were improperly terminated early the district court found that based on a waiver of his right to collateral tax that he agreed to in a plea agreement that that obviated any claims of ineffective assistance of counsel even ineffective assistance of counsel that led to that the plea agreement that now is preventing him from racing to claim that is contrary to this court's decisions holding that claims of ineffective systems of counsel that lead to a plea cannot be waived by a waiver within the plea itself i think this case is on all fours with her low case that we've relied on heavily in our brief  there are a lot of parallels this is again what mr long has alleged and we accept as true at this stage is that he told his attorney that he thought he was subject to an illegal search and seizure his attorney ignored him and said promising him if you just plead guilty you give a certain sentence and so depending on that advice he entered into this plea agreement that contained the waiver and when his attorney predictions about the sentence were proved wrong he brought this twenty to fifty five claim those are the facts and her low that's the facts in this case i think the important thing at this stage is that we were manned this case to the district court just for further proceedings the government wasn't even invited to respond to the initial petition we have a very limited record if there are factual disputes that are unclear in this record both the government and mr long should have the ability to clarify those so just as in her low we would propose that the court remand this without commenting on the merits at this stage there there has been no merits determination all we have is an erroneous conclusion of law by the district court that this collateral tack waiver applies  what was in effect of assistant ineffective assistance claim says long pressing in the appeal well i know i know it's the stevens is failure to file a fourth amount of motion to suppress right i didn't i'm not sure i saw any others that were raised on appeal well i do think that the collateral attack waiver gets rid of a lot of the others because they're sensing errors and if the waiver doesn't get them then his admissions at the rule eleven colloquy would we get rid of them so yes at this point all we're seeking is the ineffective assistance of counsel in both failing to file a motion to suppress and in failing to adequately investigate the case this is a case that turns on the facts if you believe the facts that are in the police officers report for example there's probably no fourth amendment violation what mr long has done in this twenty two fifty five petition is he said those aren't the facts this that that sort of search and seizure was not what occurred here i told my lawyer with the facts were and he ignored me so we don't have any corroborating evidence in terms of others and what the police officer said and what mr long said so is both the motion to suppress and the the failure to investigate that that's at issue but the important thing at this point in the proceedings is that deficient advice and the failure to act reasonably to investigate mr long's version of events cannot be waived by a plea agreement that was recommended by the very attorney who who failed to do that that  well let's say i agree with you on that wasn't all made right when and with the assistance of the second attorney react along decided to go forward to withdraw his motion withdraw his guilty just go forward with the sentencing i don't think so and there are a couple reasons behind that one is were essentially talking about prejudice the prejudice prong here is assuming there was deficient performance there's no prejudice because he could have withdrawn  guilty plea the first thing is he would have had to still show a good reason for a drawing at the district court was open to the motion to withdraw the plea but hadn't indicated i will actually grant that motion and if i had been that second attorney i think the only competent advice i could have given him was the advice that ray hockett gave him which was if you proceed on this you can lose the motion you can lose your acceptance of responsibility you can now face a sentence that's much higher than you were even thinking and you still have the appeal in the collateral attack waiver so i think that his decision to heed that advice and the prejudice has already happened once you've pled guilty if you then try to withdraw it there's a lot more on the line as opposed to if you had pled guilty in the first place and could have just litigated for motion to suppress so if the attorney came in before any guilty play had been entered in the first place i think that yes that that's a stronger case to say even with the second attorney decided not to file a motion but fact guilty plea is a significant step in a criminal case and there are a lot of collateral consequences that can prejudice mr on even further if he continues to try to withdraw that plea at that point so i think he again ray takeyh very competent advice in that regard  could have done much worse if he had gone down that that path because of what had already happened with the guilty plea so unless the court has further questions i think pirlo dictates the result here but i'll save the remainder  resulted in a viable motion to suppress and her lawyer the defendant said essentially here are the facts that happened and if those facts of proven true suppression would have resulted in georgia pursuant to georgia v randolph we have an entirely different case here we have a defendant who's made a legal conclusion my search and seizure a legit search and seizure was unconstitutional he hasn't had any facts that would support the search and seizure being unconstitutional he hasn't said i was awake there's no evidence in this record that he ever told stevens he was awake to the contrary all the evidence is that he admitted he was asleep but maybe  allowed the record to get to those facts could have been introduced into the record and they could have your honor but that would have been in direct contradiction to what he said during his change of plea colloquy he admitted during just the change of plea colloquy the government could prove that he was asleep in the car so heavy filed an affidavit is twenty to fifty five saying no i was actually awake i told my attorney i was awake that would have contradicted his change of plea and this court has said you can reject any twenty two fifty five t finding of perjury essentially out of hand and so the way to long tries to get around that distinction just sorry to go back for one second we're not just talking about the change of  talking about the arrest report says he's asleep change a plea colloquy he admits the government could prove he's asleep uncontested p s r says he's asleep no where in his twenty two fifty five does he say i was awake right told my counsel was awake and even on appeal he still doesn't actually say i told my counsel is awake he disputes the way he gets around it is he disputes and tries to draw distinction between the government could prove i was asleep and i was asleep i'm unaware of any case that draws that distinction but it also calls into question what he was admitting to under oath if he wasn't actually asleep he should have said during that change of plea colloquy no the government can prove that because i was awake the court i'm sure has seen numerous colloquy where defendant disputes that a fact that the government offers up that it could prove it and so the second way tries to get around that is by saying well it was actually irrelevant detail and so the court shouldn't hold him to his under oath affirmations there's no distinction between and relevant and relevant detail when the defendant's under oath and subject to perjury everything they that long waived his ability to make these arguments in his plea or is it backs waiver knots longs arguments are constitution those are the type of ineffective assistance claims when it relates to a motion to suppress they can bypass the waiver we don't have that here because we don't have a single fact that could have resulted in suppress mr long acknowledges that by not disputing the for different reasons we put in our brief that any motion to suppress based on the fact that he's asleep at the drive through would have been for a plus you're saying that whether or not there was a waiver depends on the strength of the argument that might have been waived there certainly was a waiver whether or not the waiver bars the claim depends on whether the titian or his alleged facts that could have resulted in the mayor torrijos claim so what th said in her alone certain claims of ineffective assistance are enough to bypass the waiver but it's not just every claim if that were the case any time a defendant was subject to a waiver he would say he or she would say my counsel was ineffective and that would be enough to bypass the waiver and that's not what this court said and heard of the court said that you have to show something you have to back that would have resulted in a potentially meritorious claim and mr law and hasn't actually alleged any facts that could have resulted in and so without that there's no viable ineffective assistance claim and again we're the mere allegation that my counsel is ineffective i told them to file a motion to suppress without any facts supporting that enough these waivers who do you mean unless you've got it you've got to show some way that that motion to suppress could have succeeded and the counsel was ineffective for not filing that and that's what distinguishes this case from her a lot of the other distinctions you have to show that you have a winning argument no no no you have to show that the facts that you allege could have resulted in suppression the distinction between her low in this case is that her low he alleges facts that could have resulted in suppression under georgia b randolph here mr long as alleged illegal theory mice seizure violated the fourth amendment he doesn't give us any facts to explain how or violated the fourth amendment he does dispute just if i can address one doesn't give facts he's giving facts now you just think that those facts are bogus but in light of what he said during his plea colloquy but he is giving fact respectfully honor he's not getting any facts he doesn't say that he was awake he doesn't say i told stevens i was  awake he doesn't dispute that he was asleep there's not a single place in this record where he says i was awake or i told stevens i was awake and i think that's the linchpin to his argument he's conceded more or less that if you were asleep he can't prevail on a motion to suppress was going to be a hearing on the motion to withdraw on one of the sub issues that that is whether you had a potentially meritorious motion to suppress claim rather than go forward with that hearing with three hock a second counsel he says no i'd rather go forward with the plea so he had he had the second bite at the apple right there at his hands and he chose not to pursue it unless this court has any further questions asked of you from the district or its decision thank you how much time to three minutes thank you let me address the change of plea transcript first because there is a difference between saying something under oath that is material and agreeing that the government could present evidence to prove something the government says they're when you're under oath there's nothing that is irrelevant of course perjury does require materiality but what mr long says in the police transcript is i was driving in mishawaka i was driving and i had a gun with me i was driving i was driving the police officers version of events is different but of course the elements of this offense don't doesn't matter if you're driving with a gun doesn't matter if you're parked with a gun doesn't matter if you're asleep next to a guy so those were relevant details and there's the perjury sort of argument i think is the not entirely reflection of what happened at the plea mr long did just essentially allege facts that if proven would result in a successful suppression of the evidence  what he said was i was subject to an illegal terry stop there is no reasonable suspicion everybody agrees there is no reasonable suspicion and so that would be a meritorious motion to suppress implicit in that was you know i was not asleep i wasn't causing reasonable suspicion i wasn't causing police any giving police any cause to to stop me or to question me or to try to figure out what was going on he is a pro se fleeter and this is why i think procedure is very important this was improperly terminated in the district court if he had a chance to make the what maybe an attorney would plead there is a viable motion to suppress year that that should have been filed so i would if you mean he did concede that the government could prove his case right to the elements of section one twenty two g shirt that he was a felon and he possessed a fire and he conceded that what the evidence that the government would present to a jury supports his guilt but what frequently happens in these pleas colloquy is is there is a factual basis because that's required by the constitution  certainly role levon and the defendant says i agree that factual basis could be proven to trial i'm not going to risk acceptance or responsibility i'm not i'm not going to risk all that i agree the government would bring in a witness who would say that but that's not an affirmative