an attorney for defendant is deficient in performance and fails to communicate a plea offer and the defendant goes to trial has a fair trial if convicted of a greater offense whether there is a basis for relief under the stricken standard that is to say whether there is prejudice we believe that under stablished united  there was an obligation on the part of the attorney to communicate a plea offer to his client yes she had a right to inforce which he has the attorney has an obligation under performance the prejudice goes to whether there's been a deprivation of a substantial procedural right to which the law entitles him well assuming he would have accepted the plea offer you don't think there's any prejudice in the difference in the length of the defendant had no right under law procedurally or something simply to add in correct order by the court and he has no right under any law to a plea offer was specially ready he would have no the attorney was not efficient that he failed in his duty to convey a plea offer which saying that under existing tell united states supreme court law the absence of that offer the failure by counsel and efficiency by counsel under those circumstances does not deprive the defendant of a substantial or procedural right to which the law in titles an unreasonable there are three positions that we take first that there is no basis for relief under the a t p a because under strickland and lockhart versus well there is no prejudice matter of constitutional law that the term body nice extreme court from the failure to communicate and plea offer because under united states supreme court precedent there is no right to a plea offer so he did something that he has no right is not prejudiced under lock our standard second the court of appeal addressed the issue on essentially as to whether there was a basis for prejudice assuming that the attorney had failed to communicate the plea offer which we don't dispute in this instance here and the court reviewing the record found that even assuming the failure to communicate there was no prejudice that the appellant and or petitioner here other behavior patterns by the state but you cannot say release and charge or provide this particular plea offer no case no court of appeals case no supreme court case has ever authorized that to the prejudiced argument illegitimate right or right to which the prisoner has no entitlement the prejudice in lockhart for example was too was an objection was not made that the supreme court brief the prejudice that he suffered here was two fold on the one hand he has a right to make a knowing and intelligent and voluntary plead decision he was denied trial they found that to be incredible or not credible in facts in the record before the state court of appeals or several transcripts that showed his counsel never showed up and was never convicted so he was convicted of second degree and the only reason it got reversed was because this same lawyer didn't show up at it at eight reading about your instruction and so it was reversed on a technicality that's not exactly something like a p that they had he said the court also said he could have brought it up with the courts ok that's another finding of the court of appeal so you could have brought it up for the court that's wrong on two counts on the one count there was nothing in fact it wasn't any more than a day there was nothing in the record to suggest that this plea offer was open any longer than the one day it was offered in fact it wasn't open any more than the five minutes it was out there on the table and the court of appeals knew that because the next proceeding in court is trial in the state court what happened is they didn't go back to court after the plea offer was made usually they go back and they put on the record that didn't happen here so that's another unreasonable application by the state court of appeal he didn't have that opportunity but i think the biggest one in the really the one that goes right to the heart of the unreasonable application of strickland is what the court of appeal way says the burden or the onus to be quote on the defendant's suddenly take charge of his case when he's got a lawyer appointed as the magistrate judge correctly found that would not only be impossible it's improper for him to talk i think this becomes a difficult one to answer because he wasn't allowed to in the state court to expand the record so we have to kind of look at what we now have a record before we go the next and then find if i can talk about the reasons because the police agreement that he was involuntary manslaughter and so the gun enhanced much so the police officer was you plead to voluntary manslaughter no gun enhanced and that's off the table you don't have to worry about that you will waive your sentencing credits on voluntary to voluntary manslaughter serving five and a half years to the minute he's out of custody first just going to trial getting convicted of second degree murder and spending the rest  explained to him wasn't this notice what the prosecutor apparently intended to be explain to him that it's not likely that he would have taken and anyway well here's here's what i think you're on a race the phrase i don't want to revisit another case or another expression but i think it really goes to the heart of the term self serving when we're looking at how the descendants in this case mr newnes were looking mr newsome he says under penalty of self serving is really at an anachronism from pre code law that prefer the rules of evidence pretty california evidence code self serving was something that the common law didn't while that was eliminated under new coach self serving as an evidentiary barrier doesn't exist anymore that was his defense so he's being asked to plead to something he's already saying he did it what was the date of the allies i believe the trial was in  so we do have have it what's interesting is some kind of the place no question about it he just had no chance of a lawyer with it with a lawyer here and that's the problem i think there's all sorts of objective factors that support  confronted was simply guesswork he have accepted that offer that plea offer and the answer was no and we know that the defendant was defending himself based on a claim was voluntary manslaughter he'd already put in five years in tested it and the question then was what would be the benefit of taking the plea offer that was never communicated to him which would have made him serve an extra five a half years because of be eleven years and he good day for day time credit so you'd be serving five and a half years if he took that offer on the other hand if he went to trial and was convicted only of manslaughter theoretically he could walk because he had five years before and i believe in those days you got two thirds credit in other words you get one day for every two days in the trial detention so arguably theoretically he could have walked if he had gotten convicted of the voluntary manslaughter so the question was to the court of appeal based on the record presented what is there for us to believe that he has met his burden of proving prejudice and here the court of appeal said there isn't enough to establish for us precious which again we need ethan in order petition or bore to prove in that particular instance he had nothing but a decoration saying if i had known i would have accepted the plea we strongly so he was able to tell the court about any displeasure he felt now at some point before the trial he learned what the terms of the of the plea offer were with healthy he says attorney would not talk to him and he could not present question about whether he should take a plea or not because the dependent the petitioner says he knew about the plea from his mother and before the trial why didn't he do anything not sure now we're not suggesting that he should have done something we're asking what evidence is there to support his claim that he would have taken that plea and we have a situation which in which he hears about the plea plea that he wants which says nothing to anybody  to us in terms of evidence support for his claim for the court of appeal that said that it said something very strongly and the question now before the court is the court's inference from that sil here looking at what was the ruling or the result of the state court court process and was that result contrary to or unreasonable application there is a provision in the a t p i believe it's twenty to forty four he won i think