good morning before we start the clock i don't i didn't see do you got it from that table i see a purse down there i guess you are you going to use all the time or your honor ok so you're not sharing any arguments ok all right thank you and i will call the case mark harris versus warren one six dash five six five nine six and you may proceed ten minutes each side good morning please the court appellate mark harris i'd like to reserve two minutes for rebuttal mr harris respectfully asked this court to vacate his conviction by guilty plea and allow him to start over again by going trial or in the alternative remain for an evidentiary hearing so that he may prove he would have done just that given a chance to thirty years ago i just i need to jump in here quickly but just  and i'll let you go and do things but just the reality of those of us that have done criminal law either as a judge or as a lawyer as far as that goes then both you have a defendant that takes a plea bargain where he gets a life sentence right you're and it's it's fairly so he's got what is it a first in a second degree murder that's right your honor you rarely get an advantage for killing two people i mean generally you know that those are consecutive sentences so he manages to get down from somewhere around forty to life down to twenty six to life something along those lines right your honor he did get a benefit by virtue of being ok and the whole discussion about parole came after he was already going to enter his plea and so when it i find out a little bit incredible and i think that there was that someone that is willing to plead to a life sentence wouldn't have done that specially when they can bring it down from forty to twenty six because we all know that that makes  that they would that they wouldn't have taken the deal because they don't want to be on proposal where they get out of prison and they're already when he was doing it he was facing the possibility hey i'm going to be locked up for the rest of my life there's no promise parole but he wouldn't have done that because he thought he would have been on parole could have been on the outside and would have to check with a pearl agent for life as opposed to for five years your honor i understand your difficulty believing that mr harris would have done that but i understand where someone could think that after they've already gotten a deal and they've sat in prison for a long time but on that date i find that pretty incredible but i want to start by by pointing out something that i think it's clear accepted by the taking court only after the plea taking court said miss it buys him about his parole term being five years they have done that three times his attorney stood by and allowed that mistake to go well but they came down with a deal th didn't think they came in with a deal the deal was already set up the judge can't come up with a deal that you get concurrent sentences for more than one murder or things along those lines and it was the judge that initiated a question hey what about the parole or whatever your the trial court made a mistake and the fact that his attorney allowed that mistake to go uncorrected which means allowed his client to understand that five years old was the term of his deal is a  complete down in state criminal justice system which has b s really it's precisely designed to wrap every every procedural safeguard every everything that could have fixed the errors in this case which are stemming from the court itself stemming from his attorneys stemming from the prosecutor were in place to to fix those errors to counteract its it's a fact no account i mean i think migraine is you that there was a bad mistake made in this case  i think the question though is that with in light of what the state court said is was it so bad we can say gosh decor just got that totally wrong and i mean that is the question we have to answer this case and that is the question that you have to think about yes your honor but i would argue that there's a good doesn't apply in this case because that's not the question with the state court took it upon itself to answer the state court got it wrong applied there were it apply the contrary in the standard that's contrary to clearly established federal law and kill versus law cart which says that all the petitioner has to do is make two allegations and that's a threshold inquiry that entitles him to an evidentiary hearing where he might be able to prove up the full showing of his of prejudice under under strict but let's assume we had that hearing and i think appellant the benefit of having his attorney whose mistake was it the cause of the prejudice getting up on the stand and saying yes this is how i made a mistake and this is how important it was to my client and and  it's wrong to privateers isn't correct so and so you could have had an affidavit from the attorney saying more prior to this i mean but even if he says i think what your client said is his attorney told him that upon release from prison he would be subject parole for several years and did mr harris asked for any clarification of what his attorney meant by several others did several years to me in five years he had no reason to doubt that both his lawyer and the trial court had gotten the law wrong and and leave the please call the query suggest that or the transcript suggests that the plea taking court put mr on notice that something untoward was going on they asked mr lee do you understand that you might and subject to immigration consequences as a consequence of your plea and at that point he turned to his attorney and said what does this mean there was no equi ation in mr harris he did it down to twenty six to life as opposed to forty to forty to life because it he it was he had a first in a second twenty five to life and fifteen to life right so that's that's what we stack if what he face when so he's eligible for parole when your honor mr harris is was eligible for parole in two thousand and ten and that's precisely when he discovered that he was subject to a life term of parole within a month he had his he was talking to his mom trying to get got her declaration to be eight months but not getting parole had nothing to do with the five years right he was denied parole and he had an option he was to one has to come up for parole again your honor that information is not in the record before this court and i'm willing to answer it if the court will allow me to well he's not out correct he said i don't have to hate the us i think what you're getting at is that the nature of the harm here is different from the nature of the harm of being out on parole is different from the nature of the harm from having an extended period of of a prison sentence and and that's the argument mr harris is making and i believe that the threshold inquiry at the threshold inquiry stage underhill and lee he's entitled to get a hearing to prove to test so that fact finding court can test what he's saying to  credibility of it to test the reasonability of it it's not appropriate for the state court to have done that on the pleadings ok you want to reserve yes thank you thank you if we support charles lee for the wording under stricklin and hill position has to show a reasonable probability that he would not have accepted the plea he doesn't satisfy that standard just by saying he would have accepted it and he facing forty eight years of life in state prison and he's offered a deal for twenty six years of life so that's a real choice elsewhere for him this idea that somehow parole was what was really important  allowed to find out that that idea was a little bit too farfetched and again there's nothing in the record to support the idea that for all was so important to him that he would rather spend twenty two years in prison and then be on parole look at that hearing the attorney would have said to that position and told him he wanted to get the matter over as quickly as possible so that doesn't really change an hearing and i also want to counter the argument that mr harris has nothing but his own statements in this case he has offered up a whole lot more than that he has declarations from himself and his mother the only readily available evidence that he had and hill is to claim court held that all he needed to do was allege some special circumstances that would show why he placed particular emphasis on parole and to allege that but if he had been properly advised that he was subject to a life term poor role that he would not have pled guilty and would have insisted on going to trial the respondent concedes that mr harris did both those things in his answer and there was no need for mr harris to do anything beyond that in this record there was no equivocation no confusion and he should not be faulted for his attorney's failure to put him on notice that he should make a complete contemporaneous or some sort