accurate advice about probation eligibility before hand they didn't have the chance i'm just trying to figure out because this is my understanding i want you to correct me from wrong my understanding is that he decided to plead guilty not knowing about this  showed up at the hearing where he was already prepared to plead guilty and that's when you heard this inaccurate advice so if that's the state of the record i don't understand how could it have been the curial his decision if he didn't he wasn't given that and accurate advice before he showed up and was standing there ready to plead guilty and the first time you heard it was when he was in the process of pleading guilty it seems to me that's not material so that's what i wanted to you to help me with well mr gutierrez has never testified about what his attorney told him ahead of time he alleged in the federal petition in this case that when he entered the plea he believed he was eligible for probation on count two and he is alleging that state court proceedings that he never got accurate advice before the plea called queens so if the court is concerned about what did the attorney tell him ahead of time and what did he think ahead of time there ought to be a rematch and so that he can testify on that issue do you disagree with the premise of my question to you that if he learned for the first time at the hearing where he was already prepared to plead guilty right that maybe he would be eligible for parole probation on this count that that would not call into question whether his plea was knowing involuntary yes because if he did know one way or the other than that means he didn't have information about one of the direct consequences of the guilty plea and under boykin in order to make a constitutionally sound decision to plead guilty well no because i don't think you need to know the range of penalties you need to know the statutory max that's for sure i think that's all the supreme court has told us right we have circuit precedent that goes further but in terms of what the supreme court has told us it said it is never said you need to be advised as to what  i think it said you need to know necessarily that you know you would be eligible for probation or not you just need to know that the maximum you're looking at is twenty years or something but boy that has language suggesting the full range matters but circuit precedent does matter in this case because we're able to get around at the standard of review under section twenty fifty four d two because the state supreme court's decision in this case rested on a fundamental unreasonable determination of the facts when they said that mr gutierrez got consistent that the it's the vast supreme court used is that the district court found that the penalties in the written plea agreement were consistent with the penalties discussed during the arraignment so gutierrez entered determination of the facts because they're consistent if all that matters is the maximum right i mean it depends what matters when you're looking at whether they're consistent so it's not obvious that that's an inaccurate statement well the claim before the vast supreme court was he got bad advice about probation eligibility that makes his claim that makes his plea unknowing an involuntary they don't say anything about advice i don't think at least on what you just read i don't remember them commenting on whether the advice he's he'd gotten from his counsel was consistent over time are consistent with what happened they don't speak to the advice he got from his counsel do that well that was the main focus of the claim in the briefing before the nevada supreme court was the same error about probation eligibility in the vast supreme court rejected that and essentially said no we think he got accurate advice about his probation eligibility but that it is there somewhere where they say we think he got accurate advice will they all they say is that the pound is in the plea agreement were consistent with the penalty is discus during the arraignment and when they say penalties presumably they mean they mean probation eligibility too because that was one of the main issues raised on appeal so they don't quite say accurate but i think that's the only way to read their decision and that's an unreasonable determination of the fact yes maybe maybe it is but but it seems to me that relates to a legally irrelevant point and so if that's true then i don't think we can get around that but deference well the claim was phrase i got bad advice about my probation eligibility that makes my pleas violate boykin and response of a supreme court essentially said we disagree with the factual premise of that claim and since they since i'm saying i guess i don't think we as a as this three judge panel bound by we are i don't think we can say that if you don't know whether your probation eligible for an offense that renders your guilty plea unknowing and voluntary or involuntary i don't think we can say that because the supreme court has not gone that far yet right but court has made an unreasonable determination of the facts then it goes on to do novo review and in that case the panel would be bound by circuit precedent which is sad that boy can requires information about the direct consequences and that includes the full sensing re adjust on the on reasonable determination of the facts need to be relevant i mean if they start the hearing by saying today is tuesday and it's actually wednesday we don't get out of that at that deference i don't see how the determination of the facts in the supreme court's opinion could be irrelevant because the claim is a boy can claim and this is the logic that the vast supreme court is using in refuting the boykin claim and saying it has no merit is they're saying he got consistent bias throughout the entire percentage he needed to know which was the maximum exposure that's i guess from a federal constitutional standpoint that seems to me as the law stands now that's the only thing that matters in terms of what the supreme court has said well i think that if the nevada supreme court had said the defendant raised the boy can claim based on  accurate advice about probation eligibility we don't think boykin requires accurate advice about probation eligibility so we're going to affirm on that basis that would be one thing but the best supreme court didn't say that what they said is that the penalt discussed at the call if we are consistent with the penalties discussed during the arraignment and when this court is reviewing the state court's decision on the question of deference you need to look at the actual reasoning that the stake were used in the reasoning the state court used here relies on a fundamental misreading of the record and in that circumstance if you look at cases like maxwell versus roe if there is a fundamental misreading of the record that gets the petitioner around to a row i'd like to go back to judge watt for its first question or second question about the record here so is there anything that would have prevented your client from submitting in the state court a declaration that said i was given the wrong advice before this hearing well he alleged that in the petition i is prepared to testify on that issue at the hearing but during the hear the hearing sort of know where the city got the rails right yeah i just want to hear about the appeal but then why i couldn't he have submitted a declaration at that point i mean i'm just concerned about whether we really could even develop this record in federal court if it could have been developed in state court and i don't totally understand what prevented it from getting to vote in state court i think asking for a hearing is enough he asked for a hearing he was prepared to testify on that issue and the state court unreasonably limited the scope of the hearing and under the but since he didn't need to be a hearing i mean off all he needed to do is made a declaration right or an affidavit of some sort of sworn statement about his understanding from his counsel before for the hearing that might have made the record stronger but he did ask for a hearing and i think that's all he was required to do or did he even allege that he got advice before the plea here colloquy here in his first petition isn't quite as clear on that point but the second petition he filed in state court he does allege that and that said you are one hundred one and then we have the problems of whether he was procedurally part of that point right doesn't need to be in the first petition the record might have been better if it wasn't a first petition but that but the lawyer who was appointed to represent him made the allegation that he received inaccurate advice about the probation eligibility ask for a hearing on that subject was prepared to present before showing up got the decision to plead guilty my lawyer told me that i was going to be eligible for probation on count two or whatever he alleges his counsel was ineffective when he did not advise me of the proper penalty at arraignment and prior to the plea and so his plea was involuntary as a result so he says of course we're very aware that mr gutierrez counsel had made that incorrect statement at the plea colloquy so it's not like they didn't realize they had made an incorrect statement and that's why what they actually said was the penalties in the written plea memorandum were consistent with the penalties discussed during the arraignment not accurate not correct not even the word same the word was consistent and that's important because the bout of courts had said accurate or if they had said correct then i'm not sure they would be due epa deference and what you're parsing the language it seems quite quite finally here what do you think the word consistent means there i think what the word consistent i'm about to show that what if the work assistant even means the same range in other words the ninth circuit's standard in little if it means that the nevada supreme court was correct because actually what mr that it made no difference i think that's what they meant and something like i think what they meant was that something like the seven circuits like the second circuit standard of a harmless error and let me explain to you why i think that means that i think one of the misunderstanding mr gutierrez has made of this court is that somehow  probation because he's got what is a ten year man to turn your maximum so he's going to prison for ten years what he wants to be assured of is that i'm not going to get extra time tacked on top of that yet and so there's two things that are relevant one tell me on probation eligible which means maybe the judge will take mercy on me and not give me any more time or and to promise he was promised he says that he's going to get concurrent sentences so to me those are totally consistent with one another and it makes sense that he was already concerned that now the seems like a lot of time for this little penny any case drug i think you're right you're  fact used and you should be used or because in fact in the way you just characterize it because if if he had actually reason they're inconsistent because if he had actually been gotten if he had been told that i'm going to get concurrent census period then as mr acknowledges on page twelve or thirteen of his reply brief think count two would become a knowledge of practically speaking he would have been worried about if he really thought he was going to get concurrent sentences then who cares about whether or not he would have gotten probation eligible because not count to essentially disappears and so you know really get double protection from any why what you could do is that we have to be as argument which i would i would say certainly the supreme court has not struck and i'm not doing a day's extra time because number one the judge might give me probation and if he does give me any time it's going to be run concurrent that's not what he says deuces to is i want the judge to have two options to research because the truth is the it's really important for the court to understand because of the fact that he knew that he could get concurrent sentences here the probation minimum maximum he could have gotten if you as probation eligible was exactly the same ten years because all the judge would have to do is sentence him concurrently so the minimum of his range on his plea deal is exactly the same under each of these and the maximum is forty years it's exact same because if the judge s him consecutively then he's good looking at forty years and the maximum maximum minimum which is ten years on count one and six years on count two which is actually what he got because the judge threw the book at him is exactly the same because the judge had the discretion so so you're saying because they could be concurrent the minimum is actually the same either way and i'm saying your honour's is that if you look at this even under the ninth circuit's press of that and under the seven circuits and the ninth circuit's range of possible senses under little under an under the nevada supreme court's consistent again not the same not the accurate not correct just saying you know what i was told was consistent because the range the judge had was exactly the same the judge could have given him ten years he could get them forty years he could give them sixteen mandatory minimum he had all the exactly the same options it did not make a bit of difference only difference it makes judge wofford is what you said and that is it gives the judge two ways to be able to to get to the same result instead of one way i can imagine requires that there's no there's no u s supreme court they to says well you know one of the things you got to know as a direct consequence of your plea deal is whether or not the judge can have another way of getting to the same result in other words it makes no difference  think there's direct evidence that goes against what the district court characterized accurately i think as mr gutierrez as their contention that he was promised consecutive concurrent sentences and so start with the indirect evidence indirect evidence is the sense in hearing a acknowledge it sensing hearing it's only relevant in the sense of what it can tell us what we think happened back during the plea call during the plea deal if you look at the sensing hearing what you've got is you've got almost the entirety of the transcript of the sensing hearing is mr   this whole thing goes on meanwhile mr good's you're sitting there the entire time we know that meanwhile mr gutierrez just before this has been read the sentencing recommendation in the sensing in the presents report that says specifically that he should get his second sensing so mr gutierrez if you look at the record what he does is he jumps up and he says your honor this is the first i've heard about consecutive sentencing what is all this talk about consecutive sentencing right that's why they know they don't they don't argue that because it's not there instead the judge says mr gutierrez it's your turn i want to hear from you and what is mr gutierrez says what he says is i mean your hands that's it it's all up to you now not a word about not having heard this but that's the evidence but i want to get to the direct evidence because i think it's even more even more and wait there's more  he tells the judge we were really hoping for concurrent sensing we want to give us a good consecutive sensing because we're really hoping for consecutive sentencing and then almost as if he knows the judge is going to jump on him and interrupt him and say wait a minute i never i never promised you can concurrent sentences so he says which of course i've explained to mr gutierrez it's entirely up to us how you're going to sense him but i would ask that you that on count two you sent him to two to fifteen a run that concurrent the count one not consecutive so right here in the record we have that i don't think it could even overcome the indirect evidence but when you add this language in the record of his own counsel saying listen i told him it's up to you judge and you have his own language is up to you judge i just thinking about it under epa maybe if this court was to decide it on their own but  and also said this kind of weird thing about how it's already decided which i'm not quite sure what that meant well you're right i mean if they decided it then i think this court if they decided but they don't have a rationale then i think out of this court's a under epa than this court would all the more so defer to it if it's supported by any reason reasonable say which i just gave you one and if it if if it's not decided if you waited in district court then i'm not sure he can raise it here but i think i think the divestment court said it was  if they said it was decided but they didn't give a reason then then you would just defer to the reason as long as it's can be supported by if it can be supported and i just gave you a reason why it can be supported so  i guess if you have one question about this issue of the fact that he's alleged that he got bad advice but never had a sworn declaration do you have any case you can point to to tell us whether that matters like did he do enough in state court to put this issue before the state court in the in the hearing judge offered asked about you know why did he come and what's the evidence to come into the police and the and did he have it is there any evidence that he had been told this before and there is that one statement of course that statement too is a bare contention that's somewhat at odds with  record because if you actually look at the police call if we he actually pleads guilty he actually says he's going to plead guilty long before the statement is ever made by his counsel is that and so i don't know if that's response i mean is it at least in the second  petition he says the thing about not i'm not going to remember the exact words but having not having been told before the plea of what his range was so he has that in the petition i'm just not sure what we should do with that whether that complied with state law terms of getting that issue to have enough evidence or whether he needed to have a declaration or what we do know can he have a declaration now that he didn't do then i am not sure what we do with the state of the evidence because the bad a court said that that second said that they rejected the second one know i don't know the answer that you're on right i'm not sure that anybody's ever dressed up because if it's untimely and therefore rejected by the state courts would be odd to rely on it as as somehow somehow the salvation evidence because the courts never got to you never got sort of be sorted out in the state court system thank you we spoke a lot this morning about the probation eligibility issue and a little bit about the concurrent consecutive issue but i want to emphasize there are a lot of problems with this plea colloquy it starts off there's confusion about which information is governing there's confusion about which of the counts and the information correspond to which alleges sales there is confusion about the prison ranges on count two not just probation but the actual prison ranges there's no discussion of concurrent or consecutive sensing  crime and defense counsel goes into this long discussion of how mr gutierrez isn't really comfortable with the deal but it's a good deal so maybe the court maybe the court ought to pass the case to give him and i'm quoting here more time to fully comprehend the situation but if the court passes the case that means the d a is going to pull the deal that's going to be bad for mr gutierrez so if the court accepts the deal today that might create a rift issue down the line but the courts do that and the court agrees and sets the case down for sentencing so this is a problematically colloquy there's no affirmative showing in this plea colloquy that he was knowing involuntary when it was entered and as a result mr gutierrez should have the chance to withdraw the plea or at the very least testify in federal court on some issues we've discussed today may ask a question so this the claim that gutierrez believed that he was going to receive concurrent sentences if he was that claim developed during the state haiti is proceeding i'm not sure if that specific allegation was in the first petition i would have to go back and check that it certainly was in the second petition and the dude at the court said the content of the second petition was already decided in the first round so they essentially apply the law of the case for the way they said it was on time so we have so do we do we have a procedural default an adequate independent state grounds for rejecting the concurrent consecutive issue i would have to double check i thought that one of the things that the state court said with the second petition was that all the substance was identical to the claims that are raised before i mean that was highly that said it was untimely and already decided so we have two ends of one of those is adequate and independent it seems like there's a procedural default problem well if if the state postcondition council didn't raise the concurrent can second i have to double check to make sure but if post conviction counsel didn't raise that claim there would be a potential martin issue there and we think that would warrant further fact hasn't been raised yet has it well i don't think there's been any argument that the concurrent consecutive issue wasn't fairly presented to the state court so i'm not sure that the briefing has been responsive to that issue so no further questions all right thank you counsel because just argued will be submitted