also known as maureen chan who's present in the courtroom today the government and miss ridley agree that the district court legal analysis in this case was wrong the government nonetheless asked this court to affirm on an alternative basis that is that this really is incredible but the district court never held a hearing in this case let alone made any finding about this for at least credibility and it isn't for this court and in the first instance to make such a finding at a minimum misread th entitle to a hearing in this brief the we are shouldn't be focusing on post hoc self serving declaration for someone to get relief under the circumstances and here i think you'll acknowledge that the relief would be extraordinary by vacating the criminal conviction so give me your best arguments as to why we should allow that in this situation yes certainly here there is a significant amount of contemporaneous evidence about miss ridley's particularly as to the prejudice prodding about ms for those personal circumstances she had at the time for a plea and the relevant inquiry of course is what her decision making process was at the time of deciding whether or not to take the plea and significant family ties to the united states that that so that's one aspect and this courting kwan and in rodriguez they got relied on that and the supreme court and lee and showing prejudice she also asked her attorney about the immigration consequences of our play which again this court and both rodriguez favor and kwan relied on as showing prejudice was in his advice actually as a practical matter may have been wrong legally but he said there's no problem so she's indicted in one thousand nine hundred three why it took seven years before she entered a guilty plea but then she went in and out of the united staes repeatedly all the way up until two thousand and twelve so his advice was it's not a big deal there's not going to be any problem and the reality of it is that the facts are it wasn't a problem right well and if i could read from this ridley's dr aeration and miss really asked her attorney what the immigration consequences of her plea were and her attorneys response was simply that i had nothing to worry about but i did not face any adverse immigration consequences wasn't accurate she did face immigration consequences from her plea but she went back and forth used the passport how many times that she leave the country come back that's true i'm not sure of the exact number but it was multiple times that she left the country and i think  record reflects that's not true she's currently in removal proceedings and she could have been prior to twenty twenty four but she was that and so you may have answers but i think where we held under similar circumstances the declaration certainly in that case there was also a declaration from the petitioners attorney that cooperated the statement here unfortunately we don't have that evidence because her attorney is deceased but i would submit that there are there is corroborating evidence in the record that her attorney did in fact give her this incorrect and vice specifically again she travelled in another country for multiple years  after taking the plea agreement and that reflects that her attorney told her correctly that she would be rendered inadmissible why would she have taken that were risk so many times by leaving the country and entering the country and the other is  as the government points out well to all times and it's brief says that she may be deported why in light of mr at the circumstances she would have signed that without you know getting confirming advice from her attorney i think suggests that that you know she did get this advice but i would say that i think this exchange probably you know highlights one of the most critical points in this case which is mr ripley was never afforded an opportunity to see kind of crabber of her claims at a hearing a hearing that she was entitled to under the law so i believe there's enough evidence in the record to grant the petition but i would also say that that there's a reason hearing isn't required in these cases and that really should have had one why didn't you ask for hearing when the government did and then you didn't ask for a hearing and the judge said there could be supplemental briefing but vacated the hearing so if the hearing was important why did you ask for one while hearing is mandatory under the law in these circumstances the government as your honor points out did request a hearing and miss ridley had no reason to doubt that she was going to receive one based on the fact that the i also think that there is enough evidence in the record for this court to so your position on the hearing a seems like what they're hearing is required on a quorum no bus motion is resolved and say matters in a hay b s i believe corpus petition under twenty two fifty five that's right there on the right which allows for make the ineffective assistance of counsel determination he had a declaration from really what more did he need and how would he have a hearing have helped here or how would a hearing help yes no your honor and i think that's highlighted by the government government's briefing below in which they said that if true misread the statements about her consuls profession to form of our counsels performance would be deficient and that her claims are prejudiced made a very strong case for prejudice and then they asked for hearing hearing to answer your honor's pressure on remand i think and hearing would necessarily include presentation by my client at which the court could you know assess her is never an easy task and the strong societal interest in finality has special force with respect to convictions based on guilty pleas but haven't you admitted in your briefing that the court was wrong on the application of both prongs of strickland your honor the government has conceded that the district court followed eroni as lines of reasoning on both the deficient performance problem of strickland and the prejudice promise strickland however as this court knows the the circuit can affirm a dish records ultimate holding on any basis supported by the record and the government would submit that there is a basis in this record to affirm the district court's order dismissing ms ten minutes for these petition wouldn't it be better to send it back for a hearing that you asked for in the first place the government did posing counsel have we held that a declaration just because it is written post hoc and has certain statements cannot be considered ineffective assistance of counsel when i don't know that the court has held that it cannot be considered  but the court has held that is ineffective assistance of counsel claim soley supported by a self serving or conclusory or post hoc assertions that that would not be enough when the government is tied little different than lean and distinguishable because this really does not have the benefit of obtaining a declaration from her counsel because he is unfortunately to see sed and because the underlying conviction kurt eighteen years ago and i think it was in two thousand and yet this really was not put in removal proceedings or she could challenge or not clear why that was not put in removal proceedings where she could challenge that commission until twelve years after that conviction and it seems also the government has not been able to file a record of ridley but just from my understanding i believe there was a delay from the time of indictment to the time that defendant was ultimately arrested on the indictment again i i don't remember the number offhand i believe it was six seven years  and then i frankly cannot speak to why immigration sorry no problem why why the immigration didn't start removal proceedings earlier  want to maybe you'll want to cross examine her as to whether she read the plea agreement and how could she continue to believe that there was no were not self serving to his client it's true honor the problem is that that's my office what else can she do at this point i mean she's just she's a witness to all of this i understand that she may be the only ones probably in the best position at this point because it seems like you're asking the court to look at ridley's declaration and find that because it is post hoc and self serving it cannot serve as a basis to prove her claim of ineffective assistance but it seems like that is asking us to make a credibility decision and it seem again that's something that the district court should do because if you're telling us to look at what we have we're having to make credibility determination government wouldn't characterize characterize it as a credibility determination it's the same determination that the supreme court and lee made when it analyzed the record that was not a very good word in this case because one nine hundred ninety three to two thousand and twelve doesn't seem contemporary to my apologies and i meant to sometimes brain is being facetious but  every jury case there's always an instruction that talks about determining the credibility of witnesses and it goes through a litany of seven or eight different things you can look at how can you make a credibility determination on a piece of paper this is certification from this really that she read and understood the agreement that she discussed it with her attorney and that no there were no other promises or inducements made to her in order for her to enter pleas and also a certification from the defense lawyer in this apply to allow the court to make a judgment about whether or not the action happened it's about whether the action that happened was reasonable so course we have the burden in this case but i don't believe that strickland in any way applies a heightened burden  the government makes much of this ridley's declaration being conclusory but this wasn't its position below and it can't be the case this case as judge by be said in his concurrence in the prior opinion is on all fo else and i suppose you don't know the odds are that why did it take five years to arrive at a plea agreement in a case where she ended up getting a two month sentence i don't know the answer your honor i probably