floor is ortega which would give him the right to file a delayed appeal and then so for three reasons because these three facts are true at the time of his sentencing his conviction so by constitutional standards and third that it would reasonably take three or more months for a duly diligent person in mr webb circumstances to find we first address to has mr webb already served this time that we were worrying about here has he served if if he were successful is there relief to be had see the filings have been it's been some years sure it's still four years after the fall what does it save him if this what what amount of time does it save him if this appeal succeeds this one is served less than ten years  you nonetheless the lawyer must go talk to his client can consult about the pros and cons of appealing if the client makes such noises or either one of these issues and there were those issues you could have directly appealed the issue of saying look mr de were defense counsel here was ineffective like anyone else handling a crack cocaine case at that time he should have been snowballing amount of just records throughout the country that we're doing this is something that any decent criminal defense lawyer in federal court should have known and he should have told mr mr webb that you know despite your appeal waiver clearly said that the the twenty five movement or the the petitioner gets a grace period he gets the time it would take a duly diligent person in his circumstances to figure out that well in  in that case it said that where this defendant was not told about his right to appeal and so well this person should get the amount of time would take a duly diligent person in that person's search situation every reason to turn around and be second guessing that has been represented by counsel the whole time and of course you do talk to prison and ask for the only benefit here you're you have to hope the government doesn't invoke the joe records show that he didn't go so i guess his thought that you went to jail was in agony but there's no record of what you would have said then about appeal you according to this council only thing you told him was you have this waiver issues would have been you know raising a direct appeal in effect of susan's counsel it's an involuntary plea of mr webb didn't raise that under oath to appeal the involuntary his claim he'd be waiving it forever under twenty to fifty five f for among maybe other considerations equable tolling but under a four when when he had that does at this i understand he had to discover sort of new facts that would start the one year period when your clock and are there new facts and man know the law change and fact was that he had the right to appeal and he always had that into sunday you always had that right and he could have found it out just by opening a statute book but he was given the amount of time recently to go do the diligent person to discover that these are newly discovered facts these are facts that you know it's new to the defendant has discovered it through or it's the amount of time or to go duly diligent person to find that  file in prison he didn't have his file him access to the exact facts of his case and then months after that that's when dorsey was for the department justice reversed its position and it was publicly clear that there's maybe a problem with those persons inactivation so in that time which was all well over three months after his sentencing i believe that's the time when you tolling they all basically boil down to two propositions the first is that under roe v floors or take a trial counsel at a constitutional duty to consult with his client about the merits of taking an appeal duty to consult should be treated for medial purposes more or less just like a violation of the duty to file a direct appeal when you're directed to do so by your client so i'd like to just start by addressing what each of those propositions is mistaken on the question of whether there was a duty to consult floors or take it makes clear there's no per se duty it applies only in certain circumstances a number of different factors are considered but it boils down to basically whether trial counsel had reason to believe either that a rational defendant and its client choose or want to appeal or that his particular client did in fact want to appeal and so it's worth remembering what it is that trial counsel actually reasonably believed at the time of sentencing so he knew that his client had been charged with with a crime that certainly at the time was committed at the time he was charged at the time that he pleaded no dispute that it triggered a twenty year mandatory minimum he knew that his client  knew the government had notified him before sentencing that because he'd failed to cooperate because he had committed a crime while in in jail smuggling in drugs trying to use his four year old son to bring in a phone the government would not be filing a substantial assistance known presumably by his attorney and i don't maybe even the court as well as of the sentencing or is that not right i think as a matter of fact neither his attorney nor the court nor anyone else had any sense that the f s a applied him i soon that that people knew that the f s a had passed but i think perhaps in light of carotene although the records a little bit unclear on who knew what when but guardeen as i recall the sentencing occurred before it did have something actually that's really distinguishable arguably arguably although certainly that wasn't the way that that the carradine court handled it in opinion for the court judge batchelder that the rationale was you focus on the date in which the defendant committed the offense conduct and what penalties applied then and in fact when when this court has kind of looked at it carefully and later i'm site of the shah case where the court said our court held that the f s a has reduced minim time of web sentencing hearing in january twentieth the prevailing case law in the circuit established by united states we carry in the difference like webb should be sense in cordons with the mandatory minimums in effect at the time of the offense irrespective of if it stays in that within a guideline sentence and that the government was was asking for a sense of at least two hundred sixty two months but that at sentencing he managed to persuade the court to vary significantly downward to two hundred forty months and so as far as defense counsel was concerned he had gotten not only a blow guideline sentence but a sense that was the lowest possible under the law she understood it and that his client had waived the right to appeal any sense of that nature so source when he actually knew he had no basis to think that  irrational if it want to appeal that that mandatory minimum sentence terms of whether he had any reason to believe that his client in fact did want to appeal the web of course asserted below that he had directed his attorney to appeal but magistrate judge found some matter of fact that that did not happen there's no request to to appeal and i think it's it's undisputed that under webb's own testimony he spoke to his attorney on january sixth or seventh which was three to four days after the syncing hearing would have been right into the day or the day after the judgment was entered so the day that the fourteen day appeal clock starts to run and that his client says absolutely nothing about appealing not only does he not directed to appeal he doesn't say i wonder if we should take this attorney says yes it makes perfect sense that the time is essentially told until he finds out or has reason to learn that attorney not funded deals as far as he knows his convictions not final it's up on appeal there's nothing from dune in fact probably makes no sense from the start preparing his post conviction motion because his sentencing conviction may still be reversed on appeal but stark contrast when you have a different who has not been consulted with he knows that there is no  knows that his conviction is final he knows that is when your clock is running and so there's no logical reason to say well the time is told indefinitely until at some later date he essentially finds out that he had a m interrupt you for a moment that the briefing suggest that mr webb is distinguishable from some other cases where the prisoner did nothing you know so he pipes up and says i want my file within a few months having never seen his lawyer after we have reason to think that's the case he pipes up three or four months and says how about the takes four months to get the file when i don't know what quite when he asked for it i think he asked for the fall around june of two thousand and eleven but to be honest i think the file that request is a little bit of a red herring there there's a number of references to his need to get the file although i don't think there's ever been an adequate explanation of what it was in the file that he needed see or what he discovered from looking at file your course the file because he was concerned that his docket sheet would reflect that he had previously been cooperating with the government and didn't want his fellow inmates to see it and nothing to do with determining whether an appeal have been filed whether he had been consulted with whether he had meritorious claims he was just trying to make sure that his fellow inmates would know that he cooperated and so you know i think when this court first deny the request for then that ineffectiveness is imputed to the state here webb didn't have court appointed counsel he had retained counsel own twenty two fifty five for i think chief judge cole you were you were wondering what fact it was that would be newly discovered first i think i would just point the court to webb's own response an affidavit which i flagged in my twenty eight j letter a couple days ago he doesn't in any way suggest that he actually needed to discover any facts  supposedly found out the no direct appeal have been filed and at that point he starts acting diligently to paris twenty to fifty five motion and you know really ultimately the new facts that that council is relying on are just developments and he more or less did nothing so that wouldn't be due diligence and then second that at worst we have a garden variety negligence claim in the failure to consult about the appeal which does not constitute extraordinary circumstances and the fourteen day period after sentencing he was relying on his counsel and as he was entitled to do you know he isn't charged with memorizing all the facts about his case yes to get the documents to understand what's what its claims or and the question about the amount of time it would take him it's really in objective type of question and as this isn't the sense of when would a duly diligent person in the defendant circumstance have discovered the fact the new fact the fact that my lord and filed the appeal or the fact that i have an appeal right there no one told me about or in this case that i have non frivolous appealable issues and that's it when would a duly diligent person do it and we sufficiently to show that a person in a circumstance would have taken three months now there was some limit to the development of the record council assumes that you're on the defense council knew all about the fair sentencing eric knew about carradine and made some reasonable decisions about that when i tried to ask the defense counsel when he's testifying if you even knew about the persons in act he wasn't required to answer that question and that's separate from the existence of the appealable issues he did that by voicing you hope to get less than twenty years showing disbelief when you've got twenty years and by asking is laura to come talk to a lawyer testified all those facts and that those facts undisputed