good morning ladies and gentlemen we have just one case for this morning and i want to check first make sure the judge rover is on the speakerphone judge rizgar can you hear us good morning good morning so there are actually three of us here not to you just have to listen carefully so our case for this morning is todd against roberson and mourning honors martin gagan from winston strong on behalf of the petitioner appellant james r todd you are as the issue before this court is whether mr todd's guilty plea was rendered involuntary under strickland versus washington and his pro y when he relied on his counsel's erroneous advice that the state had agreed to a ten year sentencing cap instead mr todd was all to me sentenced to twenty five years in prison or two and a half times the maximum amount counsel to mr kagan i understand the difference between the question of whether there was such an agreement that the ten year cap and and what mr todd's impression was or the impression conveyed by counsel that the state court spent more time talking about whether there was such agreement but the state court also as i read it signs that he didn't think there was an agreement like that if he told the state judge term a sugar that's five sure now there's something in there about how he kind of it's whatever was was going to suggest a lighter sentence in exchange for a heavier fine specifically the bank conditions were reduced at the hearing are talking about a bond i'm talking about a fine you know i'm not aware of specific a lowering of the fine in connection with any plea to go it's in the record that there was that that that was a suggested deal lower day before he pled guilty that in fact the ten year sentencing agreement had been reached and so he went into the court hearing the following day with that understanding in mind so and i specifically took that may all be true but i have a problem which is just that building up inferences if there was in fact no such agreement which is the finding of the state court then it seems to me it makes it less likely that the lawyer ever would have said such a thing to mr todd and less likely that mr todd would have relied on that and also more likely that what mr todd told the state court which is mentioned in that same paragraph eleven to which you  referred referred that he admitted telling the court that he was not promised anything other than the terms of the plea agreement which did not include a ten year cat because they review at the at that portion of the proceedings what's in the agreement and it s the reduction of his bond to twenty thousand dollars so that he can pay up two thousand which he has and get out he's going to be cooperating with this task force and doing that sort of thing so there are some modest things that are there that he's getting in exchange and it just strikes me putting those pieces together a rational person could think that he was not told about any ten year cap and that didn't drive the one he went into the plea hearing specifically advise of the wasn't back to ten years sensing cap and so that was his mind it isn't that a fact question i mean i understand you believe him but isn't that a fact it's not so much a fact question because the actual illinois court again if you actually go to the actual ruling of the court it didn't specifically analyze communications which strong strickland the touchstone for any ineffective assistance counsel or communications between the defense counsel and the illinois appellate court analysis was solely focused on the communications between the defendant and the state ok well if you want to save and yes i'll say  within the meaning of twenty to fifty four to one in holding that no prejudice resulted from mr read a coach's alleged promise to petitioner that the state had agreed to a ten year sentencing support the the state courts finding that petitioner did not so rely did not rely on that promise but as this court held in bethel versus united states when it could not determine whether attorney provided previous to the colloquy so in this case there was an unambiguous pleat colloquy in which this ten year sentencing agreement was never mentioned all the other terms of the plead greenman were itemized on the record at least twice and petitioner stated unequivocally that he had not been promised anything other then a bond reduction and the dismissal of another case pending against him so in summary there is ample evidence to support the finding that petitioner did not rely on this promise that he was not made this promise by his attorney but even if he was under bethel versus united states the colloquy would have erased any prejudice that he might have suffered question for you because i don't see the state court really grappling with one piece of mr radack of itches testimony namely after the plea is taken there's a period of time that passes and then they start talking about sentencing and mr radack a bitch rights to mr spencer with the state be interested in the sentence lower than the ten year sentence that has been negotiated in consideration for a higher fine in this matter that's what judge posner was talking about considerations i would be speculating as to mr reticule bitches thought process regarding his alleged impression that he had reached this ten year who dream and with well he says he i mean he his letter indicates that that's what he thinks i guess that's what i am yes i'm hoping why he thinks that i can see you're saying you don't know but you know but he does think it he appears to think that he certainly presents it his question to state's attorney spencer implies that this agreement has been reached but that exchange actually supports the state courts finding that no such agreement was ever reached because spencer within an hour of receiving this what the attorney did at the relevant time not later on the relevant time here is when petitioner pleaded guilty on february twenty fifth two thousand and eight at that time all the documentary evidence as well as the thorough incredible as this just as a state court found it testimony of thomas murray shows that no one was under the impression that a ten year sentence in agreement was in place years because of possible conflict with others involve yes your honor he did and the district court specifically found that testimony disingenuous did not believe and stated rightly that that excuse made no  catch on that petitioner was cooperating with law enforcement this black hawk the black hawk task force you ask for this yes which i believe is it is it is aimed at  secret from anyone in fact when thomas marie testified he said stated numerous times that after his conversation with mr ruddock over prior to the sentencing hearing or the clean hearing excuse court's credibility determination where he found radical which is testimony regarding his reasoning for not sharing the ten year agreement with mr murray as disingenuous so i thought if i thought it was entirely activ had proposed a ten year cap to spencer and spencer had responded that was radical which is testimony specifically regarding their phone conversations on february twenty one two thousand and eight so that's where he's trying memorialize the february twenty first two thousand eight hundred stations make no mention of this ten year agreement which again belies the notion that radical bitch or anyone else petitioner especially could reasonably have believed that this was part of you can have a full minute to the contrary the record demonstrates mr todd specifically testified this one testimony that he did in fact rely on mr right back which is advice the day before his plea hearing that in fact this ten year sensing agreement was reached with the state assume that the plea agreement wasn't even if briefly done a comprehensive review of the key terms certainly a ten year cap would have been it keep her no doubt about sure it's not mentioned so why isn't rational sumption that there was no such thing well because again here we have specific testimony from both mr right back which and mr todd specifically concerning the advice given the day before so much to todd going into his plea hearing specifically believing this ten agreement was repeatedly referred to as a limited plea agreement he testified that his understanding again based on his counsel's advice the day before which we now know was erroneous referred to this ten year sensing cap and then this brief description of these nine questions did not disabuse him of that view just as any more do you think there was an agreement or simply that listeners well we now know that the state disagree