he's number one six eight two four six eight alfred sheffield versus sherry byrne warden arguments not to exceed fifteen ministers mr brag good morning your honors as director of the appellate litigation clinic at the university of virginia school of law i'd like to introduce to the court this morning to third year law student evan ward and lauren howard to satisfy the requirements for practice before this court and to have our client's permission to organise appeal this morning you good morning your honors may please the court my name is evan ward and i'm counsel for the appellant alfred sheffield with the court's permission i would like to reserve four minutes for rebuttal your honour's this case is about due process and mr sheffield's right once convicted to be sentenced on the basis of information that accurately reflects his criminal record today we ask this court to reverse the district court's denial of mr sheffield's habeas petition with respect to a sentencing claim we do so  because we believe that court unreasonably dismissed the merits of mr sheffield sensing claim after mr sheffield has brought forward new evidence showing that the state relied on accurate information when it synced him as a fourth felony offender i would like to first her turn to the district court's mistake the district court in denying mr sheffield's petition fails to engage the substance of the new evidence he's brought forward instead their dismissal is based on a misreading of the record below in which they repeat the mathematical error made by the state court the district court leans heavily on the sentencing hearing transcripts which can be found at page id six twenty in the record the district court quotes the trial court as finding at least four qualifying offenses on mr sheffield's record but a closer reading reveals that it was only after the prosecution team introduced the habitual fourth offender notice does the sentencing judge find nothing to indicate he hasn't been charged with those offens there's something like that in the record yes your honor defense counsel tells the sentencing judge that i have gone over the p s i are in the back the pre sentence report with my client but the habitual fourth notice which contains the will fourth offender designation that was used to enhance mr sheffield sentence apparently was not contained in the p s i i are the judge presiding over the sentencing hearing says quote whoever put those numbers in the record on the range did not include the habitual fourth line just the standard conviction and that's at page id six thirty eight and so they did have a chance to go over the p s a are what if this have bitch will fourth offender form which was based a form that was quickly prosecution team introduces the habitual fourth form in the middle of the sentencing hearing and the record doesn't indicate why but defense counsel does not request additional time mr sheffield as soon as he receives the paperwork after he's been sentenced as soon as he receives the paperwork for his appeal he immediately writes a letter to his appellate counsel raising the issue he says to his initial appellate counsel in june tw i did not advise my travel turning of the errors because i never knew about what convictions i was being charged with for the fourth degree habitual i never had a chance to see the information of a felony until i received a copy from you and so while it didn't happen at the sentencing hearing as soon as mr schaffel becomes aware of it he does attempt to notify the public counsel the district court also relies heavily on the state courts dismissal of mr sheffield's motion for relief which was dismissed on the merits and in that motion the state court dismisses on the grounds that any combination of felonies could serve to designate mr sheffield a fourth a vigil offender but your honour's argument is that this is not a combination issue this is accounting issue in our contention is the habitual fourth notice contains three prior felonies mr sheffield has challenge the fellow several of the felonies on that form and if only even if only one prior felony is disqualified we believe he merits re syncing as a third felony offender at least finally the district court concludes its dismissal by saying that even if mr sheffield is right and even if the evidence shows what he says it  shows his appeal still has no merit and we simply don't believe the record supports this conclusion no one up to this point has contested the evidence that mr sheffield has brought forward no one has said that there's anything wrong with this exhibit or that this exhibit does not show what he says it shows so far most of the arguments have concerned procedural issues the state's brief below is focused almost entirely on procedural issues but no one not even the state has said that these exhibits are in any way flawed or don't show it mr sheffield argues that the show has a copy of the pre show report in the record and was shown to the michigan gorge and  district court here there is definitely a copy of the fourth a bitch will form in the record it's exhibit a at page id start at the exhibit started page eighty eight fifty two and you'll see the three felonies on that on that  sheet the district court based its decision on the record not the p s r which is not in the record and so presumably the district court did get to look at this form but that's what it all about that's not in the re you're saying it's not in the record or it is the pre sentence report is not in the record this yes sir your honor that report which defense counsel and mr sheffield would have had the opportunity to look at before sentencing is not in the record and the district court's decision was not based on the p s r it was based on its reading of this sentencing hearing transcript which we argue is inconclusive that the defendant had no opportunity to an effort to correct that information and get that correct information before the trial court the court argument is that he would not have had any opportunity to correct it before he was given his sentence because he hadn't been able to look at it yet as soon as he sees the fourth a bitch will which is to be clear a separate document from the p s i a are not included in the p s i i are corny according to the lower court as soon as he sees that his sentence has been enhanced as a  you'll see in the record below those letters which are exhibits f which i quoted earlier counsel attempts to raise this issue earch excuse me mr sheffield attempts to raise this issue with appellate counsel multiple times his initial appellate counsel and his succeeding appellate counsel the issue was dropped and the record doesn't indicate why but his initial state appeal contains only one grounds insufficient evidence to convict he got topamax level would have been multiplied by only seventy five percent so that would have been a max of fifty six years sixty two fifty six your honor as a fourth felony offender the maximum sentence he could have gotten was seventy five years he was actually sentenced a max of sixty as you said duper ours he admitted to do briard right if he was recent it's as a second felony offender if you were able to disqualify two prior felonies the maximum sentence there would be only forty part last i'm bored do you know as a as a fourth felony offender what as a second felony offender the baseline would be the same so it would be i think about twenty two years maximum and so the baseline minimum stays the same as a second felony offender a third felony offender we would note as a fourth felony offender that also includes something different than a third felony offender a mandatory minimum of twenty five years your client had been convicted of at least three clubs on a bench is not correct we believe that that is that the trial court there is basing that off of the same mistake that was made at the sentencing hearing on mr sheffield's motion for relief which is the first time a court considers the exhibits he brings he's brought forward again no real effort is made to actually investigate the factual issues surrounding these exhibits the main one exhibit exhibit b he puts forward showing that he was incarcerated in denver colorado when he was supposed to have committed a concealed carry offense in the state of michigan no court not the state court on the motion for relief or the district court below has challenged that exhibit its veracity or the fact that it shows what he says it shows and so we believe that is something that at the very least warrants a remained for further factual explanation it's not something that would be difficult to clear up and we believe at the very least mr sheffield deserves a remand to explore that issue at the district court level in the have it properly considered by the district court if there are no further questions i think you're an arse good morning me please the court in your questions and brown of them is going to turn in general's office appearing on behalf of wharton cherry part the district court here rejected mr sheffield claim that the sentence was based on constitutionally inaccurate information instead it found no error given the number of prior felony is that mr sheffield did not contest during his sentencing proceeding and the state would ask this court to affirm that decision of the court is certainly aware of the deferential standard of review  point not to be flippant but that's exactly what it is it just doesn't matter and for purposes of being open and honest it appears that that conviction the c c w of two thousand and five that was listed in the habitual notice them the era of baked into the record and that with them accurate and accurate you say doesn't matter because of the end result but in terms of an accurate picture of that then that's criminal history doesn't matter the respectfully i understand what what your honor is saying and that it is inaccurate then the notice is is unfortunate and i agree with your honor with with respect to that however if we also consider the pre sentence investigation report she has an extensive criminal history so if we're looking at the accuracy of his criminal history that accuracy also contains numerous other felonies not excluding the ones that were listed in the notice so if we're looking at the entire picture he has far more far more than three which which is the only ones required for habitual fourth sentencing incident is that you're correct as to what investigation report in michigan those documents are considered confidential so therefore they are not presented in the normal in the normal means and made a part of a public record because they contain confidential information about dates of birth and family member information however that document was before the trial court who sentenced him and before the trial court who analyzed the motion for early from judgment who in this case was actually the same judge well i guess it could be disclosed to a court it's reviewing absolutely it absolutely has it's just not made part of the public record so so that p s i r was was in front of the sentencing court so the and honestly if we if we look at the sentencing transcript the sensing transcript is actually quite clear that multiple times the trial court notes that there were four or more qualifying convictions that's listed at least i counted twice in the sentencing transcript between page id numbers six twenty of the one in time to object that are you are you disagreeing with that or maybe if that's what he said i dispute i dispute that that p s i a are was given to counsel the morning of the pre sentence investigation report was given to him and also just to just for clarity we discussed the going over the complaint which is where the fourth ritual notice and the offenses are listed if the court would note as page i do number six thirty seven defense counsel specifically states and i'm going to quote this judge i have looked over the original both complaint and information for me which is where the the prior felony is are actually listed out which is in the complaint i have seen the prior convictions listed for mr sheffield have reviewed those with him in the past those are his record it appears that that was an error however i believe that the reason that we didn't ultimately during well while that they're just listed in the pre sentence investigation report is done just before sentencing so the pre sentence investigation report listed well that's not the record that was before the district court it was in the court's record because it's again listed then you then you wouldn't object to the court in scoring p prior record variable to which is prior low severity felonies which is what the court did here it says four or more she was scored thirty points for that prior record variable that's where the four or more came from so it's not that there were three listed in that complaint and notice the p s i i are just list all of his prior felony is not just the ones that the court was  t the prosecutor listed in the notice the district court proceedings that this was procedurally defaulted anyway right the district court declined to deal with that quickly what's the basis for your claim that this was just the basis for that claim is that is that the the motion for relief from judgment of the appellate counsel during the direct appeal did not raise this claim therefore mr sheffield has to show good cause and actual prejudice to excuse that default and the problem here is with the actual prejudice because the extensive criminal record that mr sheffield has which we see in the sentencing proceeding does not allow this court to actually find actual prejudice so that would be our argument for the procedural default and i understand that the court below default correct it's a procedural defense which is why the state relied quite heavily on procedural fault the the court obviously has a very strong grasp of the issues but i just wanted to make one more point and that's about townsend versus burke and united states versus tucker those are the cases on which mr sheffield is almost exclusively relying and there is a distinguishing factor with those cases then when compared to the case that we have here in those cases the court specifically during sentencing discusses the prior convictions that were listed out several of them during the sentencing procedure and says because of these i'm giving you however in this case the emphasis that the trial court gave was not on the offenses listed in the habitual notice it was on mr sheffield's criminal record as a whole and the extensive criminal history that was listed in the pre sentence investigation report as well as the trial court's belief that mr sheffield was far more responsible in this crime than he went on during trial so with that being savvy i am more than happy to answer any further questions if not we would ask the court to affirm the district courts in the event of i have a chance to look at this record his counsel here indicates that he did say that when the morning honors i have a few points in rebuttal so the state has just made a major concession in fact that and we believe that in light of that just because this this one  remain should continue serving his forty to sixty year sentence essentially on the basis of procedural default even though there is a major just read from the record as to what offenses were actually considered and as to prejudice i think it's not clear from the record your honour's again because the p s r is not part of the record it's not clear what is in there and whether it matches what was in the habit of fender notice it's worth noting that the sentencing transcript states that counsel or trial counsel states in there that he hat mr sheffield has three or four offenses and then there's some discussion about maybe he has at least for the record the sentencing when it doesn't have the record in front of it and i'm just trying to figure out whose job it is to make sure that the court has what it needs in order to do this well the court apparently thought that the sentencing transcript was sufficient but i don't i mean th what we're asking is whether there's enough question regarding given that he presented that mr sheffield has presented new heavens that hasn't been ruled on as to calling two of his convictions and to dispute whether this have i seen it as i'm sure asking the one that was used here i have not seen you know and actually that's one of the that's one of the things i think that makes this case unique is that these are easily verifiable claims and so this is something that would be easy to determine on a remain and for recent and seeing whether these whether he had the sufficient number of prior convictions and whether that was the whether they have visual offender notice which listed as the state conceded and erroneous offense or iranians prior whether that had an impact on the sentencing proceeding because again if he was he has a due process right to be sentenced based on accurate information and if he was not  sheffield would have had anything to lose by bringing this up you know this isn't something that could be strategically construed one way or another i mean bringing this up only could help him so the really the only plausible reason why he wouldn't have mentioned this is because he didn't brave young people appearing here on the ides of march but we appreciate what you have done and we complement you for it case will be submitted there being no further cases to be argued this morning