conclusion that definite and firm conclusion that mr tourist did not receive accurate advice about his sentencing exposure if he proceeded to trial and there are a number of reasons i understand th overturning some factual findings by the district court but there are a number of reasons to do so and some of these are guided by the guidepost laid out in lewis versus dr key and also so few practical considerations that this court took consideration  most recently and cardin versus united states looking at the realities of what's going on here i ask you just a practical question that bothers me about this make a lot of good arguments i think you've really done a nice job on behalf of your cl but it seems like this just comes down to credibility and the district judge you got a hearing which is unusual nowadays and the district judge looked your client in the eye and heard his story and just didn't believe him so yes you have things that are on your side of the ledger and there are some other things on the other side but what do we do if if the district judge just doesn't believe the client point why is that clear or whatever the standard is one thing that's remarkable about judge michael since opinion is that she actually said that if based on the presentation at the hearing she would believe him but instead she focused on some frankly perceived inconsistency as minor things that are not material to the outcome of this case the thing that needs to be established is what if anything paul torres was told about his risk of going to trial and judge michael so perceived inconsistency about how mr tourist described his meeting with mr archer i don't believe that these are actually inconsistency is these are iterations of the same basic problem you know he used the word refused to talk about what seems to be that inconsistency i think the inconsistency is come down to differences between the process of affidavit writing none of which are drafted frankly by mr torres and the practical realities of an evidentiary hearing where somebody can actually explain what was going on you know we're also talking about something that happened many years later when mr torres was very clear about is that he he talked to mr archer extensively or he tried to talk about the why it was that h sentence was so much higher than anything he ever expected but i guess one thing that makes it a little tougher to accept his version of events is i mean like who in the world would think that you're going to get the same sentence on these you know three charges i think it was if you go to trial that you get if if you cut a you know a plea facially seems kind of hard to believe perhaps to people who are experienced in the in the system in the legal system and trained in the legal system this is one of the things that the supreme court identified in michigan versus h an issue sixty eight percent of indigent defendants do not have a high school education and paul tourists falls into that group he had never been to prison before ever he was relying very much on his attorney to explain to him extent unsing exposure and the guidelines and the sentencing structure in michigan is frankly quite complicated i mean you have it at the time there are mandatory guidelines and there are a number of factors that they have to take into consideration and they're very complex frankly in many ways more complex than the federal sentencing guidelines plus you add on there are these statutory enhances enhancements involving doubling sometimes tripling the guidelines and then the always confusing nature of consecutive concurrent sentences that frankly confuses some lawyers to stay so when we say who in the world could believe that somebody who like mr torres is unfamiliar with the legal process and this is why i mean and i understand you have a lot of repairs a lot of criticisms of the order but i mean you know what more are the under the impression that that's sort of the w these things work to go in this county as i understand it perhaps but it mr tourism it's very clear from mr archer's that contemporaneous notes and also his memory at the time continued to be confused about why it was that he was sentenced could have been sentenced in the way that he was he got that impression from someone from mr farah and you know or he could it could have been your point that just doesn't know much and you know it gets to trial gets slammed i'm very surprised because he doesn't know much about pointers but even if he's surprised it is ineffective it isn't an writ is deficient performance for an attorney not to advise a client about their sentencing risk if they go to trial and that's been established for many years in the circuit in smith and morris and so off this court has said repeatedly that an attorney must advise someone about their sentencing exposure so you know putting aside the question of whether mr farrah you know said to him explicitly the words there's no possible risk of going to trial in this case roll the dice the fact if he didn't mr torres that his sentencing guidelines could be doubled that is deficient performance if he did not explain that the sentences could be stacked that is deficient in performance and what we have and what the record makes very clear on a whole is that mr torres for a very long time did not understand that that was possible alliance defense at trial had some defense right so there is a credi attack on the credibility of the informant but by the time mr tourist guide to appeal he had kind of left aside the issue of guilt or innocence to trial it really was this this complete shock about what happened to him at government informant right yes and i mean so maybe he maybe he knew that yeah i was taking a risk when it was worth a risk worth taking because i am sort of pleading guilty to one count of my get all totally course gamble and lose well you just lost sure but when you when you look at credibility this court has said you know even when somebody is maintaining their innocence that is not in itself reason enough to reject the  person statement that that they would have accepted a plea offer if they had been properly advised and that's where we get back though to the credibility determination is it in fact he received this advice from mr ferret if he did it is ineffective assistance  counsel but if he didn't know there's no ineffective assistance of counsel and that's what you're trying to overcome my guess is the district court determination that he did not get that advice from m you know there just to provide context again important context about what was going on in mr ferrers life and why it might be that somebody who maybe for a long time had been practicing at a competent level and routinely  clients but maybe in this particular case dropped the ball and if it seems like the problem here is that even if you credit his now saying that he didn't understand this at the time the juxtapose that against what happened next so he you say he st learns about this meets with the probation department it then becomes an issue in sentencing he he it is lawyer argues about and he knows that from that point forward he doesn't put anything in the direct appeal and this doesn't it just doesn't seem to pass the smell test that this doesn't pop up until i don't know how many months or years later it was but it was quite a while well torres explains why and this is again why i want to come back to the practical reality is lot of times defendants don't know what information to provide their attorneys mr torres had never heard the case strickland versus washington before in his life and so a o four he describes what it was he realized for the st time and thought to even tell someone for the st time about the advice of his counsel and that's when he was reading with his legal writer and this took one of the legal writers in prison and this took a little bit of time it requires that legal writer asking him what did your attorneys say what were the police officers mr archer never asked those questions in part because mr archer came to the meeting intent on trying to get him to dismiss the appeal in the st place you know a lot of these things you know people go to law school to help spot issues and a lot of spotting issues requires asking the right questions thinking what happened and what mr archer did not do is ask mr mr torres a very simple question were you made any plea offer what were they what did your attorney tell you about those offers but what i still would like you to explain about that is that he's concerned about what his sentence is going to be concerned about whether it's going to be doubled up and whether it's going to run consecutively or concurrently you say he was told d that he'll get the same amount of time he clearly knows that that did not that the that that prospect was not likely when he met with the probation officer he's there when he gets sentenced he hears the lawyer argue in his favor about doubling in cumulative so it's not like he didn't know anything about this until he gets to prison later on he talks to a writer a lot of that has to do with again what you think to tell is he didn't know it was a legal claim to say that my attorney is miss it vice or failure to advise me about this is something that you might want to tell someone in a brief he did not know is he said repeatedly he was hoping for some guidance from his attorney mr archer which makes a lot of sense blame is that he was told he would get the same amount of time correct we w and he knew as of the meeting with the probation officer that was not true potentially i mean he told that there's a probation officer who said that was a possibility but then she assured him that's probably not going to happen and then he hears the argument his lawyer makes before the sentencing judge that he actually hears the exchange between the government and his own lawyer about that very subject yet he still remains silent and he assures the judge in the p again mr torres explains has to do with you know the stress of sentencing so all of a sudden he's at the sentencing hearing he's still hoping believing that this and the that the sentence will run concurrently and so he does not tell his his the judge that he he's unsatisfied with his his attorney again he still has been assured that the out it's going to be ok and then it happens and he's rushed off to prison and it's again it's a shock he was suddenly sentenced to eleven and a half two hundred and twenty years in prison it's not something that was immediately on his mind and so to to discredit him just because he did not know exactly what was important finding mr gore's not to be credible and its claims not to be shown i think i'm going to begin with responding to a couple of mistakes that i heard my sister make just now  one point she did because they just require correction at one point she said that the district court said that if it were just based on his evidence you're hearing testimony she would believe him that's not correct the order said that she might believe him and i think that's an important distinction because it well i think it's an important distinction i want to point out she said she might believe him and that implies she might not so the inconsistency is are important the asli another thing is that i have just heard for the st time that there isn't an if also an ineffective assistance claim based on mr forrest failure to advise torres at all with respect to consecutive sentencing that's a brand new claim that we have not been presented with we haven't been prepared to defend against i think that the claim has always been that mr far from it of lee told mr torres he could not receive consecutive sentence to now morphed that claim into one that mr farrer failed to tell mr torres that that's a different claim and i would ask the court not to  engage them but again it all comes down regardless of the form of the claim to the credibility of mr torres which is shot based on all of this in consistencies in the district court didn't clearly error in finding so  i want to respond to two of the things in the reply brief as well because this is my st chance to do that the reply brief says that we conceded that tourists the only one who recalls the conversation with farrah that's not correct we couldn't concede that because i have no way of knowing whether mr tourist recalls his conversation with fara i would concede that mr far it doesn't recall it i can't conceive that mr tourist doesn't recall it so that's not a concession we've made indeed testify about yes you know at least the record here it suggests mr torrens remember that i would concede that there is evidence to suggest that mr torres remembers that i don't believe that evidence is credible i think that it is possible mr torrance remembers it and he's lying about it it's possible mr tourist doesn't remember it and is making it up i don't know which one it is it's not a concession the nd point that's in the reply brief is this notion that we've repeatedly argued that the affidavits are not credible because they're self serving to problems with that we haven't repeatedly cases that mr tourist sites to the contrary are all cases in which the district court has either denied an evidentiary hearing or made a ruling on summary judgment based on discounting an affidavit because it's self serving we've never said toss fine distinctions themselves to say that a criminal defendant you know should avoid necessarily understood the difference between what he's saying in the affidavit about whether he had a certain conversation about it and in effect of assistance claim with his lawyer and then what he says in the evidentiary hearing i mean isn't it can't move that stuff out pretty credibl by saying he just doesn't understand some of the distinctions that we as lawyers understand know your honor and the reason is because this isn't really a legal question this is a factual question about the substance of his conversation with us mr archer in his motion for lee from judgment he says i told mr archer about all of these issues and in his affidavit he says mr archer refused to talk with me about this and if i had known that i could file a standard for brief i would have done so and i would have raised these issues so we're not talking about the fine points of strickland and leffler which you know hadn't come out yet at the time of appeal we're talking about the simple fact of did he tell mr archer about this claim as he unequivocally says he did or did he not tell mr archer about this claim as he unequivocally says he did not i mean that's to an equivocal that's equivocation right if you've got to at the hearing he says no i didn't i didn't know what issues to raise i didn't know i didn't tell him anything he didn't refuse to speak with me about anything it's a complete one hundred and eighty in his testimony between his st affidavit and nd affidavit and m r j and his hearing testimony so it is not a fine distinction it is a it is a completely different conversation he's describing met if you had been given this advice which is you know your i guess the state's position why would he have taken the chance of going to trial i mean here he's already a prior offender right i  have any defense any practical defense at trial i mean with the benefit of hindsight we could say no but i did the defense was the only person who could identify him was the the cia right there was no independent corroboration from anyone else that he was actually the one selling the drugs the c i was a drug addict the c i was in trouble was trying to get out of trouble and wanted to name him that was the defense now it didn't work but it was a defense and he took a chance he rolled the dice on the possibility of acquittal the other thing that is possible is that mr forrest said my prediction is that you will not get consecutive sentencing i believe that the judge will exercise her discretion to not give consecutive sentencing now that's a prediction turned out to be a mistake it is never been claimed that if that prediction was made that that was ineffective assistance of counsel and in it and it wasn't if that was the prediction the claim is that mr far aside legally speaking there is no possibility that you could could get consecutive sentencing that would be ineffective that would be deficient performance but if mr forrest said the cia has credibility issues the cia is a drug addict no other witness can identify you you have you can roll that the dice on getting an acquittal if you get convicted most likely you'll probably get concurrent sentences anyway and far as testimony was that he didn't think you gave him a recommendation he just laid out the options right and so your position then that in so far as what the lawyer did or didn't say what mr torres says that he said is completely inconsistent with the argument that the lawyer made shortly after that conversation allegedly occurred in the lawyer argued in court right exactly and that's and that's so is there any explanation that anybody tries to advances to why he would have allegedly said one thing when he was meeting with his client about the plea and then made an argument in court not that long afterwards to both shows he did understand what the law was any made it different exactly exact gave this particular deficient advice in this particular case mr furze testimony at the deposition was i always knew about the sentencing consequences because that's what plea deals were based on right the police agreement was always based on something to do with sentencing that's the whole point of it and often it's to avoid consecutive sentencing right that's often the case i always carry the sentencing guidelines with me i absolutely agree with what i heard my sister say which is that certain thing guidelines in michigan are fairly complicated right and so that is why mr farrer who testified that he was too good at his job right that was his deposition testimony of course secure the sentencing guidelines of course he educated himself as to whether there were consecutive sentencing and whether the clear agreement would somehow avoid that of course he did so this sort of belated claim race two and a half years after he learned about it and again at sentencing the judge didn't ask him you know did your attorney meet the standards  washington write that the judge didn't ask him did your attorney render a performance that satisfied an objective level of reasonable the attorney that the judge asked him if he was satisfied with his attorney's performance if you hear mr he was in shock having learned that this major decision he had made in his life might cost him an extra you know potentially eighty years in prison not like i mean at the top end so it's not likely but potentially eighty years of his life based on the advice you've gotten from him and he says yes i'm satisfied with my counsel's advice now he wants us to believe that was a lie because he lies when he doesn't see a benefit to have telling the truth i think that he was satisfied with his counsel's advice because i think that the i might have said it is the same thing joe and holly said which is you'll probably get concurrent sentences right and if that's what he said that wasn't defect deficient performance and so so i think that there's no there's no to discuss weak issues because the insufficiency claim which he thought was weak was in his notes he was in the opponent's brief right so we know mr richard is not dismissive of these claims he raises the claims right we know that he didn't raise this rate which is which is what his little last testimony was that i didn't raise this but then that contradicts his earlier testimony my sister cited to pages tunnel for internal five of the record where she explains where he st understood that he had this potential claim to race now that testimony is mr tourist describing his preparation of his michigan supreme court application on direct appeal where he did not raise this claim despite raising three not previously raised claims he's raising all these claims he's raising three ineffective assistance claims he's citing facts he's citing laws he's citing to the record is developing the claims never once mentions also i got this deficient advice i'm consecutive sentencing i think it's a big i think i think your honour's i've covered most of what i was going to say it's not correct that by the time of direct appeal he had set aside the issues of his guilt or innocence in fact the insufficiency claim was raised on direct appeal so that's another sort of minor mistake my sister mentioned lewis versus trekkie it's a very different case in that in lewis that this court overturned the district court's factual findings because the district court had ignored certain facts and actually got some thing wrong in terms of not understanding the record hold the district court found that these claims were uncorroborated and in fact this court held that they were corroborated that was a problem so those are a few minor points but i'd be glad to answer any other satisfied with your lawyer that time he didn't know because he had no is going to happen in nobody had told him about what something happening right in that proceeding is just stark when contrary to what that same allegedly told at this point it's the problems already happened that mr torres has already rejected the plea offer and already gone to trial right so perhaps at this point he you know he's he's in shock but the other thing that he doesn't know is any still resting on his his attorney's assurances that he probably will not get consecutive sentences and so at that point you know it's don't rock the boat so he had he had really sort of gotten the bad news at that point correct but you just changed your theory there didn't you when you just described the advice as saying he probably won't get consecutive sentences that's that's not that's not in conversation about the plea offer that mr hartington extended at the preliminary examination and then immediately before trial and the conversations that they had there that is the core of the ineffective assistance of counsel claim right before sentencing mr torres testified that he met with mr farrah and they discussed what would happen at the sentencing hearing and that was where mr farah said you're still probably going to get concurrent sentences so the ineffective assistance had already happened at the moment when he rejected the plea and that's really what we're focusing on and where we're trying to figure out whether whose version is correct it just seems like what happened that the s completely inconsistent with what your client says he was told in connection with the plea proceed so i'm just trying to figure out one is that inconsistent in to what conclusion do we draw from that i don't think it is inconsistent and i think one thing that we're also overlooking is the issue of the doubling of the guidelines ok so so at that point you know where you are the advice that mr fair mr farrah gave mr torres right before he rejected the plea is the core of this by the time there at the sentencing guidelines can already be doubled they can the sentences can already be stacked and so at that point mr torres is just holding out hope that the worst won't come to pass and so it's not in consistent that mr farrah told him