factual basis did not support and second s to snyder's appellate counsel when she failed to claim that attorney richards was ineffective first as to attorney richards his performance was deficient and below the objective standard of reasonable  the government indicated that the factual basis they wish mr snyder to plead guilty to focus on attempted penetration with the victims but ox which would be under the definition of sexual contact and not sexual act you can see on page thirty eight  defendant had attempted to places penis and the victim's but ups which would meet the definition of sexual contact and paragraph it appears that richard believe the government's allegations of sexual act could in fact a clue include attempted penetration with the victims but o usa simply responded will just change it to the more technical term of anus which again is not the definition of sexual contact and essentially changed the term but ox the anus made it an entirely different crime altogether and this conduct of attorney richards prejudice mr schneider because for that state mr snyder would not have entered this plea and it's not just mr schneider your honour's no reasonable defendant would plead guilty to a crime higher than what the fact supported which is essentially what mr schneider was left to do in this case the practical result is that mr snyder is serving five was sentenced to eight years which is five years longer than the statutory maximum for sexual contact which is what the factual bas here supported right because the third possible possibility here which is that he would be convicted of aggravated sexual abuse which has a thirty year minimum and that's what he was trying to avoid at the very beginning at the outset your honor yes that was what he trying to avoid right so that that's why he would allow this revised plea agreement because he was limiting his exposure well your honor this is as to this particular claim on an effective  counsel that focuses on an attorney richard conduct this court addressed in direct plea whether snyder pled knowingly and voluntarily one might think of this as sort of opposite of a laugh their case for example so in laughland where the attorney essentially told his client you should go to trial because the government cannot prove that you intended to kill the victim because you shot her below the waist in this case essentially it would be that richard's advise schneider based on the factual information that the government was putting forward that there was sufficient evidence to plead guilty for a sexual act when in fact that's not what the factual basis in this information supported and then moving it to the appellate counsel your honour's there is an effective to withdraw as counsel which this court denied and asked her to brief whether or not shiner pled knowingly and voluntarily and any other issue that she saw appropriate this is problematic in this case because the factual basis on exactly what schneider was told by his attorney and other issues could have been or could have been developed more factually for that direct appeal and because she did not raise that did not have the opportunity to develop those facts both for that appeal and for the effective assistance of counsel effective because this claim could have been raised on it on this nation however the district court does not automatically grant evidence to your hearings on ineffective assistance of counsel so schneider would not have automatically been able to develop those facts necessarily so that just previously and among other things snyder could have asked richards you know why richards agreed to very strange in the information to clarify his knowledge to clarify richard's knowledge on the claim that schneider was in fact even guilty too and at that time it would the morning it was the courtroom conic appears on behalf of the united states the respondent in this case judge sykes has already noted a very important background fact here which is that of course in these various iterations of plea agreements  that we're talking about in this case mr schneider was in fact aborting potentially a very serious charge under section twenty two forty one aggravated sexual abuse of a minor which carries a thirty year minimum require a sexual act as defined in twenty two forty six one k which uses the word anus the biggest thing that i should mention here is that the issue has already been decided against mr schneider and his direct appeal this court noted that mr schneider and specifically acquiesced in the changes the judge respond made during the plea hearing to the information factual proffered plea agreement if you look this case but judge freeh spock certainly was very alert to what was going on and deserve some credit for creating a good record a second problem with the arguments that he didn't understand what he was pleading guilty to that he thought he was pleading guilty to a three year felony is that that he and his lawyer are referring to sensing ranges of up to three years and ten months or as high as forty six months walk that's if you're pleading guilty a three year felony that doesn't make sense and in fact another point which i kind of buried in the footnote in my brief but i would like to emphasize is that judge response was very careful to explain  a complete lack of credibility is credible he was kind of strong when he claimed that he couldn't remember talking to his daughter on the telephone when he was confronted with some some general calls and then said well  mr schneider is the second issue that he raises in this keel mr richards whom the district court did find credible says he explained this concept at least in a general way to his client  plea itself actually references conduct that occurred prior to twenty eleven says this is been going on since the girl was eight or nine i think so schneider really i'd just like to make one point on our battle which is an that this claim that we are bringing today on ineffective assistance of counsel is separate from the confusion claim as the supreme court said in that you can have you know plea advice can lead to a valid valid strickland claim polian apart from whether or not the plea was knowing involuntary on its own so in this particular claim we are looking at attorney richards we are looking at the appellate counsel and looking at the advice which they give and for those reasons we are asking this court to reverse the decision of the district court and grant mr snyder and evidentiary hearing on ineffective assistance of co