are fourteen eighteen sixty nine zero ewing versus the united states of america oral argument not to exceed fifteen minutes per side mr connor blair for the it why would he tell him something that will that he didn't tell the court about well that it that actually came out at the sentencing of a it that there was a letter here i can't hear the end of your sentences if there were there were two outside agreements that to the plea agreement first that was one that was evidenced by a letter that his federal and state sentences would run concurrent to one another and second in oral agreement between the government mr ewing that the government at the sentencing hearing would recommend a sentence of one hundred forty four months don't the cases say that you can't have an i c claim for ineffective assistance for a claim like this if the court went through a proper generally yes we submit is that the advice especially regarding custody credit was not cured by the police colloquy the judge said are there any outside agreements mr ewing said no but legal advice is not an outside agreement discussion back and forth in three or four lines in the transcript where the district court judge said have you agreed to a particular sentence what's interesting about the senate the police colloquy is that mr ewing agreed to said he agreed to to you know he had agreed to he claims he agreed to two different syncing ranges which was not correct counsel as i understand it there's there's two claims one has to do with one hundred forty four months and one has to do with with the ten months is that correct the one hundred forty four months there was this language at the sentencing hearing which are you plea deal with that and arguably supports the the denial of a hearing and ultimately we're just here as to whether there should be a hearing or not is correct so it seems to me that your stronger argument perhaps is the is the argument about the it's so that at least from my i can't speak for my colleagues that's one that troubles me and i'm curious about that one but the trouble i have with your position with with respect to the ten months this is ten months of whether your previous time in jail counts right they didn't really talk about that at the sentencing hearing it came a very briefly it came up r please take into consideration that i've been incarcerated for all the relevant times this implies there's as mr ewing doing himself yes you did this is evidence that he did in fact rely on this particular piece of advice or went in or you know before he accepted the plea agreement but is it even plausible that he would have changed his mind based on those ten months when he's agreeing to this huge sentence anyway and it's going to be concurrent with his death sentence in the state court your way your argument only wins if there's if the district court abused its discretion in not having a hearing in this regard correct and it's hard it's a little hard for me to see how it abused the court abused its discretion when when this there's more evidence that it was a mistake but there's not much evidence that the mistake would have made any difference to him are you with me it's just hard to see that that ever i think the judge could easily have said to himself there's no way in the world that's going to make him take a difference and may give him some argument later but it's not going to make a difference if i split into him very clearly now do you really want to continue with your plea given that you're not going to get this because you're not going to get it certainly he's going to say yes accepted the plea agreement that that's that's the only evidence on the record that we have to know we have his statement in the cold call to judge that there is no there or any other dream it's affected my under oath but contrary to what he's saying here we don't think that the district court should require should require defendants particularly defendants like mr ewing to raise issues of to determine whether or not he did in fact rely on this on this piece of advice the record is is inconclusive at best he's keep the affidavits indicate clearly indicate that he did they were not here and then the promises nobody's promised me anything we could have said or you know i was told or this will be run concurrent with the state and i get credit for all my jail time well if he had a sad day i'd it would have said by the answer would have been just like judge duggan said it sensi you can't get credit if you're getting credit on another cell that that that's that's a response so they'd say ok well  you know what the rule said about that issue rule thirty two's pretty adamant about when you can withdraw it things to consider nonetheless it is evidence on the record that he that he would have then he would not have accepted the plea agreement but for five hundred forty four but is it clear on the record that the ten months would have made a difference it's not necessarily clear but that that's exactly what we're asking for that's exactly we're arguing is that it's inconclusi was but there is a state life sentence until death ok sorry for that please thank you for your argument please proceed coun morning mark jesting for the united states i think that your honor is a really hit on the key issue here and as believe judge writers use of the issue really is whether the district court of be used it discretion in denying it evidence or hearing that's the really the only issue before this court and the only one of the certified for appeal i'd like to turn to the issue of the custody credit because i think as judge rogers and perhaps judge should indicated it's pretty clear that one very fair really reading of this transcript is that this man truly believed that there was an agreement for one hundred forty four is that month sentence and in fact his lawyer sort of believe that and the prosecutor wasn't even sure that he i mean it took a while to get to the point where he was definite that there wasn't such an agreement so this isn't a case where the defendant is just making something up to you know that there was this agreement i mean there was there was some real question about it and it seems to me that it's very clear that at least the defendant thought that now you can talk about whether that was justified or not and whether he should have piped up at the at the plea hearing but i think that's a very fair reading of the record and i think the only thing that stands in the way of relief is is that rule that you know that that's issue where the lawyer clearly thought that this was something that is client was going to get so i mean it it's not a leap to say that this is what the defend mr ewing thought as well well you're right your honor that the law is very clear that even if mr ewing had the subjective belief that the government was going to recommend him recommend one hundred forty four month sentence the  integration clause all of that stands for the proposition that this court will not hear those claims and that's in the baker case and ramos versus rogers it's very clear that that kind of claim cannot be raised in an ineffective assistance unless mr ewing were to show extraordinary circumstances such as that he'd been told a lie to judge doug there's no record it isn't even claimed that he was told a lie to judge duggan about the existence of this supposed outside agreement so let's turn to the custody credit i just was reading your comments to judge dugan and you are kind of ambivalent about what exactly went on i thought our kind of that's that's correct and if you take a look at that a close look at the transcript you'll see what happened is that mr evans mr ewing's attorney even said in his sentencing memo before we got to the sentencing hearing that the agreement was for a range of one hundred forty four to two hundred four months he began his colloquy with the court at the sentencing hearing saying that the party said agreed to a range of one hundred four and two and that he hoped that the court would follow that at the end you could see at a certain point in the transcript where he says that mr ewing was talking to him while i was talking about the difference between the sentencing guideline range and the agreed upon a range and if at that point all of a sudden this claim comes up that i had made to agree to make this recommendation and so honestly i was taken a little bit aback by that having sudden this about face by by the defense during this hearing and i was trying to recall this i think mr ewing was maybe the last of eight or nine defendants who pled guilty in this case specifically what our recommendation our discussions had bet but regardless this is why we clauses this is why we have plea colloquy so that there isn't this kind of dispute about what was discussed in the go sheeted beforehand and that's the court's been very clear that we don't allow someone to come in and say well you told me this this and this when you have an integration clause in a plea colloquy such as we have in this case one forty four was the bottom end of the gab labs was originally calculated is that correct no it's actually lower than the sentencing guidelines range in that there isn't some clear lack of clarity at the sentencing because mr evans kept referring to the sentencing guidelines and mr and judge duggan wanted clarification about what the guidelines were so there was some discussion of well no but i think the guidelines changed did no they actually went up yes because they found some criminal history bottom of the guidelines was never one hundred forty four months what we're dealing with here is an agreed upon sentencing range which was lower than the mines range i believe the party said or had calculated the guidelines range of the bottom of it at one hundred sixty eight months but had agreed within the agreed upon range of one hundred forty four to two hundred four months so let's turn to the custody credit issue and then again this is something that mr ewing claim is kind of transformed over time when mr blair was standing at this podium the court asked about you know did he really rely on this and i think it's interesting that he that the defense in this case is trying to cast that claim is different from the one forty four although i will grant that the record is not as clear on that i will note that if the court actually looks at this the affidavit that mr ewing submitted in support of his motion he said that he was misinformed by mr evans that the prosecutor had agreed to a one forty four sentence run concurrent with credited time for being in federal custody so he is saying that mr evans told him that the prosecutor me from just one forty four and credit if that was a promise an agreement that he believed that the prosecutor had made as this court has recognized it was incumbent upon him to tell the judge duggan that at the time the interviews plea he did not so that's point one point two at the sensing hearing mr evans did argue for custody even if we assume that he did again it was incumbent upon mr evans to to indicate that that was a reason for his guilty plea but he did not after discussion by after josh dugan and i both made very clear that we did not believe that mr ewing's would get custody credit mr ewing's never raised it again during the sentencing even after he attempted to withdraw his plea never raised at all without being in conjunction with the hundred forty four claim sort of separately stating this ten that there was nothing in the record to support his one hundred forty four month claim i think mr ewing recognized at that point that he needed to supplement his would you say he didn't raise it again but he did raise it after there was that colloquy about the credit in then right and then he spoke and said he did not mr ewing did not ever mention custody credit at the at the sentencing and what you've seen is they've attempted to say well he wanted the court to take into account that he'd been in custody all this time if you look at the record what he refers to is he says the years two hundred nine to two thousand and nine two thousand and ten two thousand and eleven that's well before he was in charge in this case he was indicted in this case in november of two thousand eleven and didn't even appear on the indictment until february of two thousand and twelve and so what he was talking about there was the offense conduct he was saying he wanted the court to take into account that he was actually in state prison during much of the time span of the conspiracy alleged in the indictment and so it was really to take that into a factor as a thirty five fifty three a factor history of the offense that kind of thing not saying that he wanted custody credit he specifically said when he was withdrawing his plea several times that he referred to the one hundred forty four agreement and you can look at pages thirty eighty thirty eighty six and thirty nine t forward he specifically talks about the one forty four want or promises by the prosecutor never once says that his plea was induced by his belief even much less a promise from anybody that he was going to get custody for it well the kind of makes sense because i mean one is a much bigger difference i'm not sure means that the other one didn't matter i'm also not sure that well maybe they do i don't know it's  a nuanced issue whether you get credit for that time whether the court can even give you credit for their time because lawyer was obviously a bit confused about so i'm not i'm not sure that i would necessarily expect a defendant to articulate back to the sentencing judge with that problem is i guess my point isn't so much that mr ewing needed to understand the intricacies of of awarding credit or not it's that if he believed he need to at the sentencing words been very very clear that the court is not going to award him that credit he surely would have said wait a second my plea was was predicated on two things one hundred forty five a month recommendation from the government and this representation that i was going to get through what is the horror mean i understand that that's always against him in terms of what judge duggan would decide if he had a hearing but what's the harm with letting him come before the court and explaining it  his own words as to why you know why he believes this if he really did believe it in and why he claims that it affected his decision well i'll have to respond to that one the standard is an of discretion so even if if you could say well it would be ok to have a hearing the question is whether judge duggan abused his discretion and he clearly did not but secondly this court in the supreme court have outlined what the harms are and blackledge by the supreme court and baker the courts have said that the court should not allow indiscriminate hearings by or risk eliminating the chief searches of a police system which are speed economy and finality and that's why extraordinary circumstances are required when a defendant says something that contradicts the record to explain why that which mr we know it doesn't contradict the record because his lawyer actually thought it all again it doesn't matter what his lawyer thought it matters what mr ewing actually plea and the record has at its massive record is silent on that we don't know what he relied upon i think we do have that when he says that he relied soley upon the one hundred  forty four recommendation which is what he said at sentencing that he thought he was going to get that he said i relied on this one hundred forty four month promise that is echoed again repeatedly throughout the direct appeal by the way or this is the only slowly slowly is the difference between a promise and and and how things operate so if somebody is entering a plea the the the promise is w what range did you agree to the question whether you're going to get credit for this isn't something that's part of an agreement because you don't even have the authority to agree to it so it's not something that's a matter of agreement that you would expect to be on the record it's something that you know your lawyer tells you well you say well what about this time and your lawyer either says oh you want to magically get credit for it because you were there or you know being held on this charge or no you can't get credit for it because you knew you were doing a state sentence so it's not something that you would expect to be on the record well i agree that this is a topic is often not addressed because it is just a part of the fabric of of the law in this area but i go back to two points one if mr ewing really believed this he would have said it at the sentencing at least by then when it's been made clear that he was probably was not going to get it and number two in his affidavit he presents that it was an agreement with the process that he was told that i had agreed that he was going to get the credit and again if you thought there was an agreement then again this is where the plea colloquy the integration clause come into play but he says that he thought it because his lawyer told him he said because i had agreed to is what he says in this affidavit maybe the lawyer had told him that you just because you never would have told him that doesn't mean the lawyer didn't tell him that that would argument is that the lawyer was ineffective plea and he was incumbent when he said no say yes actually if he believed that there was an agreement between you and mr adams that's correct unless he was told there was no promise it's just the this is what's going to happen is never oh if this if if this is judge white's point if if if what the lawyer did speaking hypothetically was say don't worry you'll get ten months less because the rule is you'll get custody credit and then there's asked is there a promise anyone would say no there's no problem but it has been explained to me what's going to happen right so i don't see how the promise eliminates that you see what i'm saying well i understand what you're saying judge riders but i don't know what all of that last point i understand the point that there's not very much in there that shows that it made a difference to him but that's different from saying there's not there's not enough evidence in there that he was told the wrong thing well it contradicts his affidavit and it contradicts the affidavit i believe his sister who also said that they were told by mr evans that the prosecutor had agreed to the credit so that the genesis of this belief apparently according to their affidavits was that the prosecutor had told him that he was going to get this credit at told them or had told told mr evans and mr so it's the allegation is that evans was in effect right but he misled them about what he was promised from the prosecutor so it was he he listens to the prosecutor and gets confused and relates to these people the wrong thing ineffectively is no answer to that to say you didn't do it but it is an answer to say that if  they understood that there had been a dream it for credit from the government and this was allegedly this conversation and happened before the plea just before the plea that it was incumbent upon mr ewing to tell the court it incumbent upon them when it when they asked about a promise and there was no promise it was just the description of what the law is he said there was an agreement he said that the that mr evans told him there was an agreement from the prosecutor for a one hundred forty four recommendation run concurrent with credit for time served ok thank you thank you i just a couple of things your honour's at first like to point out that although the standard is abuse of discretion this court has repeatedly stated that petitioners are entitled to an evidentiary hearing unless the record conclusively shows that they're  and i would submit that in cases where the court has remained in front of an injury hearing the record is more conclusive in the than this case i'm in those cases and several of them the allegedly ineffective attorney had submitted an affidavit that contradicted petitioners claims in this case the only affidavits are those that corroborate mr ewing's claims you've got mr ewing statement on the record there was no other agreed misusing stated on the record there was no agreement to one hundred forty four month there was no agreement over i think justice or judge white and judge rogers you made good points when you say all promoted to say that there is no reason for a late defendant like mr ewing to understand the nuances of federal law and raise them without prompting by the district court to say yes my my lawyer had advised me as i said this this in this where even though it's not an agreement to tell his mother and his sister if you think he's going to tell his mom and not tell the judge you know i'm not a it's not clear from the record when he told his family members that that he had gotten without o but i mean if it was a matter for him to say mommy told me that i did credit affirmatively incorrect advice on that was not in agreement but he says both your opposing counsel says that in the affidavit he based that on the fact that he was that it was agreed that he wouldn't get custom to the if this was my question is nothing prior to the affidavit that's consistent with the idea that this would have made any difference he only half a day it's only the affidavit so that the reason perhaps more difference is due to the district judge as the district judge was there for all of these proceedings that's correct he does state that the sentencing hearing on page thirty seven quote i would like the record to know that i have been currently incarcerated during all the relevant times and indictment this is contrary to what  which is which is already didn't say even say i will i walk was promised i was promised about i would get my turn he told me that i would get pause before we call the next case