made please the court in a sworn statement in support of her twenty two fifty five petition barbara carnahan says she asked her lawyer to appeal for her and he refused to do it in another sworn statement presented by the government her lawyer says she never asked him to presented with those two conflicting statements the judge nonetheless refused to have a hearing instead crediting the lawyer over ms carnahan and denying her relief because to let me ask you about that was  any relevant evidence before the court other than the two of us well the government argues that there was i don't think so so i was i was kind of about to get their fight ok so the government that the general rule of course is if that's the relevant evidence then you get a hearing the government tries to carve out an exception in this case because it says that there was more here for the first instance that the government suggests is that w carnahan said that that she when the judge said i could file an appeal i said that's what i want to do is confirm is contradicted by the fact that she didn't say that in open court well of course this court reviews pro se pleading what ms carnahan was proceeding on in district court liberally and if you read that sentence in her statement with the two sentences afterwards it's clear that she's referring not necessarily to something she said in open court but to a conversation she had with her lawyer because she says immediately afterwards i said that's what i wanted to do he my lawyer told me miss carnahan go do your ten years you got a good deal good bye be happy so i think in context that it's certainly not the case that she said specifically i said this in open court and that and the record doesn't reflect that the second site the second instance that the government sites is the before she was sentenced she said to the court i'm sorry and i'm ready to s force she hadn't been sentenced yet she didn't have a right to appeal at that point she had ten days after she was sentenced to decide whether she wanted to appeal so again that doesn't contradict her statement once i was sentenced i told my lawyer i wanted to appeal and she said that by way of allocution presumably in an attempt to get a lesser sentence so it that certainly isn't contradictory either so those are the main things that the government suggests in there or in the record that might  play on might allow the judge to make this decision then that then the government suggests that miss carnahan's statement was less specific than that of the lawyer and again you have to remiss carnahan this statement liberally but she said quite specifically i told my lawyer that's what i want to do here is what he said to me the lawyer just said she agreed that she didn't want to appeal and she never asked me to appeal after that i don't think there's really any difference there in the specificity of the two of the two affidavits and you know this is a situation where the where the conflict just can't be resolved on the papers i notice that the government cited sanders and it looks like i didn't discuss it in my repl let me just say for a minute that sanders of course doesn't involve the question of whether it lawyer asked to was asked to appeal it concerns whether sanders would have pled guilty if he was properly advised and the court noted that if he'd been properly advised he'd have been told he'd get more time than he says his lawyer told to be would get and said well we think based on that that there's no reason to think he would have pled guilty it's really kind of apples and oranges i suppose it does stand for the principle that sometimes there's enough evidence in the record to preclude a hearing but here we basically what we have is mrs carnahan saying this is what i said the lawyer saying that's not what you said and the judge just needs to look both of them in the eye and then make a decision on credibility and i think misconduct anderson titles of that so i'd ask this court to remain and order that the judge conduct a hearing attorney should have appealed and he requested him to appeal and in fact the attorney didn't appeal in fact the court has carved out an area where the district court can exercise its discretion to determine whether the movings petition is papers themselves or to be inherently incredible and were in fact refuted by the record and i'll note for the court that the record was developed in front of the same judge who heard the movements twenty to fifty five so this is the same judge who saw her at the change of plea hearing and the same judge that saw her at the sentencing and i think that's important for a couple of reasons firstly there were two statements that the mainstream of the that th e movement has claimed to have made i think needs to be considered fully in context because what the what the movement actually said was when the judge said i could file an appeal i said that's what i wanted to do and i think that path of a person a rule where everybody files a twenty to fifty five motion and says that their attorney didn't appeal and they were requested to automatically gets an evidentiary hearing and gets in front of a district court judge what about opposing counsel's argument that there were conversations off the road so that the record itself doesn't necessarily refute the affidavit because it may not tell the full story that could be your honor i don't think that's the way i read it i don't think that's the most plausible way to read that but it's not the only thing she said that's affirmatively refuted by the record she also says that her attorney hard to imagine struble she says that her attorney told her not to produce some disavowal pornography that she found to the to the officials and in fact the sensing transcript both the her attorney at the time and the attorney for the government go on at length about the fact that she did turn those those disks over as a reason for the court to accept the a c one eleven c one c plea agreement for the amount of time in fact it was less than it was one third of the smallest range of the guidelines the guidelines in this case would have been three hundred sixty to life and she pl guilty to a binding plague remained for ten years that's been the basis for getting the district court to accept that by both parties was her assistance and in providing those documents to the to the court so or to the government so i would say that this scenario is this this of course explaining to the movement you have the it you may not have the if you reserve the right to appeal you have that right you can  to her and then immediately after that if it really took place off the record if it took place over it as a side bar something it's strange that the immediate next thing out of her attorney's mouth is thank you your are and the next thing that appears on the record is her saying thank you if if in fact at that point she told him that he she wanted him to appeal it's strange that she turned around and told the court immediately thereafter thank you ron or instead of saying well wait my attorney when i ask him to do something that he didn't that you know for those reasons i think  tell their client get up tell the judge you're sorry tell him you're ready to accept the consequences tell him you're you're here you're going to be a better person and and you know those are platitudes that every every attorney tells their client they should say an a that deals with the news of all cases and my response to that would be well that's true but but to go down that road is to take us into a place where every prisoner who makes a claim even even claims like this one where the where the claims are just not consistent with the record that this it is going to be entitled to an evidentiary hearing and is going to get to see in a seat in front of a district judge and i think that the district this record recognized that problem didn't abuse its discretion f and that the judge knowles are not true can they then discount the the duelling nature of this one statement well first of all i'm not quite sure i mean the you know the  say i wasn't informed about the mandatory minimum the court record says it did she of course didn't have the court record in front of her at the time so yeah the judge you know said that's certainly not what happened if that's what she remembers that's what she remembers  doesn't make her a liar ok so the question here is when she said i asked my lawyer to appeal and he didn't issue a liar and i think she's entitled to a hearing on that and i don't think that the fact that there may have been other things she said you know again based on her memory means that she's a liar about that so so so you know so i really don't think that that that that you know is is enough to to to  make that the general rule about about affidavits go away i mean there are lots of cases that that don't get hearings and that will continue not to get hearings if miss carnahan gets one it's not i don't think i don't think we really are heading down didn't bring up that sentencing a mitigating factor of her help in ending child pornography activity but the transcript clearly shows that the attorney brought that up and it was discussed in open court can you use it where something else again there's something in the in the statement that says clearly wrong well really and correct the court knows it's incorrect like that can that be the factor that tips tips the balance well i suppose it could i'm really not sure that's what happened looking at her looking at her what happened in this case was that the the she got ten years in that that the the u s attorney said well i considered requesting a five k because of our cooperation and decided not to do it so when she says i received no credit for this cooperation that's actually not incorrect i mean in fact he said i'm not going to make a cooperation motion she also says that her lawyer told her to throw those disks away and we don't know whether that's true or not but you're right he did mention in at sentencing but essentially that the prosecutor said you know yeah that happened but i'm not going to give her credit for it so when she says i didn't get credit for it you know again she's not that that's incorrect but i i don't i think that the issue you know the issue here has to do with the specific exchange about the right to appeal and and the supreme court is very recently told us that the right to appeal is realm porton in garza versus idaho that even if you have an appeal waiver like miss carnahan did if counsel doesn't appeal when he when he's asked to do so then there's a presumption of prejudice so i think that conflict about that is sufficient to have a hearing about that you know you judge could say this is the only issue i'm having a hearing about it's not going to be a real complicated hearing but i think here that's not refuted by the record in this carnahan's entitled to a hearing so we've asked the court to reverse its thank you thank you very much thank you for your argument cases submitted