plea offer i'd like to start out by explaining why and overview applies for addressing why shelton's claim is meritorious under either standard the noble review applies here because either the state courts incision was not on the m under twenty two fifty four d or the decision was on the merits but it was contrary to clearly established federal law and the reason is the same in either circumstance because the state court applied a heightened burden of proof to shut ins  specifically the state court looked at whether sheldon had proven by a preponderance of the evidence that there was a plea offer and that he would accept it however under strickland the clearly establish federal law is that a reasonable probability standard applies in showing prejudice and ineffective assistance claim reasonable probability that the result of the proceeding would have been different in this context what that means and as the courts have laid out a reasonable probability that had a plea offer been properly communicated to him that he would have accepted it and he would ultimately receive a lesser sentence so in applying the incorrect standard the the facts as they are laid out and as we've laid out in the briefing and otherwise are that this court has enough to grant a conditional read and remand for re sentencing in the state court which is the proper remedy for that in the circumstance have that there was a plea offered here there's actually a number of sources that confirm that there was a plea offer your honor first we have the affidavit of mr shelton himself where he said that there was a council told him there had been a plea offer that he had already rejected affidavits or the other evidence the other sources that i can mention in a moment the state court just concluded as a bald faced statement that there was no evidence in the record that there wasn't back to plea offer it was it was that straightforward despite the fact that there were these affidavits and other procedural analysis under michigan court rules of procedure will default analysis that he had raised this claim on direct appeal and in doing so conducted an actual prejudice question as part of that analysis and that actual prejudice question applied they state rules for ineffective assistance in the state rules were not the same as the federal standard this is where the court brought in the preponderance of the evidence standard instead of the reasonable probability standard under strickland and that as the sixth circuit has law apply and again preponderance of the evidence instead of original probability again the result is that in a holster that once the court determines that based on the record that before the state court which is simple here because it applied the wrong law the wrong legal standard once that is the term and then and have it your hearing is again a bail so where do we get evidence that counsel rejected the plea without consulting these that there was a plea offer that it was for seventeen to thirty years for second degree murder that he had rejected it because it was quote no good and he also states that he later further inquired about the offer and his counsel told him it was no longer available so that's where we're having our affidavit and the record to correct so we have that's and that that specific point about whether shelton was informed of the plea offer is not actually contested by the state in this case the only evidence we have is from mr shelton's affidavit which confirms that he was not told about the plea offer again though if there is any question in the court's minds that issue and evidential hearing is avail what do we have to say and if there's a something like that or ordered that we've got a food that you're right on the money you're wrong because the state court found that applying a michigan procedural rule that shelton had not raised this claim on direct appeal which is certainly correct instead rais been unsuccessful on direct appeal on their say she right because there's no evidence before the district court that that there was any agreement with counsel that the district court at that time did not have any  defendant of what happened or just some talk at the time of the sentencing right that's correct or are there was evidence of a plea offer that in the sentencing trends because you mentioned as you think you're correct that mr take it up on direct p o s and if appellate counsel had raised it the court would say there's no evidence of it right because your client did not say before the trial judge there has been a an petition in federal court and because there would not have been a procedural default or if the court finds that the procedural defunds excuse for ineffective assistance for for not raising that on a on appeal then the he could have presented that evidence with his petition or on a motion for leave from judgment like he actually did in this case i don't know how you can how you could raise the fact that direct appeal counsel was ineffective for for not raising something that wasn't in the record mean just not in effect even if you don't have a record borders and i think you are that there are avenues under michigan law for appellate counsel even if it's not as part of direct appeal but he could have a petition once he discovered this petition back to the that there's been no dispute there's no issue about whether how late it counsels pointed whether he could have certainly he would have had a professional obligation to seek an extension if he didn't feel he had sufficient time to prepare all the issues that he should have been raising the standard for which i think is analogous and applies here where the appellate issues raised were subject to deferential standards of review and the second issue was to pen it on the success of the first issue that is exactly the case here where you submitted a sufficiency of the evidence claim which the six circuit described in bending the warden as a perennial loser sufficiency of the evidence and second he submitted a due process argument that he because he was mentally because he was insane he couldn't be convicted under due process basically arguing that the state should have the burden of proof and argument that the supreme court had already rejected in a case that counsel cited in his brief because appellate counsel was constitutionally ineffective the procedur the merits we do still submit that those claims are procedurally defaulted however either way mr shelton can not establish that he's entitled to relief so we would ask this court to affirm turning to the standard of review question for the exact opposite reasons we only control consider the trial court record counsel in evaluating this ineffective assistance of appellate counsel yes ok yes go beyond that correct we would submit that the appropriate standard of review is at the deference for for two reasons first because it was adjudicated on the merits i think that the that the opinion is actually fairly self explanatory there was a procedural default which which the trial court extensively reviewed however in its analysis  also cited the proper stricken claim based on michigan law which cites directly to strickland and it also analyzed the underlying claim and determined that the claims were without merit so for that reason it is  adjudication and secondly the argument that the trial court's decision was contrary to or an unreasonable application of strickland that appeared in mr shelton to reply brief to this court so if you'll indulge me i have to respond to that the proper stricklin test was given by the trial court it cited two people versus toma in people versus riley both of which cite directly to strickland and the debate here is about the prejudice probably about the reasonable probability of whether or not the defendant would accept the plea agreement that's the debate here that standard is not is not strickland prejudice as a whole so and i'm not meaning that is your standard are you saying that is the standard the standard that well that the reasonable probability standard of whether or not that the defendant would have accepted the plea was not established until missouri versus frye in two thousand and twelve that's when the reasonable probability standard for the defendant accepting a plea even came about which the trial court in this case made their decision denying relief in two thousand so any clearly established law is actually missouri versus frye which we don't dispute the prejudiced prong has has three separate components within it all of which a reasonable probability standard however that that standard did not exist at the time that the trial court made its really here so the sort of go back to the standard that was used by the trial court again they cited to michigan he's cited to michigan precedent with sight which cites directly to strickland and the prejudice pran doesn't know what a reasonable probability that is for excuse me for prejudice as a whole so what the question of whether or not the defendant would have accepted the plea doesn't matter what standard the trial court used to determine that question because the proper standard was already given for prejudice as a whole the components being separated out again were not clearly established law until two thousand  addition to the record and then take the preview as that is that a common thing in michigan or is it allowed again i've heard of it before i would think if it would be allowed it's not something i see often so i can't say it's common however if if appellate counsel thought that this issue was meritorious then he likely would have raised it and also even if even if he hadn't even if appellate counsel completely disagreed and thought that this claim was not meritorious mr shelby also had an option under michigan law to bring his own standard for pro per brief and also argue that before the court and on direct appeal the court would have a problem he said certainly and we do not dispute that he suffered from mental illness however he he had family he had family with him looking out for him for for him and and however his mental illness  did not rise to the legal insanity he he was he was cogent at the time of trial and several mental health advocates stated that he had made leaps and sophistication of those family members who were looking out for him you know your honor my apologies i have i have none but with the affidavit of his sister he cited often and often to his children who he says that he had spoken with the the collateral review was was filed however those affidavits shelton and his sister yesterday those were not before trial i mean his trial appell counsel i didn't have that not that i'm aware of you know and so that goes back to my question whether or not trial counsel can be faulted i mean appellate counsel can be faulted for not raising an issue that wasn't raised by appellate counsel that wasn't in the crock trial record that that's fair correct yes i mean it can't be filed found ineffective right writes to question yes if it's a matter of the paper affidavits absolutely but when it comes to a conversation about those i can't speak to that bias but the paper affidavits were not in the hands of appellate council at the trial level the michigan trial court held plea that that isn't a reasonable application of federal law up of a court to consider that i would like to make two points the first preponderance of the evidence of reasonable probability  is an adjudication on the merits we are dealing with a very limited hey vs world where clearly established supreme court law is what we turn to and i would like to point the court just to holland versus jackson which says that when the proper is is given trial courts are presumed to know and follow the law and here i think that that that is what this court should be looking at i am happy to get into the merits but i think that the a couple of points i'd like to address first of all on any question of whether or not the state court's decision was on the merits counsel pointed out that the state court did cite the strickland task for prejudice essentially although it was citing the reasonable probability test that is that is certainly correct however the court went on to state unequivocally that the defendant has a burden of proving by a preponderance of the evidence that a plea offer was made and that his counsel failed to communicate to him and then that defend it was also proved by a preponderance of the evidence they would accept the plea and then in concluding after that court said that he had failed to show by a preponderance of the evidence so it's clear that the state court was applying a preponderance of the evidence standard not a reasonable of reasons first the strickland although frye was certainly decided after the state court's decision the strickland tast of course had been decided long ago that it's a reasonable probability under the prejudiced analysis and reasonable you can apply a preponderance of the evidence to elements within the determining whether there is a reasonable probability of something the standard has to be reasonable probability in any case and that's and on my second point that's exactly what the six circuit found in the griffin versus united states case and that was decided in two thousand and three there the court specifically said that was the same type of case in effect assistance for failure to communicate a plea offer and the court explained that the standard was a reasonable probability that the defendant would have accepted the pl although that's not a supreme court case the fact is they were strictly applying the well established in or under strickland a reasonable probability in this context and explaining that it's reasonable probability not proponents of the  moving back to the appellate counsel question the i'd like to make a note of the of the joshua versus de witt case six thirty case from two thousand and three which is a fourth amendment issue there on ineffective assistance the court found that reasonable pellet counsel would have raised the fourth amendment argument there despite the fact that the trial counsel actually didn't even make the argument found that there was in effect a system t the absence of evidence in the record that there was a plea offered we have that we have those affidavits come later write that there was a plea offered and rejected by counsel without informing the defend sure what we have your honor is the sentencing transcript that also confirm no the judge mentions it but it could it's reads like he's assuming there was some sort of plea as there typically is and he's assuming it so is that sufficient but the court to say yeah there's a claim there two points your honor one the i disagree i think reading in context the statements of the trial court was confirming that he was aware that there was a plea offer saying i do know this and that was their offer but more specifically there's other habits of appeal after the fact that mr shelton himself went after the shelf the sentence had been imposed accepting the prosecution's recommended sentence he said well what about the why would they request a higher sense when their offer was seventeen to thirty years so that's the other evidence from mr shawn himself and more importantly tell us he rejected it that does not tell us that he that he was not informed of it however once the sees that there was a plea offer that's certainly something that he that there was a plea offer that wasn't made that's something he has a fresh obligation to and inquire about to determine whether he has and your argument with respect to that yes your honor and i think that he would have had avenues to expand the record