petitioner is untitled in this case for relief under twenty eight u s c twenty two fifty five for two reasons first the sentence was imposed in violation of the constitution and second  courts consistently held the right includes the right to make a defense and that is solely within the purview of the defendant of course with the assistance of an effective counsel in this case one reasonable as to create a strict one problem but he actually agreed he said he thought that the advice was essentially correct but so how do we deal with that yes i think that is from just based on the record in the affidavit that is  own as conclusion if you look at what the facts and what the district court judge relied on he completely ignored the defense's argument which was that  initially agreed to participate in the conspiracy but then had a change of heart he change his mind he communicated that directly to the coconspirators and let me let me ask you about that if he did that  his withdrawal he was asked to get rid of the minivan for whatever reason and there are facts that would support that he actually did not have any weapon in his car he was he did not go directly to the under the very specific facts known to the defendant and his counsel his counsel stated that and read and hindsight his advice was wrong and he based and that's what he was going to testify he there was also corroboration in the record that he made arrangements to go back home to take his son to work there's testimony from his son and wife about that significant prejudice because not only he was unable to perform before the jury a credible defense of vicarious entrapment which was part of the defense but there isn't rule which basically said prior conviction being vacated is not a fact and defendant was not in a position to come back and i addressed that under attorney two fifty five section f it it was some the docket was misplaced in the basement of the it's boston court this is a conviction that goes back to nineteen seventy seven and the defendant being custody did what he could demonstrate it the submission of that affidavit is not particularly significant it's not actually particularly relevant to the ineffective assistance inquiry and that is because strickland establishes an objective standard by which to measure coun performance my second point is that as applied to this case counsel's advice not to testify in the trial was reasonable advice and in fact it was good advice under the facts in this case we laid out at length in our brief and  now turning very quickly to the time in question i'd like to just make a couple of points the first is that johnson really establishes the contours for analyzing the twenty two fifty five an issue that's currently before this court and that's because johnson in johnson the court had an array of possible dates before it at which believed the due diligence it which it considered possible dates for triggering the due diligence requirement in section twenty two fifty five to four and it selected the date because it believed by that date the significance of an action on the part of the defendant would be clear and so between the first date of started taking actions by that and i put the quickly address petitioner's what i consider is fallback argument on this issue which is that he was not obligated to begin exercising d diligence under some years later in two thousand and five which is when the court issued its opinion in johnson and the linchpin the promise for that theory is that before two thousand and five this court had a precedent bracket under which a state victor of a prior conviction was not deemed to be a new fact within the meaning of twenty two fifty five to four and he believes as a result of prior to two thousand and five he could have included the state picketers a fact in his original twenty to fifty five motion and how do you done so he would have been tonally under twenty two fifty five f one and in fact as i read one of his affidavits he appears to have understood at the time in two thousand and two there's a discussion with his lawyer in which they discussed whether or not to seek vicar of the nine hundred seventy seven conviction and the decision not to seek that peter is made but not premised on anything dealing with bracket itself brother for some other reason and answer pointed out even if you were to accept that the two thousand and five da  i think what your honour's capturing is that timing rules that are contained in statutes including in twenty to fifty five can sometimes feel technical but the court's precedents indicate that congress established those technical rules in order to disappoint what could otherwise be a very unruly process and just to take this case as an example we're talking about a nine hundred seventy seven massachusetts conviction that was vacated decades later and as far as we can tell from the record they could for no reason other than the state didn't show up to defend the conviction so sometimes the state is not in a position to defend and doesn't have an interest in defending a prior conviction because the court said in johnson the federal government has a federal interest in federal sentencing enhancements and therefore allowing petitioner to evade these requirements that are set forth in twenty two fifty five would really tend to undermine that type rules that congress is set up  twenty to fifty five motions that are filed and there needs to be some sort of disciplined process by which to evaluate them and so you're quite right that the rule can seem a little bit technical but it is the rule that congress established and i just provided some of the reasons for why congress may have intended to establish that  that is the case we recognize that under twenty two fifty five four there will be some class of cases in which a defendant has waited a long time and is nevertheless successfully able to  obtain that the state court and can come within the terms twenty two fifty five four and use that stupid or what we're asking before the court is simply that that class of cases not expanded beyond the boundaries that congress the precise page of the appendix record is cited in our brief and as far as we can tell it's also discussed in the district court opinion as far as we can tell the state to intelligent waiver or right for the plea i would say state that having done a number of these motions there is always a hearing regularity whether the third to friend or not usually they're done in the presence of a district attorney who may or may not take a position but there has to be a factual finding by the court  matter when you look at the argument and the context of a right to make a defense and i think that's the central problem with the way the district court resolved the issue of ineffective assistance of counsel the right to make it a friend the analysis should be not whether it was a song tactical decision but did the aware provide sufficient