may please the court brian palmer boy for george martinez when george martinez right here because the doors open which means when george martinez was called upon in the state court to make the decision as to whether or not to accept the plea offer that was offered to him he did not receive effective assistance of counsel and for that reason he should have the district court here should have granted  record establishes three points first mr martinez had no defense if he were to go to trial and his trial counsel mr sereny knew full well before the trial started that mr martinez had no defense second mr servian he knew that mr martinez failed to appreciate that he had no defense and serving any also knew that mr martinez at all times thought he in fact did have a defense but the third point and it's the extraordinary point here is that at the hearing in the state court after he was convicted at the section four forty hearing trial counsel acknowledged that second fact he acknowledged that mr martinez at all relevant times believed that he could not be convicted of burglary if he had not stepped set foot in the a competency issue in not suggesting that is raised here but what makes this case different is this is not a he said she said case where he says i didn't believe it you know where the lawyer says i told him and he knew it and mr martinez after the facts says oh no i didn't understand that this is one where the the the trial counsel at the hearing was questioned at length and his the question answered by can quote from just two from two pages in the record page one thirty sixty one thirty seven as well as one sixty seven to one sixty eight trial counsel was asked was it your understanding for mr martinez that he thought he couldn't get convicted of burglary if he had been inside the dwelling answer yes that is absolutely what he thought trial counsel goes on mr martinez quote told me consistently i was never inside the apartment that's what he told me and i followed up and he felt that mattered answer oh yeah he thought that mattered right if you left out the question in did he tell you again prior to the trial that he understood he can't be convicted of burglary we would never physically inside the apartment and drug counsel said no he didn't tell me he couldn't get convicted of burglary he said he told me but trial counsel is saying that trump mr supreme is saying that he knew at the time that no matter what he was saying to his counsel that we are accepting the state courts credibility determination that we are accepting the state courts as i believe mr s now the question is this court in purty can carry on and look it will one point four of the new york rules of professional conduct he said you have to look to the defendant's comprehension you have to look it's not simply enough to say here's the law you know make your decision mr martinez had a ninth grade education ok whatever was said to him this is one where mr survie says i am telling you when the time came for him to make that decision he didn't appreciate what i was saying and it was it appears that no matter what anybody tells him he's not going to listen to our lawyer says i mean there was the legal aid lawyer ms burton and she told him before the grand grand jury and that's when he got indicted so i mean how much of an education do you need in order to understand when when you and your defense fails to be affective to be effective assistance of counsel to take into account the comprehension and the ability of your client if it be one thing if smith or sereny says martinez but said he understood what i was saying but he still wanted to go to trial but that's not what mr survey me testified under oath he said he didn't understand at the time that it took that the time that he was called upon to make the decision as to whether or not to go to trial he didn't understand and in fact i asked him i maybe i rolled the dice too much i said in fact at all times up through sentencing in this case that was his understanding and he said i don't know what his understanding was but those were his words he felt he wasn't guilty of burglary because he was never in the apartment and ok that's a reasonable layman's assumption his lawyer is saying that this man with a ninth grade education had a reasonable layman's assumption that if you don't go into the premises if you stand outside you're not guilty of burglary we all know that's wrong but what the lawyer is saying is that that is what his client understood and what does what does it take you on a it took me an hour sitting in prison upstate to explain it and get through into my clients that i got it ok it's not about what he said you have the advantage that he'd already been convicted so he could well appreciate the fact that he could be convicted notwithstanding that into the apartment of the effectiveness you're saying effectiveness depends  on the client understanding the advice we are as effective as may be satisfied by giving the right advice repeatedly and then going forward with whatever your client  do respect we want to know if the client says i don't understand if the card that what this court said and purty in carry on quoting the rules the lawyer shall explain the matter to the extent reasonably necessary to permit the korean to make informed decisions regarding the representation there is actually not a finding by the state court as to whether he actually told mr martinez you can be convicted of burglary even if you never set foot in the park and there is not a finding there's a  conclusory finding that he gave good advice but there is not a phony by the state court that he gave that advice may continue its but you have to we have to take into account the reasonable way means assumption to take into account that he is saying the judge both the judge suggest that he had long enough to think about that he was able to call his wife to discuss it give a sense of how much time he had because he could get input from other people as well he's clearly was resistant to the notion that he was vulnerable and you know he's  that he wanted to go to trial so i want to have him believed it was the day before the day of trial or the day before the eve of trial he believed he's reasonable in his assumption in the words his lawyers was that he cannot be convicted of burglary he could be convicted of possessing stolen property but he cannot be convicted of burglary because he was never in the apartment his lawyer sereny testified that even though he received the plea offer from the state in january of two thousand and seven  recommended it a plea to him until the till just as miss sarah was sitting there as the jury was going to be was we were going to pick a jury and at that point the state justice said you really should be looking at this and at that point with a five and a half to eleven year plea it recommended to our client to take it and there's no dispute that on that day with a jury about to be picked he recommended it and our client said no our client testified he had been told for months and months he understood from survie that since he wasn't in the apartment he couldn't be convicted of burglary but you know you say he understood from survie he just didn't accept what mr civvy was saying to the contrary you know there's no wreck there's no evidence that sereny actually said to the contrary we believe you're on  said no to the legal aid lawyer miss burton was appointed very briefly she talked to him before he was indicted they make a big the state court made a finding as to the spring that she told him quote is page two ninety five of the record burton had infirm inform the defendant that he could be convicted of burglary even if he never would personally and to the burglarized premises and the court there cites to page two twenty seven of the transcript and you look at the actual question that is not the question that was asked the question makes no sense and the and the question was did miss burton tell you that you could be indicted and if you were convicted even if you never stepped foot inside the apartment answer she said something like that question what do you mean something answer she was trying to stop me from going upstairs there is no support in the record and again this is not a he said she's that there is no support in the record for the state court judge's statement of as to what burton informed but as to what sereni said and again i'd a close simply by saying what no matter what he said he has acknowledged mr survie acknowledged that it was a reasonable layman's sumption that you were not guilty of burglary if you didn't set foot in the premises and that no matter what serbian he said and there's there's not a finding as to precisely what he said but when he was sitting at the table saying to george you should take this plea otherwise you'll face the rest of your life in jail he did not mr martinez could not make an informed decision on that because he didn't survive and he says he didn't appreciate what i was saying and the law has to be that is not simply what you say if i say to a client the law is x y and z and i'm crystal clear what is your determination that is not effective assistance if i know for a fact i know for a fact that my client doesn't understand what even though he did not enter the apartment he was still be liable and could be found as accomplice under the burglary charge and just because also the discredited petition is testimony that mr sevan he never went over any of the supposing the court found that the council did everything reasonable to to inform him that he would be held possibly that he may have concluded that he could not be convicted because he did not do with the indictment said he did i mean your absence is here on the ninth grade education while ninth grade education does not matter he entered the apartment so he would explain it to her and it doesn't matter whether the what the answer your question your honor the indictment states specifically and repeatedly that the grand jury of the county of the bronx by this indictment accuses the defendant george martinez of the crime of burglary in the secondary degree committed as follows the defendant george martinez on or about march fourteenth two thousand and six did knowingly and unlawfully enter in a dwelling of claude noel with intent to commit a crime there and when we move to the second count the indictment uses the same language it speaks only to it george martinez entered a dwelling it does not speak to martin the man who we believe actually did enter the dwelling to answer your first question to my adversary as to what you correctly said we have to look to what the state court found the state court did not find that mr servian he made the various statements that counts did not state as a finding of fact two things one it did not state as a finding of fact that mr serv told his client that he could be convicted of burglary even if he had not set foot in the dwelling at at that trial and that for forty hearing the people's lawyer at the time  mightily on cross to say but you told him axing is no i'm not sure if i used those words instead i told him you know he should take the plea because he could dance at his daughter's wedding ring he's facing too much risk there was no finding as to what he said and most importantly there was no find by the state court judge that he understood it that is the key point again if that matters and there is no fund then what does standard of review to go on and  it to the extent that the true the extent that the court did not make a factual finding that he understood it that would be an unreasonable application of strickland right as to effective assistance of counsel if he if the court is saying x was told but i'm not asserting that the client understood it it is not effective assistance in light of purdy in carry on to simply say you said x to your client and that's effective not withstanding and this is the rare case where the trial counsel acknowledges his client at the time did not understand it and you know that constitutionally required that the counsel to provide effective assistance has to confirm that his client understood in some profound sense the advice that has been given no no i'm not saying he has to confirm it and i'm not suggesting at all that that's the bright morning test to say i'm going to regional law you repeated back to be to make sure you understand it but this is a case of p d back with a certain or that you in some way from understanding profound so you could have a discussion where you talk to a colleague or what have you when you say something in the discussion back you appreciate that they appreciate your point this is the rare case where i'm not suggesting you have to have that colloquy back and forth wh am suggesting is that in a case where the trial lawyer says i know for a fact that he didn't understand me and not and that is corroborated by what mr martinez himself says at sentencing he's saying i wish martin  come here and stood up you know and accepted responsibility for this it is corroborated throughout the record but we don't need to go further than having the trial lawyer himself say three places in the record i knew for a fact that at the rel and he didn't understand what i'm saying whatever i was saying to this nightmare the ninth grade education didn't get through his earlier in your earlier argument that the state court judge sort of  confused record let's accept that ok let's accept that she said whatever she said just like i'm accepting for purposes of this appeal that mr servian he says said and said regardless of what he has been told in the past mr serbian is saying he does not appreciate and understand or take in what i am saying to the people below are saying well there was two things there was miss burton's suppose it advice and the is such a thing as you know delusional client who has delusional optimism happens in the civil area all the time but but this was this isn't it this is a reasonable layman's assumption a reasonable layman's assumption that when you told you commit a burglary that if you were the person who had the stolen goods you say i did that but you had this don't you didn't set foot in there and there's no evidence of that everyone has acknowledged that's a reasonable layman's assumption you're not convicted of burglary and regardless of what he twenty three years ago in a charging document or didn't regardless of what miss burton said to him in the hallway before he went stupidly to testify on it for the grand jury and regardless of what mr survie said when justice massaro was saying you need to talk to your client tell me take the plea we have the case here where the trial lawyer says he did not appreciate what i was saying did it would it take an extra hour to get in or should he say at some point your honor he is not understanding what i am saying either you need to talk to him because i can't provide i can't allow him to make the informed decision that i'm required to and the professional rules and under this court and the state court precedent if he doesn't appreciate what i'm saying