how i think it works as it is it's tricky the previous litigation bar is a procedural rule that prevent geisha of its earlier decision on direct appeal the boy's plea was no involuntary now some of the confusion over what's known as the previous litigation bar is just from it's name it's not a certification that the claim raised on collateral review is the same as the as as was raised on direct appeal it's not a certification that the claim has already been exhausted here on direct appeal boyd argue that his lawyer had given him a bad it vice about the first plea offer the superior court on direct appeal correctly noted that ultimately that's a question that's a claim about whether the plea was knowing and voluntary and that's to get to the question from the flow better and judge nikki on that that's the extent that claim was raised it was raised on direct appeal and that would be subject to a def boyd gives the claim new spin the problem now is he says not the council gave him bad advice but no advice face to face at least not immediately because there is evidence in the record that if there was face to face discussion of that where it's your honor on a thirty eight that mr steel is testimony there were moments when i sat with chris and i did refuse the offer to in which between the lawyer in the prosecutor no i don't like that offer and then the lawyer goes back and informs his client in some way that there's something wrong with that i mean that the thirty i don't believe the author was ever off the table in other words as a practical matter well that turned out it was off the table later on that never renewed well that's but the question was is it up to the not in this case what you're saying is i as i understand it is that there you have serious concerns about whether he was properly advised and if he had been properly advised because the table to offer was never officially off the table  if you had said or his lawyer had had properly advised him and and he said if mr boies said you know that's an offer really want to take then the possibility would have existed that it would have been accepted it's not so much that he asked for it i think the real question is what were the terms or what was the extent of the counseling and that's not what this case has been about up to now if it is about that then i'd say this the deficient performance prom is arguable and tough relatively tough for me but in that case the prejudice prong it's garden variety prejudice we have a fact finding from the magistrate judge that he would have accepted this offer we have no every time somebody gets on the witness stand and says something with a motive to slant the testimony in his or her behalf it's always self serving and that's what fact finders do they and in the circumstances they determine whether or not given the interest in the outcome the prosecution i mean that the facts fine or can take that into consideration obviously but there's so much else to take into consideration what the important point i'm trying to make is that if we're talking about bad counseling then it's clear there is no per se rule of strickland prejudiced being satisfied even if the guidelines aren't mentioned it is clear that their prejudice has to be demonstrated right and how do we do  are my position is that he clearly would not have taken that's what was before the on the direct appeal that was that's what was on the acted a bit which you gave us today for the first time in most of my colleagues haven't been around to get it the second half of the act they did i can't believe that this case went on for so many years and we're working with an appendix that has an affidavit that's inadequate but in any event the only thing that was before the superior court in the two thousand and two opinion was an affidavit that says i wouldn't have taken it now what more is necessary if if i had known the guidelines of which he pled guilty what was something in the nature of three and a half to seven years the plea offer afforded ten is smack in the middle of that it's not obviously a great bargain if he thinks and his lawyer certainly thought as he testified clearly he can do better and every indication frankly was that he was going to do better remember that that a state judge granted him bail and seemed to be thinking in the presence of the affidavit a direct deal with you under twenty to fifty four to and isn't there a problem that therefore get you out of the death because of the affidavit the way the but he also says on paragraph eight explain to us today if my attorney had correctly it's laying the sentencing guidelines to me and correctly advised me about the great likelihood of a sentence higher than the plea offer i would have accepted the offer of forty eight years in prison i understand now that the offer was below the standard range of the sentencing guidelines and that there are several circumstances in my case which make great was not obviously a great bargain and that projecting it and this is exactly what happened at the adventure hearing is mr testify exactly today he thought he could do better that's within the realm of professional january twenty fourth on the phone and asked her to tell me that the d a s office had offered me a plea afford it eight years in prison if i would plead guilty and again we disagree about that point he told me through my mother that the opera was unacceptable so he told me through my mother so when the state court on direct appeal says he was informed exactly how these were informed him that literally translated into i found that through my mother who was informed i think it does because it doesn't necessarily mean that interact communication is off the table counsel in for him and i would also say judge smith that remember that the claim that was in front of the court on direct appeal was not that there was no communication the claim was the advice was bad so i think if we're going i think we need to be a little bit more forgiving of the state of the state court on direct appeal that that was not the issue we'll start out with judge jordan's question when we have you on  repeatedly downplays release that the fact that mr steelhead rejected the offer before he communicated it to the mother and the information communicated and the only information communicated was that it was an acceptable there sentencing guidelines he did not inform the client that the plea offer was in the standard range and we went on to say in our twenty two fifty four mr skilling was constitutionally ineffective for failing to communicate the offer to christopher boyd before rejecting it next sentence mr skilling was constitutionally ineffective for not discussing the offer with mr boies before we kept thing it's who did make the claim that in addition to rejecting the offer ever caving to himself the decision whether or not to accept a plea he also did not give mr boyd the information necessary to make any decision at all whatsoever but when i questioned mr steele about that if the evidence you're hearing he said well you know what he really didn't participate in the decision making process  to reach a couple of issues that we might not get to otherwise on the issue of court whether the plea was for up or was forty eight years or four to ten years  t at the evidence you're hearing the commonwealth was given the opportunity to put on any evidence it chose to before closing the evidence and magistrate judge asked the attorney for the commonwealth do you want to bring in other evidence to want to put any evidence on on this and the exact quote from the commonwealth with nope i did not prevent the cum well from putting on any evidence they were invited to do so they elected not to  magistrates findings that mr steele was conduct was reasonable and she also said that the prejudice the chief found was the denial of the right to make the decision on his own that was the prejudice there is no credibility question on that judge and the district court judge agreed that mr stiller rejected the offer before communicating it she said the prejudice this defendant is the boss of the opportunity to make that station on his own that's the counsel and made a strickland analysis and so in those instances the issue was argued before the court the court was to make it to nobody terminations following the magistrate's reporting recommendation in this court on the ineffective assistance of appellate counsel it appears that we might have abandoned the argument i'm not sure where the court was looking for the argument it wasn't in the objections because the magistrate judge never raised that issue according to his law as decided by this order which was based the one on an reasonable determination of the facts based on the evidence presented to the superior court but you complicated if you and i spent the last several days on this case actually your honor what i was going to argue today that you could say in months from me remedy africa saluting the defendant from the decision making process as long as he later enters a guilty plea and this is mr you argue that you you were in this case in your defense you first came in on p c already correct yes ok and you argued to the p c or a court that mr sigh ola never directly discussed the plea offer with your client correct and we argued that that was also before the  in his unethical right you are you argue that but the fact is mr quinn whom the three judges on the panel agree there's no pending claim of ineffective this on on his account on appeal mr quinn on direct appeal specifically told the superior court that mr boyd knew about the plea offer and that he relied upon kelso's advice and rejected the plea off then you can lean on peace your a in you argue precisely the opposite how can we conclude that the p c r a court should have had a hearing or done anything except reject out of hand the directly contradictory quinn was not saying he got that from boy he said another member of this office and one tactic mr skeel and this risky all the told him that he had communicated the offer to boyd and that this no the decision was left up to weigh what to do brief obviously there's something wrong there because when we had an evidentiary hearing that's not what mr skill this testimony was that's not what mr skillets said the facts were representing him the argument was made that boyd was given bad advice by c e o it looks to me like what you said on the the p c r a portion that it was the counsel was ineffective for failing to bring the plea offer to waive all crashes those are different arguments right but we were told it was previously was made on direct appeal it was different it was the argument that should have been made on direct appeal that it was different than the the the stacks that the defendant has been presenting it always been the same if anyone had bother to either defense counsel or the superior court where the supreme court a pennsylvania look at what mr boyd was saying in this affidavit was attached he sang he never communicated this offer directly to me i that possible to read the superior court's decision that the plea was knowing and voluntary and intelligent as taking the position that you yourself taken  read the objections to the magistrates report recommendation correctly you say specifically their quote petitioner is not claiming the guilty plea was not knowing intelligent and voluntary  possible that the superior court was looking at the plea that was taken and saying the same thing you said in response to the magistrate judge report which is yes when the second plea offer came the decision to accept it was knowing intelligent in other words the really counselled and voluntary is that one way to read the superior court's decision on direct  proceedings well if that's if it's true that that's a way to read and it's a decision on the merits i'd like you to consider this and respond to it incidentally mr bill jess you might want to be thinking preceded it in the criminal process when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged he may not thereafter raise in the pending claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea help me understand how if as you have asserted in the report and recommendation injections the plea was knowing teligent involuntary one gets around the supreme court and batiks statement that the police itself represents a break and what went before is no longer of constitutional moment in your response to judge jordan you might also following sentence from the same opinion because there's a separate and distinct process a separate and distinct critical stage and that's the plea bargaining process the plea bargaining process is entirely different from whether the defendant what do i make of your your statements that the petitioner is not guilty plea deal he entered he is not claiming it was not knowing intelligent voluntary or you or you hear an argument saying that what you said for a minute straight judge works from the district relief the relief is to put him back in the position he would have occupied it counsel been affected by the trial court does not have to accept that plea now but to his relief is to be back in the position he would have occupied accounts been think you're quite your own well it isn't that isn't that isn't that the problem though with this case is that the information that mr seiler testified to during the evidence or hearing was never presented to the superior court if that was presented then the state court could have had a hearing and unpacked whether or there was ineffective assistance why should we not give deference to the superior court's findings of fact that that and he decided to reject it he took his lawyers advice rejected it i guess to ask it another way would would you be standing there arguing silos in effect with boyd had gotten the one and a half year sentence after the open plea no that you're not saying the plea wasn't voluntary why don't you willing to say that if that means that he was counsel then i was wrong and i withdraw that now i can see an argument that if mr c all that said he wasn't advice about the guidelines but our position is it really doesn't matter what happened at that plea it doesn't matter the only thing that matter now i have  asking you why you are not willing to say here if by that it's construed to mean that voluntary includes counseling then i was wrong and i shouldn't have said that more so forty years if you were convicted what would you have done regarding the forty years we operate the first answer i would have accepted the offer so if he would have accepted this offer knowing that the sentencing guidelines could be much greater than forty eight or forty ten why did he not tell us the all of this after he learned from his mother that this offer had been rejected what he calls the all up and say to him i think we ought to go back and revisit this wasn't the ball in his court the only thing that skill that conveyed was there was an offer of forty eight years that was unacceptable and he had rejected it but if you didn't answer remains even if i knew it would have been much worse that i could have gotten from the sentencing judge than forty eight and he said i would have accepted it was the prejudice if you only did not tell him and solicitor never discussed the sentencing true but he's in the courtroom and the other plea is the hind him now but it but he before he steps up and says i plead guilty he knows that there could be much a critical stage is the stage that only the defendant has the right to make that the green agree that's all sixteen women apply stricklin one has to be satisfied you have to show the performance falls below a certain social i don't i don't recall if that was in the p c r or not your honor but we asked trying again cherry hearing was i think pretty clear who would be called this witness is the commonwealth always calls defense counsel as witnesses i never call be read because there's a lot of discussion with you about the plea offer and there seems to be two plea offers here so looking at the plea offer he accepted the supreme court decision says that was knowing intelligent and voluntary can the record be fairly read to see that statement by the superior court on direct appeal as looking at the plea he actually accepted and what he understood in the course of accepting that second plea or is that not a theory and i think that you're right i think that is  reading of what this a period court said and i think the superior court decision on the merits yes because it's a decision on the merits because any time that you raise is as you made the point during the sterns argument  that any time you there is a claim about an error that occurred before the entry of a plea it has to go to the knowing involuntary nature of the plea that was ultimately accepted and entered and that has to be part are two separate events one to find out what actually happened because your honor there wasn't any claim raised in state court or even now as i understand it that the open plea was not knowing involuntary which i think is a major omission from boyd's counsel that question was never really litigated so to the extent it doesn't appear you know a specific answer that question doesn't appear the record i think that's because that wasn't the claim but i think it is clear from possible that he got the sentence he got so i think that if one can assume that if he was counseling white as he should have then he would have said to him  cases the legal system does place a fair amount of emphasis on the colloquy sort of as a compromise i mean as a practical matter that's the best we can do that's right did want to address your question briefly the question you posed to opposing counsel if the was on the merits and if this court holds that the state court misunderstood and it was an unreasonable determination i disagree with that but what would happen the gateway would open to a federal hearing which is what happened  the testimony supports the magistrate's finding that boyd would not have accepted the offer that's also supported by that that the sentences that i was talking about the predictability it's also supported by the colloquy stricklin prejudice is not establ record is not entitled to overturn a credibility finding of the magistrate without having its own hearing and i see my time is up i have one question are you arguing that there shouldn't have been a hearing before the magis because you keep referring to what happened yes that's a yes and yes you think there isn't much should not have been if there if the score finds otherwise though where what happened happened in  go and the district court if it disagreed it should have held its own evidentiary hearing yes although i would say that there has to be some objective reason other than a vague this agreement with what happened  should thank you very much