archer pled guilty on the understanding that if he went to trial and was convicted on all charges he would serve over thirty four years to life but that was not necessarily the case as the court of the  of the court of appeal penal california penal code section sixty four very well may have applied to reduce his sentence and i'm sorry to have a number of questions and we have a limited time absolutely think we're pretty familiar with the facts here but have you or your client ever attempted to obtain a declaration from mr archer's allegedly the deficient counsel that was notably missing in the record and or any explanation for that i'm very curious about that i was not appointed intel appeal and so i have not reached out to trial counsel however and we don't know what mr archer's efforts were unfortunately the trial court advised archer prior to his motion to withdraw his plea that i see was not a basis for withdrawing the plea we don't know how that miss advice but you haven't attempted to do this why haven't you attempted to do this to reach out to his counsel the person who was representing him at the time or because our at least offer an explanation i don't think i understand well my understanding is that when we're in the ninth circuit we are limited to the record before the district court and thus i don't know how i would but even within the district court i mean did anything happen at the district court to try to offer an explanation mr archer was pro se in the district court  letter if the court desires or what exactly is the error to leave the state for was the error only in calculating the thirty four year number or is it your position that twenty seven years four months calculation was also incorrect i need some clarity on the well and twenty seven your four month calculation may have been incorrect with the court told mr archer was that he could not go lower than that on an open plea but if mr archer had been had devised that he was entitled to an evidentiary hearing on the application of sixty four and if such a hearing had been held it is possible that they could have gotten lower but so what exactly is there that you believe the state trial court may the secret trial court should have advised archer that by pleading guilty he was waiving the application of section six fifty four which may have reduced his potential support the application the findings of fact are discretionary but once the the facts are found that this is all part of a single and divisible offense then the language becomes mandatory that that defendant cannot be sentenced on multiple convictions involving an individual so i understand the law in the six four you're really focus is on that but there were a lot of numbers and i guess i just want to know if i need to how closely i need to to track this because it really wasn't clear to me based on the references to the record and can explain to me of the numbers that the court miscalculated and precisely or allegedly miscalculated and precisely what you think is incorrect about them so i there are two factors and i want to separate them first of all the court was in violation of can and bradshaw simply by not advising archer that he was waiving this potential relief that that's one error and it has nothing to do with calculation a second error however is that what the trial court said is on an open plea we can't get below twenty seven years four months and indeed if there had been a section sixty four hearing it is very possible that they would have found that they couldn't could have gotten below twenty seven years four months it is very possible they could have gotten to twenty three years by not charging both carjacking and robbery for two separate victims well embedded in what you just told us what is the federal constitutional language the federal constitutional violation is a failure to  advise a criminal defendant about sensing consequences of his plea in order to ensure a knowing and voluntary waiver veteran courts don't have that obligation the permissible sentencing range must be part of the advice that the trial court provides to the criminal defense sure about the trial court's obligation here i think your better focus might be with respect to his coun from his from his trial counsel but let's let's and so let's assume we agree with you that the california court of appeals was unreasonable and applying strickland and determine the facts in this case as with regards to what his lawyers obligation was in advising him of all the ramifications of six fifty four and everything else how me understand what happens next it seems to me that we d not or we may not have sufficient evidence in the record at this point to simply grant mr archer leave so i suppose the other possibility would be to win them for an  develop the factual basis of his claim in state court so if he's failed to do that in state court for seniors i think the statute is twenty two fifty fo who says the court shall not hold evident true hearing on the claim unless the applicant can show cause and prejudice which i don't think mr archer argues here so what evidence in the record can you point me to that shows that mr archer diligently attempted to develop the record in the state court your honor unfortunately the record is very sparse on that issue mr archer was representing himself pro per in his motion to withdraw he was advised by the trial court in preparation for that motion that ineffective assistance would not be a basis for that so we don't know whether that faulty advice affected mr archer's preparation so he never did he ever ask for evidence rehearing in state court or in federal district this was solely a direct appeal claim so he did not ask for an evidentiary hearing in state court but in fact this is an interesting case because he did receive an evidentiary hearing it was his motion to withdraw and whether or not that was a full and fair hearing within that that would preclude deference under twenty two fifty four d two because of the trial court's miss advisement that ineffective assistance would not be a basis for withdrawing the claim we really don't know how that affected mr archer's decision making the other thing that i just wan raise your honor is in my experience doing hevia is for ten years the l a county public defender's office has a policy of not cooperating and ineffective assistance of counsel investigations or providing declarations so this very well may have been something that was not available to mr archer i see that i'm running out of time to judge school do you have any questions no questions here writing thank you thank fourteen my understanding of the record is that the calculation itself is not at issue in terms of how the numbers were imposed and then added up it is more that as to the issue of whether the was voluntary under the first claim it's whether the trial court was required under the supreme court precedent to advise of the potential application of six fifty four and i think that parker kind of hit this on the head which is you know there are a lot of consequences that the court is required to advise the petitioner of when they take a plea and the supreme court has stated in brady and bradshaw that it must be a direct and likely consequence so for example you're waving your right to a trial if you went to trial your maximum exposure in this case is thirty four years four months to life but the potential application that some of his punishments might be stayed under six fifty four is as both a court the court of appeal and the district court found entirely speculative it could be that there is a rare situation in which six fifty four would apply as a matter of law because the facts are so clear to you that the one act really constitutes one indivisible course of conduct but that is not the case and in this situation and nuts those are all argues for with respect to the court duty if i could ask you about his couch his counsel's duty because i think that's very different and i don't think the same law that applies to the trial court applies to counsel in fact i think it's  much the opposite you're supposed to go over every possible ramification and give good advice and counsel to your client and so here mr archer has cited a number of professional standards for defense lawyers that seem pretty clear i think in that the council must advise the defendant considering a plea of the probable sentence that the defendant would face if he proceeded to trial  including the rules that would affect the sentence so how is it possible that a defense attorney in california is not required to discuss section six fifty four with his or her client so even assuming he did not tell him anything petitioner has not shown prejudice here the statements that he made at the motion to withdraw the police show that he really was most current concerned with his life term and got him so and so the if had he gone to trial even if counsel had told him about the application of six fifty four nobody contests that the life term would have gone away the life term would have stuck assuming he was convicted of kidnapping and so to to that extent there's been a failure of showing prejudice so that's easily disposable but i don't know that spot easily disposable to specifically an alleged present evidence in support of his ineffective assistance claim but i guess archer was representing himself when he filed the motion and declaration what more could he have submitted at that point and i guess i'm trying to figure out did he have full and fair opportunity to develop the record in state court in his direct appeal once he did have the house all or was his claim deny before he could record in this case regarding because that was specifically the reason that the california court of appeals said no you can't we can't go forward because you haven't really asserted enough to so far for us to make a determination on whether chose to represent himself and exercise for our rights the court from the to be knowing and granted to him he filed his motion to withdraw and i mean the thing is but on hevi if he had to show in district court yes and was he denied a fair opportunity to show that well on his relief in district court he's not entitled to an attorney and if he were not able to explain the record as it is that's kind of what he stuck with and you're right on that i guess i'm just wanting to make sure that he had an opportunity to develop the record in state court in his direct appeal once he had counsel on his whole claim of ineffective assistance of counsel at the trial court well then i think that the onus is upon appellate counsel in the state court to do so and he or she did not and so the record is what it is so we're left with his pro per statements and his motion to withdraw nothing in the direct appeal for which he had state appointed counsel and then again nothing in the district  which point he was proper on one of the things i'm not entirely clear on as i look on the record at the record in his case why wouldn't he have gotten got six fifty four really well i think that's precisely issue we don't know what are could be missing something well well i think it's not that you could be missing something is that we don't have a full record all we have here is a preliminary hearing and the evidence  hearing is meeting a different bar than what would be presented at a full trial or even of an evidentiary hearing on six fifty four and so even giving petitioner the benefit of doubt if we were to say and i'm referring to my chart on page fourteen an applebee's brief the fact that there were three victims plus his four priors even if you just did the basic math saying we're going to stay the other counts for each victim that would we've  four and seven as his maximum exposure which by my calculations comes out to about twenty years plus life so assuming sixty four did apply which we don't know plus the four prime i'm sorry that would be fifteen years plus a four pars that's about twenty years of life that's still not close to the fifteen that he's alleging in his motion to withdraw should have that would have changed his mind and again six fifty four really if we were to say that council has a permutation from thirty four years to life down to zero right because it could be that the robbery count was he was acquitted of that but he was found of carjacking and then it could be that this victim it was found he was found guilty but not us this victim so really in my mind it looks like a flow chart from law school where it could just take so many different paths between the most and the least which is zero and to to require the the trial court to to advise  that really is just impractical and not required by the supreme court this court in tory vs style has held direct consequences to mean those that are definite immediate and largely automatic in your position  fact and as the trial court applique eric tries that really just buyer's remorse i mean if we were to credit his statements alone as being sufficient to show prejudice without a declaration from counsel or any other evidence i think that would really set a pretty low bar and any petitioner could come forth after they've negotiated plea maybe a jailhouse attorney tells them hey you know you could've finagle something better or six fifty four could have applied and then you just you know file an evidentiary hearing saying if i had known of x i would not have taken the plea and in this case the the record shows that it was me knowingly and voluntarily the yes you may have two minutes thank you your honor i'll be three i want to just make the point that actions speak louder than words mr archer moved to withdraw his plea if he had been successful in doing so he would end of october i also want to know if counsel has mentioned that the focus was really on life but when you look at the term of years that mr archer was looking at the thirty four plus years to life thirty four years alone would have put our church mr archer at age seventy seven for his earliest parole eligibility the twenty seven years that he actually pled to would hit puts him it age seventy at the time of his release and so when we're looking at mr archer being of such extreme age at the time of his potential release or release the difference between life and what he got or what he could have gotten is not large enough to make that differentiation mr archer was focused in on the term of years and i just want to let focus the court on mr archer's statements i could proceed to trial and went to trial if i wasn't facing thirty four years to life i think that sort of shows prejudice  but heat that but that term may have been reduced by section sixty four and that is what mr archer was not aware of when he pled thank you very much appreciate the arguments