all right good morning your honors may have please the court my name is dan paulson i am the assistant federal defender representing dwight williams and this is a post conviction relief appeal that raises the question of whether under civil rule fifteen see an amended pleading relates back to the original pleading so long as it arises from the same conduct transaction or occurrence and in male vs felix the supreme court held that not standing mr williams has consistently maintained that is twenty one year sentence was the product of ineffective assistance of counsel by his attorney rex butler  the moment mr butler was appointed all the way through to the point where mr williams was ringback sentenced now the reason mr williams pled guilty twice is because the st plea agreement which had a sensing range of twelve and a half to twenty years was rejected by the district court judge is insufficiently punitive in the amended motion mr called attention to the fact that the district court judge was led to reject that plea agreement because of the prosecutor's breach recommend an upward variance and then the prosecutor filed an inflammatory sentencing memorandum that highlighted the worst aspects of mr williams his criminal history and all but invited the court to  defenses on the most serious charge which was which the prosecutor was threatening to charge him with distribution of controlled substances resulting in death and mr williams in his pro se motion called attention to supreme court case burrage versus united states which would have required the government to prove that the controlled substances were the but for a cause of the alleged victims death but nonetheless in his pro se motion mr williams c out the circumstances of the st plea agreement the one that was rejected by the judge he included correspondence between the prosecutor and his trial attorney regarding that st plea discussed the fact that the st plea agreement was rejected by the corps as insufficiently punitive and he and that in other words the st plea agreement and the facts surrounding the st plea agreement were facts the same type meaning we and i it's sort of unclear what the supreme court means by tight in the sense that you can file an amended pleading that raises a new legal theory that you know that arises out of the mr williams was complaining about was ineffective assistance of counsel specifically his attorney's failure to appreciate that the defense as mr wins would have had and failure really does stick up for mr williams in the face of  some threats by the prosecutor with or suspect to filing new charges for which he would be facing life so the actions that are being called out in the pro se motion involve the same actors it involves his trial counsel and the prosecution and that's the same case with the amended two thousand two hundred and fifty five now granted again the amended two thousand two hundred and fifty five we're highlighting a very specific thing which is that that breach by the prosecutor and the attorneys failure to correct the bridge to object to the bridge to ask for specific performance but nonetheless the facts surrounding that breach the facts surrounding the st plea agreement were squarely presented in the in the pro se twenty to fifty five so our position motion to district court deny the motion because it does not relate back to to cross a motion and the district court was correct in that finding because the amended motion and the pro se motion do not arise from a common core of operative facts rather they are based on separate transactions and by separate transactions what the th circuit has held in heaven or what that means is different in time t ineffective assistance of counsel when he pled guilty to the nd plea agreement so there's really a venn diagram here where the two circles don't touch at all the amended motion alleges conduct by felix schneider v mcdaniel might be the case that's most directly on going to answer your honor's question because in schneider that defendant attempted to do precisely what mr williams is doing which is arguing because there's an allegation of ineffective assistance of counsel in the process a motion that can cover all potential allegations simply because there was a trial there was a defense attorney and something what did counsel do during the lead here again so that's why i thought this case is not snyder in other cases that we have because we haven't had the case yet so i don't quite understand the argument based on your well you are if i may put the language in schneider that i'm relying on the th circuit help that both they're both theories under both the amended motion and the and the original motion shared one fact and that was specifically that a witness testified at the defendant's trial but the th circuit went on to say the mere fact that both motions assert a fact doesn't mean that that fact is of reading the district court opinion that this report clearly focused on the facts underlying the claim and if i may or are addressed the question specifically about plea negotiation that's really not what of the supplemental excerpt of record that was a plea agreement negotiated by attorney went not by a tripod or so to the extent that williams now argues oral argument that really what he's doing is alleging that attorney butler was ineffective in negotiation that that has nothing to do with the st plea agreement but of course the st plea agreement is the core of the amended motion is the amended motion is alleging that the assigned assist and so if i may it may be very helpful especially to focus on the time looking at the pro se motion the operative facts alleged that attorney butler coerced the defendant into pleading guilty that could have only possibly happen even looking at the facts in the light most favorable to williams the earliest possible date that that attorney butler could have done that act could have engaged in that transaction would have been november to plead guilty a nd time until at the earliest nov th the record before this court indicates that that mr boehner was considering the nd plea agreement as of december nd but even even if the court goes back further in time to th when the assistant u s attorney filed the sentencing them out those are only two discrete dates and the admitted motion doesn't allege anything that the prosecutor did wrong on november th so here we have really from the government's view a very strong illustration of a situation where there are genuinely two totally different groups of transactions allegations by different people at different times doing different acts in different forums the forums or the e mail account that the a u s a used to email the present report writer and then the filing of the sensing memorandum whereas the forum in which mr butler could have possibly coerced joins in pleading guilty that must have happened in the jail where they were discussing the plea agreement or in the courthouse immediately prior to the defendant pleading guilty or in the courtroom itself in front of the judge on the record i see i have less than two minutes left and so i want to take just a couple known moments because the court indicated the party should dress the remaining arguments just briefly as i mentioned earlier the district court considered and rejected the pro se motion on the merits in this report did so directly it's important to know that even taking williams argument and in a light most favorable to him in both the pro se motion and his brief mr butler was aware a quick reading of the briefing might lead someone to think that williams is alleging that he was not aware of kharaj but that is in fact the opposite of what he said further if i may direct it towards the  trial ultimately that issue is moot of course because the indictment to which mr williams pled did not allege death conservation so therefore even if the government were not the plea agreement this was not a plea agreement to call for a united front like in here a dia this was a plea agreement the call for genuine litigation a range of sentencing so it's fundamentally different from the plea agreement here a deal also in this case there was no agreement in the plea agreement as to the guideline level and no limitations on the scope of the pre sentence report i see that out of time  urbs age forty four mr williams did complain about the terms of his st plea agreement he called out the fact that the terms of the st plea agreement had language saying that he would admit to relevant hearing and mr williams called d out the fact that sensing a hearing resulted in the playground that being tossed out and he also provides copies and i think there may have been some confusion about the correspondence that was included in the present motion but it's correspondence between the prosecutor and mr butler that took place or before sentencing so the operative period of time from if you look at the present motion i is the events leading up to that st sensing hearing and again mr williams has consistently maintained that is attorney was ineffective from the moment is attorney took over the case and i think that the government is trying to draw distinctions based on a shift in emphasis or i should say the emphasis on the prosecutors breach but again the fact that we're changing up the legal theory does not mean that the amended motion doesn't relate back and with respect to the prosecutor's reach i think that the merits are quite strong the nature of the government's breach in this case isn't it big us if you look at that sentencing transcript if you look at what the court agreement that stated that the parties agree that a sentencing range of twelve and a half to twenty years is reasonable and appropriate if this case had gone to trial so there's your united front but mr williams did not get the benefit of that bargain and i think that if you look at that sensing transcript and you look at the judge's frustration i should say confusion as the judge was confused why the prosecutor was recommending an agreement that remember recommending a sen range that they were calling out as insufficiently harsh i think it's pretty pretty clear that the court was led to reject the plea because of the government's breach and unless there's any additional questions i will stand