morning we have listed for argument this morning the matter of rajveer versus united states of america we have an allocation of  forum today with his wife gottlieb family and community faces deportation as the result of criminal proceedings rendered invalid because of several fundamental flaws the district court made several legal errors in denying his corno constitutes a fundamental your honor i read you i am sorry i can't think of one right now off the top of my head that i would be a really important case because you're arguing for fundamental assistance to be a fundamental error however we do have a case united states in one thousand nine hundred and three that refers to fundamental as a defect which inherently results in a complete miscarriage of justice so i suppose that you would rely at least upon that authority for saying that ineffectiveness that in fact prejudices to try to get some some basically illegal gun examples established because number one i think we can all agree that quorum nobis is an extraordinary absolutely we've been told that by the supreme court  and i think we can all agree that there is a paucity of presidential authority within the rd circuit dealing with corm nobis so as we look at what is out there is there fifteen words statute and she gave him the mis advice but it was conviction that leads to deportation and there are several cases including cases in the rd circuit by conviction of fraud does not lead to people to look i understand tactically why you are focusing on advice that was given or not given but let me take you to the issue of  it's ask you that if this couper were to determine that the utilization by the petitioner here of the administrative process over a period of time in the absence of any attempt to pursue a collateral attack took too long would have to reach any of the other issues do well actually a rd circuit case always from the sixty's on for decades now this has been good law in that case be the petitioner waited twenty four years the court found that there was not a sound reasons problem and the court said that when there is a denial of a fundamental right at issue the passage of time will not preclude movie was there anything that precluded the petition from simultaneously pursuing  and with a criminal jury why he wouldn't criminal custody and he had been told that there was nothing to be done i would imagine he took a direct appeal yes your conviction to this court with a new counsel with new counsel not trial counsel and deportable it was not until he was immigration proceedings that he understood that it was he young after when was he would least i know he was convicted in two thousand he he then i as i essentially had his freedom subject to restrictions and could during that period of time of consulting counsel spent time as so many convicted individuals do on their cases and yet action let me ask you this and i understand because i've been asking you questions that are i think essentially legal in nature and i invented lee this is a this is a policy question but isn't it that least understandable to you that this court this panel could be concerned justifiably concerned for policy reasons about someone in the petitioners position here merely healing to the path of administrative attack would ministre to appeal for years as is in fact the case here and not going to a form of collateral attack which require nobody is here until the last moment in fact from the standpoint of this judge in a kind of hail mary pass value on it to be clear we believe that it would actually be in the courts a bandage to make sure that people pursue their administrative remedies of course for crime no requirement is a collateral consequence it would make sense for people to directly attack that collateral consequence that self and exhausted to the extent possible of course the right the relief that you whine is there just to be clear we wanted to be clear also that the law is that we're talking about is the last time to conviction that is what is necessary for immigration purposes mislead the district court in the government get it wrong ok let me finish my question you alternately what you want is for this sentence to make him non deport make your client on to portable but he but he's had you could say the collateral consequences are to the judgment but the relief has always been the same it you could have got that relief through direct appeal to say ten thousand dollars you should be under ten thousand dollars not three hundred and fifty and one dollar you could have possibly if you would have wanted to got that through hades petition if you were to a filed one could have filed a quorum notice even earlier it seems that quorum notice is a last resort when this same relief was available through other mechanisms is is a bit of a stretch in an unprecedented way and so i guess my bottom line question is to these key title searches appraisals deeds that the government has had in its possession since the st mounted attack this is the very evidence mr weber would have put to the test in a fight a court hearing and even assuming that that was forwent t we see that a lot of these laws are the fisa value of the loans and the key thing that that we needed was to make sure that in the stipulation it was a very simple solution the stipulation as it stands refers to sixteen loans including eight loans that were not introduced at trial that were not even proven to be fraudulent in any manner and it would have been the government's burden to prove that to prove that amount of loss and their connection to the conduct an proceedings he had no way of getting these documents from anybody what he needed to have happened was his attorney to demand those documents specifically with the purpose of making sure that the last time two indicted conduct and not be over are lost that there is as strickland prejudice requires a probability sufficient to undermine confidence in the outcome and the reason your honor is several reasons as again knisley asserted in her sentencing memo she said that all those properties were secured however the amount in the stipulation do not reflect collateral and they don't reflect repayments so we have no idea again these are mortgages these are not simply regular loans there is something presumably backing them and so because because it would have been a government burden to prove that we certainly think that at the very least if what the government wanted was a question to should or could have three hundred and fifty thousand dollars if what they wanted was a certain prison those were simply face value so i was right i understand that but that was an initial position and eventually the parties through stipulation came to rest on the three hundred and fifty dollars and of course mr i'm so sorry judge did you have a question  i do but go ahead please finish just to say that what because what is relevant for immigration purposes which is clear from the case of the statute if miss lee and you look at the statute then it would have been clear that aggravated values are tied to convictions  so the last time to the man of conviction is what we're looking at if the stipulation merely would have said that this three hundred and fifty thousand or four hundred thousand dollars was mr rugg beer prioritizes deportation he would have agreed to hire one of restitution or last for sentencing purposes what he needed was a simple sentence in the stipulation stating that the loss of that three hundred and fifty thousand dollars loss was tied to these unindicted loans all relevant conduct that would not come from gratian purposes i'm sorry hearing and that of course is the procedure at which this evidence would have been put to adversarial testing and mr rugger could have cross examined witnesses and that there could have been factual finding it is because this is a critical proceeding is one of the counts of conviction as a conspiracy caress are ok so you're going to you're going to try to prove that they can still loss separate out the individual accounts for a minute you're going to try to prove that the loss on the conspiracy count was under ten thousand dollars yes your honor and to the he would run the risk of going i mean you know wasim out really drives the sentencing guidelines you're suggesting that you're willing to put your client risk of and i don't even know how that would work i don't know that he had the right to decide if that if he wanted if he wanted to take that chance that was that was that was what he was entitled to do and the fact that his attorney this advised him and that  think the question here this prejudice question here is whether he would have opted to go to have that proceeding and yes your honor everything in the evidence suggests that mr logan would have done that he went to trial he refused to guilty pleas he chose to stay in immigration i was in as you know what he would have done i'm trying to trying to find out what happens next if you get the relief you see and i understand what you're saying you're saying that that his opportunity to show that the loss is under ten thousand also brings with it the chance to answer would be prove that he losses over a one million dollars and he would you believe he would then be sent back to jail and say he would have to be sentenced according with the correct last i e the one million dollar loss rather good morning your honor is my police report mark corning for the united states and thank you for the privilege of being here let me start off with what i believe i heard to be a concession if they are only seeking a phatic bill hearing that is a reception some hearing that means they have now just waived all of their challenges to the conviction and if that is true this courtly not even address any of their claims of jury instructional error or ineffective assistance of counsel at trial those claims fail for multiple reasons as we have laid out in our a record supply to sentencing as we obviously know it applies to convictions but does it apply decisions do you think there is no precedent from this court saying that it does i'm not aware of any presser from the guilty the other problem here is all of their prejudice cases but they cite all prejudice cases in the context of bad advice or allegedly bad advice to plead guilty and thereby wave that fundamental war against that protects defendants and secures their liberty that is the right to their right to confront your accusers the right to a jury trial in front of their peers the requirement that the government prove guilt beyond a reasonable doubt all of those protections that's that's what j we that's what he'll be waqar that's what the dia itself that's what all of these cases are talking about that kind of total deprivation of an entire judicial proceeding not a stipulation waived and of course the petitioner here was afforded that panoply of rights you've just recited he went to trial and had the benefits of trial and confrontation witnesses and so forth but we need not reach the other issues here were we to focus solely on the issue of delay and found that it was  petitions seeking who are nervous not substantial but there are several presidential opinions and so most recently mendoza yeah well i was about to get them and it was because of st of all mendoza and in fact no case i'm aware of has said or could set any specific time period that is excusable or inordinate but meadows it does cabin the time period w language some is it not and well it's a believe the time limit the time period there was four years and that was simply too long and that was an instance where the wall was supposedly unclear and that wasn't sufficient to justify the delay in bringing a claim through any mechanism you would say ok that's fine that's good that seems to make sense to me but do you have x date or x date range in your head because it would be nice to have more benchmarks in this area and since you lead with it it makes sense to look to you to suggest  benchmark so to be all with the overarching having up that whatever the benchmark here whatever the benchmark is court would adopt is the delay here was far too long and because we're dealing with again assuming the challenges of the conviction are still employed and have not been waived that the way it goes all the way back to the trial itself if we understand who we're dealing with this case and with the facts and procedure this case but what do you believe it would be possible for this court to lay down if not a time period some kind of benchmark or were must we address all cases at least of this ilk on a case by case basis based on the facts and the procedure that appears to a super a period of time as certainly as a prosecutor but as an advocate i prefer rules not sort of the standard so be nice to have very clear rules i think i might even in the abstract i would not disagree with that in the least this is what seemed like the type of the you know extraordinary writ it's not susceptible to those kind of clear my rules is not going to i was about to get to that and so the precedent that we do have go from the supreme court in the rd circuit acknowledge that you look at a lot of different circumstances in determining the amount of on the delay let's take the kerry will a case that my good friend cited i don't think it was mentioning the breeze but i'm now drawing on my recollection i believe burial of a ball the defendant who thought he pled guilty to a through the prism of everything that this court has said since that about the way and court notice generally and also do need to know what the supreme court itself said and to nido about and one of the factors being what are your excuses for the way and so i do want to focus on one very keep actual matter here which understand you to have suggested at least one factor that might be employed in this case and in others to understand that the government's arguing that a failure to see twenty to fifty five  writ that's supposed to step in when there's no other power no other remedy but there were other remedies here much earlier in time but there are now there aren't now but that's not the government's fault that's not this court's fall or what if you lose on the on the tim for starters that was a very clear at least potential remedy available under the immigration laws at the time this court had never adopted the next next reason why this one however i mean i'm get it but it was discretionary with the district judge though you had to ask for the j right it wasn't guaranteed in here there might be a stronger argument because we know from what the law says if the last amount i think you have to agree is the last amount is under ten thousand dollars then he's not removable so let me address that as well because i think it's getting to the facts and also the nature of the claim for starters judge mcnulty found as a factual matter that there was no affirmative miss advise found as a factual matter the advice was not if you get convicted you're absolutely going to get deported rather found that the advice given as a factual matter was this if you are convicted you very likely will be deported he also found as a matter of law that was reasonable advice on the circumstances and  agree to a loss amount of three hundred and fifty one thousand dollars rather than keep fighting a loss amount which is going to be doomed to fail and could result in a substantially higher prison sentence that advice isn't that advice is viewed through the pris entirety of the trial record so let me give you an example of the trial record one of the mortgage properties that is the subject of the count of conviction was in truth owned by a woman and her daughter as joint tenants but not according to the loan documents the loan documents the mortgage loan that purported to be secured that was wholly secured by this property was relying upon that mortgage one was relying upon a forged deed that vested sole title in the mother the lender could never have possibly foreclosed on that loan the loan the face value of that loan was about one hundred thousand dollars and we've cited this in our brief and it's in the record of the evidence of the evidence here in the judgment he conducted the loss would  exceeded ninety thousand dollars on just that alone because again there was a fundamental defect forgive me for using the term fundamental in this context but there was a very fundamental from a real estate perspective if fundamental defect in the chain of title that would have thrown a huge roadblock in any effort to try to foreclose on that loan and so just on that one loan alone we're talking about at least a ninety thousand dollars loss i think my good friends are also fundamentally mistaken about restitution the rest of restitution statute itself says that loss has to be tied have to be approximately caused by the conduct of conviction there's a conspiracy count here or allegation was that every single loan he originated that he admitted to during when he confessed not once not t would be in jeopardy of of a new sentence that would subject him do a much longer term of years if you were to prove a higher loss amount ordinarily i have and i have and i was to the ground but it sure looks like a double jeopardy problem it's what's giving me pause is this there's that exception to double jeopardy that says when you place yourself in continuing jeopardy then really you lose the benefit of the double jeopardy jeopardy protection i've never  even in spite of that you think there's a chance he could be subjected to a new term of years in prison i don't know the answer to that question because i have a draw down of a double jeopardy does it matter in terms of your position it certainly doesn't because he's not  really for multiple reasons as we've laid out and it down really they're hanging their entire hat on and i'll conclude with this on jay we and padilla and essentially all ineffective assistance of counsel claims ti to bad advice to plead guilty where the result is a total deprivation of a trial not just a sentencing hearing but a trial a trial and everything that follows that's not this case and the last point is this because because this is not a case of affirmative equitable in nature you know well it's it's origins going to help given the that part distinction between the i don't actually know what the writ actually originated say in the chancery courts in england or originated in the king's courts but stepping back from there it certainly sounds equitable to some degree but it is an extraordinarily strict task indeed it is and but it it has occurred to me that if if it's history and if it is if it continues to be concern to to factual matters that might be at least less weighty or not even applicable when we were in a more rigid common law based  remedial structure well in that regard i would and i know this court is well aware of us and as a fierce defender of the separation of powers as any court also we could be but to the extent we're talking about factual circumstances that make mr ragbir worthy of relief from the consequences of his conviction the constitution vests in the president the president alone the right the power to pardon and so to the extent that a core no coming out of england english common law might give two judges the ability to take into consideration those kinds of supervising equities in determining whether or not to relieve somebody from the consequences of a conviction we have a system in our constitution for that that's a possibly work both ways while they do well in taking a step back in again going back to what we know from rd circuit law and the supreme court one of the factors to consider is prejudice to the government and we're dealing now with a truck with a trial that occurred in two thousand prejudiced and other mandate hearing that took place just last year in which trial counsel indicates in part i don't have a specific recollection of what x x li was said to mr spear that testimony taking place eighteen years after the trial but there is there is that and so the fading recollection is understandable given how much time has passed and the event caught in the convents that issue of course were even earlier they were in the mid to late ninety's and so that is and that's baked into the test itself what are the consequences well this is at least gives me an excuse to dig at blackstone thank you very much fact that there is no statute of limitations for quorum know best because deportation consequences are limitless and they extend into the future as long as the future goes on and as long as that threat is open and it is important for those point if this was a point of law that was established in the ninety's before before any of the later cases were decided it seems that there's even less basis for the way because you weren't waiting for new are to be developed by the supreme court of the circuit so if that's really the case that that may help it one level but doesn't really undermine the de lay point because if this was the law beforehand then there was even less basis for the wording to that point specifically within delay is a result of ineffective assistance of counsel the responsibility should be imputed to the state and this is because it can take a lot of time for a layperson to realize what went wrong and if we put ourselves in mr rogers position  back to the basic standard of sound reasons which is reasonable diligence which mr rather has amply fulfilled and as soon as the b i two thousand and twelve told him and his immigration counsel  when we have jury instructions that had some some the facts even considered by the government individually not holistically but what's the fundamental constitutional violation here is a fundamental violation if the jury was allowed to convict someone for non criminal conduct and in mr rubb years case there are two sets of for your colleague conceded as i thought she had to that you're not trying to get a new trial here you're not challenging the conviction you're challenging the sentence so that means the conviction stands are valid it's not a fundamental element conviction there has to be some fundamental constitutional in the sentencing proceeding no at the base level with regards the ineffective assistance of counsel claim that the most basic thing we have asked for is a new fad of cohering but also a retrial or rescind and saying the jury instructions in mind would be something else that we would court so you want to reach trial but you co counsel doesn't want to retry