good morning it may please the court i'm hogging as you know from the federal defender program in rockford illinois this case involves the question of defense counsel obligation to discuss an appeal with the client  free question to do so file a notice of appeal proximately loven months after mr blake was sentenced he filed a twenty to fifty five motion indicating among other grounds that he had requested a notice of appeal be filed in his case and i obviously none had been filed he had other grounds that he alleged and this twenty to fifty five motion requested at that hearing which was held in december two thousand and fourteen two witnesses testified i miss lee mr blake testified he requested he testified he requested and three occasions following his sentencing as a career offender and and as and it is imposition of a sense of two hundred sixteen months he indicated he requested to his counsel in the courtroom that he wanted a notice of appeal filed he testified as to two subsequent meetings that were held in the winnebago county jail where he is asked for a notice of appeal so his private has privately retained counsel testified on behalf of the government and in his testimony he acknowledged only the one conversation that occurred in the well of the court shortly after after the imposition of sentence he did not recall visited mr blake in the winnebago county jail after at the conclusion of the hearing the trial court the district court found against mr blake and we are asserting that that finding was clearly erroneous we assert that on several grounds your honour's first of all the district court we believe relied on matters outside of the record to resolve an issue of credibility and that resolution was central to this case i acknowledge this is a credibility case he acknowledged he the district cour relied on what had not been presented in evidence the experience of of counsel hell long as judge reinard been presiding over criminal cases in rockford as a federal judge since about one nine hundred ninety two your honor as a state court judge since one thousand nine hundred six pretty familiar with the bar i assume is your honor is that something he's not allowed to consider where your hon first experience levels i don't know that he when there's nothing in the record regarding someone's experience nothing absolutely nothing the government when they put m jeffs work on the stand did not ask him how long he's been a lawyer where he is practice what kind of practice he's had none of that information is available so it's not like the conversation where mr blake he said whispered in his ear he wanted to appeal mr jazz we accepted that momentary conversation in the well of the court room after since i'd been imposed oh after sent that's your  he was sad that mr blake said he was satisfied with the sentence he was above the guidelines it was it was in the middle of the guideline range or i know however that there was a sentence imposed on a counts that exceeded the statutory maximum that was never brought to discussion about an appeal about the merits of appeal absolutely not what about to what about the defendant's family members dave there's some talk about him contacting him there was testimony by mr blake that he had had his family members contacts mr jazz with mr jazz work denied that and no letters of family members testify or did they did  blake said and what mr jasper said and i do realize it's a credibility issue however when we look at the record we look at the steps that were not taken by counsel the failure to  our career staff are armed career criminal status which required a mandatory minimum of fifteen years which was only corrected the day before sentencing by the probation officer when she realized that the qualifying crime was not a qualifying crime the imposition of a sentence as though he were an armed career criminal and i don't know to the failure to address that and any subsequent proceedings when i see it when the judge sentenced him though by the use of evidence outside of outside of the record but what do you mean while the experience of of a trial counsel of his counsel know what reason i raise the the family members there somebody else you could run it could have been brought in and testified which probably been the response i think if they were said yeah we we well yes but there are if you're counting on other people other people might be subject to rules of impeachment they might there are many really reasons why of witnesses not morning your honour's me and please the court tallia boogy on behalf of the government the district court did not commit clear error in crediting mr jazz mixed testimony over the defendant's testimony now defense counsel has argued that the court erred and relying on mr jazz makes experience the court is mention of mr jessop's experience was limited to the fact that he was an experienced attorney this is something that could have been judicially noticed it's not clear error for the court to make a comment about the experience of an attorney that has appeared before him multiple times that is not clear error and the district court considered that factor in addition to several other factors the defendant's motivation to lie the defendant's personal interest in the outcome of the defendant's previous felony convictions the fact that mr jazz week's testimony about the defendant satisfaction with the sentence was logical and the fact that the defendant had made several false statements in his twenty two fifty five motion to destroy more united or personal interest in the at the district court found that the defendant had more of an interest in his testimony because he wanted to get the case before the appellate court and he therefore had a motivation to lie nobody he also has a motivation to ticket to have an appeal right them he also was able to observe their demeanor look their dad demeanor business demeanor cues that's completely discredited there's a whole scientific literature which says that the important thing squirm with these speak slowly fast loud soft people that that that appears to be unrelated to whether people are telling the truth or lie you mean i think the issued in that case is effective the district court was there while the testimony was being given and that is it's easier for the district court to evaluate that testimony than it is to evaluate testimony and now i'm old record know what this what this what the studies show is that it is it is it is much easier to determine truth or falsity from reading the transcript than it is from from looking and listening to the person because when you're looking listening you're distracted what the person looks like mannerisms squirmy not squirming confidence and s your american interviews i mean there's a whole literature on interviews and it says you have to be very careful about making a determination hire a person what so on the basis of an interview because with an interview you are distracted by all sorts of personal characteristics may be totally irrelevant to the person's ability and therefore it's better to rely on recommendations from a person who's really worked with or faster toward a person than it is from a ten or twenty minute interview and i think your honor brings up a good point in that example and that the letters you're talking about from other people that's corroboration and that's another thing that was absent here the defendant did not have corroboration of his testimony he said that he had talked to family members of one of which he was in the courtroom many a talk to friends neither of those persons were called he said he made calls there's no record of those calls made that the district court found that mr jazz week's testimony was more credible than the defendants and that decision was not clear unless the court has further questions judge the trial court even indicated that he thought he was upset and then corrected himself and and in that in that transcript the trial court used him as you said his knowledge of experience your honor as proof of how mr jazz would have acted in a certain way without runs contrary to both rule six zero eight and zero four zero four of the federal rules of evidence judicial notice is out character reputation is out for use in this as the trial judge the judge did in this case cooperation mr blake is not an attorney mr jazz work yes he was asked do you have any letters confirming a conversation saying you don't want to appeal your two hundred sixteen months that is do you have any time entries do you have any logs or do you have a statement signed by mr blake saying i don't want to appeal this two hundred sixteen month sentence the answer was no