in this case for an avid and sherry hearing on mr milton's and effective assistance of counsel claim he was convicted of a crime that he never committed and everybody agrees to that he was convicted a grand larceny greater than twenty five hundred dollars that's not a but whether a person can throw away of a factual basis to get some benefit i think that but that's a lot of how plea agreements work we should i read alford to say if it's going to be an alford plea there has to be a factual basis and it can't be fantasy it they are saying i agree that you could approve these these facts against me and these facts amount to this crime but i am not saying that i did it but i want the benefit of the facts look really bad for me but i didn't do it anyway right and so they're still in that sense there's still a factual basis in support of the crime though this may be a violation of alford yes you are make that argument i didn't make that argument and it may or may not be a winner but  is one of the things that bothers me about this case i think for me too it was strange this concept of fictitious plea that everybody in court sort of openly acknowledged this didn't happen but you're going to plead to it i have trouble with that phrase fictitious pl strategic decision to go with a particular set of charges or claims against him and admit to those in order to derive a sense and benefit so i don't i don't understand how you can characterize that as a fictional plea that's the term that the trial court use that's just the the term of art in that it is fictitious plea but second from that your honor i think the question is is it like fake news the reason that the government provides they say well if you were convicted of grand larceny he was probation was a possibility but if with burglary that's not the case because he had a prior conviction but that's another thing he said he said that i  martin said i hope i can get parole here i don't i don't think so i think he said the opposite i think in his allegation he he said i know you're going to have bitch ally's me when i'm asking for is not tend to life which is what the to a small which is eight to twenty and a large which is ten to twenty five ten to life or life without and the government made it clear that it was that's what it was to give one of those three options the idea then that he could get probation it's just it's just not real it's not a possibility isn't why isn't just like a conditional plea where the defendant doesn't admit except for purposes of moving the case ahead so that they can test whatever legal issues they want to why isn't this investigation about the conflict between the two of them that all goes to the ensuring its of the plea at all as opposed to a conditional plea where there's maybe some legal issue search or something like that that the parties wish to preserve in late aga later and here are the circumstances of the police simply aren't known to us we don't have in the record the transcript of the beginning of the trial of the very dear we just have the plea itself so he goes to trial they get through jury selection and all of a sudden we have the police and i simply can't see the benefit to this plea because the burglary is one to ten attempted grand larceny is up to three hundred sixty four days in jail and that's what he's facing when he starts the trial so then he comes in all this and there's this plea deal and the plea deal is for this grand larceny greater than twenty five hundred now we're back to one to ten so what benefit was derived from it and i think it goes to what the discussion was between the attorney and mr melton how the plea deal came about at all and we simply don't have that evidence in this record and i think remained then is appropriate to develop it well maybe it's right you know it has to be raised before the petition for rehearing and he said listen i can't even get the documents that i need i can't even i can't get what i need to do this so i think that shows then we could have a hearing in this case to develop the facts to to take a look at stric didn't see an argument that the state court made an unreasonable determination of the facts i don't did you raise that argument i did that by not having an evidentiary hearing i raised the argument that the the under way misty tell you that the state  d any development of the facts i think when it comes to the decision that we have right now from the from the nevada supreme court they don't apply strickland at all what they say is you know you were below he didn't get it long and he did not care but it doesn't say for example here are the the facts that mr melton tried to present we don't see a difference in performance and he didn't see the odyssey to either even assuming deficient performance there's no prejudice it doesn't analyze stricklin any way well the government i think had made it clear when they were plea bargaining we don't there's we don't have that record either from what the plea offer was what the negotiations were you reference we don't have evidence of the conversation between the defense counsel and mr miller but we don't know what the plea offer was and what the government was holding out for but we knew that this conviction was coming at the end of a long trail of prior convictions and that he was going to suffer at the sentencing phase some enhancement and probably some substantial enhancement and as the district judge the trial judge i should say reviewed the matter at sentencing he expressed some frustration that this guy's not getting the point and so i'm going to really lower the boom on you that was the gist of what he said so the government was one thing and enhanced amount of some substance because of his prior criminal history so if we accept your interpretation where does that possibility op enhanced when i think i get played out in the sentencing structure it goes to show that the prevail really wasn't ideal because if he goes to trial and he's convicted of the burglary or the attempted grand larceny either one of them if any conviction comes out of that trial at all he's facing this exact same enhancement he's facing the exact same habitual criminal statute so right so to me it shows that there wasn't a deal and we don't there's just too much information that we don't know that and we don't have that mr melton wasn't able to develop on his it please the court amanda sage deputy attorney general with the nevada attorney general's office on behalf of the respondent pollies in this matter and i do think it is important for some of the questions to clarify the issues that are before this court the question is not an unreasonable application of any supreme court decision precisely and one about a supreme court decided this case in two thousand and ten the only thing that the united states supreme court had said was clearly established is that grossly disproportionate standard of the sent cannot be grossly disproportionate to the crime and certainly the of the fictitious play and again that is just colloquial language from nevada but the fictitious play does raise interesting questions because the crime itself the facts don't think the charge crime but the facts don't support but we did have a preliminary hearing in this case so there are the facts to show what mr martin's behavior actually was leading ultimately to this conviction and it's also important to frame this correctly in that this sentence resulted not only from his behavior in this case but from his twenty two year criminal history which included ten prior felonies at least ten prior felonies as many visits to prison and numerous misdemeanor convictions so this wasn't a sentence for mere shoplifting this was a sentence for a man who ultimately actually convicted committed burglary which is a category b felony and attempted grand larceny which i would like to correct is what's considered a wobbler in nevada it's a category d felony or it could be treated as a misdemeanor so while he could ultimately been sentenced for a gross misdemeanor on the attempted grand larceny what do you what's the dollar amount for gram larceny two hundred well for there's multiple levels grand there's two hundred fifty dollars to twenty five hundred dollars and then what he pled it was twenty five hundred dollars and above at what point does it become a grand larceny is just in from larceny the two hundred fifty dollars ok and so then the attempted grand larceny which is what he was alternately charged with or what he was initially charged with can be treated either is a category a gross misdemeanor in this case given his history and given what the judge ultimately did in this case it's likely he would have been treated as a category d felony and because about both of those felony convictions the burglary and the category two felony were subject to the same habitable enhancement and could have been run consecutive so by taking the police the way he did he not only allowed himself the opportunity for probation but he also eliminated that potential for very serious consecutive sentences in this case but when we're looking with what he pled to but what we're looking at then about a supreme court's decision and whether this sentence is grossly disproportionate to his actions again we have to take that criminal history into consideration we have to look at the facts of what happened here and i think it's clear that we can look at the underlying facts of what happened here because the history of supreme court cases in this area are very fact intensive they the supreme court has recognized that just saying grand larceny may not be specific enough to understand what the petitioner actually did and so they look at all these cases rommel solemne style they look at really what the underlying facts are what the petitioner engaged in and in leaving alternately to this conviction and i think we can do that in this case to the extent though that we're talking about whether a fictitious plea is appropriate that i don't think is clearly established supreme court precedent from court hasn't directly addressed how the eighth amendment would apply in this clear situation so to that extent we don't have clearly established precedent to go off of juniors to lie is apparently the same sentence for crimes under nevada law for second degree murder kidnapping sexual assault without substantial bodily harm so given the actual of fans can we make a a disproportionate grossly disproportionate assessment on the basis of a comparison to these other statute i think if we frame the issue correctly what he was sentenced for wasn't necessarily just the grand larceny it was the grand larceny in the history and so because nevada said when you have this type of history we're going to treat you as if you're a category a felon which opens up the door to the sentences you talked about in his comparative to those sentences so it's not simply that we're sentencing you as a category felon because it's a grand larceny we're sentencing you to that because you have this history of felony cases leading up to this and you've shown a complete disregard and a complete disability to comply to the society norms and the supreme court has said that that is perfectly acceptable for states to take into consideration and to create laws that treat actual offenders more seriously on their subsequent offenses lets the supreme court case closest to this one i would say that ramos probably the closest to this one and rommel that the defendant was sentenced to twelve years to life i believe for for theft well seventy two hundred fifty dollars involved in that case of course hundred so the monetary value would be different but what the supreme court noted in rommel is that he had the ability for parole after twelve years that he had criminal history and in ramos case it was only two prior felony convictions whereas here we've got ten prior felony convictions but the because of that history it wasn't grossly disproportionate he was not simply being sentenced for the facts he was being sentenced for his failure to comply with society's rules and interestingly i think if you look at law care which is actually in that pick a side where they had the sense that they upheld in that case was two sentences of twenty five years to life in prison in two thousand and eight for stealing some v h s tapes from a store so pretty similar with a much more severe sentence to twenty five to life sentences and the supreme court said that that still was not grossly disproportionate and so when you see where this case kind of falls in the middle he's eligible for parole earlier than rommel and ten years instead of twelve years he has a significantly longer criminal history than rommel did with the ten prior felony convictions and a sentence is significantly less than unluckier i don't think that we can say that about a supreme court's decision here is therefore there had to be plainly ineffective assistance of counsel to let the defendant walk under any auspices that apply year and made to this given everybody could reasonably predict was going to happen and that is the sentence he got so would you explicate the deal that was provided here that provided a benefit to mr malcolm absolutely so initially he was facing the potential for two felony convictions the attempted grand larceny which would have been a category d felony and then the burglary which is a category b felony both of those convictions would have qualified for the same sentence the habitable offender sentence that he received and the judge could have imposed those and run them consecutive to each other so he could have been looking at two ten to life sentences or he could have been looking at two ten to twenty five year sentences under th statue by pleading to the single offense he lemonade about and only exposed himself to one one sentence he lost the rest of the consecutive sentences and additionally even though it probably was not likely it did open him to the possibility of asking for probation which is counsel did ask for at sentencing so whether or not it's likely or not we have to look at headlines of the other two offenses as originally charge there was no possibility probation not under the you played to a greater burden of it yes but that would have allowed him to argue for probation which he did at sentencing and under the ineffective assistance claim when we're looking at a guilty plea cases like this that the petitioner has to show that he would have proceeded to trial but for counsel's actions and in this case we actually have a wonderful record where the petitioner got up and explained exactly why he took that plea deal he said he didn't want to waste the court's time and money by going through a trial even though he felt like he might have won on one of the charges and not the other he felt that this particular judge was fair and was going to give him a fair sentence and so he showed that he actually put a lot of thought into accepting this deal and why he went about doing so well those was hoping to accomplish with this case he was under no no pretenses that his history was clean here that he was looking at a low so that's one more question even the world at least the it's not unusual for there to be on a check charge for example some theft or forgery of a government check that clearly on its face has a value in excess of a thousand dollars or whatever the statute sets the limit used to be a thousand i don't like that that's actually for all and the is is this case like that it is i mean it goes the opposite direction to in effect but it's still a plea where he's looking and recognizing the facts of his case don't necessarily meet the elements of what he's pleading to but in order to accept some benefit or some perceived benefit he's willing to enter that plea to move forward with this case so it's not a fictitious plea it's a plea bargain it's a plea bargain it's a clear bargain to a to a statute where the facts agreeably by all sides do not support ultimately the elements of what he's pleading to thank you thank you and i'd ask that this court affirm the district court's ruling below thank you thank you thank you i just want to make one factual clarification to start defense counsel do not ask for probation you know you are forty four he says i'm asking you not to adjudicate him as a habitual criminal which the court had the discretion to do and counsel says  think here four to ten years concurrent with a prior case but he said if you're not inclined to ignore the habitable criminal statute then that he be imposed five to twenty years so that's a very different thing and a probation recommendation i think we agree was not possible here that mr milton's attempts to develop the record in state court and the wording by the state court to allow him to do that i think are enough for this court to remain on this matter for development