good afternoon your honor may please the court robert swain for amelia ray's boss in this case your honour's is a fairly narrow issue the court is looking at today because we're merely saying that the district court abused its discretion by failing to halt and evidentiary hearing directly contrary to twenty two fifty five b and case law in this circuit including to come there should be no dispute by most and yet the language of the court's decision itself that the district court merely took the declaration of the attorney over the declaration of the petition and it says right on page five of the six pts that is true contrary government and the lower court relied on a single lot of to resign and relied on a single case the turn decision which really isn't on point to this case because in that case you could look at the records of the case and she first of all there's no in everything and it's a doctor and our court has recognized this case seems to be similar because this judge watched this petition your client have a trial and maybe determined in the course of that trial that your client wasn't credible now your client has offered an affidavit why isn't this judge entitled to say i have i have enough knowledge about this person that i believe that they lied to the court and i think this is another lie to the court and so i'm going to and there's no reason after hearing because i know that i'm going to believe counsel rather than leaving this individual well first that wasn't anywhere in the lower court's decision so there's no evidence whatsoever it was based on that but more importantly there was no evidence that mr it was a liar or had any credibility determination made against him during the proceedings that he testified trial no he remained silent a trial at sentencing he remained silent so there's absolutely nothing in the record that the district court or the government could point to just one day what was the underlying crime and was there any evidence about his credibility in connection with that you know the underlying crime was a conspiracy and various substantive counts  of bringing it on to documented aliens to the country and what made it such a severe case was the thirteen twenty seven allegation which is a strict liability if you bring in someone who is an aggravated felony and so there is not going there any statements offered that he and any confession or anything in that prior case in the underlying case not that i'm aware of i that was a fairly lengthy trial in that case i know he did not take the stand my recollection is that there was nothing along those lines there is no fraud or any type of any elements of the offense there a court would be able to look at say that this was i've already made the credibility determination in that regard elated question during sentencing you said he remained silent during the sentencing proceeding does that include speaking with the probation officer in connection with the creation of the pre sentence report he gave background information none of it that the probation report was declarations next to each other and and deny an evidentiary hearing based on the conclusion that the prisoner's declaration is contradicted by the attorney's declaration  concern though is does there really have to be i mean if we re mandated with their with their really have to be an evidentiary hearing it seems to me that the government rightly raises a concern that be appropriate on remand for the district court to reopen the record and give the government an opportunity to submit additional documentary evidence that might refute  keys position in particular i'm thinking about the fact that ray's boss key said you know the offer that they didn't communicate to me was not accompanied by an agreement that i would have to testify against government agents and the other offers they gave me did require me to testify against government agents and i would think that the government might be able to submit documentary evidence to refute that that would obviate the need for an evidentiary hearing in this case don't you think that would appropriate to give the government a chance to to do that if it wanted to under the facts of this case i really don't see that as a possibility because for the direct concern the court does mention it is in the record that the other agreements require cooperation at least as to the post trial that's in saddam's declaration he says that the government came to him post trial and said we can still say no but what about the offer what about the offer of the response key rejected before saddam came along for example well maybe the government could has that made an offer was in writing and maybe the government could submit it to show that in fact that didn't require cooperation well i guess certainly courting a large record but mr bossie would have to have the right to respond to that and i think that you know when the cases look at the need for an evidentiary hearing it said the case you said it's particularly  issue i guess theoretically i would think that my example would would would be an example of that i mean if they said look here's the offer that we transmitted to him and it did not say anything about requiring him to testify against government agents then raised boss has been caught in a in an out now lie and there would be no need for an evidentiary hearing well if the prior counsel confirms that and if mr boss gave had the chance to respond and say no that wasn't communicated to me that's that's simply more that have to be developed in evidence you're hearing the court said saying that as if the government transmits an offer to the attorney that is somehow automatically transmitted to the defendant and that's exactly the case we have here where we're saying it wasn't  communicated and it wasn't communicated properly and you know in terms of any inconsistency in the record i think it's the purpose for a hearing exactly determine the credibility question when you have someone who fled this he's got a sixth grade education in mexico he speaks no english and that is set for the having someone else another prisoner helped him draft the pleadings and so you had a hearing what any of his family members testify i believe so i believe his brother and mother would testify about a number of factors including whether an interpreter was used in order to compete communicate with the mother i can i bring up one other point that you know preparing if the attorney just read that letter even accepting the attorney's declaration he was giving incorrect information to the defendant about the rich of going to trial and knowing the maximum penalty in the courts have on the record three times i have this discretion in the hay vs context for specifically this moment and this was addressed in the turner case where the turkeys which speaks to that evidence that's necessary to support the he and the turkey there that the defendant self serving statement was not enough not enough for what they said if the rule were otherwise every rejection of the plea offer viewed perhaps with more clarity in the light of an unfavorable verdict could be read litigators upon the defendant later claim that had his counsel better advised him he would have accepted the plea offer but i think that i think the problem with i'm sorry now that i think the problem with your reliance on turn er is that the the record in that case clearly indisputably refuted turner's allegation that he wasn't informed about the consequences of this plea right and and  you know it may be that mr are seem kind of dubious but i don't think you could say that about the record in this case that there is documentary evidence that refutes his assertion that he wasn't advised about about the consequences well it is important to note that this is not merely the his trial counsel's word against ray's bosses word it's not just two competing declarations and the district court noted this in what additional evidence is there the dish or specifically noted that it was undisputed that reyes had rejected numerous prior offers but that issue is what was he told the prior offers contained about what he told this offer contained so the fact that he rejected the other one doesn't answer any sort of not relevant right will i think it's relevant to the problem it's also relevant to well it's not i mean i thought maybe it's relevant but it's not very persuasive evidence i mean if he didn't know what the prior if you had incorrect information about what all of the offers were then the fact he rejected them is neither here nor there but there's no when he filed the paper but he could have gotten that later he got his file in order i mean at some point he got his file but that doesn't mean he had the plea at the time he had to make the decision that's that's correct but the point is that there are other there are other evidence is in the record that i mean so the term case uses the word self serving but says that it was a self serving declaration that contradicted things that we knew happened because he was in the courtroom when the things were happening and he says they didn't happen basically and he knew that he was the subject of the phones because sitting in the courtroom when were talking about it that's not the situation here so i mean you're putting a lot of weight on self serving but turner never said from now on any declaration that could be considered self serving is not going to be considered great i mean that's not what was really going on there was evidence in the record that showed that the that the atheist claim was all still of the principal and turner speaks to the evidence that's required to be offered by a  defendant and the district courts does not have to hold a hearing where the record conclusively establishes that person or that the prisoner is not in kind what in this record conclusively establishes that his current affidavit is fall that he was able to give no are the defendant claims that the his lawyer invites him to reject the plea and the defendant was able to give two other affidavits to the court in addition to his own but that's only because sorry to hear he's saying the mother in the brother would come testify about what happened to the time what the lawyer told him what maybe what the lawyer told them directly we haven't had the hearing so we don't know what the mother and brother are going to say i don't think there's been any discussion previous to this point that says the mother and brother in any family members have any information whatsoever about  what about us versus howard us versus howard was a case where the defense as i recall it the the defendant said i was under the influence of narcotics and as a result of there is no dispute that he was taking narcotics they were taking painkillers but the defendant said i couldn't understand the plea colloquy because the narcotics really messed me up and there was nobody else who was saying that he couldn't understand the plea colloquy because the narcotics really messed him up it was only him isn't that an example of a situation where it's really only the word of the defendant that requires an evidentiary hearing respectfully you know your honor and howard it was undisputed and it was shown by that transcript that the defendant was under the influence of narcotics at the time  issue was whether he was so messed up by them that he couldn't understand what was going on during the plea colloquy that was the point in dispute and i think the only evidence in support of his position on was at that time under the influence of narcotics so that's why howard is different if it was just the defendant's self serving words i don't think howard very well may have been decided differently but please transcripts serve to corroborate the defendant's word other than to no relief the court shall grant a prompt hearing so does the words of the statue tell us that we need a hero here i still haven't figured out why you're saying that you're saying self serving is not enough but i don't see why that conclusively shows that it can't be true did the district court made in its discretion of the decision to not only cure it with keeping in mind paternity which which said and give give give a hint as to what was required for the a b s petitioner to produce in order to own self serving word was not enough and if you're telling the truth i'm sorry i just want for a purpose for my benefit and a set of our ideas that i just want to make sure we clarify what the conflict is here the prisoner has come forward and said about the lawyers of supply an affidavit that says i did in fact tell my client about this plea offer and it's important to note that the petitioners claim dramatically changed from the beginning to the end at the beginning of the case he says he said that inconsistency that the district judge did not but under this is noble review of whether the whether the council was in effect if we can this court can look at that would it doesn't the record indicate that there was a history here of plea offers that were  cted that's correct the reyes himself has admitted that he rejected three previous opportunities to please and he rejected them on any five tried to fire his lawyer and he tried to fire him because he had hired him to do his job quote which he admitted meant achieving an innocent verdict even post verdict he admitted that he was not there he held steadfastly to his innocence so if we were to conclude that that is inconsistency but it doesn't particularly given that it's he was proceeding pro se and you're supposed to construe pro se pleadings liberally if we were to conclude well that's an inconsistency but it's not enough to show that the record conclusively shows that he wasn't entitled to relief what about my ideas and i posed to your colleague about about remanding to give the government a chance to submit additional documentary evidence perhaps about the content of those other offers that might refute what response key said in reply yes i think that would be the proper procedure and i don't know if i can speak off the record in terms of what we could produce but there would be there would be evidence that we could produce that w directly contradict what ray thought as that in his reply brief because we never got a chance to rebut is his assertion that somehow these other offers required him to testify in immigration agent we could produce that evidence i don't think the court needs to go i mean the the remand would be the you know if there is a conflict in the record the the there has to be a hearing but if the government's documentary evidence can conclusively conclusively shows that he's lying th in the basically it's up to the district court to figure out how to handle these proceedings as long as it does so consistent with the requirements of the statute which is there shall be a hearing unless the record conclusively shows i understand the court's position i couldn't tell though whether that was about this last plea that his claim is about do you know if you think that's clear i think it's clear that it's had to do with this plea offer that was not communicated