honors my name's david nasaw i'm here on behalf of the petitioner robert rose mr rose filed a and effective assistance of counsel claim alleging that he was deprived of his ability to engage in actually enter into a plea agreement because his attorney and neglected to show him the plea agreement he wanted on that claim in doing so he established that is turney was ineffective because she didn't inform the plea agreement and he established prejudiced in that he  and if he showed that the plea agreement likely would have been presented and accepted by the court after winning it however the district court fashion to remedy that that invited the state the state trial court in the montana supreme court to determination based on this determination to fail to provide mr rose within with the with an adequate indeed as it turns out any kind of remedy for the injuries he suffered as a result of his attorney's  to give a defendant a specific sentance i don't think so but i don't think what we're asking for here is asking for direction to the state court to give him his specific sen and i was harmed thereby correct relief is granted it goes back to state court and although as i understand the plea offer of that was then made was a little bit different it was essentially the same that's correct as had correct and the state court judge retained the discretion as a result to either accept the plea or not accept it correct the in the way that it was if if this would have been if this plea would have been presented to the court back in two thousand and three the court could have rejected the plea agreement but in doing so the it would have had to afford mr rose the opportunity to withdraw his guilty pleas but i guess i'm having some trouble maybe you can explain if you look at the language in laughter which the district court was doing and it talks about that the proper exercise of discretion is to send it back and let it be re offered right correct which is exactly what the judge did so then it would seem to me it would be in the state courts pro to entertain these arguments about well now it's a real offer but we've had this when usual situation with montana law here so therefore you should do this and not that but that's not something that the federal court would control it seems to me under lefler courts have discretion to fashion a remedy and to fashion an adequate remedy i would say that they but they they fashioned a remedy to re offer and happened on this remained it i dealy not even ideally the remedies are supposed to put parties back as close in the closest proximity they can to the position that they occupied when the when the violation occurred did this not do that this did not do that because because because judge malloy reminded the case back invited to do that that's the words of the montana on what happened a month well i mean to me that seems to be where the rub is as opposed to with what the district court did here which was read lefler look at exactly the same situation and that well and used to laugh their language really but but it but i but i think what i would fault the district court for here is that laughter itself cites from kimelman it's cited from one the party should be placed back in the position that they that they occupied previously how did this not do that because because the position that mr rose was in back in two thousand and three was if agreement and he would heat and he would have signed it and he had said yes i like that let's go to the judge that's good and if you'd been his lawyer at the time i assume you would have told him on the way to the courthouse you know the judge doesn't have to accept this i can make the greatest argument moving heaven and earth but the judge does not have to accept this plea right but it but if the judge would not have accepted the plea then mr rose would have been able to back what would have been able to withdraw his guilty pleas in proceed on to trial that bargaining power that position was taken away from him in this remain because because because the reman just simply invited the trial court to accept this so the only issue when it was sent back to the state trial court was decide what you want to do here and by the way if you think you can deny relief based upon a finding that he wasn't wasn't going to accept responsibility back in two thousand and three when in fact the fed you know the federal court in granting relief in finding prejudice under strickland determined that he would have accepted the plea agreement in both cases of the trial judge had the discretion to accept or reject the plate right now is correct and what you're arguing here is that the district court should have  order the trial judge to accept the plea or at least put mr rose back in the position he would have occupied back in two thousand and three and that is because because it would have given him some sort of bargaining power with the state courts  language that you think the district court should put in its order well the language that the district court could have put in its order is is to tell the state to react with a plea agreement and for the court to decide whether or not to accept the plea agreement and if mr if the court decided not to accept the plea agreement to allow mr rose to proceed does the state is required to re offer the equivalent terms of the plea agreement do you have any objection to that statement no and for some reason the montana trial court determined that given the status of the law it wasn't going to accept it and and it might not do that anyway but it could but but mr mr rose should have been armed with the additional safeguard so that if the court did that then he would be placed back in the position he would have been in two thousand and three had the court rejected the police bring him back in two thousand and three of what part of that position would have been what if he if the court had rejected the plea and then it would put him back in the the position he should have been in what is that position in your view well that position would be that he could withdraw his guilty plea if the trial court refused the re offered plea it did it didn't it was certainly argued before the district court because that was we made that argument when we filed our objections to the magistrate's findings and recommendations we argued that again to the district court we filed a motion for remained with this court so that that issue was placed before the district court yes thank you thank you good morning may it please the court my name is tammy bell i'm an assistant attorney general from the state of montana appearing on behalf of the respondent a pelleas the sole issue before this court is whether the federal district court abused its discretion it imposed the exact remedy developed by the united states supreme court in leffler versus cooper the federal district court did not abuse its discretion it had the authority to formulate a remedy and it did so in accordance with the united states supreme court precedence mr rose mistakenly argues that there's only two ways to restore him to the position that he would have been back in two thousand and three when the prosecutor withdrew the plea offer before defense counsel conveyed it to mr rose mr rose is asking for specific performance not only on behalf of the state in reoffending the agreement but he says he's asking the federal court to order that the state district court the state trial court accept the agreement or if this court were to conclude that the state trial court had the discretion to reject the plea offer then pursuant to a state statute rosa saying that he should be allowed to proceed to trial for a second time even though he has had an error free trial and been convicted beyond a reasonable doubt do you think it's kind of in some ways not in front of us because would have another hey b s but do you think the state district court at the authority to reject the plea or the mandate and remain yes your honor i do think that the state district court had the authority to reject the i think that was the exact language of the federal district court order that it was within the trial court's discretion which is exactly what leffler contemplate guilty went to trial and was convicted yes he was convicted of all three of you mr rose is really asking this court to mandate a remedy that considers only his interests a plea agreement while it isn't an important part of our criminal justice system is designed to benefit both parties not just the defendant mr rose is arguing that the remedy the district court imposed did not put him back into the position that he would have been in but that is simply not borne out of the position that he would have been in had he known of the plea offer back in two thousand and three is he would have accepted it as the federal court district court concluded but it would have been within the discretion under state law state statute whether the trial court accepted it moreover mr rose's position that under state law he should now be he should now be allowed to proceed to a second trial  lacks merit and that issue has been decided by the montana supreme court i believe i did do a twenty eight j letter about the montana supreme court's decision in which the montana supreme court specifically held that forty six twenty one to eleven would not apply to circumstances where proposed plea agreement is reoffend pursuant to laugh or and the obvious reason for that is in that circumstance they've already received a trial and if it's a trial that was  based was free of constitutional err it would be a windfall and it would be a serious detriment to the state to have to retry him again if there are no further questions the state of montana requests that the court conclude that the federal district court did not abuse its discretion when it provided what rose with the exact limited that lefler versus cooper contemplated thank you you thank  thank your honour's i would neither laugh warden or this this court's president should or can be read to hold that a successful sixth amendment litigant can simply be denied of any sort of remedy there is no other constitutional right on the books where you stably some sort of violation and not be entitled to any sort of remedy that simply makes no sense this court in johnson v i think i'm pronouncing right you're a big in that case that was kind of the flip side of this t t in in that instance the individual defendant entered into a plea agreement and as a result of ineffective assistance of counsel but what this court elected to do rather than just simply resign and sandwiches with the district court did was just to send it back in place him back in the prepared in the plea negotiation stage because they said only only at that time would he have the effect of bargaining power to actually get a decent plea agreement here it went back to the remained in this case went back with an invitation for the trial judge to essentially ignored the district court's fine in spreadsheet is findings and to simply deny him any any kind of relief and that's exactly what happened so although mr rose lost his ability to enter into a plea agreement a plea agreement that was very favorable to him a plea agreement that agreed to dismiss one felony charge  felony charges let him plead to one felony charge in a misdemeanor and receive a sense of roughly thirty years instead he lost that ability he went back the the trial court simply denied him any kind of relief and reimposed  well i think i think that the issue is here before before your honor's because we're challenging that the the remedy that that the federal district court ordered so i think that issue is here because that that's always been our argument we've we've certainly had no problem with the district court strickland findings we only have an argument with regard to the to the remedy so i think that the this court can and should reverse the the court's remedy finding in order the court to impose a remedy that it would allow mr rose to receive the benefit that he's entitled to his or to then tecate is constitutional rights  ate i would i would state to my opposing counsel references the montana supreme court's decision in this in reference is the montana supreme court's decision with regard to the montana code section the talks about the process that will be used if a plea agreement is rejected the montana supreme court was following the federal district court when it made that when it made that decision and aside from that because federal district courts are given discretion in fashioning a remedy the federal district court would certainly be within its power to to send the case back as this court did in johnston to be a rebate back to a certain stage of the process in this case the certain stage of the process would be to present the plea agreement if the trial court decides to reject the plea agreement then allow mr rose to occupy the position he would have been in back in two thousand and three johnson  court talked about the importance of bargaining power and they didn't want to private defendant of it's of his party power when he went back here mr rose needs to be with that parking power but i would also i would also state to nobody here  a new trial that is what was going to happen mr rose doesn't doesn't want a new trial but he would like to least have that hammer if the two of you know what one of the difficulties of course is that at the montana court not moved ahead we would just be looking at this without the answer so to speak so i'm trying to put myself in that position as opposed to trying to figure out of the month in court may or may not have done something wrong which would be a whole titian and so leaving aside what month what happened which we now it's like we know the end of the movie and we got to peek but if you just put yourself in that has to be provided in the sixth amendment context and and in and what the court has said in those prior cases is that is that one did the remedy needs to remove the taint of the violation the remedy needs to put the parties back in the position that they occupied before the state should bear the risk of ineffective assistance of counsel and the remedy that the district court order here obviated all of the all of those in it because they simply allowed indeed invited is the mountain supreme court said the trial court to just simply say well ok his rights were violated i don't care i'm not giving them a remedy and that's what happened in the remedy in your view would have been a different sentence well that's what i'm asking it would have been morning thank you