i know that your appointment of the criminal justice to represent mr fish is that right yes you're on the record appreciates your willingness to accept the assignment thank you you might adjust the microphone there so we can hear you noted my name's tom hagler i represent the account rockfish mr fyshe is asking for recent unsing here because he received additional jail time due to the ineffectiveness of his counsel during the plea negotiations and sentencing phases of his proceedings and the bottom line here is that fisher's lawyer gave him bad advice and he received additional jail time as a result in fact  level net increase fischer's lawyer advised him to stipulate to a beast level of sense of thirty eight pursuant to a guideline enhancement that did not apply to him guideline section stipulate to such an enhanced meant considering the supreme court's decision in burrage the united states so just i want to try to figure out i was a little confused from the order on the certificate of appeal of billy i was trying to figure out exactly what's before and then also the stipulation at the sentencing phase we think the basic facts level thirty eight that's right your honor given the opportunity to argue against the enhanced fish his attorney made no effort express result of the drugs involved so taking that individually then there's two separate time periods or two separate points during the proceedings were that are relevant with the first one at the police police state i don't read that as ever being part of the section twenty two fifty five motion that that challenge was never made before the district court even if you could construe the order as and the order does say we're not sure what's before you know what was raised below was not ever raised and if it was could you tell me where it was raised in the district court i believe he did raise in his petition and then as a brief instruction to as a pro se petitioner he raised several issues concerning the ineffectiveness of his counsel and asked for a specific remedy that is recent and seeing but certainly nothing he did raise the barrage issue on the merits in other words he says the barrage i think that's how you pronounce the case would entitle me to a lower base offense level because but for causation be proven and there are you're right i think there's five ineffective assistance of counsel clients but i don't see that in his petition he didn't raise that it was ineffective for his lawyer to advise him to stipulate to stipulate either and actually i was going to the second one next but i don't even see it with regard to the stipulation  don't see any argument about ineffective assistance of counsel and the reason why i'm asking the question is the last sentence of the order says the parties also may address whether the claim was properly raised in the district court and i didn't see it i didn't see it in the petition or the motion excuse me  twenty to fifty five but i was just wondering if maybe you know it was raised in some other way and some other paper or whether you had a different ip whether you could point me to something where either either point time was raised in the district court i believe it was raised the conviction on the theory that he would not have pleaded guilty but for this bad advice or is he just seeking a recent thing he is seeking a recent seeking to vacate the pulley or to t because lee just wants to be reset well the level thirty eight guideline base level is that what you're saying he i believe he would have been inst well i guess you have a new sentencing hearing without the stipulation or something is that what you're just trying to understand where you want this to go if you win yes sensually he was asking for the sentence to be vacated in and in accordance with current guidelines with felt but then there'd be a new hearing where the government would have an opportunity to prove the base offense level is thirty eight based on the resulting in death would that may be what happens but your honor had mr fyshe had competent counsel she would have investigated the the the autopsy in forensic reports and in fact she never even advised mr fish properly on those results and and i was able to find in the d n a reports which summarize  the autopsies that both of the deceived had serious health issues and both of them had heart disease and were middle aged people  taking other drugs and so the the and the the burden that berge puts on the death results enhanced is that it should be submitted to a jury and found beyond a reasonable dou see both of the to see dence the p s r states they were suspected drug overdose which that right there i think puts some doubt on whether or not they were the the drugs were the but for result of the deaths and also one autopsy revealed the deceit and had a school or other cardiovascular disease and pulmonary emphysema at the time of death the other up topsy revealed coronary artery disease the narrowing of the corner arteries as well as from trickier hypertrophy is the enlargement of the chamber wall council could you help me with one factual question because now the your delving into the facts which is and i agreement he says he agreed or admitted this is a page to the plea agreement the methamphetamines he sold as part of this conspiracy resulted in serious bodily injury to two people now i understand that he didn't say that i was the but for cause but that actually is the exact language resulted in that these that of the statute that the supreme court was interpreted barrage and so what do we make if you're not trying to get out of the plea agreement right they're not trying to get out the plea agreement so this gets back to judge politics question what do we make of that factual concession doesn't that isn't that the end of the in effect of us a council claim well i think it was bad advice to concede that point and i brief the issue and there was no reason to concede that he wasn't gaining anything and even his counsel in the transcripts of these hearings she's seem confused about how she thought the the enhancement under the statute had been dropped in the charges and why why is it coming up as an enhancement in sentenc the fact is that if he had been advised of the government's burden under a bridge he went to have made that concession so do you don't think you need to get out of the plea agreement than to to get the relief you seek for ineffective assistance of counsel well mr fyshe in his petition asked for the sentence to be vacated so if we have to go through with another plea agreement then that may be the case right now so to kind of information i think that was ill advised and a guilty plea is only constitutionally valid if it really represents a voluntary and intelligent choice among the alternative courses of action open to a defendant and here mr fyshe was not provided with all the of death of these individuals the other question i have is what about the what about the fact that how do you handle that the fact that he had  result of the process instead of taking it apart and looking at the individual elements and simply look at the entire at the of the representation and and whether it indeed up with  result well i think one issue is the number of counts not unusual in a drug conspiracy like this but the fact of the case show that fish was a truck driver not educated he's not a criminal  mastermind or drug kingpin here he resisted cooperation with the government because they wanted him to testify against his own brother and he refused and that gave the opportunity for other coke c s to point the finger at him and that left him more exposed until later on in the case where ultimately in the end he got this bad advice the better and put the government to its burden on that that's right your honor the government's case was not put to test the adversarial system failed in this instance and justice was not done and the  judge dublin dismissed this on the papers right he never had a hearing on this twenty two fifty five proceeding that's right so really what you need what you want is a hearing  in her affidavit defending herself against the ineffective claim she used that opportunity to throw mr fyshe under the bus sensually didn't raise didn't say that she brought up any of these issues to advise  appellant's twenty two fifty five petition now the burden is on the appellant to demonstrate that he received ineffective assistance of counsel and under strickland has to show both deficient performance and prejudice and i'd like to highlight that the issue before the court is not about the defendant's sentence it is about whether or not he would have pleaded guilty based upon bad advice he would have gotten better advice he would have pleaded guilty and based upon  concession he is upset about the sentence not about the actual fact that he pleaded guilty he is it expressing that he is in fact guilty but he wished he would have stipulated to a base offense level thirty eight and the defendant routinely plead guilty across the country every single day to things that the government has to prove beyond a reasonable doubt and the stipulation to a base offense level of thirty eight was no different for several reasons first the defendant received a bargain for exchange he received a conviction on one count he was the twenty year mandatory minimum on two counts was dismissed he received only a ten year mandatory minimum was able to argue at sentencing for that ten year amount and most importantly he didn't in the stipulation itself he prevented the united states from asking for an upward departure so he gained a bargain now he did receive a two hundred forty month sentence and that is twenty properly raise the issue of whether or not he would have pleaded guilty he asked he specifically said that he is a counsel failed to protect his interests feel to advocate for him at sentencing did not not  advised him of a favorable plea that there was a cumulative effect of counsel ineffectiveness that there was a lack of guideline basis that the parties had agreed to a guideline based offense level in the police and then ultimately the sentence enhanced m apply well that's that's my question to you is opposing counsel seems not to see that's too strong but seems to recognize that the precise claim here may not have been raised but in that last claim claim sex he raises the  enhanced meant the base offense level thirty eight and then he raises five other ineffective assistance of counsel claims close enough not close enough and if it's not close enough why in a pro se pleading your honor i would argue that the to wear the white hat the united states would emit a pro se defendant doesn't have the knowledge to raise every claim that would meet the strict standards for appeal ability how are we would say that it's close enough for him to determine that this is a sentence i do not want and nowhere does he state that he would not have pleaded guilty and i think that's the difference in a case where a defendant simply states my lawyer was ineffective if you list all of the reasoning if you would have simply just stated i would have pleaded guilty that would have been enough but he didn't he is stating i did not like the fact that i got a sentence that was two hundred forty months because i believe i was promised in the district court to a range of one hundred sixty eight to two hundred ten months and that was based upon the colloquy that the court had with the defendant however it's very clear from the change of plea transcript that the defendant was advised multiple times that the parties were free to argue for additional one handsome it's he's instructed by counsel at certain points and i'm not sure if we're getting a favorable plea goes back speaks with him the judge then instructs him you don't have to take this plea however it's likely in and everybody had agreed at that point that the base offense a would be thirty eight you can ask for any sentence as ten years based upon this plea the government can ask for whatever it wants including additional enhancements but nowhere in the twenty to fifty five the change of plea or even sentencing do we have the defendant excuse me the appellant stating that i would have had what about the argument that he got ineffective assistance in stipulating to the level thirty eight now i don't even assuming is plea is not challenged yes or no i don't believe he received ineffective assistance of counsel because colloquy where the united states attorney speaks to the court about the factual basis he agrees that that was an accurate factual basis to summarizing the but for causation of serious bodily injury where two people have died as a result of the methamphetamine distribution by the defendant and he signs a stipulation several months later in march of two thousand and fifteen and he does that he gains an additional benefit in the original plea agreement although there weren't very many limitations there was  limitation of we're going to dismiss several charges you don't face a twenty year mandatory minimum you face a ten year mandatory minimum however in the stipulation it goes further to say we're green it's a base offense level thirty eight however united states will not ask for a departure upward for death or serious bodily injury and i believe in the joint supplement joint appendix that there is sufficient evidence where the autopsy reports describe how each individual died as a result of methamphetamine toxicity in miss know about affidavit she describes that she allowed the defendant or appellant to come to her office once a week review the information the discovery  on her computer and it appears that the defendant is upset with the the ultimate result of a sentence and although i would agree that there's a certain part where every client would like to have a sentence of one hundred sixty eight two hundred ten months that's different than whether or not his attorney was ineffective attorneys are presumed to provide effective assistance of counsel to their clients in this case ms know about our argued struck a favorable deal where the  counts allowed to argue for a ten year sentence as opposed to a twenty year mandatory minimum and she actually did so well that she actually got him two hundred forty month sentence which was below the two hundred sixty two to three twenty seven guideline back to the court let's assume that the court would have looked at it without that but basically it's level thirty eight for the but for causation of death or serious bodily injury he would have been at a base offense of of thirty six based upon the drug quantity and the drug minus two project the guideline revision reducing drug quantity guidelines he would have had a range of two hundred ten to two hundred sixty two months he received a sentence of two hundred forty months which is within in the middle of that guideline range and based on that the defendant did not receive any any prejudice and at this point the appellant feels that he is did not receive a fair sentence however he was able to not have a t wenty year mandatory minimum and was able to argue during sentencing for much less and at this point unfortunately the defendant is not happy with the ultimate result of the sentence but that doesn't change the fact that his attorney was effective represented him well and ultimately he's straggler will give you one minute  after reviewing the petition here i see i think in ground five appellant was raising the issue of in effect of assistance and saying that he was coerced into making this plea and i think that's where we get the idea that he would have pleaded guilty but for the bad bad advice of his counsel or what page are you citing that's page one twenty of the joint appendix now that's the plea but i thought you said on your opening office and north dakota that may be his better option but he does feel that he did basically had a four level increase applied to him because of the bad advice and that's really at the root of the problem and i would like to point out that in the brief we do say that his counsel mentioned  him but she only said the name he remembers her saying that name she never invited him on the butt for burden that the government would carry or how it would affect his case and again i think he did not receive a favorable deal the mandatory minimum that the government refers to again in a jury trial they would have to prove that the deaths were the but for result of the drugs and i don't think it's there based on