record and we know what the law is the law says that a hearing shall be held in a twenty to fifty five case where there is a material is spewed unless it is patently clear from the record that the petitioner could not prevail at a hearing and in order for the petitioner to get a hearing and to not get a hearing the record must conclusively show that the petitioner is entitled to no relief so it's a relatively low burden in fact the petitioner need only make a plausible claim for relief she need not establish that she necessarily would prevail to get a hearing here there was a material dispute of fact as we set out in our briefs so in light of the material factual dispute it was trial counsel did or did not meet with the only defense witness he put on the stand focusing specifically on the issue of whether or what the advice was about the sale testifying petition swore in her affidavit that she and counsel had virtually no conversations about that that he failed to prepare her or advise her about it is it is the attorney that she wanted after he left he specifically wanted him to represent well your honor  yes but only after learning a week before the trial that that attorney had been fired by the firm that he worked for had been replaced by two lawyers that she'd never met had never talked to says she's reached out though to keep him a she did but only only by default in the sense that he was the only person a lawyer she'd ever spoken to he was an associate at the law for me never tried a case and cheap but he was the only one she'd spoken to he's the only one who filed a notice of appearance or asked for an adjournment she did she did is all in a hurry is whether that whether being in a hurry is appropriate or not is has of course just a factual context of the fact that you know that we're not are the fact or the fact that he had never tried a case you know we're not of in his affidavit affirmed that there were lots of conversations about her testifying that he advised her to testify during the trial and that she told him that she would not testify categorically but that statement by trial counsel w undermined if not completely contradicted by the trial record because at the trial the trial counsel asked specifically for time to quote go over her testimony with mr go obviously that would have been  unnecessary if she if if he had had conversations with her where she said categorically i'm not testifying i want to testify why would he ask for more time to test to discuss her testimony also would have been unnecessary for the court for him to tell the court that she wasn't defense because the prior two witnesses had been favorable for the defense if his statement in his affidavit was correct then then he would have simply said she's sick she's decided not to testify and that's the end of it but that obviously was undermined by the record so unlike the cases that are cited by the government where a defendant makes sort of a generic claim that the lawyer told you no ordered or told me not to testify here we've got very specific unusual facts and we have a situation which essentially is the opposite of those cases where trial counsels affidavit is is undermined and contradict by the record not petitioners and that creates clearly creates a material issue of fact and again the bar is very low for a hearing to be held in a hearing should have been held and in light of that i keep coming back to the fact that the district court who turned down the request for  trial so she's in no better position to to adjudicate you know there was something because she was the one that will hear this and to have this attorney we appointed to her or reassigned to her well she knew there was a problem in the fact that  girl's lawyers abandoned her essentially a week before the trial but but she certainly did not know what kind of conversations if any were had between counsel and and client about the very important issue here about testifying and the reason this is important is because if you stand up briefs the only viable defense in this case was that the defendant providing her insight about why she acted the way she did the facts were clear she earned millions of dollars over a period of live and live lavishly off of those earnings using her as a cash cow where she where'd she live modestly all those years why would she do that that's completely against her interest and so she needed to explain that to the jury otherwise the jury was going to simply be presented with the facts she earned money she didn't pay taxes that's the end of the case was that her decision not to testify in that what you say i'm saying that she that the counsel to failure was his failure to explore poor and advise his client that that under the circumstances it was extremely important for her to testify that he was able to get for that you're this guy was controlling i mean you got it into your life right he got into the wife partially you're saying that it was a violation of local standards for to advise a woman who is going to testify in front of a jury which of the five million dollars was a cardiologist and that she was under the but why isn't that a problem because well because that conversation took place five minutes before the defendant would have had to testify if she was going to testify and that was the first time that there was a substantive conversation about that that is we cannot we have to expect more of criminal defense lawyers then to say then to say five minutes before testimony listen listen it's going well you shouldn't testify t the counsel she had requested it was her really her fourth counsel she was assigned a federal defender she terminated the federal defender after a few months she was then assigned a c j attorney to work with that attorney she terminated that attorney she then hired  two letters to the court i want you to make efforts to have question represent me at trial and she said specifically i want to represent me because we communicate well and he doesn't force me into decisions and so those pretrial letters squarely contradict and that's a fair point but that would all that was also before a judge for sitting when she was deciding the twenty to fifty five was a post trial letter that the defendant had written after a trial after conviction when she wrote a letter to the court and explicitly said twice  that letter i didn't testify at trial because my co defendants in the old cheney wouldn't allow me to and i didn't have the courage to go against him so in that post trial letter she against the important piece not so much what the attorney said but that not so much what she said about for at the front of it but what she said after yes i would agree with that and when we look at the record that judge forced dean had in front of her and deciding under this court's precedents and police and others to decide this twenty two fifty five without a full blown evidentiary hearing it's these two letters are these three letters from the defendant that i've discussed if this detailed affidavit from the trial counts or questionnaire and it's also twenty eight pages of e mails that according to included her own experience presiding over this trial observing the defendant and the most critical aspect of that experience was mid trial in a colloquy between the judge and the defendant the defendant siegel told her this blatant lie about herself and concocted this story that i only got a cell phone for the first time last night which was clearly shown to be on the high end the defense counsel admitted as much and so when you have a twenty two fifty five petition that depends in its entirety on the credibility of the petitioner siegel's claims and her and her self serving affidavit judge first thing was in an excellent position to determine to make a credibility determination the of all of the revenues coming in to her and the fact she didn't pay taxes secondly on the testimony that apparently she would have offered would have been cumulative of the testimony that both ickes had already put before the jury about her being under the spell of of mr jaitley and of her you know being frightened of him but cetera so there's no indication from the petition that anything new would have come before the jury what is new that would have come before the jury would have been her credibility and there's simply no reasonable probability that a jury would have found her credible bear in mind that in the government's case f b i agent medical seventeen years experience with the f that's dr siegel that testimony came in in the government's case it was not challenged on cross examination so this was a witness with really unique credibility problems and all add to that what you understand her testimony would have been had she reasonable probability that that a jury would have found her her credible and that it's a credibility it doesn't really fit as a credibility analysis anyway i'm not arguing with you these are all softballs but i'm just trying to it's sort of similar to a celebrity having a business manager or somebody who they essentially give over all of their all of their financial business and they rely on that those people to to handle them mystical would have been the only person who was able to testify fact that i understood they were paying my taxes honestly i don't know if that's in the affidavit at the i didn't see it so i was kind of wondering if she said that as if she just said that they were paying bills i mean i don't know and even know how that's a defense  taxes it's not it's not it's part of the agreement that they were taking care of all financial in fact she had never taking care of her own financial before them her husband took care of everything so she didn't she never paid bills she never paid attention to any of that it was always kind of like the you know  but but i don't know that it's a defense that could well i think it is a defense if in terms of her intent to to enter a conspiracy to the government taxes if she believes that those people are paying her taxes and that's genuine and that's your belief by the jury let me just say one more thing  but that standard that she applied or was seemingly applied seen was higher than she should have finally in terms of the expanded record that counts over further to the court's decision below make clear that she didn't consider that so