i'm george hind and i represent the appellant jose hernandez rodriguez who peels the district court's decision denying his twenty to fifty five motion premised on prejudice prejudicial instances of his former counsel's ineffective assistance with this appeal we asked that the court review two of those bishan zz first the council did not challenge the timeliness of mr rodriguez's prosecution on the basis that the district court considered possible and second the counsel failed to assure that mr rodriguez understood and appreciated the benefits of a plea offer proposed by the government both by explaining the plea officer plea offer to the spanish speaking defendant with the assistance of an interpreter and by persuasively recommending to the defendant that he should accept the offer we haven't we already foreclosed the argument about the statute of limitations buyer decisions in pain saying that what matters is that congress has identified the camp crime is deserving of the death penalty in the terms of his extradition are irrelevant certainly grew undermined the district court's conclusion that that would be a plausible argument judge but in this case and in all the cases actually where offense was considered a capital offense regardless of intervening circumstances such as you know judicial interpretations or punishable of an underlying element and so forth those are all cases in which the defendant actually in the united states at the time of his arrest and the government merely elected not to proceed of in a capital proceeding or perhaps there was not sufficient evidence to do so my problem just technical problems that is if it is not the fact that under the statute he could have been but the government chose not to but it does depend this argument isn't there now if we assume we do expand the c e o a venue we can consider vet argument well we don't need to and at that point i must say why should that make any difference the statute of limitations refers to behavior to act which are punishable by death and winner of you agree meant not to do it is a prosecutorial decision or a contract between the united states and colombia i don't see that ultimately that makes a difference in  to reach this issue which is basically a question of law and second the reason that the extradition factor in this case should distinguish it from the gross situation is that but for the government's agreement not to prosecute a capital offense against this defendant it could not have exerted jurisdiction over him adult it's a threshold that unlike you know in other cases where you have the government any argument that the indictment wouldn't timely when it was filed he had been there that there hadn't been any agreement by the united states not to put him to death when the indictment was far and you're saying it was timely when it was filed but it suddenly became untime when the united states agreed that it would be put in that have i think it changed the character of the charged offenses in the indictment your honor at the moment that the government could only prosecute him under an indictment that was timely if all other factors were resolved in the government's favor but if he had somehow if he had the santa lawyers in spite of the fact that i'm not in custody a lawyer had made spiced paschal appearance and asked the timeliness of the untimely afterwards islamic is not a sensible argument your honor i think the jurisdictional threshold is a sensible argument here and it's the jurisdictional threshold that we can't get past there's even if there is an indictment on the books there's an additional problem which actually thinks only one of the charges here but those affected and that is that if in fact we agreement not to send this changes  statute of limitations then one of the crimes on the basis of which he would be extradited is no longer a crime so how could he be extradited to or something very strange about say that that what is going on in disagreement is something that can change the statute of limitation a bizarre argument it is a little bizarre your own grant you that but i think the reason it's interesting and pl more plausible even than the court phoning guerrero with respect to the argument that's no longer before the court is that i mean it's if you have an indictment alleging various offenses and then it comes time to prosecute them and it turns out that there is some prohibition that is discovered after the fact after the indictment the government could well decide to you know scale down its charges and talk to a defendant about guilty pleas or anything else in an in respect to different arguments it wouldn't make the offense go away would make the prosecution necessarily go away there would have been things it could have happened had this issue actually been raised even after his extradition after his extradition and that's the demands the extradition it would be put you in a rather strange position you say here we've got this murderer who is who has been indicted for murder and he's been indicted on a on a death penalty charge and you're example and the five year limitations period had passed and there are underlying murders that would still be the same problem i mean this is something that does happen with isn't a reasonable way in fact to look at this sort of thing is to say that of course you can make part of the extradition contract any number of fifty years so it would be point possible for colombia and the united states to agree that he will things can be put into we agreement without changing the statute of limitations and instead you are in effect what you're saying to us is it we should imply view agreement agreement to change a statute even involve that is not made and that again seems to me an incorrect way of looking at what is a contract you're on i agree with that  generally the statute limitations statute though speaks about an offense being punishable by death as having no limitations period if it's not punishable by death then it has a limitations period traditionally in every other case but his actions were punishable by death that is a charge yeah what he was charged with if found were punishable by death there are any number of reasons why that may not be proceed acted on the prosecution made we not to the state department may agree not to but we underline behavior is under vaal law some behavior then he found and if prosecuted in that way is punishable by death then that's the problem your honor is that it couldn't have been prosecuted in that way if the argument had been raised in the district court after his extradition say and the government said yes this is a potentially a problem let's modify the indictment charges to  but he negotiates with the prosecutor and says i will give myself up if you agree not to put me to death and the gun isn't in the united states you're in or out so it doesn't matter your way or my argument matter what negotiates himself and the prosecutor says fine fine you will promise you we'll enter into a contract with you we won't put you to death and you're in your  your side of the bargain is you surrender to the marshals and he surrenders to the marshal the contract is made he surrenders to the marshals and then he says aha now you can't prosecute me statute of limitations has run your honor this sounds like a regular plea negotiation situation i think it does make a difference because the government presumably had a timely indictment at some point i mean at but according to you  saying they they did to you it was last time when the government made a contract with him saying ok we will put you to death so that that that's an end that's a territorial ye are closed to argument that allows i'm some people seize him for whatever reason then bring him to united states so he is in view you know his states after his agreement was made and  is here but not under view agreement he's van charged but taking into account the fact that this agreement existed in saudi is not charged with the death penalty but at that point surely he is subject to it and yet this agreement didn't make any change whatever but the agreement also didn't afford the united states over him somebody else brought him back so he's back to the united states you know of somebody is a court other than the government that was protecting him and at that point i wouldn't say this argument applies at all but in this particular case where the only basis for the extradition foreclosed made the offense an offense not capital and i don't think it precludes all prosecution they have to that but it made it not capital and there should have been an argument raised by trial counsel prior to his trial proceeding just to resist because if you think he's going issue below a reasonable standard of competence i think this argument i think when you get to statute of limitations arguments i mean based on the court's holding in hand hansell if there's any colorable basis for it you should always make it because it's always going to be prejudicial if it's successful it's a worthwhile argument to make when it's over five years between the offense and the  the charges but beyond that your honor i i do want to say a little bit about the plea agreement you know why don't you plea agreement i was interested in the fact that retreat is and his counsel didn't use an interpreter to for their own communications and table i understand they did not have an interpreter and that was what the record suggested yes your honor and so i had difficulty understanding why it was clearly erroneous for the district court to conclude that the counsel was wrong and saying that count that as i did not understand you know me and hearing granting there what the court thought at that time that there was a problem with the record as far as the probation officer for example had an interpreter during the pre sentence investigation and that conflicted with trial consuls at that point brief response to the court's request for information about what he said about the plea agreement to his client what we have here is a lot of objective indicators i mean i don't know frankly i wasn't at the trial and i don't know what trial attorneys typically do at a trial as far as chatting with their clients there was one post it note that counsel was able to produce from his records now this is in contrast to another client who asserted that he didn't understand without the assistance of an interpreter and the same attorney was able to produce i think six hundred pages of his notes and correspondence with the client and things done with an interpreter that showed full well that that client had a basis to understand this is someone who lived in this case didn't invade and the district judge believe  prong of strictly even vote he should have gotten maybe an interpreter and that was a failing it wouldn't have made a difference because we have this find in a very strong credibility find a part of the district understood it too and and and shows up well your honor we're asking that the court look at that i respect the judge's credibility finding i heard what he said i don't know that he had he could make a credibility finding that console had the confidence to say whether a spanish speaking client understood what he was saying any more than you know what we communicated  said interpreter he thought he recalled he knew that he had an interpreter with him for every visit that he went to the pens or to the m d c he did not i don't actually recall him talking about communications a council table apart from that post it note judge he talked about communications with his client at the jail and for every visit at jail but for the one where he brought the plea agreement in english and left it w his client after a five to ten minute this is a thirty year offer take it or leave it all to see you tomorrow but for that one he had an interpreter with him every time he kind of suggested that maybe it was to you know translate extradition documents i think that's kind unlikely and if you look at the record as a whole and that's why we are asking this court to do is look at some of the consuls failed recollections against the record as a whole and some of them should not have been credited quite as strongly as a district court did just because a conflict thank you you have two misses the u s its attorney in the southern district of new york represent the united states in connection with this appeal the defendant's twenty five motion was properly denied both because his murder charges carry no statute of limitations and because his defense counsel communicated to him the essential terms of the plea offer which he categorically rejected based on previous discussions that have been held between the defense counsel and his client as the court noted moments ago the guerrero opinion squarely forecloses the issue that's actually presented in part one of the certificate of availability here specifically holding that a forty eight he while when it provides for a penalty of death does not mean that the death penalty has to actually be sought the prior authority said regardless of whether the prosecutor actually seeks it or rather it's but this is a case here your adversary argues where the government was legally precluded from seeking the death and i don't think as i've  indicated earlier that's a persuasive distinction but it's not squarely covered by the prior four when i say squarely covered john i mean that the statute that was char's the eight forty eight the one is precisely the statute that we are discussing here the very same charge the very same argument as to whether the underlying drug felony statue limitations which is five years should apply or whether the no statue limitations should apply and that was decided by this court and guerrero which is why i say it squarely res with respect to the what i consider to be a distinction without a difference that counsel is pressing having to do with the jurisdictional type of arguments i would note that in the pain case this court made it clear that in relying on authority from multiple other circuits that held that during the window of time the twenty year window of time when the federal death penalty would have been declared unconstitutional nevertheless murder charges brought during that window which at the time they were brought if they were more than five years after the offense by definition could not result in the imposition of the death penalty because of it's an care unconstitutional designation nevertheless did not have a statute of limitations a fourth eighth and ninth circuit's had all held as such this court quoted and cited those opinions in the pain decision in two thousand and ten pointing out that it does not matter whether the death penalty was itself a vailable for the offense and the reason why is unavailable similarly does not matter whether it's because of the choice of the prosecution or the extradition agreement between the countries it is the gravity of the offense that congress was focused on when deciding that any murder charge punishable by death or any charge punishable by death could be returned without limitation with respect to the request that this court expand the certificate of appeal ability as tempting from my perspective is that is given how clear i think the answer to the question is i would ask the court not to do that because this was me seem to be the government would be happy to have this expanded certificate of appeal ability invented right and published opinion which settled his questions would come up again i was quite puzzled by you know we might well not want to expand the certificate of appeal ability because then we can write a summary order but you know that to me falls into the category of no good deed goes unpunished because how that opinion would be interpreted would be to ignore the holding that resolve the question but for defense counsel to then cite that they could seek review in this court of matters that were not presented by those who typically appeal ability and cite this opinion as the court recognized has been the case but we can expand it's always ben we don't often do circumstances when it's been done it is at least limited to matters that were presented to the district court below and perhaps not included in the original series of getting the pill ability here we would be talking about a completely new matter that was not presented to the district court below that would set i believe a dangerous precedent in this court for litigants to come before you and say a c e o a should be amended to address an issue that was never presented to the district court that i believe would undermine the structure of the certificate of a as i said while i think it's quite clear that the substance of the argument fails and as you said your honor an opinion stating that would be useful to resolve this issue or to ever come up again the mischief that is inherent in doing so affidavit from the defense counsel finding i need to know more about the circumstances of how this information was communicated that hearing exhaustedly discussed the communication of the offer and i was struck  of the interpreter although i understand you might have an interpreter present even if you spoke the language very well just to make sure there were no technical concerns that the communication was precise but still all the other evidence seemed to go the other why wasn't it clearly erroneous for the judge to find that the communication of the plea offer which was some porton was adequate here i disagree that all of the other evidence went the other way because i think the issue here is whether he was able to communicate with him in english not having to do with his english fluency but whether mr orden at the time he was raising the court terms of the government's plea offer which was a guideline range in the neighborhood of thirty years whether that factual information could be conveyed to him in advice have to be conveyed to him also about why it was a good deal and his exposure was that had been done on multiple occasions as the court noted with an interpreter as the record shows there were multiple visits to mr jordan made to the prison with an interpreter in which he repeatedly discussed the strength of the government's case and the advise his ability of working out some sort of a deal and and talking about how when mr rodriguez had originally said i won't plead to anything more than eight years how he had told mr rodriguez that that was ridiculous because of the quote horrendous facts of this murder case that no such plea old plea offer would ever come that was the factual back and that led to the meeting just before trial where rodriguez wanted no further discussion about it that he quote shut down the discussion that's why in the store and said that columbus day meeting that occurred the day before trial was so short because mr rodriguez was done having that discussion he was able to for us in different languages yes i write thirty somebody understands it i write thirty or say thirty a person who doesn't speak english doesn't understand is that i'm interested if the numbers were there you see if you were they were you it was both numbers and words because it's three hundred twenty but then it's followed by the word months correct your honor it is then of course there are words all around twenty years might be quite  clear mr orden testified that he basically said it was around thirty now the numbers i just recited the low end is twenty seven years the high end is thirty three and three quarters and he never got any farther that was his testimony he never had the opportunity to go any farther because mr rodriguez was not interested i would point out one thing to answer a question your honor had a moment ago about the presence of an interpreter at the counsel table during the trial mr orden specifically remembered there was no interpreter that's on page one hundred  but it's in that section of the appendix where he's testifying about the presence of an interpreter of the lack of the presence of an interpreter and his communications with his client he said that they did communicat why didn't you have one here because he spoke english and he wrote english thank you very much in his hand you have two minutes from  i mean counsel just made the point out repeatedly that mr orton's testimony was that mr rodriguez shut down the conversation the minute the thirty year estimate was given to him along with the english  agreement and the fact that counsel admitted not giving any additional advice at that time when there was a plea agreement that was prospectively helpful to mr rodriguez he didn't give him advice about com do you agree that that there had been previous discussions with the benefit of interpreter about the possibility of a plea and the exposure of trial or do you reject that mr orden testified that he believed that they he he didn't really have any records or he didn't have any notations or anything else he needed he believed it he believed it but he also believed that he asked the government for the plead agreement there was no record of that he believed a lot of things that were kind of self serving because i'm sure you would like to believe that he did the right thing and i don't fault him for whatever he did or didn't do except to the extent that he didn't keep records in this case and he does tend to have a he testified th concerned that he pressed the government to get what he was not sure that you know he wasn't sure that you're on a holiday weekend and when in the holiday well he had would have had to your honor because the day after the holiday was jury selection in the plea agreement would have been w withdrawn at that point he wasn't sure his recollection was as a district court found originally fuzzy he mr orden testified that by the time he was appointed to represent mr rodriguez he had represented at that point quote unquote hundreds and hundreds of defendants and whether he was confusing mr rodriguez with somebody else he only met with him approximately six times according to be o p records from the time of his appointment to the time of trial at one point the district court had to instruct mr jordan to sit down to have a comprehensive meeting with his because their meetings were pretty perfunctory and i had the satisfied mr rodriguez that he knew what was going on there wasn't by the way evidence other than the fact that mr orden and mr rodriguez said that counsel table without an interpreter that there were communications of that point any more than there were many communications prior and those are all factors that i would ask that the court look carefully at what he said because he often didn't recall but he would have liked to leave that he had and i don't think that's a basis for a credibility that thank you very much thank you for your arguments as well argued we will reserve decision