good morning my name is vicky you can and i'm here on behalf of mattie chan when mr chan's attorney failed to advise or advise mr chan to accept the plea he made a gross  plea negotiations the government's attorney advised mr chandler because of his own delays he had waived his rights to the speedy trial dismissal at that point in time mr chance attorney had a duty to tell mr chan that with speedy trial violation dismissal was mandatory and the waiver in the stop will do not apply there is no evidence that mr chance attorney gave him this advice instead he said well it has your motion might have merit it could have a chance you might win those are pretty weak in light of the sinked clear and explicit law and speedy trial rights so in effect you acknowledge that the attorney gave him counsel motion and your argument is that that was deficient because it was a sure thing and the lawyers obligated to tell him it's a sure thing so your argument yes there are a single case that holds a lawyer's performance to be deficient for not telling a client it's a he said it's possible he's only was possible right but i but that was not good enough because under the deportation law it was required it was going to be required so this was pretty weak tea to tell mr chan that there is that the waiver in the stop will issue it was going to be it was going to be dismissed and he made that you're willing to say that now but you're not appearing in front of the district court one of the district court hadn't agreed then what do you do when you do you go back to your client and say it's a sure thing but oh the judge disagreed with me well in that case then you appeal because it is wrong it would be distinctly wrong sure there's going to lightning could strike some time but it's wrong and it would go on appeal and how is he going to be any more prejudiced by that he's already been sitting there for seventeen years so there's no prejudice it's going to come out of out of making a decision it does really no impact on him sitting in jail either way is there yes there's a lot a lot of how was he impacted sitting in jail he's going to be sitting in jail for a long long time to come having nothing to do with this conviction he's going to be sitting in jail a long time but this conviction has a lot is still important despite the fact that he's going to be spending time in jail he's got a because of this these convictions he has six more felony counts who knows what's going to happen well who knows is the answer you give me of the practical impact what he doesn't know is what he most wanted to make sure is that his members of his family would not have any proceedings further against them and that there would be a house left over after the forfeiture for his father those pretty were considerations had far more impact on his life than the conviction and sitting in jail for it but well it's at one point in time yes back at the beginning when you look at  i agent to praise deficit declaration he goes through this law this story about mr chan crying and how sad he was and how concerned he was about his children and his family and all of this well that was at the beginning sacramento county jail for seventeen years understand how we had this last seven year period in this case lloyd just between the defense counsel the prosecutor the district court judge counsel ok so previously in the district court was he represented by the same count yes he was represented by the same attorney throughout and he's not the only one that didn't do anything in this case this case was a tagalong to the case it was here in the northern district the big rico case and so they just let it languish nobody did anything mr chan tried to do things and his attorney would show up and say oh ok we're going to plea deals are you talking about  i had to pull the the the s t a that's my understanding it's not clear as to what the documents were i was unable to get documents from trial counsel so it's hard to say exactly how these motions came about and when they were but it was it was definitely stepped six years later that is that if we were i remember you have an injury hearing what would you do well first of all and in an evidentiary hearing i would find out what exactly mr chance attorney told him about the whether or not a speedy trial motion would be granted i think that's crucial i think mr chan and his attorney were looking at it going boy we really were negligent for not doing anything for seven years and she may be under stoppel and waiver maybe we did waive our rights by sitting on our hands all this time and mr chan may very well of thought well this is the only way to get my family out of here but it wasn't there was just dismiss the motion dismissal motions for them and if they hadn't been granted entered into a plea agreement and was properly advised by his counsel while petitioner and his family members all have a strong chance of prevailing on a motion to dismiss for triage the trial violations there was never the less a risk that the court  the motion and petition would lose the ability to protect his family members so this is a judge who is intimately familiar with this litigation making those findings had how do you overcome that well first of all because nobody pointed out to the judges prior statements that he had already made he had made another other cases my client was not a party to those but the judge said in those cases he had said first of all i can't conceive of any way that this motion would not be granted if a dismissal motion was made he also said later on this case cries out for dismissal so nobody pointed out to judge showup shaab the fact that he had already  was how he actually felt about the case also i think it's pretty clear that the court was letting the court believe that there must be some merit to this ineffective assistance of counsel because he did grant the certificate of appeal ability in this case so he did make those statements earlier and sure there's a risk there's a risk that some judge is going to sit there and go against a particular rule of law i've got ahead in many appeals when something like that happened but it's not likely and so it was something that mr mr  good morning your eyes jason hit on behalf of the united states in this case the united states asked the court enforce matty chan's million voluntary waiver of his right to appeal and collaterally attack if the waiver is not in force we've asked that the court find the mr warner lawyer mr warner a chance lawyer gave informed responsible and thoughtful advice to chan in connection with this really have a record in which we could find that your honor i believe mr warner's declaration does provide you the record to find that he explains in detail that he communicated the offer that he explained the impact of the offer of the benefits to mr chan to protect his father's residence to secure that maybe it's the hindsight that every no not exactly there were actually there was a trial of part of this indictment a long was tried in two thousand and six he and his brother were convicted there were a number of defendants who entered guilty pleas much earlier in the docket but as to seven years i think the best answer the most candid answer is that the court and the parties are really focused on there was a homicide case in sacramento that was also before a judge in the docket there are numerous entries indicating that the that case was sort of the press of the priority because it involved defendants who were looking at life who had not been convicted in the northern district rico case you also had a large number of family members who are out of custody and there's a lot of waivers of a parent so i think the parties in the court and  fell in the government it was the government's obligation to not let this happen kind of fell into an autopilot while parts of the case move forward and that's ultimately why i think the court dismissed under the speedy trial act so when you get to the time of the order to show cause was there anything that posed a real risk to defendant i mean it's hard for me to figure out how a speedy trial act violation couldn't be found at that point well i think the question is yes i mean there were from the tone of the order to show cause and the facts that mr chan had made he was aware of himself he had written the motion is very well written he was a very adept litigant him self i think then plenty of time in court so yes  unfamiliar to i'm correct in and on the specific issue of speedy trial he had obviously researched and knew even before the order to show cause or shortly after that he had this claim and it might be successful but i think the crux of this appeal is he made a reasonable informed isn't to not take a risk and really to secure benefits for his family and ultimately mr warner is in the position of providing the app advice and i think it comes across in his declaration he was even a little bit surprised why mr chan would take this position having already researched it you have the order to show cause why not just run the motion and if you want to enter a plea trying go back to the government i don't understand me can cast lead in this but if he ha had such a strong speedy trial that case why that he enter into a plea waiving the speedy trial i just don't understand why i think the answer is what was quoted earlier by by your honor in that is the court the district court correctly pointed out he chose not to take the risk because he wanted to secure benefits his family this i mean what was the risk the risk for him was that if the motion was denied which is always a possibility his father his elderly father and other family members who were indicted with him would be convicted and sentenced to prison that was the risk why not pursue he filed the motion why not pursue the  available after a motion was filed and he couldn't secure mr chang could not secure the certainty for the family members after filing whereas in the record that he was unlikely to get a good deal i think in mr chance declaration he describes the impact of mr warner's having received the motion there's there's reference to mr chen's declaration where he says the government was very upset about the motion potentially being filed given that we had negotiated a plea and i think you can infer from that that it was mr chance concerned wolf i've made the government angry than the offer may go away and i can secure the benefits for my family mr mr chance designations and if you were a prison system i know that he was already convicted of a very lengthy fairly lengthy sentence  wouldn't this second plea somehow limit his ability to navigate within that your presence that that possibility i think is speculative and i've not sure that i fully understood that argument to be made in either of defense counsel's briefs i'm not aware of that having any significant concrete example and i'm not aware of any case law that would make that finding under strickland part of the prejudice analysis he did get concurrent time he didn't add any time to his prison sentence and i don't think given the severe nature of his original convictions that money laundering tacked on was going to change his designation within the well but he says paragraph eleven  other thing i mean you're supposed to just sort of look within the square that's presented and i understand the practical impact of what you're saying that i don't think that's part of prejudice analysis understood  but on the other hand there was other property that was forfeited and if a speedy trial act dismissal had been accomplished wouldn't he be able to retain all the other property that was forfeited he would he would most likely if the forfeiture fell with the rest of the speedy trial claim then the forfeiture would be available to him i think there were still issues about his ever retaining control over those properties just as a as a legal matter but the practical benefit of the plea that he did take was that his father had a residence now we read here you know the briefs both both sides and i want to ask you what is your home run case what is the case that is most analogous to this one which which is your best case i don't know that i have a case that's factually similar in terms of a speedy trial advice but i think the main case that is supportive of our argument that there was no deficient performances turn or turn every calderon i think really has the best explanation of what's expected of mr warner and why he met that when you compare the standard with this declaration two quick things one on the prejudice there's a law that mr chan paid of five a three hundred dollars assessment and there is lot there saying it doesn't matter if you've got concurrent sentences that takes it out about romans in terms of prejudice also he has a twenty two fifty five still pending in the northern california believe it or not that case has you know hit that slower than this one well it's even slower than well no if that case has gone through appeal says it had gone through many layers of appeals so this would be the twenty to fifty five so that case has a as much of a chance of being of succeeding as there was a chance that there was not going to be a six success in the dismissal motion so so those are some other instances of prejudice in the court has already addressed the property prejudice we're not as judge wardlaw properly points out we don't disregard the liberty of a conviction based on that but it's plains motivation here is there are you telling me that he thinks there's a serious prospect of getting out from under the northern district sentence because if he did then that wouldn't explain his conduct here well his conduct here was partly because of his family  especially his parents but that's another issue here the court they say the prosecution said that was so important for him that family issue well guess what the the the government breached that agreement they forgot to dismiss his mother and his attorney didn't bother to check that she'd been dismissed and the only way we found out is because the judge issued another such order to show cause why she hadn't been appearing at the hearings so it wasn't really that important it least it was an excuse that was brought up so that's basically the end what i mean by that since your best case what is your home rodriguez vega and i think also the taylor versus calderon actually