smith versus all seventeen five nine five morning honors john carlson on behalf of mr smith you'll recall mr smith brought this hey b s twenty two fifty four hey b s action to vindicate his rights under missouri versus clane excuse me to revive or reinstate a lapsed plea agreement which he says was never communicated to him by his first privately retain lawyer the district court never reached never consider the frye claim because it ruled that the claim was procedurally defaulted in the state courts  and i suspect the will be talking for the next twenty nine minutes about the reasons and the implications of that default but what's important to understand is the district courts absolutely correct mr smith should have but did not bring this on direct his claim on direct appeal in fact he brought no claim on direct appeal he forfeited   declaration i hold that the quintessential function of a lawyer is not to know the law that's to diffuse to abstract the core function of a lawyer is to know the legal significance of the facts and the breach of that duty is what went wrong in mr smith's representation that mistake was made by his that's what i would have done had i not been preceded by by a better lawyer on this the alternative is to declare or to rule that the o c c a procedural rule he was not independent of federal law i don't know whether that is a procedural b thought i guess on reflection i say it's not a procedural the fault it's a eron s interpretation of federal law but not a procedural default whether there is a difference there i don't know well for a moment assume we're going down a cause and prejudice path that cause that that is relied on here is the cause is primarily that the defendant could have been aware of this because the at the his attorney didn't notify the court when he was standing there although he heard while he was standing at sentencing that for the first time by his  allegations that there had been a twenty year plea offer that know at that time the council didn't answer truthfully to the court when the court said did you communicate and all of that that claim which i called the court part of the claim that one you can get a c e o away on you've got on two of the claims but not on the third right i'm asking you to the extent you can you rely on that third claim what it went for my shoreham purposes i call the claim in support of your other two i see claims which i refer to as the police claim and the court claim that can you rely on the failure to counsel to advise the client that they would have had a legitimate appeal in advancing your other two claims that c l a was granted on yes i am with you understand i do i jump it out of my skin to hear say unequivocally without hesitation yes the floor is or paid argument is not it admittedly a claim it is a means of showing cause and prejudice and that is not a claim for relief it is a means of excus sprayed this accusation in the state court he put it into his district court motion he put it into his appeal to the o c a and the it is i wasn't informed by my second lawyer that i had a valid basis for reinstating this frightening and since it wasn't a claim by person i think your argument is you don't have to worry about the time when a somebody there correct me so it's how i re to that's a that's a different issue than exhaustion it is and i think i'm i think one of the arguments that the state relies on is this causing prejudice argument wasn't kindly raised because mr smith did not directly argue it in his pro se plea needs to judge for zero i think that's descriptively questionable as to its accuracy i think especially with a pro se generous interpretation you can read his pleadings to judge for raising his cause but i'll even stipulate he did when a case arrive here he might quite clearly is a rot is resting on cause and prejudice and that is not a claim that has to be exhausted in the state court you what you're asking for here simply to be remained for an evidentiary hearing to explore whether in fact there was a twenty year plea offer an offer that was never communicated to the defendant precisely because i am the first to admit i don't have enough on this record to get the writ there is a factual conflict on the core question was the twenty year plea offered and truck i don't have a lot of need for the second claim the second claim that is my second trial the war failed to inform the trial state trial judge of the frye violation doesn't means to an end it was either procedurally defaulted or it wasn't in to this o c c it didn't rely on any independent state law ground either way the default is excuse or you can reach the merits and i am perfectly happy if you reach the merits of the second claim but i want a remain and to focus like a laser on the first point with regard to prejudice do you have to what is your burden with respect to showing if any that the defendant even though he turned down a twenty five year we would have except a twenty year athlete pardon me at the evidentiary hearing i will have that bird i will have to show a reasonable probability that i would have accepted the plea now the fact that mr smith except pled guilty when it was about ninety nine percent clear that he was going to get thirty years in prison it is powerful evidence that he would have accepted a twenty year plea i have no burden however sh prejudice on my cause and prejudice end run around procedural default because i'm relying entirely on flores ortega which says in the event the trial where this is my one quibble with judge moore to his phrasing of terminology i call that second order the trial or and it's important because it's on her shoulders that flora's ortega said you must consult with your client if there is a reasonable basis for believing he would appeal and if you breach that duty prejudice is presumed because you have completely denied him a judicial proceeding so the caus prejudice and run around procedural default i don't have any burden if this court to show prejudice i have a big burden and judge for yourself court where i hope to be next thank you i know for the questions court my name is ashley willis i represent joe all the other respondent and i would like to start if the court would allow not go straight to prejudice but to discuss the independent or the cause of prejudice but to discuss the independent the procedural bar because it's important to discuss what petitioner raised to the court of criminal appeals and i disagree with mr carlson statement that he did tell the court of criminal appeals that his he was denied  appeal through no fault of his own because of ineffective assistance of counsel position or did not raise that that claim was not raised until the motion to supplement in the district court after he filed as he is titian alleging his two ineffective assistance of counsel claims that claim as you all have discussed is time barred and exhausted what petitioner did raise to the court of colonel appeals was i was denied an appeal through no fault of my own because i didn't know the facts of grounds two and three and grounds two and three were mr adams failed to convey the plea offer to me the twenty year and the scribal failed to tell the trial court of that twenty year nowhere in  and p c to the district court or to the court of criminal appeals did petitioner make an ineffective assistance of counsel claim for failing to meet with him during that ten days because it did not raise that the court of criminal appeals my quote page eleven of his pro se brief he first talks about the fact that he you know he specifically challenges the propriety of the o c c is conclusion and he says yet during this whole process he smith has asserted that he errors made on constitutional grounds which could result in setting aside the plea or if the defendant inquires about an appeal right counsel has a duty to inform this studio arises when the counsel either knows or should have learned of his client's claim do that but petitioner still has the burden to sufficiently raise his claim to the court of criminal appeals so that they understand what claim he's raising and that's grounds two and three where petitioners making  transcript we don't know that but other than petitioner self serving statements we don't know that group will new mr adams alleged failure to convey this alleged twenty year offer so if she doesn't know well timeless in particular i don't think you cite any authority of success that just because he doesn't have a stand alone because his standalone claim wasn't timely which is what the district court found that he can't that nevertheless that cl didn't say authority i do you believe though it is more an exhaustion issue petitioner has never raised that claim to the court of criminal appeals and thus he has not exhausted his cause and cause i don't see i'm looking at looking at the record page twenty two where he says again this pro se he says pleading ground one for his application for an appeal of time he says as a result of not being timely and properly informed him and he's talking about his other ineffective assistance of counsel claims he also wouldn't be able to make an informed decision as to whether or not i should that goes back yes the but that goes back to he doesn't know the facts of the underlying ineffective assistance knew even if i knew the facts i didn't know the legal consequences of those facts because my counsel never informed me of that and council have a duty to do so council has a duty to do so if answer your question of the facts vs the legal significance before i go to the other interfering and petitioner despite knowing the facts when we did that does not relieve the petitioner of the burden of doing something during th not ever said that during those ten days he attempted to contact counsel to ask about this twenty year offer there is nothing that petitioner did during those twenty those ten days petitioner despite knowing the facts he still has a burden to do something i  share my recollection of the record is that the petitioner's allegation is that his counsel formed that that offer was off the table and there was nothing back we have no evidence of that we only have statements of that which is why we need evidence right we would have to have evidence but also could have presented an affidavit other than his self serving statements that he did tell her that petitioner actually did not use the no one told me i could have the plea reinstated until he got to the district court and petitioner says that goes to his ground that it was not informed about an appeal i still believe that during those ten days petitioner art may not maybe not knowing the legal significance or still should have contacted counsel and said what i have a desire to appeal i want to know more about this and yet he sat for ten days knowing that that's the time in which he had to file a motion to withdraw and b petitioner not doing anything with the facts that he knew he still should have contacted or could have contacted counsel to discuss this with counsel he should have known that those facts that he knew were somehow significant to a potential when he should have contacted his counsel and said i know some facts that might give me a basis for an appeal maybe you think sorry maybe not even knowing that there are there's legal significance to those facts but if the titian are wanted that twenty year offer and something would have alerted him to hey nobody ever told me of a twenty year offer that's enough as a petitioner who wants less years than what he's going to be given or what he was given to contact counsel and say what about this twenty year offer he knew from kevin adams that all adam's ever got was a twenty five year offer and that the state was not willing to offer anything less so for petitioner to hear that there was a twenty year offer at the point hearing and not follow up with counsel at any time that but as for factual issues we don't we do have to have an evidentiary hearing to resolve those factual issue you can see that an evidentiary hearing is appropriate  believe that petitioner has not given any evidence to rebut miss crucial statement that i was not aware of any offers other than the twenty thirty year offer and mr adams statement that i never received a twenty year offer well you've got the transcript of the sentencing hearing when the twenty year offer gets spoken and then the courts as to counsel basically were you aware of this stuff and discussed and she says yes i was i mean that's enough to at least create even without the allegations isn't that enough to need to explore further but it could be but we don't know what other offers miss grubel had or what discussion she had with the prosecutor to know what offer she was referring to she knew that there was a thirty year offer and that she knew another offer had been rejected and the twenty year offer stated by the prosecutor it coincides with the offer the adams states other than this the difference of five years mr adams says i received an offer of twenty five years and dismissal of the co defendants case and that's exactly the prosecutor stated it's a twenty year offer with dismiss case so we believe that was a misstatement by the prosecutor as to what offer he had previously read and it very well may have been but that's not really for us in the palace court to figure out it would be we would need to do you have an eviden that causes an exhausted and has not been raised to the state court as an independent claim if the square has no further questions thank you thank you i'll be here aggrieved by just saying constitutional duty to consult with our client whether it's antonio smith or erwin chemerinsky and explain to him or her the legal basis for possible non frivolous appeal and even if we discount mr smith's claim that he took he informed his group of his second lawyer about the lapsed the un communicated plea a month before he pled she surely knew at the police hearing herself when she heard the prosecutor state that there had been a prior twenty year plea the moment she heard that she should have the red flags should have gone off because whether that twenty year plea was in fact communicated to him that's his or versus frye and floyd versus thank you thank you counsel we'll take