argument not to exceed fifteen minutes per side mr arnold you may proce please the court counsel i'd like to reserve three minutes for about oh please you are i'd like to begin by discussing the first issue in the case which is whether the petition in this action was  timely and in discussing that i think it's important to understand the context of kentucky sentencing law because i think it helps explain why any inmate in mr smith's position would have acted exactly as he did in kentucky in general with one percentage to that sentence and so when an individual has received who is serving one sentence receives a second sentence that is to run concurrently to the first and is shorter than the first pro debility will never change except in this one individual circumstance and so the circumstance of course is the circumstances that issue here which is an offense committed in the institution or on a scape and that is a function of a particular regulation but i think it's important to be clear that that regulation is on and that's an unusual circumstance generally and so my clients understanding from being in the prison would have been that concurrent sentencing meant no change to approach ability he asked his attorney whether there would be a change his parole ability and was told that there would not he then returned to the department of corrections and they recalculated his sentence because of the new offenses and did not change approach ability originally on his time sheet or to him so you know in his case as of yet three months after the sense it looked to him like he had gotten exactly what he had bargained for that the pro it would have that changed times in the record it is not as referenced by him as part of his letter to the department of corrections when he was challenging he says it's not you know my time she says that this  time she was referring to the resident record card that he would have received after he returned but the rest is undisputed that the first time he was informed that the pro debility had changed was in his reclassification and he found out about it almost by accident really it was simply listed as part of the reclassification form that lists the pro ability on the top corner and so his parole eligibility had changed by exactly two years so at the time he got that he did not to change their interpretation of a rule such in a way that he wouldn't have been able to anticipate of the time of the sentencing or whether that was simply the law working out as it will always going to work out only the fourth of those states a federal plan that's the issue you know that's the question he had to get to that point where he under where the he had sufficient facts to know that he had a federal claim against his attorney at that moment he really did so he then did i think w do and wrote a letter promptly to the department of corrections and indeed in the letter clearly indicates i got i got concurrent sentencing you have run my sentences consecutively that's not right please correct it he received a letter from amy roberts elation reaches a point where it says by you know the jewellery should be changed by adding the following one the original sentence and then to is sends it on a scape that didn't apply to him and then three a sense committed in the institution she had omitted part three so that it only looked like the only thing they're adding was the original sentence in the original sentence was already correctly calculated so it would have appeared to him as though the set you know they had met they were misinterpreting something and so he very prompt followed his final appeal to the department corrections and received for the first time a letter from ashley so of the the actually sullivan letter in the ashley sullivan letter describes to him the gives him the entirety of the regulation that applies to him and says as a result of this this is why the consensus calculated that way that's the first time he's told that and there is no disagreement that if that letter is the anchor date this petition is time and there is no disagreement if the october eleventh two thousand and eleven letter factual predicate of the claim could have been discovered through the exercise of due diligence it does you're it's an object of state of what could have been discovered and why could he not have first you know i think that you know he was trying to discover that claim like that's what the process was therefore as i said the issue is whether or not he understood he had a federal claim against his attorney at the moment he was dealing with as i don't think that you know is simply unclear to anybody based on in part upon you know the sort of history of the case but also upon the incomplete information that he was given don't you think an issue of his attorney's alleged ineffective assistance as to the eligibility date was at least raised by that october eleventh decision water reasonable person be on notice that maybe his attorney i mean for the claim that was it was incorrect i think he would i suppose he certainly a person could look at that and think that among the possibilities are the my lawyer gave me incorrect advice like that it's and isn't that all it takes is that he could have discovered could have by the exercise of due the johnson decision that particular individual had all of the information they needed to discover the claim that they had that their prior previous conviction was invalid that was all known to them well before they litigated the invalid conviction the court still found that the decision itself was a fact and that fact then could be used to sort of restart the calculus the clock for that individual and i think that that analysis can be applied to this situation as well because  you know this is a in this is an instance where the actual determination of his parole to realty is an essential fact of the claim in the absence of sort of a conclusive determination of his parole which ability changing he does not necessarily have a claim against his attorney and in particular he doesn't have a claim against his attorney if his parole of civility change for reasons that the attorney wouldn't have been responsible for in the original brief we cited the case pate versus commonwealth the facts of that case if you saw it would be sort of indicative of a situation where the individual everybody in the courtroom believed that this pro debility for this class a felony was twenty percent he gets to corrections is twenty percent corrections changes this interpretation and suddenly it's eighty five percent and his claim was not against his attorney as attorney didn't miss advise and everybody agreed that twenty percent was what they thought the law was his claim was against the department of corrections and so he doesn't have any real ability to differentiate what lane taking until the department of corrections nailed down what it is doing and they did not do that until they actually saw the letter if i can turn to the substantive issue  circumstances of this case are that the state court opinion rejected my client's stricklin claim based upon their interpretation of the record in this case and the record is that when my client appeared and you know how this will affect you and my client responded yes and then the kentucky court interpreted that as resolving the question of whether he was aware of the impact on produce billeted but that is not factually i think a fair  reasonable interpretation of that set of circumstances blackledge versus allison the u s supreme court found that you know in the situation where you are comparing you know facts in a post conviction action to facts to the circumstances of colloquy is not necessarily conclusive us to facts where the allegation doesn't necessarily refute the facts of the play call it quits and in blackledge i believe the issue was that he claimed that there was a secret that he said under oath that the plea i'm agreeing to seventeen years but then his post admission action was i was told to say that but really the deal was ten years and i didn't get the ten year deal and so he was contradicting the plea colloquy completely and the court found that that was appropriate that he was still pro entitled to proceed on that claim in this particular case my client wasn't you know i don't think that his current statements contradict his former statements his former statement was simply are you you know you think you are aware basically was we asked you think you're aware of everything he said he thought he was he didn't think he was what he said it what he's saying today is that he has learned since that time that he was unaware of the impact of this would have on his appro and that you know on the basis of that that his claim should be allowed to proceed so you know we believe that that trying to figure out why he did that in  surely had reason to be concerned that his counsel had given him incorrect yes we agree however i think that again the issue is sort of what is you know what were the circumstances under which the parole which ability had changed and whether those circumstances were circumstances of which counsel should have been aware or not and in this particular case there was no resolution to that question until  actually so often letter because again the letter that he received from miss roberts the second letter was incomplete it would not have you know it would have led a reasonable person to look at that letter and believe that the mistake was if the department of corrections because you simply read the portion that she quotes that's what the natural interpretation is that you the department of corrections have gotten this wrong and so that's why i would make sense to proceed to the next level and ask the next person that and the fact that it is required for exhaustion purposes thank you very much judgments in federal court that one year begins to run from the latest of certain dates and in this case we're arguing another subsection the one the twenty to forty four the one year begins to run the date on which the factual predicate could have been discovered through due diligence as judge governments and it's an objective not a subjective standard you look to when a do we do it in person in the petitioner circumstances could have discovered the factual predicate for his  here the district court found the date of october eighteenth two thousand and eleven and in my brief i've kind of gone with that it's actually arguable that he was on notice of his claim much earlier than that although however if you look at date would not change yet during the colloquy the judge told him it's a concurrent sentence but it could affect a number of things it may affect parole eligibility arguably he was on notice at that point that his attorney had  advised him even giving him the benefit of the doubt though if you look if you take the october eighteenth date clearly he either knew or any reasonable person would have known the factual predicate for his claim by that time  september fifth september twenty sixth two thousand and eleven he received the reclassification form from corrections it had changed parole eligibility date he received that he wrote a letter to corrections in which he said i perceive this form you have my da wrong and i've also seen that you have my date wrong on the computer so he's aware that least two sources where the date has been changed in response that he received the letter from from amy roberts on october eleventh that later said no we don't have your date wrong your date is correct here is the applicable regulation as to why it is hears it quoted the regulation nearly in its entirety it provided an explanation of the regulation in layman's terms and it had a detailed calculation of how corrections had arrived at the new date that's the letter that included in other words if you have not yet met the parole board and you receive additional sentences for crimes committed within the institution the parole date will be adjusted with each time that you receive an additional charge well of course aerated incarcerated it doesn't matter if they're concurrent or not that's correct your honor and that was the letter from on october eleventh two thousand and ele a week from that time by october eighteenth two of us eleven he had he had signed a copy of that letter and he'd file a second kind of appeal letter to corrections we believe that by that date at the latest as the district so is that evidence of his knowing it wasn't that in october also when he filed his pro se lin forty two forty two i'm sorry lynn forty two is the state post conviction act out in which he raises ineffective assistance of counsel calling because this as he did i recollect he said i think this was where he said that is counsel for the incidents in the with that happened within the prison provided constitutionally defective deficient ineffective assistance of counsel by failing to recognize that the sole inducement for his plea bargain in this case was unattainable which strikes me as being something of a strange way of stating it but nonetheless a claim that his parole eligibility date has been affected yes i post conviction motion his is per se post conviction which it which was roughly a year after he received this letter i'm sorry ok right that was in october but it was a different act of two thousand and twelve so i'm just i guess your honor thank you for straightening me out the warden the district court and the warden believes that he either knew or could have known the basis of his claim by the date he received that first letter if not much earlier he was clearly on notice that his attorney made missing vised and he knew what his attorney allegedly had told him he knew that his date had been changed contrary to that advice and he knew or could have known the reason why based on the regulation that he had been instructed on it's not he's emphasized in his in his briefs that he truly believed that hasan where it says you discover the factual predicate for an ineffective assistance of counsel coin when you were on notice of facts suggesting deficient performance and prejudice it's the same thing i mentioned earlier he knew what his attorney had told him he knew that that they'd had changed contrary to that advice and he knew or could have known that that bison was incorrect based on the regulation and it's only necessary for purposes of figuring timeliness that it's not i rephrase that it's not necessary that he no the legal effect of what he thinks was the bad advice or just that he thinks it's bad advice and now he has this effect in that the two are connected yes most of discovered  with the exercise of due diligence could have discovered facts suggesting both unreasonable performance and prejudice i think that's clearly satisfied by the october eighteenth two thousand and eleven date if not before if you use that date as the day in which is would be untimely the appellant is argued various grounds for why we should use the november date that we're in believes there unavailing this is not an administrative exhaustion case he's not challenging the corrections alt decision regarding his parole eligibility it's an ineffective assistance of counsel client the magistrate judge recognized that distinction the district judge recognize that distinction there is no kentucky law that required him to exhaust his administrative remedies in order to raise included that we weren't satisfied that it was really untimely and address the merits or oh yes it's interesting that council has is left to the first hurdle on the merits can be completely failed to address  that there is no clearly established federal law as decided by the supreme court here it's we're dealing with an issue of mis advice on parole eligibility the united states supreme court which is what we have to go by in the in the hay vs review context has never dodge the issue about whether incorrect advice on parole eligibility could amount to deficient performance under strict limits that we don't it's unnecessary to decide that we can decide this case on on prejudice if you then go to the more recent case  kentucky that case involved advice on deportation consequences kentucky in that case made an argument versus direct versus collateral consequences argument they said  you shouldn't find efficient performance here even though the attorney may have given an incorrect deportation advice because deportation advice is a collateral consequence deportation is a collateral consequence of a plea that doesn't traditionally fall within the scope of the the sixth amendment right to counsel and the supreme court did acknowledge they rejected that argument and said no under strict when you have to it correctly advise about deportation consequences of the guilty plea they did in rejecting that they said you know we've never drawn a distinction between the direct and collateral consequences of a point in defining the scope of counsel but the very next line of the opinion is whether that distinction needs to be made is an issue we don't have to to reach today because of the unique nature of a deportation based on that it's still an open question whether collateral consequences such as advice on parole eligibility here even fall within certain scope of of reasonable professional assistance prejudice they did not address prejudice they they they based their decision on the exchange she had between the trial court at the police colloquy smith has emphasized throughout his his pleadings that the only thing that mattered to him in this case was his that's the only thing that matters since he's serving a life sentence you know the only thing that's important to him is keeping that parole eligibility date and his current claim now is my attorney told me that if i put guilty to these concurrence and the sense is that my date eligibility and then he said do you understand everything it can affect me with and smith said yes i do if the kentucky state courts had ruled on the collateral issue that there is no ineffective assistance claim for collateral deference unless it's contrary to clearly establish law established by the supreme court right but if we don't have a ruling how do we give the government the can the kentucky supreme court decision of britain is actually contrary to to our his violent offender statute that that case was not relied on by the court of appeals in the siding this issue they they focused on the interchange at the end of the colloquy and said we don't appreciate his claim that counsel could be deficient because he's acknowledged that he understood that his parole eligibility date may change the case i don't believe is important in this situation at all we're looking at clearly established federal law as decided by the united states supreme court we don't look at it state court decisions to determine that we don't look at lower federal court decisions to determine that we look at the big u s supreme court decisions it's still an open question based on patea based on side as whether advice on parole eligibility even falls within strickland scope of a performer acquired professional assistance so because of that at the district court found the kentucky court of appeals couldn't have unreasonably applied federal law because there is no duty to advise on parole eligibility i'm going to you know briefly addressing the prejudice argument that the district court said you know even if you assume that he could overcome the differential standard  that the warden agrees with that he got a beneficial senates it was less than the maximum he faced it was run concurrently which means he effectively got to zero additional days of prison for his riot and assault convictions says that doesn't matter because he has a life sentence but he's not just accepted that life sentence he's actively trying to have it overturned if he succeeds in having that sentence vacated he's done the right and assault convictions are served out and he's he has no more time to serve on that since they were concurrent if they're consecutive they would those then this is would not begin to run until until that time based on any or all of these arguments we believe that he's not entitled to rel thank you to dress a little more about the strickland issue you know our position is the strict strictly has never been held not to apply to any particular situation sorry i didn't hear you strickland has never been held not to apply to an issue of counsel's advice and the adequacy of counsel's advice that really ever been tested don't we have to look to see whether this well the supreme court has made it pretty clear that we are not at liberty to extend what they have had but they have said repeatedly that strickland ordinarily applies to claims of counsel's advice and a guilty plea that's right first and patton latham versus cooper and other cases they have been they have general they've declared a general rule that strictly  by a decision of the supreme court and if they don't have one we get reversed i mean that's the way it's been working we have a list of opinions within the reply brief we're stricklin was applied to circumstances that are certainly well beyond what strickland was if that was the case strickland would be limited applications of failure to investigate a mitigation offense in a capital case because that's what struck you i mean you would concede that this court is not definitively held that in effect of assistance of coun  and whether there was prejudice and those tests are all well established in the law so our view would be the strickland should be applied and i would add i agree with your honor's point from earlier i feel like there is it is a little bit peculiar because what the argument  reject the state courts application of this law and so i feel like that is really incompatible with what the a t p provides thank you very much thank you counsel the case will be submitted