investigate the case from his erroneous advice to his client on the downside risk of going to trial with the district court did was parse those two things out and  essentially say that it was all right not to investigate the case because it was early in the case which actually is not accurate it was two months into the case and to rely on solely the statements of the prosecutor in terms of what the guideline range was and what the conceivable risk of it was because you know it's if the defense counsel and investigators used today and found with defense discovery would be used to find out what the government's final lab report showed without the government's attorney finding out about report your honor the vehicle is what's called independent investigation if counsel had retained an expert of his own or even looked with common sense of the  that that lab report had a very real possibility if not probability of coming out the way that it did my point in marty you saying that he had he would mean an expert to take a look at the preliminary lab report which but this quantity we can get that now that the prosecutor said that at the bail hearing your honor there is no report in this record and there was no report ever provided to defense counsel that talk about a quantity of ten to twelve following that is also my position and a review of this record will reveal to this court that powerful did none of those things in terms of investigating the case in terms of taking a careful look at what he had in quantity in already he did he relied on the statements of the prosecutor he told this client that that's what he was facing now in terms of prejudice i find it unfathomable that one can say that this man never would have pleaded guilty despite this process stations of that innocence if he had known that instead of ten to twelve years he was looking at twenty four to twenty five years which is what he got and i think the record is clear from the same experts to whom i refer before and doing this for twenty seven years i can say that that happens all the time people come in all the time and say i didn't do it and when a lawyer says that's fine ma sir but if you go to trial here's what you're looking at and all of a sudden everything changes and that's what we're talking about in the in was just keen in calling a case which we've cited the second circuit cases upon which this there were things he could not do and did not do because he had no idea what one of his clients was saying in the briefings who was cooperating against the very organization of which mr novak was the president organization he knew that mr novak was alleged to be the president of the misfits he knew that mr dirda would be likely to be asked about the president of this organization while he was quote unquote acting as a snitch and he knew those prosecutor first gave information that some of the substances weren't being weren't tested out and were washed then it looked like it was much smaller amount and in fact she stated to him and to the to the magistrate at the independently determining for himself what the potential exposure was well i think there are two different issues here one was how much math and p two p were actually found at the lab and i think that's what the flipped and given testimony for the government that only happened the testimony for the government was a trial that testimony was part of what establishes novak's responsibility for the large amount of past drug production at the lab so what when time the chemist testimony had not yet been developed and it is the chemist testimony about the production capacity of at the lab that was central to the ultimate finding as to how much of the drug amount that pushed that this land and inform this point as to the amount of years he would be facing the with the client telling mr verger that he didn't participate at all much less much less during the february that's expert and he was in the same position actually as the a t o at the trial yes they made an offer which would have found the united states to a ten year sentence based on the preliminary view as to the lab this was pretty a pretty so that the parties didn't have to front load this amount argument this was something that would come in at sentencing but as the case developed for the prosecution and as the trial was put on that's when testimony came in about signal to mr berger was the defendant was claiming is that a sense he was going to trial and despite the opinion that of experienced defense counsel signing declarations in this case that over time a defense counsel those three factors really distinguished this case from the second circuit cases that the defendant has cited berea the defendant was reluctant to plead guilty because he was embarrassed about what his children would think and also the defense attorney although he thought acquittal was impossible he said he didn't even tell that to the defendant what about the declaration from the defendant and it's reality i think the magistrate found those to be self serving  the district court indicated that he didn't find the post sentencing claims credible because there was one hundred eighty degree turn in the position that mr novak had in this  testimony he believed and it was true that his client dirda was cooperating in the state case a state was not a member of the misfits and and the focus of that seventy some pages of grand jury testimony each time that the prosecutor went off on a tangent with respect to other people within the misfits motorcycle club other than mr dirda of the the cooperator he always brought it say somebody would not have ever pleaded guilty when he didn't know that he was facing at least double the amount of jail time i think is just fallacious that's one factor but it's not the only factor is it counts it is not your honor before the conviction if you do i think you're right your honor but i think that what you also have to look at is people do that when they think you have nothing to lose bear in mind that this man was offered ten years and his lawyer told him that if you lose a trial you're going to get ten to twelve and a half now when somebody gets told the price tag on a trial is tampa twelve or fourteen years that changes everything and that's what these declarations are about that's common sense