happened in state court we only have one reasoned quote unquote recent ruling from the state court and that was from the superior court which in a preprinted form it just said essentially there was no prejudice proven  and that has two significant two points of significance the first is that the performance problem of the ineffective assistance of counsel is reviewed de novo because we don't have a merits ruling on performance and the second is that we don't know what what the grounds were for why the state found no prejudice some to focus on but let me ask you the same question i asked consul earlier if if we look at the record and it appears that there's sufficient basis in the record does it really matter if the judge said i find x y find y if we can look at the record and see that there's a basis for such a finding doesn't matter under the a d p a no but i'm going to when i'm going to discuss now is that there are no that there's no basis for making that finding on the record what we have is unlawful earthing united states supreme court case it says there are four factors that you look at when you have an ineffective assistance of counsel based on a rejection of a plea offer and the first is would the sentence have been less severe and that one here to easy he was on mr hardy was offered a four year deal he didn't know at that time he thought based on what his  attorney had told him that if he was convicted on the most likely count of conviction that he would be facing nine years in fact he was facing a third strike and he was sentenced to twenty five years to life so the disparity between four years and twenty five to li is that sac factor certainly supports him the second is would the court have accepted those terms the district court made findings of fact which are fully supported by the record that in this case to trial court had not only encouraged mr hardee to take the deal but he had also offered continuances in the case so that the plea could be discussed further and so it certainly was clear that the court was supportive of this the third is whether the prosecutor would have withdrawn the plea in light of intervening circumstances now there is nothing in the record to support that the prosecutor would have withdrawn the plea had mr hardy excepted it there's nothing in the record that support one way or the other definitively  whether the prosecutor knew that mr hardy had a second strike but if there is there anything in the record that indicates that the government knew the prosecution knew that he had that second story there's nothing to indicate whether they did or they didn't but we have a situation where this was the riverside prosecute riverside d a s office both of mr hardy's convictions the one that was alleged this is strike in the one that was later alleges the strike were both prosecuted by the d a s office be pretty hard for me to imagine that the a s office this but when you have a case where you're making your allegations how hard could it be to run somebodies name in your in your system and it ended again we have any indication in the record  that defense counsel somehow was derelict in his responsibility to to inquire and get the rap sheet from the district attorney well i think yes because i did see him reference in the record that defense counsel said i email sherry dyson who's the da in the case can you please give me the chart report is that an indication to you that the defense counsel was asking for the rap sheet in your honor i believe that is the subsequent counsel long after the plea had been withdrawn that was when they that was at the point i believe that was at the point of mars than hearing the summer of two thousand and five so here's here's what i need your help with it seems to me from looking at this factual record that the d a didn't have the rap sheet or at least the rap sheet wasn't accurate as as far as i can tell the  the packet indicating the strikes from the department of corrections didn't come in until at least march of two thousand and six there's an indication that the december two thousand and five hearing as leas the defense counsel is asking for the truck report and it says here she is not now been able to paint that so it seems to me the d a didn't know that there were two strikes instead of one the defense counsel hadn't obtained an accurate rap sheet and so the defense counsel didn't know that there were two strikes how is that deficient performance well when the fence council relies on the district attorney to turn over an accurate rap sheet well we the defense counsel an we have in rick in the rig's case which i and i know is not it's technically not still good law although it's cited by this court in the united states supreme court in other courts for its proposition that trial attorneys when there are strike allegations have an obligation when there is a plea offer to make sure that they understand what the their defendant what their client sentencing exposure is and again we have this is they have an independent access to the  find what he's been convicted of and here we have a situation where his attorney was a public defender the very side public defenders office had represented mr hardee in the prover education hearing that was put the i'm sorry probation revocation that was a probation revocation from that case that was the second strike so we're talking about reverse i d a riverside public defender being able to look in their own system and find out what convictions there are about the second strike and we have a declaration from some lawyer that says hey i went and i looked at it and guess what i found it in fifteen minutes or something to that effect we we don't but we have no no evidence to the contrary either and again convictions are easily available well but that's that's that's sort of i mean that's argument that's that's not really evidence in the record is it the question how can how can a trial right so this happens all the time we're we make a deal in the deal as look you're going to surrender certain things are going to give up certain rights in exchange for which we're going to give you this deal but the deal has to be accepted within a certain period of time in this case the preliminary hearing so the defendant essentially says ok fine i'm willing to take the risk i'll give up whatever rights i have but i am being offered this particular deal either willing to take it or reject it and that's what happened in this case is it because yes but but he only had what the united states supreme court said in lee said there are two factors that that client to take into account one is what's their likelihood to prevail a trial and the other is what are they risking and in this case mr hardie believed he was risking only nine years well he did not know that he's risking twenty five years to life how does that square with his conversation with mr malone where and he's as i'm looking at thirty seven years and then another time he says i'm looking at life but how does that square he says i believe like eight or nine times thirty seven to life and then he says thirty seven years and then one time he he calls it life but the difference is between a determinant sentence two things one is a determinant sentence where you know you're going to get out one day and an indefinite life term or you could potentially be spending the rest your life in prison the other is that it's a conviction of all of his counts would have been thirty seven years where as he believed based on his attorney's recommendation that he was it really only facing a risk most certainly of the corporal injury conviction and in fact he was acquitted of three of the five charges and he was really facing twenty five to life and he said has said multiple times under the penalty of perjury that he would have taken the deal if he'd known he was facing indefinite life term we have his parents declarations under the penalty of perjury that if they had known they would have they would have forced him encourage him to take that deal and we have his his his actual trial attorney the attorney who replaced even if all that is true i think as judge needs us pointed out what's missing in the record is reveals is that appellant who was on notice that he was facing more than three decades of incarceration chose to disregard the advice of both his trial counsel and the trial court in rejecting the four your offer and we see that that decision was motivated not by the difference between one and two strikes but by his belief mistaken belief that the victim would recant her accusations and that as a result he would be exonerated of all of his crimes  believe that the most crucial piece of evidence that gives us a window into appellants thought process during that time was the april of two thousand and six jailhouse calls between a palin and the victim and from this we learned two key facts first appellant explicitly stated that he would have taken the four year deal had he known that she intended to continue to testify against him at the preliminary hearing and that at that time he believed that without her testimony the prosecution had no evidence and that he would defeat all of the charges but given given the fact that mr hardy says that he would have taken the deal regardless had he known this this would require an evident hearing for the for the judge to decide whether he would or he would not have taken it right i disagree your honor under the state courts determination of the facts based on the record has to be  objective leean reasonable beyond fair minded disagreement in order to be related gated in federal court i believe that based upon the record there was not an unreasonable determination of the facts because of the fact that the the jailhouse call gives us a better idea of what his thought process and his motivations were at the time then a declaration in hindsight having seen the results of the gamble can you trust the performance problem is there any indication that defense counsel could have independently attained the accurate record of his criminal history there isn't any evidence in the record your honor i believe that even under a there was no deficient performance because there was simply no way that the trial counsel would have been on notice that there was any problem with the criminal history as charged by the prosecution there was no indication that there was any further investigation that was necessary and counsel provided competent legally correct advice based on the facts as he reasonably understood them and gave can sound advice  fact that the that the advice was to take the four year deal was proof of competency based on the exposure that appellant was facing and  the it also gives us an insight into the prospects and risks of success a trial i think the fact that he had been able to secure an extremely favorable deal and correctly advised him to take it distinguishes this case materially from something like riggs sorry that's correct your honor it looks like at the very earliest it could have been discovered sometime in march of two thousand and six the complaint was not amended to allege a strike until august of two thousand and six we don't have any indication of  whether the prosecution was aware of it which is also a significant portion of the timing if i can quickly go back to prejudice because what the april two thousand and six jailhouse call reveals is appellant after the preliminary hearing had actually attempted to take the four year deal before the information had been amended to allege the second strike which shows us that it is not the second strike that's the determining factor but rather it was the realization that the victim intended to testify against him consistent with her accusations as reported to police given that there's nothing in the record that indicates that  competent counsel would have been able find a second strike and thereby advise his client to take the deal as a result of the subsequent exposure how would we how would we define the parameters know go down to every county recorder's office in the state in look to see of the defendant has a conviction i mean how do we fashion the parameters you understand what i mean your honor yes it's a very difficult question in terms of setting some sort of bright line case law has found that the duty to investigate is very particular eyes based on the facts of certain cases so to say that it's hernia he must in all circumstances independently sort of assume that the information provided by the prosecution is incorrect i believe rises far beyond the constitutional minimum standard of competence given strickland's significant deference to wide range of acceptable conduct so there's another issue and that is with the responsibility of the defendant to can to provide accurate and truthful information to his or her counsel is there that's correct your honor in the supplemental excerpts of record we attached the plea agreement from the two thousand and one strike in which helen acknowledges that he understands that this is something that can be used against him as a strike in the future and so finding ineffective assistance of counsel where a defendant chooses to keep quiet almost creates a perverse incentive for a defendant to withhold material information and then benefit from his counsel's lack of accurate representation on that basis we have in the record the plea from two thousand and one that indicates that he was told that it's prior boss a strike but i didn't see the record for two thousand and three is that correct or did he just miss it your honor i don't believe that it was included simply because it wasn't disputed that he understood that the two thousand and three strike was a strike it was charged as a strike prior to any plea negotiations and in the marzan hearing  the first strike doubles your sentence a second one subjects a life i don't recall offhand whether that information was was included in the record your honor so we know on this evidentiary record whether defense counsel relied on the way that it was charged or whether fans counsel relied on the way that it was charged coupled with an informal printed rap sheet we don't have information into the specific reliance of counsel i believe that it would be based on the reasonable reliance on how it was charged but there's nothing to indicate that there was an independent investigation into the rap sheet and for these reasons we believe that the state ok so much to unpack your first of all we have to we have attorneys for specific reason because clients and cells are are not tasked with the duty of understanding what the legal significance of what the convictions might be or might represent in the two thousand and one plea all he was told was that it could be not that it would be there's nothing in the record that says whether he ever told his attorney or he didn't tell his attorney we have nothing in the record whether his attorney ever asked  whether he was refused this is different than the believe it's the hill united states supreme court case that responded referred to were in that case the client had actually filled out a form and he said he had no prior convictions and he actually had one there's nothing in this record that in any way mr hardy ever affirmatively misled anybody to the extent that there's a question about that then there should be an evidentiary hearing about it mr hardee made his allegations the state court had to accept his allegations as true if there's a factual dispute particularly on the performance prong it's a de novo review this court can send it back for an evidentiary hearing in terms of the performance of the fact that he said he would have taken the four year deal if he'd known his girlfriend was not going to  only tells you that there were two factors that were at risk that he he thought he had a chance of prevailing and he also weighted against his nine year risk they're not separate entities that you can't mix he's you have a two fold task that you're looking at if one of them proves wrong you may have said i would have taken it even if i you know was only facing one year or a thousand years we've got an argument counts and you're well over time all right thank you very much thank you and the argument in this case the matter submitted for a decision by this