is really simple application of clearly established supreme court precedents in the stripling vs washington case so prover twenty five if this court applies that standard that we will fail the strickland standard is a general standard it is a framework for which the united states supreme court has said we will resolve all instances all factual scenarios of ineffective assistance of counsel and if we go back to the sixty's in the seventy's when we deal with the trilogy of supreme court cases brady mccarthy and mecca bodi say that a plea that in order for it to be constitutionally valid must be based on proper advice and knowledge of the consequences of what the defendant is doing not based on  representations of the trial console it's a good argument to help me understand how we get around child deaths is statements about what hill was about the in in that hill did not decide that you could consider that that question is not been resolved by the supreme court and co requires us and more importantly release we have two questions here about what were the supreme court have to do with parole part both have to do with parole no i i think one has to do with pro eligibility  one has to do with releas yes but there is an a very important distinction here please answer the question posed would i'm sorry ok well that's it i don't mind you internet because that's part of it yes how can you make that distinction in order and the supreme court has said that they're not going to decide the factual pattern for resolution of those issues that's for the lower courts they set the framework they have never said that  court isn't telling the lower courts that in a specific factual pattern or specific facts that that's going to be excluded for six men purposes but is your burden to show that the supreme court has not ruled adversely or is it your burden to show that the supreme court has established the coverage that you seek to fall under to protect your client i think it's both so the supreme court has never said that parole eligibility is excluded from six amendment protections added and included they haven't said it's included but that's a factual pattern that's so if the supreme court sets rules for the lower courts to decide it's not up to the supreme court necessarily unless they decide like in padilla if they're going to say deportation is a specific fact category that we are going to say receive sixth amendment protection then it's left to the lower courts to make that decision does that answer your question or not if it doesn't i'm still i'm still struggling with what the burden is here lawyers to a defendant to induce them to get to plead guilty they give them pitifully false information does that fall within clearly established supreme court precedent and the answer is absolutely yes from the from a guilty plea but the supreme court doesn't have to decide the facts thing you could say that it makes sense but supreme court seems to be saying that we haven't said that but do the question in the end that the argument would be that it's somehow collateral it's state court made its operative decision was well i think the answer to that is no and i think the district court when i brought it to their attention that was the district court wrong on that under green versus fisher well a this be an interesting conversation about what constitutes the merit of adjudication of the state court and in so if we start with the supreme court which is where we appealed from that is not because they said they wouldn't review it because they didn't think that the issue was sufficient that's what we feel from the mission court of appeals in one sentence then they were not going to address the issue on the merits so court correct but you're saying yes i'm saying that the michigan courts never addressed the merits of the ineffective assistance how do you get around harrington i'm sorry how do you get around harrington presumption that there was a merits that merits were addressed and the michigan trial court's finding that the lawyer's promise with less than persuasive in terms of the outcome of the case owing to the enormous benefit do you not then have some sort of merits determination i don't believe so because when we look at the court of appeals one sentence line that's not a reason  reasoned or explained we go back to the trout portrayed and i think what's important about the brockport to the trial courts the trial judge never addresses ineffective assistance explicitly never says anything about strickland he doesn't talk about the two prong but what he says and if i can quote for the record a reviewing court is not talking about and so a reviewing court should take a dim view of what the defendant says is were told him quote so and that's best always did but you assume that's the that's the relevant decision in determining whether padilla applies just assume that for the moment and what's your argument but address the affidavit of the appellate lawyer at the time who spoke to the trout lawyer and said i spoke to mr chambers and mr chambers told me two things and i can't emphasize how this is important because there are two aspects of the factual basis of the ineffective assistance the trial lawyer mr chambers told the appellate lawyer that even though the sentence agreement was twenty five and a half to thirty five look at mr plume don't worry about that because you're actually you're going to be eligible after fifteen and you are likely to be released at fifteen and that second part is what brings about side of the whole question of is parole eligibility a collateral or direct kind of analysis we really don't have to engage does the second why does that second statement bring you out of the it seems to me that it might be the first statement that brings you out because that is a statement that is wrong a matter of michigan statutory law both of those why wouldn't that be more likely to take you out of collateral consequences you know the promised oh i know the parole board you're going to get out all of that stuff is readily assignable to collateral status but how can it be collateral when someone tells you in correctly on the statute why is it that your better argument is what the census told you  well i mean i think the essence really is for a defendant who's pleading guilty the question that they want to know is what am i going to get out right so when the lawyer says on the day of trial as he did here in the defendant says i'm going to trial i and i'm innocent and the lawyer says don't worry about this because not only will you be eligible but you're likely to get out and that is contrary in everybody agrees this is pay only false advice to the lower to the defendant that induces him to plead guilty and i think maybe i missed i think same question the question isn't is paid only false you can say something paid only false about something that's very or you could say something a paid only false about something that's collateral it's falsity doesn't make it collateral what makes collateral to me what makes it collateral appears to be whether it's the decision that's being made about your sentence or whether it's a decision about how some other body is going to interpret the sentence it seems to me what they're saying is it's not part of a collateral matter is not part of the criminal proceeding so what the what  the what the attorney general does in immigration context that's collateral because they may be made to determine but it's collateral what what what what some parole body does some wire may mean maybe parole rules will change we don't know so they just look at the sentence and then they make their parole decision as opposed to a decision in the heart of what the what the sentence says that's not collateral you are you right  case is support that i understand the distinction i wonder if the cases support that support the distinction here what i'm sorry i'm sorry i'm not sure i understand what your question i'm wondering if th role order could be the immigration people or it could be could be his his you know his the people who determine whether he gets hired or somebody all those are current lateral effects but if when i sentence you to to do three years of this and two years of that that's not collateral he would say that's what the sentence that's the content of the sentence i think what judge is suggesting is that if if it's a statutory limit if it's a statutory limit on parole that becomes part of the sentence not a lot of collateral aspect of the sentence it's just integral to the sense a limit on the sentence or it's expansion that's a limit on a limit on the sense it's a part of the sentence i think the distinction might hold up but i'm wondering like my question is maybe it's a hard question to ask you  articulate the distinction is whether the cases would support that in the cases talk about collateral can they all be distinguished that way well i think that if you try to take one turd of this case which is pro eligibility vote as opposed to release and you try to pigeonhole it into either direct or collateral i think we're headed down the wrong road but what but let me say this you don't head down that road you head towards  how do you get around words ok so if i'm a defendant and i'm thinking that a sentence imposed by the judge is twenty five and i have to thirty but my lawyer is telling me that the pro board is going to say it's going to lop off ten and a half years i'm going to believe my lawyer and i'm going to see the difference the difference they are yes is that is that the lawyer then is speaking in the kind of advisory capacity that suggests that i know this i think this here is your best chance for a verst is what your claim i thought was is that when the lawyer says to me ok mr defendant you've got a twenty five year sentence and under the laws of michigan you can get out in fifteen that is absolutely incorrect how can that not be a part of the sentence itself even if all of this other advisory stuff is collateral we don't care what the law is on collateral issues like vi at if in fact you can pigeonhole your case into saying when he when the lawyer advises a statutorily in correct sentence that is part of the sentence period yes we don't reach collateral consequences we are in strickland heartland and either he was right or wrong in affective or not are not affected so what judge rogers is asking you is what case law do you have a of that would pigeonhole that sort of improper advice into the sentence and we don't have to deal with the child did as a valuation of what hill says guarding collateral consequences there's a whole series of cases inclusive report cases when the lord lawyer miss advise is the defendant about his consequences that that's an effective assistance and i think i tried to make that clear right from the good morning your honour's lives are of art appearing on behalf of the warden and i think to first start off by saying that this is a classic case of buyer's remorse mr plumage while released on bond from killing a man by hitting him with a truck on icy roads decided that he was going to forever silence another man who was going to implicate him by shooting a woman in the head we managed we get the facts o is no clearly established supreme court precedent on the question of one whether advice regarding a collateral consequence falls under the ambient of the six amendment strickland analysis and to whether or not parole eligibility is a collateral consequence because those questions have not been answered clearly and clearly established by the supreme court underwood's v donald so the question then becomes is there case law that would suggest that a  error on a statutory sentence is not a collateral consequence it is in fact a part of the sentence itself i have not found case law and that direct point your honor and do you have case law that goes the other way that it is that you can that a lawyer can look at defendant in the eye and say your sentence under the law is fifty years but i'm telling you that for a year or so is what sentence that was enhanced now this is going to your point whether a enhancement of this and you know a change in the sentence i'm sorry is this is supreme court no this is a case by the circuit is by the circuit here if you're in the circuit law you might have problems here because don't all the circuits a great that that it's ineffective assistance to give the kind of advice that was given here i mean my chaotic is fourth tenth and third circuit would suggest that gross do the defendant tried one to characterize a advice by counsel as a going from a collateral to a direct consequence as what to mr coleman just trying to do here this this court be there are cases where where it's where when the supreme court talks about collateral consequences it's referring to cases that have included cases like this and you have a much stronger case than if they don't  what the what the immigration people do or what the what the standards that the parole authority applies are not part of the criminal proceeding they're part of some other proceeding that may be takes into account what the sentence was and and benefits or hurts the defendant using that information is a little bit different arguably but i'm not sure if the difference is enough it's arguably different if the if if it's part of the sentence of the sentence says you shall get parole on the thirty third year and that parole will last until the thirty sixth year and then your parole will be done and that's in the sentence it's hard to say that that's collateral anymore right is that true at least i would i would put the court towards the definition of collateral consequences mccain and about the one in  it says not part of the criminal proceeding right exactly and when i'm saying why isn't that what i just described and then if i'm following you correctly here under the i'm just trying to draw the distinction between this court for instance gives a sentence in the federal court it would be twelve years in prison and three years of supervised release right there is no other bodies can change that you know that other bodies can't say well we're going to only have two years of supervised release that's the sentence right now the the if if there if it was a state version of that and there was a parole board which had some discretion to lessen that but we don't know what criteria they're going to be applying three years from now that you would say it's collateral because it's not part of the criminal proceeding it's part of the parole proceeding and the same with the attorney general same with the immigration authorities and they may say oh you get deported if x and y kind of crime and now we've changed to a y and z kind of crime that would be collateral because it's a different proceeding yes it's not part of the criminal proceeding exactly what is i would think part of the criminal proceeding is the content of the sentence how long you're going to be in jail which is which is what the trial court clarified to the defendant he informed him that he was going to face the maximum of life if you didn't plead to these charges he then told him your minimum sentence is twenty five and a half years at no point did mister cry foul and say wait my attorney just told me i was going to get our and fifteen years are you saying that they bashed by the court  the voluntariness of the plea but we look at the plea colloquy to determine what was said what the defendant said there he said there was nothing no other promises made to him and this advice by counsel effect an implied promise that he was going to get out in fifteen years that argument would apply regardless of whether the school and or agreed you're going past the call you're just sort of yes only for sake of argument that exactly exactly i'm struggling a little bit with and that was what he said this is your sentence now the question becomes how does state law define that in michigan state law say the bottom number is the floor you are going to serve that no matter what that may not be true in tennis and to say the statutes may say you can are in good time and it can be used against this sentence and the bottom is not the floor so why isn't it a part of the sentence itself when an attorney say is in the state of michigan when you have this kind of arrange the bottom may go down and i'm telling you in michigan the bottom doesn't go d it goes down to fifteen years why is that not the the court the advice on the nature of the length of the sentence itself i'm going to take a step back here and i'm i'm go going back to strickland because we all agree strickland is what applies i'm going to say he has not met his burden and stricklin to show deficient performance he has his what we would call an incredible affidavit about what happened during the plea colloquy the trial court clearly did not find that opinion you wanted to contest it you could have put in you could have contacted chambers and put in an affidavit that are posted or you could have requested or the court could have granted what one would have expected in this case an evidentiary hearing on ineffective assistance i would caution the court to shift the burden to the state to prove deficient performance trick and is very clear and the supreme court also made it very clear and low and that amounts to a shy isn't an is an implied promise by counsel that you will get out in fifteen years and so what what i would suggest is that a poet counts as affidavit is vague while he may have said these words we don't know the context of those words if he was explaining to the defendant in the context which is right correct under michigan law that if he was looking at the maximum of a second degree murder conviction which is parole of a life then under the section seven of one of the statutes he would have been eligible for parole under fifteen years so our argument is that because his fatal flaw is by not presenting an affidavit from trial counsel to support what actually happened given the issues of his credibility from  affidavit based on the plea and again based on the trial court's assessment i think this perhaps stronger argument would be that there's no prejudice and you deal with it with that issue ye s he maintains that he was innocent throughout he in open court which is all that the supreme court  he was facing toward concern with this question of whether he would have pled guilty if he'd known that he had ten more years than he thought he had some for the moment all of these things we've been arguing about just so that we can ask the question all right yes we would disagree with you  soon that all of that away but there's a violation there's a violation and as a result he thought that he was going to get out of after fifteen years instead of twenty five years right but but  the the argument then he goes i'm wondering if the argument then will hold water that because twenty five was such a better deal than he would have gotten without the plea that he would have done that anyway but as you make that argument he yet he was facing to make that argument on appeal and yes he was facing two life sentences in the murder case one for the murder charge one for the assault with intent to murder and all of these were based on aiding and abetting theory and under supreme court precedent circumstantial evidence  as constitutional as direct as i understand that so i mean and that makes sense to me and maybe dispositive but what do you do with the counter argument that the issue is not whether a reasonable person would have gone to trial but whether this person would have gone to trial this person a lot of evidence that he was stubborn and wanted to go to trial and wait till the last minute and how do you deal with that what is the standard is that what a reasonable person would have agreed to have raised and from what i gather from petitioners brief is that he's alleging that he did that he had no part in this and i think that is refuted when you look at the testimony the only testimony we have is at the preliminary exam where we have two eyewitnesses to the events that happened afterwards that if he could if he could hypothetically speaking if he could come compellingly demonstrate that no matter how stupid it was he wanted to go to trial as long as he as long as losing would send more than twenty years so you know on the twentieth year he wanted to be out and so you might you might agree to it but i think we color high water if you could show that even though a reasonable person would grant the would would take the plea isn't the law that the whether the gets the right to do that i don't i don't think this court can ignore the great benefit that he recei i think that's part of the benefit would suggest what he would have done with the benefit is useful not because a reasonable person would have taken it into account but the benefit is useful because that's what he probably would have taken into account is and they don't have the correct analysis or is is that not that's what i'm asking you that a little honestly i don't know that the answer to that i had from when i was very and i see my time is up but from reviewing the cases you know they look at the totality of the circumstances to answer that you know what what was his benefit what was he don't defend look at how persistently he he insisted on going to trial and the record doesn't show any persistence that really does what to look at here i'm asking the legal question and while i don't look cases don't look at how persistent these people are but if they do that doesn't go to what a reasonable person would do that goes to what this person person would do and if this court would like supplement a briefing on what the supreme court cases say on that point i would be happy to offer would that have to be considered in the totality of circumstances it could be a possibility again i mean how could it not you know it otherwise what would happen at the appellate level is everyone would see it as the judges would sit as a super negotiator and say good enough do you know you want prejudice but it would seem to me that the issue is about your right as an individual to stand trial for the charges against you and didn't this defendant turn down a plea bargain before the day of trial before he accepted this one from from what i can understand from the record it looks like there was  made i do not know the contents of that and what we do know is the contents of this one which is where he and i would say that the supreme court has cautioned against just setting aside these pleas willy nilly because  are very much yeah the hard balance the hard balance of course is that that the right to stand trial before a jury of your peers is what we're talking about and wouldn't that have to be the right chosen or given away by the defendant that is entirely his right and we have to look at what he was facing at the time as well as part of everything and this point that's fired if it had pled guilty and was now you know go potentially be a witness against him as well so i think that is part of the analysis as to what he was facing the strength of the prosecutor's case except harass one ok if we disagree with you if we were to what did happen and what or not no evidence you're hearing on this point is part underpinned holster what would happen is that the relief and remedy under meg on our behalf berger is a remedy for a nuclear hearing centrally granting of the heaviest petition and the relief instead of a new trial is going back for a new plea hearing two for the prosecutor to re offer the plea so that our our review is totally to whatever the district court it's to nov of the district court to look at any reasonable possibility for that state courts denial not necessarily looking through to the trial court's decision so would the the play is really offered in the hearing is is what is essentially  plea and then you know going through if you do and at that point the defendant can stand up and say i don't want this or now that i know it's twenty five years and not fifth thing i'm not willing to accept this it depends on what the prosecutor decides to reoffend i don't know that opening that is the end of it by the current terms so it would depend on what the prosecutor decided to offer taking into account several considerations though so it sounds to me like you're talking about a complete as we say do over that's what i read mcgann of the hoffberger to say and then you know that they do go into whether or not if the prosecutor offers more in a heavier  sends you know then they have to show you know why that's not i forget the words but yet they have to show that that's not vindictive yes but that from what i understand would be the remedy not just saying you have to go to and again based on the circumstances of this case i would strongly urge this court to not take that path based on that the deference applied due to the fact that this defendant is you know the record shows he's notorious for you know the witness tampering that's evident in the primaries am you know and that he's essentially taking out individuals who are witnesses to his prior crimes so at this point unless the car has any other questions thank you did you want supplemental briefing on to have this offer made back to him and make a decision within the disconnect that's correct there's no more evidence that can be taken anywhere as to what he would have done or as to  if he had known this information at that time i think the record is i think the record is or even that you know there's dispute as to whether he was even told this i don't think that's an ad that can't be further examined in any hearing at any level is that right well this is what the district court did as a yes or no question restate the questions like and thank you there was some question about whether in fact this misinformation was given they want to cover make tellings never any we have this you know there's this kind of testifying that kind of testimony but not the other kind of testimony not this other kind testimony one result in some systems might be to get some more information on that well but on the theory that there isn't enough evidence to reach a conclusion excess opposed to why but but what i'm taking from both of you is that's not something that no remember when padilla looked the supreme court looked at the affidavit whatever it was the record they assumed that the representations the misrepresentations made by the lawyer were true and then they eventually sent it back on the prejudice issue in the district court did the same thing here and made findings of fact that the state court record was the two affidavits and rebutted by the state as judge strong said they could come back in that regard mr court no prejudice right established federal law on this issue really doesn't sort of stops at that point and really doesn't get to that so you could remain to back to the district court for finding a more they're not this prejudice i think that prejudice thing for just a moment because we talked about this and judge strong started with the correct analysis is that this is a defendant that always insisted on going to trial and on the day of trial the prosecutor says i have an offer and he says i'm not going to take that he rejects it and in his affidavit he says i'm innocent i'm not going to plead guilty and i think circumstantially there are two things on prejudice one is if the judge is saying your sentence is twenty five and a half to thirty five but your lawyer is cutting off ten and a half years then it's the inducement that's what really shows the prejudice because now plumage is saying to himself instead of doing a life sentence without parole i don't have to do twenty five and a half all i have to do is fifteen see and that's really the key and how many times i've said this is not simply a case of parole eligibility because the lawyer is saying not only will you be eligible at one hundred eighteen months fifteen years you are likely to be released see and that takes that outside of the whole collateral thing because the lawyer now is bringing the sentence into the into a cold part of what the defendant is expecting just seems backwards to me seems like he's playing something out it's not i'm sorry because he's chopping off ten and a half years that's why it falls within strictly and the whole analysis about whether it's collateral and really isn't relevant to the discussion here ok