counsel failed to communicate and extremely favorable offer of the plea the disparity and likely sentence under the plea vs a trial was over thirty years and that disparity was particularly significant given the extent of the that the state court found that mr oakley was not prejudiced reasoning that given his protestations of innocence he had not established that he would have accepted a plea so can i ask you this  obviously we are looking at all of this through the lens of at puff and i'm not sure that it's only that the state court was listening to his protestations of innocence and we have a record where mr alkaloids seems to flop back and forth you know he particularly at the before we get to post conviction particularly at the moment and you know he seems to be interested in a plea but and then he sort of flips over a nice talking about counter offers and then he has some theory that the charges weren't properly stated in the indictment and he has you know other i'm fairly technical ideas of bizarre own these not legally trained so so he has these ideas but why he isn't it fair to say that the state court of appeals looks at this somewhat messy set of signals from m and they resolve that messy record in favor of thinking this guy was just bound and determined you know to go to trial and try these not terribly promising theories and so we're going to find no prejudice why isn't that state court st does is lays out a list of six bullet points to step forth the background facts of this and then having done so it states its conclusion following paragraph and it says as its conclusion that given i'll talk about real innocence versus technical or something because mr al khalifa he is saying to the court the times already expired the crime had to be dismissed so is he saying you they referred to the offense that was proposed that he could and what he's saying in the pretrial conference is that he doesn't believe that he could have accepted the put because he thought that it was not appropriate or not allowed to plead guilty to an offense that wasn't charged in the indictment and was otherwise barred by the statue of limitation and now explain the brief that's simply not true as a matter of state law and the state trial judge said as much on the record that was mr of the investigators right did visit him in the jail during the window that the plea was so we know anything about phone calls just this jail there's a minute there's a reference to personal visits that question under strict lenders whether there's a reasonable probability that the result of the after the proceeding would have been different i think there's a reasonable probability if he had made a counteroffer and that counteroffer had been rejected the usual offer then would have still been on the table whether that would extend to the same offer a different offer as a matter of state contract law just as a matter of it's a matter of the prosecutor's willingness to i mean if mr alcott lady who may not be the world's most rational person you know thought that it should be a fifteen year different and again threw at the deference in a way it's a question of fact you know it was here reasonable probability that he would have pleaded guilty and i understand them to be saying frankly no not on this record now i might come out differently i might read this and think actually the truth is he was just full of hot air and actually would have grabbed it you know but that's i'm not the honor and i do want to save some time per bottle but i think that it's important to remember in this case that not only do we have facts into which i think there's a very good chance it's certainly a reasonable probability that he would have accepted this plea but we also have a situation off unfortunately our cases seem to be all over the block when it comes to these situations where a state court does a picture perfect description of what strickland calls for in the opening paragraph of section dealing with strickland and then on the prejudice part just drops the idea of a reasonable probability and spends the rest of the time talking a have accepted the offers so you can find cases and you cited them in which we've said well you know it's clear proximate enough it was shorthand it was you know something so but we think the state was using the correct standard and you can find other cases in which you know like in good men against byrd trend where the state court leaves the reasonable probability language out multiple times as happened here and we said that was the wrong rule i mean there's a big difference dream would have changed the outcome and reasonable probability the supreme court has underscored that so you know we have to decide on which side of the line this case falls i think it's important st to look at the job the peals was doing here and unlike this court when it reviews collateral challenges to a sentence what the indiana court of appeals does is give a deferential review so it's the petitioner has to show that there was clear error something that leaves an unmistakable impression that the judgment was wrong and so when the appeals looks at this it's reviewing it for deference and so the defendant or the petitioner here has to show that there's no way that the post conviction court could have found the way it did and so in that the court of appeals here  if you look at the last two paragraphs and the nd to last paragraph which is paragraph seventeen they point out that petitioner here can't show that the postcondition court was wrong otherwise in other words he can't show that  conviction court's finding that he wouldn't pled guilty and that the court would have accepted it are wrong and so then they say therefore in paragraph eighteen the postcondition court did not air so yes but if the post conviction card is using this would there be a difference as opposed to reasonable probability doesn't just push the inquiry back a level why don't think so because here the postcondition court affirmatively found he would not have pled guilty he would not have accepted this deal so it wasn't dealing in probabilities it actually found he would not have accepted it and then it went on to say that the court wouldn't have accepted this plea even had he taken the deal so no probability is obviously meets the standard of some probability right so i let's focus from in that nd part because that to say i've seen a lot of plea transcripts and negotiations where it's mostly in the federal context but i don't think for this purpose that matters where the trial judge is asking questions particularly trying to create a factual basis for a plea and the defendant keeps saying that i'm really innocent you know and the trial judge often will say after a certain amount of that look you know this isn't a good candidate for a plea bargain i'm just going to go to trial never mind and so that tells me you know that this stage of would the court  interacted with the petitioner on many occasions and had very difficulty pinning britisher down to answer many questions he always wanted to answer something different than what the court was asking and so from the court standpoint i didn't believe that he would actually admit to the charges here so that she could accept the plea i just want to point out to that i don't think this is a very good job or a complete job in our brief about the sentences or the difference between the plea agreement and what he was facing given the procedural posture of this case he was only facing the max of sixty five years because he had been sentenced as st trial to sixty five years in the gun post conviction relief and under indiana's post conviction relief rules he can't get a lot and i wondered about that said that the the earlier sixty five kept his right so he was facing a max of sixty five dollars the max under the offer was fifty two years so that was very close specially if you look at throughout petitioners interactions with both the court and his attorney he wanted something much less than that he wanted to go home in fact his complaint about his attorney was that his attorney didn't get him a deal of time served at the time and that was the real problem so really he was complaining about that the state wasn't coming back to him with an offer he would accept i just point out too that that at the time contemporaneous with the hearing the state said that it extended the offer and he still rejected that so there's there's just no showing in this record that he would accept the plea and here on deferential review in the st instance he i don't think he can show he would mean getting all the way back it's something we don't need to worry about that the jury rejects his story you know that he's just driving behind this other guy in the car right now they convict him on murder  correct and i will point out that he didn't testify in his st trial and so i think there's a fair inference that he thought he could explain his involvement away at the nd trial so he had a shot of walking away with no conviction or a conviction to a very low the sixty five year sentence at the st trial was the advisory sentence as sort of i think the default sense is going to be handed down in any case under the plea of the advisory sentence would have been thirty years and so the disparity in thirty years that i mentioned is based not on the want to be clear that's not true what the court found was that given mr out that he repeatedly emphatically stated that he was innocent of the murder and robbery charges we find that he has not established that he would have accepted the plea offer another was not that he would not have accepted it but not that he had not gone downstairs we could he was talking about what the trial level post conviction court said i don't think there's any difference will exist and i think the operative opinion here is what the would state court of appeals found out what the state trial court found and i don't believe the state trial judge makes that finding either but i do think it's important just to be clear about that and the to make one final point judge would you mention at the important issue in this case is this question of which line does this case all along terms of the line where you court misstates the standard it says conclusion i think if you look at this court's decisions and thomas way even under the proper standard about the same weight even to the proper standard i just don't think that's clear from the record in this case all right thank you very much and you took this case by point and i believe i did you know we appreciate very much your