good morning my name is antrim i'm representing the trajectory and this morning i would like to reserve two minutes for about and i will try to keep my eye on the part of the time i find claims that his counsel trial counsel was ineffective for failing to consult on a direct appeal and then file a direct appeal i think the best place to explore this time because the record is quite thin in terms of transcripts is the sentencing hearing it was clear should have been clear to anyone who was in the room that day that my client was extremely unhappy with what was happening in this case and would have wanted to feel my client moved to withdraw his guilty plea he repeatedly expressed his innocence as to both counts against him he he had entered an alford plea anyway but he could continue to maintain his innocence he said he wanted to go to trial that was the only place where he could prove that he was innocent he claims his counsel for essentially pressuring him into the plea counsel said with respect to one of the victims in this case my client's daughter no it never happened that's true twenty six record with respect to the other one he repeated that it was an alford claim he had he just  go up to the supreme court let's in court decide whatever they want to decide at the end of that hearing with my client going on and on in the trial court gave him the floor to express his extreme and painful dissatisfaction with what had it obvious that he's gone happy amounted to a demonstration that he wanted to be and if you are i think yes i think he would definitely i think he actually thinks either of those categories on the consultation must take the second so that sort of sets up a presumption that consultation is the preferred practice i don't think there is any ambiguity here that this is the kind of client who would want to would want to appeal who was so dissatisfied with the proceedings that it would raise a red flag to any person in that room that day and you also have the added bits of evidence from the trial court saying this is we're going to prepare a transcript this is going to the supreme court which in a client's mind triggers that either something is automatic or it's going to happen in my case where you're short of the mark question vast majority of cases to make that increase and it also particularly talks about pro se defendants not being able to sort of understand what's a good issue want to peel that kind of thing so i think both of those are operative in this case because what ends up happening is that the nevada supreme court applies its case law which is a different test from flora's or take it is not as protective of defendant's rights and sets it up in a different way in florida take a you have the we have never in this case had any evidence rebutting my client's allegations trial counsel has never there's never been an affidavit there's never been a reason even off proffered by the state as to why no no yeah and the reason is that we were not arguing session on that claim because we think it's adequately preserved adequately exhausted a florist or tag or take it playing in the claim that the district court reviewed on the merits now w i stand that as a problem but i think in this particular case that he's entitled to an evidence you hearing at a very minimum i actually think he would be entitled to the writ outright on the on his claim that there was its constitutional duty to consult here withdraw his guilty plea but that on this record he would have wanted to and he by the way he was entitled to an evidentiary hearing in the district court with counsel on that issue that's usually how this plays out when it's properly done cases where there's been an ineffective assistance of counsel claim pressure from the for example pressure from the client absence of patient investigation she to get me to plead guilty and they've reviewed that on direct appeal that's my understanding of how dismiss which is not fully in the record in this case so it's difficult for any court and myself to review that adequately but the but that was alleging that his counsel had failure to fail to communicate with him  i think i'd like to spend a little bit of time clarifying the claim that's before the quarter that's been certified for the court and that claim appears in the verified petition at ground one where the petitioner alleges his claims of ineffective assistance of counsel there essentially want are two sentences that he was not advised by his attorney of his rights to appeal that's the claim that's been presented to the lower district court and it's the same claim that was presented to the state courts any claim that being presented now that appeared suddenly and the challenge petition before the ninth circuit that counsel did not consult with the defendant about his appeal rights is not properly before this court it's not and it's and it wasn't properly before the district court because it and that's that and see if it's never been presented those are those are legally significant facts that were never presented to the state court and would also exhausted in order to be before the district court therefore those claims that are the new allegations that have been presented to this court that counsel did not advise me of my feel rights i i requested to appeal in counsel didn't appeal those final two allegations are not properly before this court and the problem with that is beyond the fact that that now brings in on it and exhausted claim that this court can consider it also raises a little bit of suspicion as to the verity of those allegations counsel if this proper person defendant or petitioner knew of these allegations he certainly would have put them in  so we're left with the claim council didn't advise me on my appeal rights and now the next issue arises as to whether when the nevada supreme court disposed of that issue whether that claim is entitle to ef ability to term was interested in whether the nevada supreme court's decision comported with rationale and the result of roe versus floors or take i submit that we don't need one one part of roe versus ortega that wasn't mentioned by my adversary is that the first row asks whether counsel did indeed advice or consult with we have very similar facts that relate to noticed consulting and informing the client about his appeal first we have a guilty plea of a guilty plea where this defendant gave up his rights to appeal other than a very few rights to appeal which judge cox i believe was asking about and nevada that's a very that's a very slim matter amount of claims and it's generally jurisdictional claims that can be   the judge who took his plea specifically asked him did you read your agreement did you agree with it did you did you consult with your attorney before signing this agreement did your attorney consult with you about the rights that to it's virtually impossible for a direct it is impossible for a direct appeal court to review questions of fact to have a claim of ineffective assistance of counsel presented to the the court in nevada it has to be presented especially in a guilty plea situation through a post conviction petition where the lower court can take evidence and build a record and then send that up to the upper court such claims of ineffective assistance of counsel could not have been presented on a direct   the agreement that he had was that if he didn't get the benefit of his bargain the sentence that he expected to get he would be allowed to withdraw his guilty plea he don't think counsel would be  know you can you can appeal and here's what you have to do and i believe he's already told him that i already told him that and it's a slightly different maybe under that slight intricacy that's slightly different than  and has been consulted about his rights and his rights to appeal he has to do something to let his counsel know he wants to appeal just because judge bonaventure suggested that this was going to go to appeal and now  now somehow magically our defendant is believing that he's going to get an appeal i think that kind of stretches the imagination he's consulted with counsel all along and he's agreed on the record that he consulted with coun take the road case especially in light of the we have to keep in mind there's two parts to roe the that is that's an issue if he's got notice of his appeal rights the sand of all court this court judge kleinfeld said the once he's got notice of his rights and he's been consulted he has to do something he has to tell tell us counsel to do something or counsel has to fail to do something before he can make a colorable claim here we don't have that all we have is the council f  in which to perfect your got a good point also judge kleinfeld noted that if there was anything to the that particular defendant's claims why did he wait one year before he acted upon it and we have  i believe that it should never been certified for review in this court thank you to put you know i think that he had there is no rest in the record because it's in the guilty plea that she reserved a right and whether michael i don't think my client understood what you need to rethink about what the court does when it reviews a motion to withdraw guilty plea and it reviews the entire record and finally i want to point out that the prejudiced under floors or take it is not that you would have had a specific has happened he wants to go up to trial court actually talks about a transcript going to the supreme court you have a right to counsel appeal he didn't forfeit that he didn't forfeit that right virtue of his of his limited waiver matter we submitted we appreciate your argument