we move on to the fifth case of the day raleigh mitchell versus united states number fourteen to thirty seven fifty nine morning your honor smith please the court adam stevenson on behalf of raleigh mitchell mr mitchell raised gods who claims in this court granted cert certificate of appeal delivery on two claims of ineffective assistance of counsel with regard to plea negotiations and i'm happy to address questions the court may have on the substance of those claims over today i'd like to focus on the additional item that the court added to the certificate of appeal ability that is whether the district court abused its discretion in not conducting an evidentiary hearing with regard to mr mi ineffective assistance claims under twenty two fifty five b a court must grant a hearing unless findings and filing in the filings and the record conclusively shows that the individual is entitled to no relief specifically with regard to ineffective assistance claims in order to be jenkins a full record and in particular with credibility determinations is necessary to truly evaluate ineffective assistance claims in mr mitchell's case you raised claims with regard to the amount of advice you received as well as with regard to the communication of the police officers both in terms of the manner as well as the substance the government then responded and in doing so also filed with it a declaration from mr pertain mr mi routinely said that the these issues cannot be decided on the basis of declarations alone and in fact the purpose of having any such declarations or affidavits from counsel or from the parties is to determine whether there is a factual dispute not to resolve it that is for the here and that is for the credibility determinations that this court requires mr stevens mr bradley attached to his affidavit a couple of letters from october twenty ninth of november third shortly before trial is there any doubt about whether those letters were sent or received based upon the record before us there's nothing to guarantee it nor is there any doubt but has mr mitchel denied to the best of my knowledge no not on the record he is not ok because those letters show that an awful lot of the missing information which are mitchell's complaining about was in fact presented to will before trial on one point with regard to the letters mr pertain ledges or or states that he provided mr mitchell with the relevant guidelines one of the concerns in this case is with regard to the murder cross reference found in united states sensing guidelines to the one point one again mr pertain identifies that he was he'd provided mr mitchell the relevant guidelines which would be to the one point one  mr mitchell in a situation of an unsophisticated client that frankly as the government indicates given the complexity of the sentencing guidelines being provided to the one point one is not the same as properly a why is that the advisory guidelines which the supreme court this court and others have held still carry significance weight even post booker knowing that and knowing that i'm ashamed to knowing knowing the connection and the force with which those guide that guidelines recommendation at any criminal history level at any other consideration as soon as that murder cross reference this sound and implemented it is a life guidelines ra and that is accurate that life was the maximum sentence and that there were that that was included in a letter to mr mitchell but the other in addition to the sentencing information there were the other material terms of the plea agreement one one material term was that agreement required quite some amount of cooperation on behalf of mr mitchell mr mitchell considered that and asked his attorney for further information this is similar to the case in esther mera where again cooperation was it issue and there was some amount of back and forth amongst the parties about what that would entail and what would be the full scope of that investor mera there was further movement away from testimony and providing information to something far less but the critical question is what was the nature of the cooperation and what was done mr mitchell says he asked for that information he asked for what all that would entail both in terms of what he would need to do and what would be able to be done to guarantee is potential safety and not given that information he could not decide what  then report that information back the attorney acts as a conduit with the government it's the g it's the attorney's job to act as that is that helping individual that communication conduit to the government at the time clearly we're not expecting the defense attorney to say anything in terms of guarantees that they haven't already been provided by the government part part of my concern here mr stevenson is the from these letters it's clear the general notion of cooperation in return for a twenty year recommendation from the government had been discussed between counsel and had been communicated more than once to mr mitchell and he  apparently expressed no interest in it and so i'm concerned that the argument that you're making here would impose on defense counsel and prosecutors a duty to waste time negotiating the details of something the defense isn't interested in respectfully we would disagree and that we think that actually reflects the the need for the hearing in this case mr mitchell in his filing says this was a singular communication to him of the singular communication at the beginning as opposed to as mr pertain alleges the repeated efforts and yet the court decided again based apparently on a credibility terminations that it was in fact repeat efforts made on behalf of mr paine that's bennett started with the letters the letters or before trial and i haven't heard anything from mitchell saying no they never got those letters or pertain use wrong what he says about those  and and we would agree but they do also do not contradict what that mr mitchell asked for the information and mr pertain there's a simply an absence of information about what if anything mr per may please the court brian right the government i think as this court has already noticed the letters take this case far from the credibility determination in which a hearing must be granted here we have letters so actual evidence documentation that pertain advised mitchell that the government was the least willing to discuss a plea negotiations centered around twenty years and in exchange for some cooperation mitchell rejected that and even to this day he's saying that he would accept that because he's continued to claim that he would had no involvement in herds and work murder he was adamant at trial and at sentencing even his motions on the twenty two fifty five don't say that he was willing to accept this sort of shift the attention to the safety of the family and as far as pertains advice we've heard even today that pertained accurately advised mitchell about the consequences of the plea of the trial as it pertains to sentencing and the offer whether defendant would have accepted it what the court would have accepted it think that's really the there's a big problem with that as well though again i would go back to if there was any evidentiary dispute based just on the affidavit letters take it out of that and clearly because the letters offer hard proof that mitchell received this communication and he rejected it and the court has no questions on that point  suit thank you just to address one issue raised by the government in their brief argument with regard to whether an individual is to the right to effective assistance of counsel when there isn't what the government terms as a formal plea both laugh learn from i did not specifically address a question from i did so only because there was a formal offer in that case and there is there's commentary and laughter at thirteen eighty  four that says that the right to counsel extends to the entire pleat process not just with regard to offers and furthermore a b a standard which strickland vs washington looks to in terms of guidance about the effectiveness of counsel  petitioner prevail what with the remedy to the remedy here and we said we cite this in our briefs that the remedy as this court has previously said should be tailored to the specific ineffective assistance alleged here it was effective denial to continue in the negotiation stage i did we take no sounds like an invitation to speculate the opportunity to cooperate is no longer available he doesn't have anything to trade i don't know if the the opportunity to cooperate is not necessarily available i don't know if that's in the record i don't frankly at this point know the the how the investigation into the underlying criminal activity of the end of that matter sits but i think it really is about giving the individual the right to