may please the court your honor deputy federal public defender michael parenti on behalf of the petitioner armando maine clearly established federal law requires that for a guilty plea to be knowing voluntary and intelligent the record must affirmatively show that the defendant has been explained the elements of the offense here the magistrate judge correctly found that the record of maine has pleaded not affirmatively show that he was explain the elements of the offense but erred in concluding that the state court could reasonably presume that those elements had been explained off the record first the state court could not have presume to properly presume that manner was explained the elements of the offense because may not presented this claim it was denied on the face of the petition and at that stage california has told us and this was also affirmed in the penn holster case that it's reviewing the petitioners factual allegations as true and so the court could not have presumed the opposite of the factual allegation in man his petition which is that he was never explained the elements of the offense and i'm not aware of any context where there's a presumption in the law that is presumed against the petitioner at t petition stage and this is something that's also explained by this court and could levy spearman a little bit further that where there's a presumption the party always that we're the party that benefits from that the other party in this case men has an opportunity to present contrary evidence to overcome that presumption and then california the opportunity to do that is not at the petition stage so the california supreme court this was the only basis on which the magistrate judge affirmed or found this case was denied under d one and so the only basis for denying manner relief was upholding this pretty presumption of the california courts but that presumption did not apply here now even if we assume that mena had to overcome some kind of he anderson is the main interest in having a presumption henderson does have what i would say is dicta about a presumption i think it's because it's so important i think we can look at the actual language from henderson it says on page six forty seven it may be appropriate or not it is appropriate or that it's always appropriate but it may be appropriate to presume that in most cases not all cases in most cases defense counsel routinely explain the nature of the if you go back to the the state court with the believe you're about to conduct were dire and he decides he's not going to go there in ruin motions and let me for i remember correctly they had actually done motions of limon a and they had gone through one full day of jury selection that the next day i think came back the next day the jury wasn't sworn yet i believe there were some for the jury selection to go and on when i read the transcript you look at the transcript of what happened when he decided to plead i don't believe it's in the record how far back of this particular platform out of san bernardino county goes but there are some plea forms that at least have an affirmation you were explain the elements of the offense by your attorney maybe it doesn't explain the elements on the form i understand that because that's going to var crime by crime but there is at least an affirmation for the person to initial yes i was explaining the elements of the offense by my attorney this form doesn't have that it's the state's form they're responsible for the missions in their for charges well there's an additional element of force substantially greater than the force required under what main it was originally charged under which was section two eighty eight a which is just a basically a lewd touching sexual intent is required there and the touching but the force is far more reprehensible conduct under two eighty eight b one it has to be a substantially greater force and the magistrate judge expressway found that this was in fact a critical element of the offense and respondent has waived that issue here they've abandoned on this appeal they have not argued on appeal that that was not a critical element of the offense although they did argue in the district court that abandoned it here on up on appeal is that why you say it's objection  element of the offense you cannot be convicted under two eighty eight be one unless you're also admitting to this additional level of force and it's different than anything that man had previously been charged with in fact there were two informations filed in this case the first two informations only included california penal code section two eighty eight a that the lesser offense so made it was never even provided anything that he could have read like a charging document explaining this offense it all had to happen on the record and in this case the record and the state contends he received one in private but he denies it and the state cannot prove it was given a hearing must be held so this is circuit precedent interpreted clearly established federal law and saying when there's an allegation and the state has not proved that allegation to be false because the record self does not explain the elements i hearing must be held there was no further evidentiary hearing or even an order to show cause by the state court and there's been no hearing ye in federal court and that's exactly what maine is intitled to when when this clearly established federal law is applied to his case now even if the court assumes that meant man had some burden of meeting the henderson presumption at th stage which i contend he did not but if he did the question is whether he has produced enough evidence to show that this is not one of those routine or most cases and there are at least nine points of irregularity in this plea process first the form those were misstated five times i'm not coming in five in i get into nine but that's misstated five times on the plea form that error was independently repeated by the trial court when i'm corrected by counsel during the coll constitutional violation but in terms of looking as to whether was this a normal proceeding under henderson that we can pursue me everything just went as usual or was this in a regular proceeding the fact that there's a fairly irregular given defense counsel affirmative statement that he opposed the deal so it's no question it's out of the ordinary but i'm not sure how that really speaks to the question that we have to answer which was what's what's the likelihood that your client did not understand was not what it was he was pleading guilty to and i think that that fact goes to that as well as the disagreement with counsel because when you have in a regular proceeding you it's almost it's almost like a marston situation in some sense you have the attorney wanting to do one thing the client wanting to do another and those are the type of situations where you when you add speed to that because the timing of this was extremely fast it just happened that morning where we can say you know this wasn't a routine case we can't know that he was explain the elements we can assume that he was explain the elements off the record we do know that he was and explain the elements on the record and that's the constitutional protection says that you want to go to the man you didn't want to go to trial because you don't want to subject the young girls the trial process i do think it would have made a difference but i also contend that as a matter of law that that that's not a requirement meant that we have to show and i think that's shown by footnote twelve of the henderson opinion piece it's a structural if i do and then like i'd also i think the supreme court recently is that there's very few instances that are structural there are but the predicate of for a prejudice analysis there i think henderson actually establishes that this is structural because in footnote twelve they acknowledge there assuming that the petitioner in henderson would have pled guilty even if he had been advised of the intent element they make that assumption as part of the majority opinion in footnote twelve page six forty four and also respondent here has waived harmless error we've been litigating this case since two thousand and thirteen they have never asserted brecht as to claim one well in this circuit of course sober which is interpreted henderson so this court's precedent in sober applied henderson and held that the petitioner must have a hearing and that's what that's the strongest precedent requiring a hearing where there are no people who come and give you the distilled into one sentence here it's that his pleas were not knowing intelligent voluntary because he didn't understand that forcible lewd acts involve force but the record contradicts his claim and so the beginning of the analysis here has to start with henderson's presumption i think henderson is the most important case because it's the established united states supreme court authority and henderson says that there's a presumption that we have to take into account that counsel explains that elements off  record i don't believe that's dicta because it's setting the analytical framework for how these exact sorts of claims should be litigated when there's a federal hevia this matter that's considered by the court and of course henderson's presumption doesn't exist in isolation but it exists in the general framework of the circle and presumption that attorneys are presumed to perform competently and so there's three main areas that support with strong circumstantial evidence the idea that man i did know that force was an element here we have counsel statements we have the police form itself and we have man a statement at the plea hearing the first counsel statements on the record counsel begins when the court asked does your client want to waive arraignment counsel says well i don't know if i want to do that but that's what my client wants to do so it's clear that they've discussed these charges and they've discussed that they filled out the police form together and the only difference between the original charges and the new charges is the element of force is the only different difference all the other elements are identical and so it's unreasonable to presume that there was a discussion about these charges that didn't include the only difference between the two set of charges and second we moved to the police form which was of course initial been signed under penalty of perjury and in the police form we have  description of the each count as a forcible lewd act and we have made as initials next to those descript we have him initially next to a box saying that he his attorney explained everything to him and that they discussed it there's also box saying that they discuss more serious charges and there's no way for them to discuss more serious charges without discussing what the current charges actually are also i think this is important there's a box that says violent or serious felony and i underline arrowed the word violent so that again gives maine a notice that he's being charged with a violent crime and he initialed near that box and then of course have counsel printing his name at the end may not makes much of the fact that his attorney didn't police form but it's not because his attorney wasn't paying attention to this case or didn't show up to the police hearing it's because he was doing his absolute best to keep main effort taking the police and main it was insisting on taking it and we know that even the reason why he was insisting on taking it because he had done these horrible things he didn't want to bring the victims and have to really litigate and have them testify against him so the police form a strong evidence and then we look to man a statement since his own statements where he said that he read and discuss the form with his attorney he said that he understood all the legal rights and consequences for there is no way that he could understand the legal rights and consequences if he didn't even know what crime he was being charged with and then it's unsurprising that based on all of these facts we have the court saying making a factual finding that based on the evidence understood the nature of the charges and based on all that evidence when we have it henderson's presumption it's clear that this is one of the many cases that henderson was talking about that fall into that rubric of cases where we can presume that counsel did in fact explain and it goes on to say that henderson was a unique case and it uses that word it was unique in that there was an evidentiary hearing where it was established that there was because maine hasn't provided a direct hit his own declaration or declaration of council what i'm hearing what i thought i heard from the defense is that something's going to happen at a subsequent stage and you didn't have that opportunity yes you're on a bit least could have made the bare showing of the declaration from himself which there's there is and there's absolutely no prohibition on submitting his own declaration in state court and all our position is that man actually did it there was an actual eviden evidentiary hearing in state court where evidence was submitted and based on that evidence it can't be said that the california supreme court's ruling on this matter was objective leon reasonable and so arguments the court of appeal the california court of appeal conducted an independent review of the record and they say explicitly stated in their opinion that there was quote no arguable issues and so if the court that was reviewed that review conducted an independent review found no arguable issues it absolutely could not have been prejudicial not to raise those issues and additionally it could have been deficient performance to failing for failing to raise an issue that wasn't even considered arguable by the court that would have reviewed it if there are no further on just to clarify the issue about the absence of a declaration from counsel i did submit a declaration when i prepared the petition to the california supreme court explaining my efforts to pain those declarations i was unable to i need discovery power in order to effectively get information from appellate counsel or from an is trial counsel in this case for mr mean well for mr may now there isn't a declaration from from him directly but of course these allegations are up and down throughout his petition and all of those allegations work cept it as true based on the rules of the california supreme court follows so it would have made absolutely no difference for me to do simply repeat those allegations and a declaration of some kind of course at an evidentiary hearing he can be subjected to cross examination and we can have his testimony in court one other point respondent said that on the plea for main admitted that he had discussed more serious charges that's in paragraph nine he did not actually admit that he discussed more serious charges he said that he had discussed with his attorney the possibility that he could be convicted on of other or more serious charges and those of course are referring to the lesser charges under two eighty eight a where he had eleven counts ok