it please the court mark st ask me from the office of the federal public defender for petitioner appellant chris george george alleged in state court and prove that a federal hearing that but forced counsel's ineffective assistance he would have accepted a three year may i ask you st do you think that the magistrate judge was correct in finding that the re litigation bar of twenty to fifty four d had been overcome by the allegations in georgia's superior court habe use a petition which was identical to the one he used in the court of appeal and supreme court when the only are sufficient to establish in effect of assistance of counsel yes your honor i agree that the three state petitions as i read it mr george says i was mis advised that's a conclusion he doesn't tell us how he was mis advised or why he was  he smith's information showing how much evidence or is against in the case how difficult the case was and so when you look at it in that context the advice to not take the deal to quote not mess up your life do not take this so george had no reasonable expectation of privacy in the home so that's an instance of the facts against him also in ten holster the supreme court said that the california supreme court reviews the record of trial to assess the merits the real basis in the district court after finding the real a geisha did not apply really but comes under two issues that they have it didn't have any expert very good reasons why he should go to the should not go to trial because he knew that the victim would show up to three days before trial and the offer was still open and that's all developed it at the district court level but none of that is alleged in the state court petition right correct but you know that's right where you have no acts or omissions which make plausible the conclusory allegation that the mis advice was the cause of his not taking the plea that's my problem and i don't know frankly i don't see why the government agreed that litigation bar was no longer there and perhaps i'll ask you that question later on george alleged in his state petitions that quote a claim of deficient performance depends on whether the advice and other communications regarding the offered plea bargain were within the range of competence demanded of attorneys in the criminal case excerpts at five hundred and ninety five dollars he also lets to quote counsel should inform the defendant of the prosecution defense evidence and assess its value to trial unquote that's  state court petition he's an incarcerated pro se petitioner the record shows he wrote that that mr babbitt twice to ask him to submit a declaration and mr babbitt did not respond to him even put a note in this file saying he's asking me for a declaration and he didn't give a declaration at all until that magistrate judge recommended relief and then the attorney general went and talked i think i've exhausted my questions i would like to move to the district court's order this court can grant relief despite the district court's order and the johnson versus finn case and that's because the order does not mention or refute the credibility determinations there were different that he rejected the credibility determinations and the magistrate judge without holding a hearing that the result is to remain and i don't believe that that alternative ruling that relief is required because dad mr davidge failed to give his independent recommendation which says testimony at the hearing that's that's untouched and that rejected by judge credited mr george over mr davidge on whether mr davidge recommended denying the deal i see that i'm running out of time i'd like to lester's for the questions reserve the balance of my time  incorrect assumption was this that the district court had affirmatively found when judge klausner had affirmatively found that the realization bar had been met there is nothing actually in the district court's order that suggests as much that actually says that there is no order suggesting that the district court adopted any part of the report recommendation from the magistrate judge and i proceeded on that assumption thinking that the district court had ruled on that and i appreciate the court pointing out or asking the parties to be prepared to address the standard of review and what standards should be what should be the a political standard here appreciate that because it gave me pause to look more closely at the record and at the at the briefing and i i apologize for submitting a brief that was less than helpful on that question to the court so in specific answer to your question judge the real litigation bar here has not been overcome because there was an absence of evidence as to what the rationale for javits performance was not in the absence of evidence only maps and with allegation absolutely and that is why the superior court said we have no crime a facia case here and so there's and and that was basically saying you can come back and you can try again with more evidence and properly allege this claim of ineffective assistance of counsel so the real litigation bar itself had not been overcome at all in fact california law talking about just absence of evidence of this setting aside a lack of allegations and and the insufficiency of allegations and still under california law which is consistent with united states supreme court law in the it is difficult to overcome the presumption that counsels actions are reasonable in the absence of evidence to the contrary and on this record on what what george had submitted time as the record for the stake for the state court correct on the record that was before the state court george had submitted nothing but supported a conclusion that davidge had given bad advice or had rendered some some sort of ineffectiveness during that representation in the plea negotiations and because there was th because the because george had been unable to show that that decision was contrary to or unreasonable application of controlling united states supreme court precedent the radiation bar has not been met now assuming for a moment that the relation bar had been overcome even on the record as developed in the district court the record does not support george's claim of ineffective assistance of counsel what the magistrate judge here did was ultimately a post hoc evaluation which strickland counsels against a post hoc evaluation of counsel's conduct you have to look at what counsel did at the time that the relevant time period and what counsel has is a council didn't really advise him as to that i think the counsel did counsel explained to him look these are your options you can take this plea and you have sex offender registration you can go to trial you might lose you might get twenty years in so you have a client who does not want to plead with the lifetime mandatory sex registration and in the evidence the record developed in the magistrate court there was a lot of evidence that was presented about how dad to try desperately to negotiate a plea with the prosecution that would open it this this requirement but to no avail so down of it may well have said to he may well have said yeah when we can't take the steel we're going to go to trial which george may have interpreted or heard as we're not taking the deal you need to reject the deal so on the one hand you have george saying to his to his attorney i don't want to register do anything you can for me i don't want to register and you have a response it's perfectly reasonable and says i can't get that kind of deal you'll have to take then you'll have to go to trial because that's our only option based on the content the parameters that you have set now and that's how you reconcile the have this evidence even george conceded in testimony that he didn't want mandatory sex registration now he soft pedaled that by then going on to say but had i known that i was going to serve twenty years in prison i would have accepted it but he did knew the seriousness and the gravity of what he was facing and he decided to gamble and ultimately last there was nothing unreasonable about what this attorney did there was nothing professionally and reasonable about what this attorney did and that's that's the problem in this case i say what i find troubling and we just saw on the deficiency when they question when dabba the sas did you give them your independent judgment on whether you thought it was a plea deal worth accepting or rejecting he said no and isn't that supposed to be doing that there is a visceral there i agree with judge wardlaw there is a visceral reaction to that that maybe that this attorney could have done more or should have done more but this attorney did lay out these are this is the strength of the case these are the weaknesses of the case this is what happens if a this is what happens this week and he laid it out for this client who then makes a choice in an informed choice based on that counsel now could counsel have done more certainly in the last case we heard there's always going to be something more that can be done but that's not the question the question i see claim is was it professionally deficient was there a professional obligation to do the extra more or is professionally reasonable to lay out all the options and let the defiant the the client this herman for themselves which options to go with and on this record there is simply no no showing of deficient performance professionally and reasonable performance and for that reason judge  case we cited in our letter a motos seems to say you can't conceive to do it that's correct yeah it's not just our largest right it's not it's a statutory requirement it has to the really negation bar must be overcome even at this level and it has not been george did in fact allege and state court that mr devil told him quote i don't want you to mess up your life like both of your co defendants therefore we will not take the deal i can beat the charges excerpts five hundred and eighty five excerpt five hundred and ninety seven he repeats the da advised petitioner reject the plea deal by saying i could beat the charges it's important to remember that the california state habeas courts say that they assume that facts are true they reviewed the entire record which here includes the court of appeal opinion which lays out this strong case against the petitioner his twenty one year sentence he does not supposed to have to prove his case at the allegation stage in nunez versus miller the case we cite is strong on that  if this court is inclined to agree with respondent about classroom rejecting the magistrates credibility and fact findings under johnson the case is to be returned to the district court to hold its own hearing or from i apologize judge were law i was quoting from the california supreme court petition which has the same allegations as a superior court let of let me give you the parallel cites for the superior court the st one i gave you was