consult with them about appealing to the district court eventually have held an evidentiary hearing with counsel and denied relief the parties agree that the district court did not address whether a trial counsel correct your honor i don't think the facts support an argument that mr gonzalez directly told trial counsel go file a notice of appeal but the judge said he had the obligation t yes your honour's i do think the record shows the district court believed that trial counsel had no duty to consult with mr gonzales as supreme court did and i think the supreme court says you do about appealing despite we ought to sit back and have that complied with as i mentioned i think early in the library from mr gonzales very frankly would hope that the court sees that the records clear says ok on these facts that's ineffective assistance of counsel the three factors that need to be met but frankly that might not be the case if we have a district court not reaching the question of whether the attorney consult it at all there's enough evidence to say and i'm being very frank that's what mr gonzales would hope if if the court sees or turning to send it back for findings on whether the console thing occurred and whether it was adequate adequate it's that the existence of the waiver doesn't necessarily somehow mean that that duty doesn't exist and that seems to be with court didn't think the duty didn't exist absolutely not it just said it was a factor yes so i don't understand it's almost it's almost that i guess my how i imagine it and i imagine crazy things i admit is that there's kind of a a little bit of a gap in florida take a but doesn't say hey listen you can't just point to an appeal waiver to somehow shut it down it's a factor to be considered and fortunately in that case it did not get in the way whereas the case law of this court says look you still have that duty no silent is what i would argue not more restrictive so i understand it force or take it does discuss the instance where there is a waiver of a right to appeal yes and it still says there's the duty to consult correct ok thank  you i debated whether it was worth arguing before the court or mentioning before the court what what the district court judge said i think it's clear it's not worth reading i would i would mention that at worst we would ask for remained and at worst we would ask for a new remote yes again asking as that first alternative under bostic if the court finds that there's enough evidence to find that counsel was ineffective find a counsel was ineffective and save that extra step of going back to the district court it's been back there i'll go and reach constitutional questions i mean as a matter of why wouldn't i just wonder good point what what does what does my client want what does it what does he want to one see happen well hopefully not go back to the same district court judge more than anything else you want on remained it would have to be a reminder to for an evidentiary hearing on whatever this court feels has not been answered or for the district court judge what do you think has not been answered i think she testified that she would have gone back and talked to him about the possibility of appeal that there have been practice and she does it on a regular basis in every case she testified about that in the district court found and we argue i'm asking this court that if you find a judge could decide it on the basis of the record you get asked you could ask the parties if they have evidence to present and if you say you don't have any if the government says it doesn't have any your client may want to test here's what here's why the concern comes up as soon as the evidentiary hearing gets to the point of talking about consulting the judge is annoyed by the fence counsel's havey as defense counsels questioning and says let's wrap this up you're going into stuff that doesn't have anything to do with anything why are you asking these questions when the assistant u s attorney did not do that if somebody had said why don't we look at all of us look at this supreme court o barry did a pretty good job of saying i don't think that's the law your honor and the transcript about three thirty three days she did not cite or as i take it that's true but it didn't say a word about it i mean by all the lawyers in the and the answer directly met that question the supreme court said that counsel has constitutionally imposed duty to consult with the defendant about an appeal when is a rational defendant would want to appeal for example there's a non frivolous grounds for appeal or this particular defendant reasonably demonstrated to counsel that he was interested in appealing because to which basis do you think is here it's the second one ok i think it's that second prong and then you think there is evidence in the record in front of the district court that he was concerned that he was presented with a defendant gonzales testified that after seeing the p s r he told trial counsel he wanted to appeal because he had no idea him about the sentence he testified that her response was you can't appeal but then he continues to seek that he testifies that he so you don't but nobody's really getting at is you know claim there's a non frivolous grounds for appeal that's not the basis for the consultation no your honor and if i don't answer that earlier than i will i just maybe you did but i didn't quite he testified that he had a fellow inmate write a letter because he had wanted to see his attorney in chambers she didn't come he sent a letter the purpose of the letter was say come see me i want to talk to you about an appeal the word appeal was not in that letter that's clear from the record but his purpose and sending that letter is clear and i think this court sorts order the court found that after hearing the testimony of both counsel and mr considered all of that in concluded that's asking a direct request for an appeal not would would should she have known that having heard him in the that he wanted to and to appeal so go see him after sentencing hearing in the box or go see him in the lockup you know two floors down or whatever it is and that's when she testified she would have done that as her regular habit in practice that's what she does is go back in october winds around that but when directly asked she says no i did not hear she didn't say no she says i do not have a direct recollection because it was along that kate ago but i thought you are you know why in the fact that the district court seemed to think that there was not a direct question for appeal and floors are take it seems to have something less than a direct request for appeal triggering this right consult there are the duty friends all right a reasonable attorney getting that feeling i better go talk to this guy well that i think you're doing yourself the end not going to talk to a reasonable attorney demonstrating some client demonstrating to the council that he was interested there's nothing about going talking it's nothing about whatever what is demonstrating so that's what it is it's not any more than that and you need to treat it well i think we understand your position if you have something when i was just going to say when directly asked whether she went and discussed the advantages and disadvantages her answer was she would not have discussed that in any detail as far as going on as if to qualify that answer cutting herself off and saying no thank so the question is is the record presented in that april two thousand and twelve evidentiary hearing sufficient for this court to affirm the overall outcome of this case namely denying the defendant's claim here  we argue that the evidence presented in the april two thousand and twelve hearing shows two things first that counsel did make an attempt to consult did consult with cow with her client regarding an appeal but what about  ortega there's an obligation to consult as practice is to consult every time but there's a constitutional obligation to console in those two circumstances your honor talked about is it a practice in that district not tell counsel after they've led maybe we ought to look at what your answer to that to the government not having an obligation in this regard the the better practice would have been to to raise the of the case obviously but the defense counsel  did stand her ground i think but we're pretty sure the memorandum that she filed prior to the hearing mentions force or tape as well but the the fact that the record in this case is pretty robust in terms of answering the questions i want to go through in terms of indicates that the the that there were some knowledge on the part of the household to try to kind of address these issues there is it you handle it well if you handle the case effort to try to centralize the collateral matters into into one section and so we are we're aware of this situation where we're for consultations would come at any time i'm sure there was an appeal waivers there off  chair if i could and we argued that there was consultation and that's in our brief if i could address more directly the defendant's argument regarding the reasonable demonstration of an interest in appealing the the that's about the failure to file it or directed appeal that's it's over in this column it's not really you know it's also a basis for thinking that a particular defendant reasonably demonstrated to counsel he was interested in appealing and if it were at triggers the duty to refresh my recollection i thought that that was in answer to if you requested it you were file an appeal you would have done it was she asked if he indicated some interest in an appeal which apparently is all the supreme court may be differences of opinion of what the record shows up in our mind the record is sufficient to support a finding that there was consultation or alternatively there was an obligation to consult and that's why we're here to argue that point  you say that you would acknowledge that court that that was a consultation were not that court didn't address the conservation issues or did not address consultation our our our entire argument and that is that that this court can your honour's we would respectfully submit that what the government has pointed to as quote sufficient consultation isn't what flores's ortega's talking about at all this was after an indictment before a guilty plea talking about the two different directions a case can go the analogy the trial counsel made was there's a train we're going to go down cooperation or we're going to go down trial that's not sufficient consultation about whether to appeal again when asked disadvantages and advantages of appealing did you did you ask that question although she tries to skirt it first second she ends up admitting no when it comes to evidence of that mr gonzalez would have appealed court finds it can do so on the record find that counsel was ineffective otherwise agree mand either for an evidentiary hearing of the court feels those facts are insufficient to make a ruling one way or another or for a decision simply based on the