this court is aware in december of two thousand and thirteen and enter a hearing was held in district court to determine what led to barrios entering a guilty plea to his third strike and added the two may witnesses gabriel barrios this trial counsel lawrence young offered conflicting accounts about what transpired almost cross examined by the prosecutor do you understand what you face and then he makes no protest until now or not he really and truly understand your way did what more could have been done well you don't always have to do that when do i have to do it well what tell me when i'm going to have to do it i'll i will get to that well tell me now with his plea he can't just come forward now say oh it was induced oh it was coerced what he has to do is provide sufficient allegations that aren't facially invalid in light of the record and if he does that then the courts should look past the contemporary statements statements that were made at the change of plea colloquy and in the waiver form and that's what happened here and that's why we're here in this court right now because there was evidence in the record produced by gabriel barrios where he sufficiently detailed why he led i mean why he entered a guilty plea to his third strike and that evidence wasn't facially invalid in light of the record it was actually corroborated by the record so for instance he served yes where so for instance he said in his now i think it's important to contrast what barrios said with what moore and young said because as i was saying this is a he said he said situation and the court really should be trying to figure out who's telling the truth and he said that neither of them was telling the truth which to me is actually pretty puzzling in the wake of that what troubles me about the way that the district court handled this is that the is the magistrate says that mr young is not credible because he doesn't have a good memory  but then he says that mr barrios is not credible because the for things that occurred after the the after he pled guilty he doesn't say a word about about not finding incredible because of things that he said on the stand so he doesn't he doesn't discount things that he said on the stand doesn't say the guy's lying doesn't say that he had a poor demeanor and so i find it somewhat troubling that i'm i'm left with looking at things magistrate can i think that's true and i think one of the things that is important to recognize at the outset is this clearly erroneous standard doesn't apply with the same force that it normally does for the reasons you seem to be suggesting which is that the credibility findings weren't based on tone of voice that and just finding contrary to the testimony is not good enough it depends on what the contrary indications are if he is saying that this is  i don't recall if that was exactly the situation there well look at you when you have a case with you i do because right now one of the bases for the magistrate judges adverse credibility finding was that fargo's was dilatory in raising this claim and inconsistent in how he did and both of those bases are contradicted by the record so after letter to him or months after that mario signed a declaration that was then used later in his petitions in support of this claim in the interim every time barrio has had an opportunity to raise this claim by himself and he's done that three different times in his pro se petition for rehearing before the conference from court the pro se petition for writ of habeas corpus before the california supreme court and the post a federal petition if you examine all the other patients in those petitions and compare with his testimony there are no and consistencies and i'm running very short on time so i'd like to  supposed to complain to well he could have complained to the attorney that was there with him he could have spoken up in court he did speak up about other things he does yes started hollering immediately and they carried him out well i don't know that he carried him out but he did say something and what he did not say was that i was promised he then had the meeting with his the attorney who was there with him back in lockup he didn't say anything to her he then called and spoke to his attorney's office the paralegal in his attorney's office the very next day didn't say anything to him there's no follow up from him where he called the attorney wrote letters to the attorney real letters to his family real letters to his court to the court filed anything in court spoke to fellow inmates there's the fact that he didn't raise it on direct appeal against him and says he's not credible because he didn't raise it on direct appeal well quite this offered an explanation and gave and tells the magistrate i advised him that he couldn't do this on direct appeal he had to reserve it for that's true and the claim of ineffective assistance assistance of counsel cannot be raised on direct appeal which is why you reserved it but what exactly was the content of that claim that's the question what exactly did petition clave because clase didn't testify about what petitioner told him of the evidence or hearing he filed a declaration after the fact saying that petitioner told him that trial counsel guaranteed  guarantee that his remarriage motion would be granted he doesn't include a copy of the letter from petitioner he doesn't clue the exact language that petitioner even use and that goes further to the fact that once petitioner did raise this claim in the course of this litigation he has been completely inconsistent about what the supposed promise was sometimes he says that he was promised one strike would be stricken sometimes he says that he would be sent  says shortly after i inform mr parris of my appointment he wrote a letter to me which explained to me the purported victim of the robbery had arranged to be robbed and that he entered the open plea because his attorney lawrence young guaranteed him his romeril motion would be successful right i think pretty robbery was staged which would have downgraded it not given him the third strike and that young that guaranteed him that his romero motion would be successful well actually that's the first part of your and your statement is not true because even if he had been in on it's so to speak he still would have been guilty of grant's f which was a third strike he still would have been guilty of the felony possession which was a third strike and place eventually realize that fact when he kind of gave up his representation of petitioner even participated in the robbery or whatever or the staged fraud or whatever it was now if he doesn't have if there's if there's no reasonable chance of him getting there that's really sort of a harmless error but if i thought that the magistrate had committed had committed clear  that it was not clear in primarily because of all the inconsistency is the way that but even if it was even if what was i'm sorry no harm no foul i'm not falling  while the magistrate judge basically found that young was not credible because he didn't remember young stated repeatedly that he did not remember his representation of petitioner or anybody else from two thousand and five and the magistrate judge has found that his claims are that his statement and the evidence you're hearing was therefore not credible because he stated first that he didn't remember and he made basically multiple inconsistent  different attorney a public defender during that preliminary hearing and the fact that when you look at the preliminary hearing testimony as well as the police reports from the time it's very clear that blanco who's the purport of it was the victim in this he understood what the case what states have to prove which is part of an intelligent waiver right but if he did not in fact have a defense then there would be no need to have that discussion with him because well when you when you read the preliminary hearing testimony blanco testimony is he does not hesitate and he does not waffle in any way as perhaps we tell but he doesn't hesitate well from from the transcript he's completely consistent and says there's no i'm from not has from not has there's no indication of what it was what do we do with obvious testimony it's obvious testimony is pretty specific i worked with blanco for two years he was at my house he knew my car he knew mike he knew my cousin monkey was the one who was there with with body else on that day driving his car with that that sure sounds pretty specific and it sure sounds pretty damning well it's specific jobs being pulled off a deal tacos with the managers complicity in them splitting the proceeds later on i believe says that he was he was present when somebody when someone one of these managers splits the money and maybe that maybe there was a body else that said he was present  i think one monkey and a different manager split split money but i was pretty obvious pretty specific about about about everybody being known here and that none of these none of these guys were strangers to each other except for body olsen and blanco but certainly monk and and blanco would have known each other and it seems pretty incredible then that montreal when he's arrested and talks to the police does not make any statement of fact he in fact takes responsive responsibility and provides the police with the way that they had the scene from inside information because we have was a manager and had been like the week before and that's when he knew their procedures for bank drops and that's how they knew that this was going to happen he makes no allegations that b now out of the country so he's gone sure he had he had he did have good reason but he did plead guilty to robbery which is the exact offense that and also required that that he would not have been guilty of this well if he had  guilty he again made a statement in court where he took responsibility for this and again never claimed that bronco was in on it so he's never made that statement intelligence the test one is consistent regarding whether barrios knew the elements or the rights of he was waving and i think it's also clear that he did not know the law in relation to the facts because young had never conducted any investigation before the third strike but it may not have been alleged in an information as a third strike and prosecuted as a third strike that would've been up to the discretion of the prosecutor and there's a difference between a grand theft and a robbery because the robberies of violent crime in the district attorney's office may have treated the grand theft very