he only speaks and read spanish so needed an interpreter for all phases of his defense on september sixteenth his defense counsel comes to him and tells him that he has had a telephone conversation with the prosecutor said what we have according to defense counsel at the hearing was a document with ordinal at the top and a bunch of numbers this is what the defense counsel testified at the hearing that he presented to councils perform its work on reasonable under confident defense counsel standards the second part of the test is a reasonable probability that but for defense counsel's error the result would have been different i think you bring this matter to the trial court before sessions in what any time when he had the opportunity in court he simply was unable to do that and didn't couldn't figure out how to do that he had not been involved in the american criminal justice please the court my name is matthew thomas on behalf of the united states of america i'm standing in for a few very who wrote the grief and the skase but i was the trial one of the trial lawyers on the case and i remember it well because it was my first federal trial the the issue as the court has pointed out is  really a question of credibility and that's the key issue that judge tanner had to decide in making his decision and i think the record there is out that judge perry made the right decision so the question comes up if you if you want to plead guilty why do you testify at trial that you're innocent the district court judge in this case which tanner had through he sat through the trial and he also sat through the twenty to fifty five hearing and he made a credibility call he heard both the defendant and mr mclean testified back to back in the evidentiary hearing and he found that mr mcfeely was more credible and i think there are several good phone up for you and i think there's something really significant i mean these notes in the right hand column mr mcfee wrote down what the possible consequences might be if he goes to trial one of the things that the defendant might get an enhancement for obstructing two points for testifying in a fashion that was unbelievable the judge can or might find that he had not told the truth on the stand now the reason that's significant is if mr miter was so gung ho on going to trial why would he have advised the defendant of the risk that he was taking by testifying a remake she could not have been more clear in that record that you have before you he said the defendant absolutely wanted to go to trial that's a quote he said he clearly wanted to testify during the trial with the spanish interpreter present the second part of the test is if his conduct was unreasonable with the results have been different the answer is no this defendant wanted to go to trial he believed that he would get off the trial he told mr mcphee according to what mr mcfee testified that he could not do any time in jail would not do any time in jail the defendant tries to raise the professional standards by saying that mr mcphee should have done more than he should have forced the government to write him a letter with an offer well it's pretty clear from the record that the defendant was not interested  offer from the government so when you're preparing for trial do you waste your time writing out a plea agreement when you know there isn't going to be a plea testified about thirty six months where on this piece of paper doesn't mention thirty six months i looked at the guidelines i couldn't find a way of getting the thirty six months where did it come up with thirty six months judge cannot also know that no one that that it was the defendant who chose to go to trial no one forced him to go to trial in fact the record shows it's brother was charged along with them his brother played guilty on the day of trial wouldn't raise a question in his mind and my brother played guilty maybe i can plead guilty to you look at the history of the case after he's convicted he filed a motion for a new trial plead guilty it's my lawyers fault for the situation that i'm in the sense tells the court he should order us to go back to the beginning and offer him a deal of forty to fifty seven months but how do we get there he never set that responsibility how can we give him a deal of forty six months he never assisted the government so he doesn't qualify for closing i just want to say that i think the record is clear that mr mcfee did a great job for this defendant he followed the defendant's wishes he fought hard to trial he filed a good appeal yet here we are the defendant arguing that his lawyer was ineffective i think what this shows the defendant has never taken responsibility wanted to accept the plea and i think the answer is very simple for anybody who is involved in in the criminal justice system people take pleas for lots of reasons sometimes they take them simply because the writing i think that is not a higher level i think that is a basic level and i don't believe that it is waste of time to stand possibly half hour forty five minutes for the government to dictate is a letter setting out t