i would like to reserve four minutes of my time for battle you ready thank you your honor is the most recent statistics show that ninety seven percent of all federal criminal cases are resolve agreement it is an efficient system of justice but as the supreme court has made clear it is a critical event and requires effective assistance of counsel in order to challenge the effectiveness of counsel for all intents and purposes only avenue for a defendant is a hideous corpus petition petition under twenty two fifty five direct appeal after the predicates is no longer an option or at least an ordinary option a defense attorney who is a defendant whose attorney is in or fact is based on information known to that defendant at the time of the first a first the titian should not have greater rights the defendant who attorney is ineffective is only found out after the defendant has filed a first twenty to fifty five petition that sounds like you want us to ignore id and the time limitations  not at all your honor you better explain in this case mr butchie discovered the information after the first petition and after the ordinary one year but if you still aren't i'm going to than that and you will agree that if it isn't within one year the case is over with your honor the the confirmation came on the twenty ninth of october yes the confirmation yes but the he had information earlier and that in that that his counsel had not engaged in plea bargaining despite his request that counsel do so because counsel thought it was a waste of time your honor my understanding is that that earlier was earlier conversations were still being and that the government  david your honor he says that that's the date that he learned of the come to that he learned that that in fact it happened that's for mr gucci and that was dated the twenty third of october two thousand the following year the interesting thing is that the government has not presented any evidence to the contrary all of mr verges e mails are in fact part of the government system because they're part of the bureau of prisons had there been an e mail that predated that time that would have been evidence that has not been shown to the extent it's a factual issue which it sounds like it might be our position is that the facts that are before the court the records and files are in our favor and that if there are others that should be remanded for hearing for a determination of when in fact there was a determination and if you look at the way he's ok now you can call them the second  and your honor as the courts have indicated it is a term of art and the interesting thing is well we know why the government wants it to be a success of petition because the standard is much higher and it talks about actual innocence if you were to find that when you find hold that to that standard there would be no ability for a defendant who finds out that his counsel was ineffective to to go challenge that if he's already filed a first petition and the information became known after that petition that cannot be consistent with constitutional principles goes last borough heard me laugh floor yes laughter i'm more than one occasion i want you to go and get a plea and the attorney comes back and says the government doesn't want to bargain it's different than laughter but the concerns are the is distinguishable from mr bocce because mr gooch didn't get an offer he didn't get the opportunity to have the offer and when his attorney came back he told them that there wasn't going to be an offer so the laughter factors really are not and i've indicated this in my brief a really a little bit different here because mr good's you want to have the offer but there was no offer that wasn't communicated because he didn't get that opportunity now if you look at life there's a good language that talks about the ordinary the ordinary that that would be consistent with the ordinary way that the case is played out we know that the for in the first circuit and in the district of massachusetts that defendants traditionally get three points for acceptance they don't treat it that way it has to fail because it doesn't fall within the requirements statute sets out as ben has made clear the is no claim of innocence but the that is the only kind of newly discovered evidence claim that  and the question was that it had been communicated then there were four more steps the person still had to show to show that they were prejudiced here you didn't even get that far and we cite two that's a box case from fourth circuit and ramirez from the eighth circuit saying when there's just been preliminary discussions you don't even get in the door of the laughter inquiry because you've even got less to go on to be able to prove that you would have had a beneficial agreement if the attorney had done what he said he should have done question yes once you make that finding but i still maintain that the government should have made should have argued that below but aside from that the notion here is that  would likely have to it's a reasonable probability this is what you would have taken a reasonable plea reasonable pleas are being offered in cases laugh larue the reason why laughter doesn't trigger and it's because there was no it was even were focusing more on was there a plea what we need to focus on is what was counsel doing in this case we know from the government that he didn't approach them for any sort of negotiation this was  case that lent itself to a plea negotiation it was not reasonable and it wasn't strategic not to do that so there's really two levels of an effective and that's the first level is not going to the prosecutor and say what can we prisoners rights yes but not if the facts were not no i don't think congress ever thought that i think what congress thought was that if you had that's known to you when you did make the application sure he would be out no doubt about it but when you do know the facts you should have to come in do it in not only an impossible standard in a way because you're asking to be guilty it is a standard that basically if this is a race the notion of being able to challenge ineffective assistance is that conceptually this is in the same status and proceed procedural posture as the first petition and courts have accepted that because if you look at what the purpose of this is is a police and to effect justice for a person who has had clearly ineffective assistance of counsel not just because he didn't ask for the plea and he came back and told him that the government was not interested and based on that mr good you went to trial and