regarding their superior court counsel the representation of the ineffective assistance claims of representation led to the non acceptance of very favorable wire plea offers and  very severe and much more severe convictions and sentencing consequences approximately twenty years for each appellant appellants maintain that both of their attorneys provided ineffective assistance of counsel p meeting that they both suffered strictly prejudice as it is basically defined under the plea bargaining and non acceptance of plea cases either based that the go under strickland and the laffer the the critical question is whether you showed a reasonable probability that  in the deficient performance one would have accepted the plea correct that's an brooms and that's a fact question and judge leon resolved it against you so you need to persuade us that that finding was clearly erroneous which is a tough pill to climb your honor rom i would submit that the analysis shows and there are significant problems with the courts analysis as to both the and he did that in a way in a manner of dismissing being very dismissive and situation the st issue that was addressed to the supreme court said just the opposite way they say that ex post testimony by a defendant is not sufficient and they say you should generally look to contemporaneous evidence that they say it's not sufficient by itself and that contemporaneous evidence is is something that should be looked at right look we don't put too much weight on the your supports that it's not always the case that the contemporaneous evidence should slay them in the circumstances of the case and in this case it doesn't shed light because be it's hard to hold mr made accountable for his focus on wanting to go home or wanting to see his wife when the attorney one gives misinformation and says in a  conversation standing in court before a judge that there's a plea offer to a ten year mandatory is what he said which was a misstatement and then over the two week period when he's supposed to be considering this and deciding whether to forego his options are yet this is what the plea is this is what the consequences are of the plea this is what the consequences are non acceptance you have a difference of exposure of a of a guideline range of thirty to seventy two months  of you'll end up in federal court in you'll be looking at a twenty two dollars good twenty five year sentence and that wasn't done so the fact that he stands and says and makes any comments is of what i consider to be of  and the failure of the lawyer to disabuse them of the notion that he was going to get out there at some chance of getting out the this bird will i don't know that that was front and center but i based on the miss it vice and lack of advice regarding the entire complete consequences for a new turning not to visit his client once not to review where the stakes in this and the severity of the consequences are so severe as they are in this case for both mr thorpe and mr knight to not visit one time it's hard to hold that defendant who might have some hope of getting out or some hope of of of a possible quibble down the road on responsible for that statement in a way that says oh he would have never accepted a plea if it was pro bonds i think that the skipper in the thompson language recognize a situation that we have here is a twenty year difference and it's up to the attorney to effectively advise the client as to what the consequences are what they will be if he does not accept the plea offer and and when it's not done even one iota then then those statements really do shed little or no  that later time period when he's facing charges in federal court ok so he gets a different lawyer right your your claims of ineffective assistance go only to the superior council lawyer he gets a different lawyer in federal court whom you haven't said rendered deficient performance he now knows he's facing federal charges he knows it's a multi cam indictment with kidnapping and gun charges it's a big deal he gets another plea offer in federal court with a not ineffective counsel and he rejects it why isn't that pretty compelling evidence that he didn't want a plea well it's really apples and oranges not february st it's not  the w pleads period or with the guideline range of the body but it's a it's a point in time when his counsel is not ineffective and he has pretty good reason to think that he's facing serious exposure the plea offer that was extended in federal court in june involved pleading to three counts in forty five years of exposure as opposed to the initial e w plea which was zero to ten  attorneys duty to his client to assure that he has a reasonable opportunity to accept that offer before lapses the calumny of it is both were ineffective iverson and but the complaint is not that you didn't pursue a plea option the complaint was you didn't get me to trial fast enough in some respects that's one of the complaints but it is a exactly what the ramifications of a plea offer were even then because that was water over the bridge that gap and want to go pass there's nothing in the record to suggest that his counsel at that time the lured him to the that had been made and so that he could complain about that this was his own internal ruminations and it was a kitchen sink variety and didn't suggest at all that if he was properly advised he would  expressed preferences at the time that this plea offer is made he says he's not copping to it i think the court's also disguised you have some answer to your opposition that all that acted by the size of the ineffective assistance of counsel that we're talking about so i think that we're looking at what it was affected by the ineffective assistance and what wasn't i think the trial court's focus on what happens in district court is important to inform because once of helen knight goes to district court he is indicted on all the charges that he's going to be facing from the original scene to the federal court ok correct and he's not complaining that there was ineffective assistance in federal court and this record at least there's no evidence that at the time he goes for the attorney and says hey that plea offer that they were offering in severe or back at the beginning of this case what happened to that might that his codefendant who would have been on the record clearly would've been happy to accept a plea and spirit for i did not think the federal court offer was similar back because they were wired police identical situations could the trial separates them from the police of course and it's not wired the same way at any rate largely identical situations wasn't in taking him that he didn't want to but we can't assume that i don't think so i think that it could be that the situation very much like the situations appear court happened where the plea was wired and he exploration at the hearing about why that is and there's no exploration at least no evidence from the pilot night that he went back to his attorney and said hey i want that old or plea offer the one that was like that it's the federal in the district court record i did is that the federal plea offer is it in the district or area what do we know about the terms of the federal plea so i think we know plea offer we know very little is is the proportion of criminal manner think get resolved by plea relevant to that i don't think so you're i think that the court starting premise is that it's the defendant's ask you to look at the real birth for we get a legal analysis ok job comes we do that we look at the real world and we have what is it ninety seven percent of criminal matters are resolve think that's a significant enough because the trial court hears mr nigh testified in the trial court a guy with a testimony and he says you know what i don't believe him based on all of this other information in the record he looks let's pursue that  that's a potentially important point so this comes from footnote seven of the district court opinion if you started at the end of the footnote he's absolutely right he says eight the w is so not the ten years it's not a mandatory minimum it's a statutory maximum and i assume that's correct that's correct ok so then the problem is what to make now if he's if he's saying that the eighty w has a ten year mandatory minimum that's flatly wrong and flatly inconsistent with the last sentence it is it the case that any of the other charges that the government offered to drop i have a ten year mandatory minimum i don't believe so i believe not enough of them do all the other charges have five year mandatory minimums but none have a ten year mandatory so we so this st sentence is a bit puzzling that quite say that a t w is a mandatory minimum but it can't be reconciled with all i think that's i mean it's a sort of unclear it's clearly inconsistent and it's also so i think that district court is assessing the probability of his accepting the plea on a materially wrong understanding of what the exposure was to this very thing that the district courts reasoning doesn't rely on that the difference between do you know because i think that when we're looking at the exposure difference i think it's clear that the district where does understand the and her here's the testimony of what the guidelines would have been for the need of you please appear or i don't think the district court's opinion rests on this sort of difference between ten years and two hundred and sixty eight take on this case for whatever it's worth is that your adversary doesn't have a whole lot of compelling affirmative evidence buddy scott a pretty stark disparity which may appropriate i think that it's not because again of all of the contemporaneous evidence that one did not want to accept the plea including the fact that he knew the victim and was hopeful that the victim wouldn't cooperate and so was more willing to roll the dice a trial which is in fact bolstered by the fact that he tries to convince the victim not to tell not to lie to the police and is convicted of obstruction  shows he didn't reject and he said i'm either accept or reject and then that was further explained in the testimony at the hearing that the attorney just chose his words carefully but that it was clear that mr couper wanted to accept the plea in severe court so it just has been repeated a number of times that whatever happens spiro it was a rejection and the language was pretty clear it was not  rejection on the issue of reasonable probability i think we cited in the reply brief the geary case that noted in finding that reasonable probability was found that fifteen to twenty two year difference in was significant for him in his forty's and seemed to support the notion that it was reasonably probabl happened to be able to locate a way out of the agreement which is the st that i saw the actual details in the record it wasn't even set out exactly what it was it just stated that there was a plea and always well it's if it says draft it's it is on the department of justice letterhead suggesting it was sent from from the u s attorney's office to mr thorpe's attorney on or about june nd sixty two thousand and thirteen and it sets out the proposed plea to the three charges which carry the forty five year exposure which i reference here but i and i don't believe that knight's attorney had found did the similar one but i thought this was the least some evidence of of what was on the table in federal court which distinguishes it from what was on the table february