true and given that the government argues in any event that he's not entitled to any and he relief because in his plea agreement he waived his right to collaterally attack his sentence and conviction and sentence but the government's argument is wrong for two reasons first the the collateral review waiver doesn't clearly apply it to his posts and it's ineffective assistance claim for his lawyers failure to appeal and even if it did apply stretching it to include his claim here would constitute a miscarriage of justice and the that is precisely what the third circuit held in the united states versus schudrich a case that is materially indistinguishable from this one there the third circuit said  specifically and i quote here enforcing a collateral root attack waiver where constitutionally deficient lawyering prevented chadrick from filing a direct appeal as permitted by his plea agreement would result in a miscarriage of justice or circuit has not yet or not adopted this carriage of justice exception why do you think that is why i can understand the court's reluctance to do that do so in this court normally enforced as collateral review waivers and it should but in extraordinary situations where there where you know the misconduct is particularly egregious in a collateral review waiver shouldn't stand in the way of a relief and so the court has recognized some occasions for instance when a court imposes a sentence above the statutory maximum or when a court you know imposes a sentence based on unconstitutional considerations like race or something really extraordinary l the court will not necessarily enforce a collateral review waiver and it shouldn't do so here it should follow that the third circuit has sort of paved paved the way and i think that it would be prudent for the court to follow of course when you say pave the way there there is a does there is a second line of thora t under scared of justice the tenth circuit has adopted a similar concept but then they define it differently and as i read the factors under the fourth eighth and tenth circuits you would who are using a concept of miscarriage of justice you lose i don't think we necessarily lose if you follow the factor based if you look at hahn that's the tenth circuit case that adopts miscarriage of justice you don't need any of those four factors so the here's the problem if we go if we do what the circuit is not yet done which is to adopt miscarriage of justice then we have to figure out what miscarriages so we have to decide is it a broad standard which you can understand we might be reluctant to do is it specific like the tenth in which you lose as it's sort of a middle ground like the third in which you win i don't think you have to embrace certainly a multi factor and test as the first circuit did in anteater i think you can just analogize from the situations that this court has already recognized but the reservation that i have about that not in terms of how it necessarily applies to your case one way or the other but when the search when the third circuit declined to identify a list of specific circumstances which would give rise to or constitute a miscarriage of justice what they've essentially done is to say will will know it  we see it and there's there's no guidance then that's provided by us if we were to do that in the lower courts how would you well that might be advise us to proceed if we even if we were inclined to do it your ass i might that might be true and that might be actually be  more prudent case or earth more prudent thing to do i mean i could imagine so for instance in the heart looking at teeter for instance in this broad base multi factor test that would sort of open th loophole to all sorts of you know miscarriage of justice claims might be something that the court shouldn't do and wouldn't be prudent to do but in the next ordinary case like this and  asking for is a very limited situation in the rare situation where a defendant has specifically gone out of his way to reserve his right to appeal but waived his right to collateral review in this lawyer turns around and completely fails to file an appeal in an extraordinary situation you're asking us to rule that under the facts of this case that would be a miscarriage of justice therefore not in force yes and that's i mean this is it's a basic contract law just calling that a miscarriage of justice in defining it merely to simply look at at the language of the waiver and conclude as you say you argued very briefly in the beginning and you want to miscarriage that it does that this was not contemplated by the parties why i certainly think that that's a fair route to go and the court certainly doesn't have to can hold that the waiver is an unforced of all it could hold that the waiver simply doesn't apply here and i think that would be a very reasonable interpretation of of the way for in journalist to get stronger i think the i think the argument that the waiver doesn't apply is actually the strong strong especially when you combine that with the fact that the agreements are to be construed you know in favor of there in big u s and i think i think at the very least at this waiver is ambiguous what's ambiguous about the way or because it's unclear whether the waiver in compass is all in effect of assistance claims or only those in effect of assistance claims that go to the the merits of the conviction and sentence and would necessarily defense counsel and u s attorneys ever draft waiver language to it to address that particular deficiency is well i think schudrich actually provides a pretty good example of on there was no question and cedric that that the waiver actually applied the waiver was a broad one and it applied and i quote here to all rights to appeal or collaterally attack the defendants convictions sentence or in the other matter relating to the prosecution the government could of inclusion of the or any other matter related relating to absolutely there there is a would there are ways to draft plea agreement waivers to be absolutely certain of what it covers and here the way that it structured in our quote it just so we have it on the table it says you know that it applies where a defendant contests or collaterally attacks his conviction and the resulting sentence pursuant to twenty two twenty eight u s c twenty two fifty five or otherwise including but not limited to claims of ineffective assistance of counsel and i think it's a reach but not limited to so  compassing well no it's just a it's just clarifying well first of all the that language including but not limited to claims of ineffective assistance of counsel wouldn't even necessarily need to be bigger it's just clar the claims attacking the conviction or sentence include ineffective assistance claims but that's to say nothing about ineffective assistance claims that don't necessarily contest or collaterally attack of the sentence or conviction itself mr hamilton is not in this proceeding attacking the merits of his sentence he's he's contesting his conviction isn't it because he did he was denied the right to appeal the conviction and therefore  conviction cannot stand because my right to appeal was denied he's not i mean he's he's contesting his sentence only in the sense that it's procedurally required for the  then reinstate his sentence so he has a fresh opportunity to appeal but in this proceeding in this twenty two fifty five hevia is proceeding he he's not challenging the merits of the sentence at all he's not asking this court to make any judgment necessarily that it's true i mean it's that to be sure it does require they could sure of the sentence in order for him to get his appeal that but if he were really talking about the merits of the case we wouldn't you know would be talking about the merits of the case you know and about why he thinks that his sentence is wrong but we're not talking about why a sentence or wrong we're talking about why he is you know entitled to an opportunity to appeal a sentence that is what he bargained for in his plea agreement and you know his lawyer abandoned him and prevented him from you know getting the fruits of that of that agreement but i actually do think the strongest case is to say that the waiver simply doesn't apply here and you know on that subject it is somewhat ironic that the government itself has for this interpretation before the united states supreme court in the seventh circuit in n actually enforced the collateral review waiver in this very context and then when the case went up to the supreme court the government asked for a g v are telling the supreme court that the seventh circuit misconstrued misconstrued the waiver and in fact according to the government the government and it's a brief it said petitioners waiver of his right to challenge the sentence or the manner in which it was determined in any collateral attack does not bar challenge to his attorney's allegedly post sentence in effect of assistance in failing to file a notice of appeal upon request and the government in its response brief in this case made no attempt whatsoever to distinguish that away and in fact i just want to remind you too as well of four other circuit courts that appeared to have also concluded that a collateral review waiver along along these lines don't apply either and some of those cases they didn't even address it but i think they didn't address it because it's obvious that the waiver didn't apply and then in the tenth circuit specifically the court morning may please the clerk counsel there is not an issue about effective assistance of counsel it's still a disputed fact that there was no resolution because of the statute stature of the case right now that it's still pending a motion to dismiss but we don't have to get into whether there was ineffective assistance of counsel it's only whether the way or applies the waiver does apply and this court as you've said has not a miscarriage of justice exception nor should it in this case much like a really strange case for you to be fighting as clearly it was in vision that he reserved his right to have a direct appeal right judge i agree when after a while why don't you just go hour to be vacated and reinstated and see what happens then you can make your argument back then i thought that would be your own question because we're after shredded this that's what i was thinking it just didn't seem fair or right that he made such a every serving has right to appeal but then didn't get it right as i started looking at it closer and then of course defending the united states position position in the district court last we started looking at a closer what as a matter of policy reasonable minds might differ on whether or of the waiver should at the united states have used his discretion to force the waiver but as a matter of law there's no error in it scuse me once we started looking at it and i guess it's looking at the law there was no legal error in the sense no legal an error in the waiver there's nothing in knowing or involuntary unwilling or involuntary about the waiver the scope of the waiver does cover clearly ineffective assistance of your you're just exception that's why we've argued that there is no success to it are there would be no success start but i don't see how that factors in when you're making a judgment about the merits of the appeal the real question here is whether or not he the lawyer to file the appeal on the lawyer didn't do it that's an excuse me and you can't get to that without finding it back in the motion to dismiss and perhaps having a little hearing to determine whether that's true or not there's no lawyer to appeal has nothing to do with it at this stage is why would he have entered into an agreement that you carefully crossed out the language that would have waived his right to a direct appeal had he understood that by virtue of i see not filing the notice of appeal he wouldn't get what do you express we reserve the right to do he said in his brief and i think it is twenty two feet in motion that the reason he did it was because he expected his lawyer was going to appeal so the question does becomes whether posts plea are post even sentencing ineffectiveness can invalidate a voluntary plea back at the time when he expected it and there are cases that say that a proper will trump any errors that occur later like if a lawyer is wrong in anticipating what the sentence is going to be or if the lawyer is wrong at something at sentencing it's not going to go back in invalidate the waiver it was knowing low in the guidelines was two hundred sixty two the united states did everything it was supposed to do as part of the bargain the court may no error at sentencing him it was a legal sentence then and now even pos how broadly you want the waiver interpreted and applied that may be broader language would be wise the next time you bring up one of these agreement broader language or maybe more specific judge but when we include that in effect of assistance of counsel as part of the waiver that's not in every plea agreement waiver of appeal or collateral attack that's a separate bargaining position that the united states takes that they're go that and that's when we go back to these cases i'd like to point you when you're talking about waiving ineffective assistance of counsel you're talking about waiving something that pertains to what has already happened maybe you could look at this as if the appeal is a post police situation that an effective assistance can't be waived as to that because you deliberately reserved the right to an appeal right but not to a collateral attack and all these cases where you're all look and there's all the different circuits the majority view the minority view on notice that the minority views are both after the other when they all predate the finding that the cases aren't really considering one whether there was a waiver of collateral tack when your immunity case is look for that fact whether there was a waiver of collateral not just a waiver of appeal was the waiver of collateral in tact did it tack include or expressly exclude claims of ineffective assistance of counsel and guarded the court address it lots of the cases the court does not address the waiver of collateral attack at all and it may seem like we're being hypertechnical until you start looking at the underlying circumstances here and we can cross over into the miscarriage of justice which i will i think  group in us why haven't hasn't the corn adopted it i think from the cases i've read it's mainly it's implicitly acknowledged it but it's not that there's not been a finding of a miscarriage of justice so the case hasn't presented itself for states has lived up to its part of the bargain that the court committed no error in sentencing there was no error in the waiver there's no question it was a knowing involuntary waiver that it's within the scope of the waiver because of the ineffective assistance of counsel the list goes on and on how there's no miscarriage of justice once you start getting under all those other layers of just the initial reaction of let him and he was armed as a right to appeal that he'd then way a forum to  i think is certainly some factors would be important not just to know it when we see it as was discussed earlier we need more guidance than that and applying those factors here the gravity of the error certainly there's back to the merits of the appeal certainly that can't just be completely discounted one as you know with all the booker and blewitt and dorsey in their sentencing at cases but then also i don't think i've been mentioned in the brief eighteen c thirty seven forty two c want limits appeal when there's been an agreed upon sentence which again i'll talk about with the miscarriage of justice remember one hundred twenty months was what i asked for that was a binding plea agreement if he didn't get it that he was going to be allowed to withdraw so factoring in all of that he it's there's just not a miscarriage of justice here even applying those factors is the united states position  but i would are is that this isn't the case to adopt that but certainly if there is such an adoption factors would be of help and that's all i have unless you have any further questions i i think you could characterize ms wheatley's argument at least in part in saying where is there a miscarriage here if there really is nothing to the appeal so do we look through this question to then see the reason why this gentleman wants a notice of appeal filed it all well it's interesting that the government doesn't want you to actually look at the merits of this twenty two fifty five claim but then i want you to actually go a step further and consider the merits of the relief that he's seeking here if the court's really interested in the merits of a period of justice if he didn't get to file a notice of appeal if there is nothing that he has to appeal will because procedural matters your honor and  that's precisely what the court has just the previous disregarding thousands of cases on harmless error when you say there are there are well procedural matters in the sense that i mean in this basic idea is in capsulated in the way that the supreme court has treated i a c claim why would we create a miscarriage of justice that doesn't exist in the circuit if there was no miscarriage of justice here in the sense that even had he filed his notice of appeal you can't point to what he would have gained by virtue of having had a directive i think that's a perfectly fair point but i would say there are many different ways of looking at miscarriage of justice what's the answer what what is he seeking to pursue in his direct appeal were we to do everything you want us to do well first of all i don't i don't want to say that he doesn't have you know some arguments at his disposal that he could make on direct appeal i mean that the government will concede he doesn't just tell us what he does wha t is his argument that he wants to assert on the drill because he has the argument that he'd want to assert on direct appeal is that in his unique case where his sentence wasn't final and would have been pending when the f s a took a fa and if the court grants relief it will in fact be you know that the f s a will have been affect when his appeal goes up it that the f s a should should apply to him and there might be opportunit for clothes that argument you certainly have to the best of my knowledge and decision but he should still have an opportunity to take the issue to the to the imake court and then to the supreme court if necessary i mean his lawyers you know misconduct here has you know deprived him of any sort of procedure or process at all in this respect but i just want to point out one more thing going back to your you know initial question your honor and that is that there's a broader way of characterizing a miscarriage of justice and that is he bargained for this he pled guilty you know on the expectation that he would have an opportunity to appeal even if that opportunity appealed doesn't amount to much and it probably didn't amount to a whole lot when you know when he initially asked for this right in this plea agreement i mean he was a c plea for goodness sakes but you know he deserves an opportunity to have his day in court with the full benefit of and the full benefit of counsel in the course would be very wary of adopting a rule that would require petitioners to can i finish this point to you know to raise all of their appeal issues for the first time without the assistance of counsel and i habe us petition all right thank you counsel i know that you are appointed under the civil justice act and done an excellent job on behalf of your client and i thank you for your service