march fourth to two thousand and two at sentencing me with without counsel and that is a tourney had died just prior to the sentencing date this is further compound so the benefit of having counsel there is presumably that we could've avoided the whole mess that we had when the judge when the judge sentenced him to something he couldn't sense into and evidently misspoke correct hasn't the judge put that back in place or in other stipulation entered into with my client and the prosecutor again we have a situation where no counsel is present nobody representing my parents my client and we have the jurisdiction that i mean it's kind of hard for me to say after the fact but there's definitely a problem with the sentencing there's a problem of him not having counsel and there's a problem with the fact that the freddo was not given it would be a more stringent situation with the probation the probation officer if you would have sampson not off the top of my  it seems like the government does not want to address the issue that my client was without counsel and address the issue that there was no appropriate threat and this matter do i reserve the remaining time plus we have a lot of people here so let me just yesterday i will put some of these chairs back here and some of the law clerks can come up here so that there is room so he'll take a couple of chairs to mine so that we have room for members of the public not just over here thank you only temporarily christine good morning i discovered rosenberg on behalf united states considered it as either a petition for writ of corman opus or as a motion for relief under twenty eight united states code section twenty two fifty five the defendant in this case has failed to show why the district court erred in denying those requests for relief as several of your others have realized as an initial matter really the only thing that issue here in this case is the defendant's sentence there's no question that he was represented by counsel at the time he entered into his plea agreement there's no question he was represented by counsel at the time he entered that plea and there's no question that his counsel did have the opportunity to file an he could bring one now yes you could because he would then have to address the other the other factors but he certainly could do that if you wanted to it's clear that as to the twenty two fifty five issue that was untimely it was at best two years after this judgment commitment or became final there was no appeal that was taken in this case initially so it's pretty well settled the government would submit that that was untimely so in this case it would seem that the best thing that the defendant could really hope for is that if this case were returned to a district court it now unfortunately judge ray has passed away so it would seem that the best thing that this defendant could hope for was a written overturn of this case to the district court for we sensing where it would seem that he would get the same sentence in this particular case perhaps a lesser fine perhaps a lesser term of supervised release but given this defendant's criminal history he was in category tried to reach out to the court reporter to see if there was one of reached out to co counsel and there just doesn't seem to be one so taking counsel's representations as to the transcript at face value in his reply brief assuming that's all that there was the government's not happy with that inquiry unfortunately i was there and didn't speak up at the time i was pretty new but we should be that as it may we're not happy with that now the question more importantly though is was that if there is an error was it of the fundamental character and the government would submit that the case law supports focusing in on what stage were these proceedings the supreme court case law that governs this area and in response to your honest question  there are some cases that talk about this as being a pragmatic approach focusing on the stage of the proceedings and really as your honor points out what difference would it have made if there was a lawyer there the sense in position papers were file it's a critical stage for the right to counsel i think the difference here though is even if the full read inquiry is found to be substandard the court should look beyond that and really look at whether that does create a fundamental error in this particular case given the unusual facts and circumstances and the posture which this case took place there really was nothing left for the defendant's lawyer to do could file the sentencing position paper the government had requested a the lowest sentence and vailable in federal court one that the government believed then and believe now was wholly appropriate given this defendant's background characteristics so that really the court should be left danger of the charges and the possible penalty so those are two of the three things that are forever inquiry is designed to address the only real question is whether he would have understood the dangers and disadvantages self representation so that he made his choice with choice with his eyes open as the case law talks about and here again the government believes that there's simply nothing different that would have happened so the fact that the defendant was ink was in custody at the time that he was petition is also why the fact that the defendant the government's admits has not demonstrated that this error is fundamentally character and also the defendant hasn't explained why he didn't file this earlier he filed this petition one year beyond the time allowed to file a twenty two fifty five motion which was about two years after the sentencing and he hasn't really explained why it took so long to do that so for those reasons the government would submit that this court should affirm the lower court's ruling in this the question i think the question before the court at this point though is white vehicle does the court have available to it to review your claims you are you have filed the ordinary vehicle for someone who's in prison of course is the heaviest  he can use a quorum no bus to start to fill the gap when you have left out on your k v s rights we find the twenty to fifty five motion the same time we filed the writ and there's no question that that was filed late but the situation is my client didn't have terrance so you've asked her my client's been prejudice this is one of the ways he's been prejudiced he had no knowledge no way of knowing that he had a timeframe that ha need to get into federal court and our cases say that if you're in custody the way to get a federal court is so my suggestion is your question to you really is although it's a question of timing i just can't see any way that we can entertain his petition i mean do you have any case that we're perhaps know best for an individual who's in custody and your client at the time of filing was in custody so i'm i'm just having some trouble to understand that i just don't see any law that would or case that would permit us to entertain your petition at this point but that would we would reserve of course as to whether there may be some other i don't understand but at the same time there wasn't the appropriate waiver with the fred i mean we see that all the time that's quite an extensive waiver and in this situation we have like