morning may please the court and it's always smoking on behalf on mcfadden almost eight years after his conviction mr mcfadden discovered evidence suggesting that his attorney failed to communicate a ten year plea offer to him had mr mcmahon been aware of this offer he would be accepted and he would have not been found guilty of nine separate offenses of conviction what was the offer ten years your say ten years to plead guilty to two years of what ten years active incarceration your honor he probably would think that's because the facts of the cases that were presented to them involve claims and interpret it in a manner which you seek to advance you know your honor there's not a single published opinion that the world where everybody has gone any other way on this case language of the statute the language of the statute is is the guiding principle here and it's whether the facts underlying the claim if proven and viewed in the light of the evidence as a whole would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the applicant guilty of the underlying offense and that's crucial here because the new evidence that we've presented what you had except that this agreement then you wouldn't have gotten to fact what you did with regard to nine of the eleven offenses for it you don't have any evidence that the prosecutor sought so you don't have any evidence that the prosecutor ever offered what's in that what you call the new playground or your name is that not correct that is not exactly correct  year offer was made whether the prosecutor drafted it or the defense lawyer it was arguably drafted because it went along with the ten year plan how do we think we like most favorable to your client we're on this court why get off that i know you don't you want to get the question but as for you court has made it clear you've got to have facts that is stablish is the innocence by clear and convincing evidence not key to the court from finding your innocence we're on or think that you must be just using us as a bypass to get this to them so that they can fix this because we can't fix that we're not i don't think the decision in the way we're in a decision that we're seeking i don't think now would actually be inconsistent that you have newly discovered evidence of a potential pleated that you bring at this stage of proceeding and you have to come in under the statute in that second problem a supreme court is limited what we do it's our it's harder argument is in our position is that under the language of the statute this set of circumstances fits squarely within that's not i could be agreeable to you all day long but the supreme court's is only a distinction between the ability to challenge a sentence versus the ability to challenge a conviction and that is what this court has spoken in terms of it's it's not a pre filing authorization motion can only be granted where it impugns the reliability of a conviction itself i understand your point your honor and i think that our our interpretation is a little bit different it's not under this specific search to be because if you follow that you know but i don't know how you get around it well the way we get around it is that where the question is removed from the fact finders consideration entirely and this is a rhetorical question but how could that fact finder find guilt in the answer is the fact finder could not that there is no conceivable way that where the question of guilt is removed from the fact finders considerations that fact finder can find the applicant guilty of the underlying facts why would we look at the fact that a revealed on his record and assess it ourselves whether it's a reasonable fact finder down the road to find him and it was undisclosed all that that doesn't say two years and that's as of ten years active incarceration what do you have to kind of a set is you have to get in virginia under due law that virginia right that's right to serve ten the answer to that specific question your honor but under virginia rule the judge when presented with a plea agreement like this can either reject it except it or defer consideration and the judge actually talk to him talk about fifteen years been turned down and when they had the plea transcript talks about the fifteen years were started on the plea transcript talks about thirteen years being turned down the judge says thirteen years and your clients it thirteen years that's right i wonder if it's actually referring to a two year active incarceration we're honored that raises a point that i think supports our position which is we don't know the facts underlying which would mean that your client s i think support the notion that he could not serve more than ten years but in any event i don't think this specific factual question can be or should be resolved by this panel i think that it raises a lawyer trying to get  out what all of this means but the facts that have been presented thus far support show a sufficient probability of merit which is the standard that this court has adopted to warrant a fuller exploration by the district court and that's that's the basis for this motion that's the relief we see these factual questions are important certainly and i don't mean to discount them but i think that the correct place where they are to be litigated is federal district court if parallel proceeding steak and what that court determined was that it was untimely that it did not it was not filed within the two years under virginia law under the virginia statute of limitations they also went on to opine that finding it was on a motion to dismiss it wasn't after evidence was taken and i think that it was purely dicta it was not necessary to the decision the court rendered its decision on limitations grounds and the court then refers to an affidavit in your decision  record it is your honor and it is located at movements appendix three sixty six and what that court found was principally that it was untimely filed and the court then that but the point where we're making i think it's the important point is that there was the basis for the decision the dismissal was that it was untimely and our view is he didn't even need to file that petition in state court because he does  please the court my name is rosemary born on i would argue first of all that he asked you to apply this the language in twenty to forty four b to be to do something other than actual innocence and i would urge the court although i may not alternately make a difference in this case with what happens if you were to refer this or work to grant pre authorization i would urge the court not to do that for several assistance of counsel claims with regard to failure to present plea bargains are actually just like any other ineffective assistance of counsel claim and so if you were to do this in this case you interpret the language in this case this way it would also apply to a fifth amendment violation which was recently discovered for example where if the client just or the applicant recently found out about a fifth amendment violation and then came forward no reasonable fact finder may have found him guilty because perhaps the statement would have been kept out but it's not evidence of actual innocence so in essence he's actually asking you to crack open the entire universe of ineffective assistance of counsel claims and to look as to what would have kept evidence away from the fact finder and that is why the united states supreme court of counsel claims that if you interpret it as keeping the if you kept the evidence away and i just go back to my example for the fifth amendment if if in fact a statement were kept out and that was recently discovered some evidence was recently discovered that council didn't do something he should have done with regard to a statement then the problem is the fact finder may have not ultimately heard about a confession that was the basis of the conviction and then therefore they would not have found the defendant guilty well that means that we have an endless universe of successive petitions put up potentially in these cases and that is not what the united states supreme court met when in calderon versus thompson when it said only if the prisoner share is among other things that the facts underlying the claim establish his innocence by clear and convincing evidence and the reason for this is because of the finality of judgments and the state is entitled for the interest of full knowledge there will be no room in otherwise he'll be sitting waiting for the electric chair or lethal injection or whatever the cocktail of choice is for the state is going to kill him and say well you know ok can show he's actually innocent and there is an escape hatch he has not demonstrated as he was entitle to counsel under the sixth amendment we don't say people if you if you don't have a lawyer you know well you would be found guilty whether you had a lawyer or not we said no it's something about that is so intrinsic so important to the core of our values as a rule of law country of the rule of law and right that we don't do it you agree that we don't do that do we say you know if you're so guilty and  response to cases involving the actual innocence exception has also talked about the supreme court has talked about the finality of judgment and the state's interest in that so oh i agree with you for just like ours with the i think honor i know you guys but that's the same result isn't well it is the same result but i practiced law for a long time and i you know i did criminal defense work i would think that's just the height of advocating a role in the sixth get into the factual situation in this case he has not met even a prime aphasia burden in this case that because we have to look at the statute again under the prime aphasia burden he has not shown that by clear and convincing evidence that there was a constitutional violation in this case there is one document that he has proffered which is not a plea offer help well the only thing i know is that what i think we have to take is true for the purposes of this hearing is that it was found in his attorney's file and that's the only thing we know about it other than that it speaks for itself and what it does not say is that it's an offer you know that whether tom well i would say that the evidence for close is that possibility when we look at what was said in the sentencing hearing  there was an undo that whole discussion involved an unrelated probation violation which was not part of this group of offenses and what he would have you believe is that he wouldn't just make this point to you is that there is an additional stance for probation violation which very well could have accounted for that three years meaning that if we have a ten year offer for the things that are which and that offer even if it was an offer which i would argue it's not even if it was under his best interpretation of it it does not address at all the probation violation that was discussed at that sentencing hearing which would have been and he said and and i would say that under in rebuttal i hope i'm pronouncing that correctly but the court and which was signed by both parties in this case the court said that if the appellate court can see that any relief would be futile by granting the the ability to review this  second and subsequent petition it would not have to granted and that's what we have here because there is no way based on this record that he and he's already filed his state petition with the same records that is do you know you're an advocate for the commonwealth i expect you to say that but that's not the case for example even less for example with very good friend to be a colleague lead judge king i have a different interpretation what active means i think what it meant is that you know you when you say active sin is that active sentence or what you don't say what active it was and it's distinguish between a sentence where you get they don't want to have someone here twenty year sentence but you only get five years to serve and that they weren't so much concerned with they're there how much time you actually do sit in the cell but as to what the active sente incarceration and what he's saying is that i was offered a sentence of incarceration of ten years and my counsel at this point there's at least a smoking gun that is signed by him that  that's to be proven all the district court to say and all those things you talked about very fair enough at the hearing you would say you know probation and therefore you can't show or been a difference but that's what that hearing is for but at this point it's not for us it's just merits because in addition he still has the story falls under the statute which i would argue that this is not actually understands and it does not fall under the statute so now i would not i would not agree with that but in addition  i would like to make my other point and i hope i'm answering i'm not sure i'm answering your question but please i'm sure you would tell me if i'm not which is that he has said that the court the lower court in this case is to not yes why would we get into this that's not exhausted that's exactly right that's you know what he wants over there that's exactly can yes potentially the supreme court of virginia in fact could but my point is that your honor there was no there is no way that he could satisfy the statute in this case and let's you want to come up here again and do this in a few months because he would need the statue of virginia gave him the the the state court can is exhausting its remedies and the second which goes to the merits and the second thing is whether or not this court can entertain a second or subsequent petition which is a completely different thing you your honor several points to me briefly first with regard to the actual innocence test the supreme court has actually not foreclosed an interpretation of the statute they were suggesting today because in the calderon case they cited only with regard to the actual innocence requirement so when you look at the statute fresh when you look at the words of the statute we believe that a claim like this which has never been presented satisfies the statutory time i'd also like to address the  the plea agreement the document as rich can refer to it it does say a cap of ten years and a cap of after survey sion for ten years cannot mean more than ten years because there's a potential that the defendant would serve more than ten years for statute of limitations is so strict that i agree it's likely it's not going anywhere and that's why that's why even a ruling in favor of mr mcfadden's motion here will result in the federal district court being presented with this claim a concession with regard to the underlying merits of his ineffective assistance of counsel claim i just think that the procedural rule is such that he really doesn't have much of a hope in the state system and that's exactly why we're here and judge king i'd like to just briefly close by sort of highlighting the common you just made which is that this is the end of the road if this motion is denied and that's because he needs pre filing authorization from this court before he can bring a second hades petition had he known about this and no fault of his own that the government doesn't dispute that he was not fault for not discovering this he could have raised in this first petition certainly but he only learned about it after his first petition was denied he now stands here with a showing a prime official showing under the statute that can't be reviewed if this court denies it because the supreme court can't accept this case as a statutory matter and this court can't rehear this case on bank as a statutory matter so all really asking for here is that given the evidence  mr mcfadden has presented we respectfully ask this court to allow him to go to federal district court to present the merits of the dispute thank your honour's he was convicted in december two thousand