morning the we have three cases to be argued the smarting the first is jones v pennsylvania board of probation and parole number ten twenty nine forty four and it's one being the propriety of the claim the jones made under the ineffective assistance of counsel for dr and the second being procedural default and the third being whether he thought timely within the one year statute of limitations the district where the problem that i have in this case is just a simple just sort of jumped out at you issue and that is that if you plead in two thousand and one how in the world does anyone know that you're going to commit a crime several years later you don't so the information that supposedly was to have been impart in two thousand and one that if you are committed a of another crime that you've got to you've got a major problem that's collateral isn't well i think your hon hits large nail on the head in this case but i think that it is a critical issue in this case about whether this collateral order or direct issue is really the operative doctrine where it comes to the question of effective assistance of coun little house counsel ineffective or not telling him that if you commit another crime you could you could have additional consequences well but it's more than that in this case because what jones alleged in the in the district court was not simply that his counsel failed to tell but that he asked repeatedly because this was an important matter to him and that counsel assured him that it would not have any further consequences and of course we haven't had a hearing in this case and there's been no factual finding of whether that was that could be made out as a factual matter but the way jones played it it was very clear that he came to the point of going to trial he alleges that in fact his first plea proceeding blim i mean it that's a i mean as any number of consequences when he goes for a job and you say we don't want to have a person has been convicted of something does he go back it is it is attorney then and say no you didn't tell me about that no i mean your honor i think this is this is the this is a key point and it is this i think what has recognized fully although it's been in the law for a long time is that this direct collateral consequences issue has resonance where the question is what must the district court tell a defendant at a guilty plea to make that a proper guilty plea the district court has the obligation to make sure that the defendant is waiving his rights and knowing intelligent way and part of that is understanding all of those direct consequences of the plea but the obligation of an attorney to a client is different it's brought up the obligation of  an attorney to a complication of attorney to the client is the tell them direct consequences of a plea but it it's pretty clear it's not to tell them collateral consequences of a plea is that correct i disagree with that your honor i think that video has told us that the direct collateral consequence issue is is not what governs the strickland's and i think that's one of the things that the court said now granted the court said that the deportation is a pretty important consequence what's what's the what's the case the supports consequences i don't think that that issue is presented in the case i think what the d a s says that you have that collateral consequence direct consequence is not the formula to determine whether an attorney has been effective under strickland in advice in his client but in the dia the the penalty of removal was clear and explicit you knew it from the get go you plead to this and  they're they're likely more than likely to come after you to remove you hear you plead in two thousand and one you know i just want to let you know that if you commit a crime well two thousand and seven two thousand  could be a career you could be a career offender and there could be a huge jump in the sentencing range under the guidelines so you know what what was the what was the what was the range here and what  way i read dia and i've tried to cite from it extensively and in the brief is that the direct collateral consequence discussion is misplaced where you're talking about what's the obligation of an attorney and particularly in a case like this where it's not simply the attorney running through a laundry list of things that might happen to you if you please but if it's in specific response to an issue that jones claims was the absolute turning point in his decision t believe it's a big one can any defendant say tell me everything it's going to happen and when something is not covered in the list then they're going to be back here before us who are before district court i don't i don't think this is general questions you know how can this possibly affect me in the because the truth of the matter is that plea bargains are amazingly important to defendants because they get such a benefit out of it and only somebody in a rare circumstance who really has a matter that he believes was the turning point his later conduct i mean how do you distinguish the salmon case from the from one nine hundred ninety one which we said that the effect of a conviction and sentencing for a later offense under a career offender law is a collateral consequence close quote i think salman has written before the dia makes this clarification but dia said we have never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance under stric the direct collateral distinction has no bearing on this case but in the dia again back to the point that it was clear and explicit that there would be an automatic imposition of removal that you know that you know if you commit another crime down the road you could be sentenced as a criminal or i mean aren't you if you're caught i'm sorry go ahead if your client asks you that question yes you tell him that because the expertise you're familiar with the several decisions the supreme court has come down with in the aca area trying to just look at the residual clause cases for example those are very tricky and they're changing depending upon what the florida state supreme court says about its burglary stack you have silly so any the answer is always yes right and the answer the answer certainly could never be  no it could never have any possible facts and that's what jones alleged the answer he was given here the answer at a minimum if there's any if there's any gray area is the tell me look it's there's three possible  outcomes that it could be you have something to do or how one knows what the future holds if you are the right the the the warning answer is no don't worry about it don't worry that and that's what jones alleged he was told here and that's the real problem and see that's why but let's see judge hardiman your your question about the the if in this of some of these things i think also emphasizes why it wasn't until he actually got sentence that he was prejudiced if the sense in federal court that he was prejudiced to the degree that he had a claim to bring here in the first place but let's just listen this was good of the timing of it it seems like he missed two time timelines here let's he was under the p a statute ninety five forty five b two yes he got sixty days if he discovers of being notified in may of two thousand and seven the government would be seeking to enhance that section has been very narrowly construed by the pence of a supreme court to deploy to after discovered exculpatory evidence it's not like the johnson case u s supreme court decided in two thousand and five which i think is well i don't even i don't even think that i think that he's he's out of pennsylvania court completely on a couple of grams first of all no matter when he would have gone back to pennsylvania court when we just when we debate whether direct collateral consequences are an issue still in the federal system the pennsylvania system as an article of absolute faith says that if it's advice on a collateral consequence and you are dead wrong it is not ineffect they they have in fact taken alec otter on the abraham case to decide whether they should continue that policy so you're arguing futility absolutely right but it's clear that the law says that you can be excused from failing to exhaust when it would be futile to do so but how do you get around the supreme court's statement in loosely case and i'll quote futility cannot constitute cause if it means simply that a claim  unacceptable to that particular one at that particular time if they're going to go through the hoops eat well first of all his his prejudice came in through two forms or first of all we're talking cause i'm not prejudiced i understand the the  pennsylvania courts work who were have been completely close to the direct collateral issue the whole part of him going back there would have been futile plus after the one year after his we  pennsylvania terp are taishan of that one year statute of limitations is jurisdictional and it is absolute i'm agreeing with you and i'm saying it's futile i think you've nailed the case law now but what i just read from the supreme court is as  stand as judge you guys has also question very well i would contrast that with the broader holding in the johnson case if i may just for a moment just sort of course is very important on the issue of whether he thought within the one year if you have been diligent in seeking the vacant chair of that prior conviction and the broader holding of johnson is we're going to we're going to judge whether you were diligent or not from how you proceeded from a given starting point the critical question is what's the starting point the supreme court weighed up well maybe when you get your federal indictment maybe when your federal conviction is affirmed what they finally decided on was we're going to judge diligence from the date you get sentenced in federal court as a career offender from that point you have to be diligent in trying to seek they capture and if you win then you can come back within a year and ask us for relief under federal sentence so i think even the supreme court there are suggesting that it's the occurrence of your federal sentence as a career offender that triggers the true prejudice that allows you to have a mature claim that you could actually bring right now and you've got to go within sixty days the state court you to i don't i don't think you have to go within sixty days in pennsylvania because it's not an after discovered piece of scope atory evidence there was are not the same as as the federal court construes these that that that one year statute of limitations in the cases that they decide they're brutal to be time it from the sentence you're fine in the one year which i thought you thought in march of zero nine yes and but but you're on notice from may of zero seven that you've got a you've got a major problem here why why not file within a year after that why take the chance that you're going to be out of time open court by the sentencing judge you better be careful about the ins you have to cooperate with what he's convicted he is darn sure that he's got a major problem he knows that the government is going to seek it career offender status is not the is not a night follows day determination like a mandatory minimum sentence would be for example was a minute were minimum sentence i have to agree with you but career offender is a matter of discretion by the trial judge and it's judged on appeal views of discretion and so until the trial judge would exercise discretion in order to give the career offender status i think he's not prejudiced and i think in please a court my name is ken our soko i represent the apple a in this case nationally i'd like to turn of the latter last matter that the court was questioning this transfer we act on that is the statute of limitations it's the been discovered with the exercise of due diligence which you have a series says that sure you know that we know that was out there but it didn't become really concrete until the actual sentencing and that happened within a year i mean we got to another case in the city not whether it was actually going to be imposed he was trying to seek to avoid the potential hording his claim in his head in his habeas petition in his memorandums he didn't want to even potentially face an enhanced later so that that's his particular claim so it became right when he became aware in may when he was no put on notice of the government's intent to seek the enhancement and certainly he knew when he when he was convicted of the crime and he or he was on notice that it was clear definite and certain we would submit that the that the government was in fact seeking it that it could be imposed certainly at the latest at the north to him was he was seeking to avoid even having to face and hand sentence not whether he's he gets it or not we're going to end it under that rationale why wasn't why does start ticking when he was first investigated for that offense because they were arrested for that offense or question because at that point point in time he was up there's no evidence that he was aware of the factual predicate that there was a career in hanssen it was going to be so even at that time the run of the court the government has to advise him it's or that it's actually seeking the career and hansen and in this particular case it appears that there were two trials in the first trial the government did not seek did not put  notice did not seek a career in hanssen penalty it was only after that that was overturned which would cases tell us the triggering date is the date of filing an official in forty one knows i'm sorry what cases tell us that that your position is correct that the triggering date here for purposes of the statute one your stature running is in fact that the upon which the section eight forty one notices i don't know that there is any particular case you are what about  johnson and johnson didn't seem to be too good a case for your side how do you how do you square wave johnson your honor in the johnson case what it had what the issue before the court was was whether when he got the state case overturned or the earlier case overturned the time for filing in federal court that isn't this that is in this case it's it's the fall it's time for filing when he has to commence filing the federal petition the federal that it bet a lot of money in vegas that the what the outcome would be well your honor of unfortunately i've seen cases where both sides are shocked by outcomes that have reversed other cases you never know what is going to happen i don't believe it would have been futile but certainly your honor even then and that's that's twelve terms of the the the november and the may seventh when he was convicted in zero eight and again at that point in time the law may have been in pennsylvania it may have appeared to be futile but had he filed it in that in that period of time in following his conviction in march and following a sentencing in march of that may of two thousand and eight by the time this case would have reached the pennsylvania courts the dhea would have come down so we don't believe it would have been futile for him the filed a petition and as the court is already indicated women  saying put the help some now put it does not help them but what india would have done is then the for the issue would have been addressed by the pennsylvania courts at that point in time we do not believe that the helps them because first off padilla case the court while it talked about direct and collateral consequences the find the collateral consequences as one within the sentencing authority one within the sentencing your friend says that  this is basically blood red in the distinction between direct and collateral consequences that's the we don't believe so your honor they say we're leaving it for a later day we're not really deciding that particular issue they said this that fact and in that case the consequence deportation was such a severe consequences such a severe penalty and it was intimately bound up with the with the immediacy of the criminal conviction once he was convicted in being an alien he was automatically subject to deportation and it was this is if the court said to him not only are you getting x amount of time but you're being deported as part of the sentence now the court couldn't do that because that court th those cases the consequence flowed immediately in directly from the sentence from the imposition of sentence there was a parole issue one of the cases where was m flow directly from the sentence that was imposed civil commitment case that the defendant in petitioner refers to again flowed directly again as if the court when it sentenced the defense sentenced petitioner said to not only receiving this amount of time in jail but you're being deported you're going to be civilly committed you're going to be losing your parole time or whatever the parole time might pay you going to be losing your pension in the aber as in the pennsylvania thousands of people who are deportable who are under orders of deportation who are not only not been deported they haven't even been processed arrested or process well and in for their case the court spoke directly to an indicated it was virtually certain that was go why can't you say to your client you can plead guilty to this but i want to let you know you come down the road you do anything else you are automatic leave eligible for a career offender sentence and the amount of time that you will get could be three or four times what you would otherwise get just one let you know you are first first in state court night perhaps the perhaps an attorney has the obligation of oz and there may be certain consequences whether or not an attorney is required and i submit that he's certainly not required to know the laws of not only again we're in pennsylvania state court he'd have to know if you're arrested in forty nine other states what the laws of those of those states where with the laws in federal court were the question isn't whether he tells mississippi in an argument was made in the criminal lawyers can't be expected to be experts in immigration law isn't that a work of  stretched and saying that state court practitioners should be knowledgeable of the federal with sort of a staff but what what i'm saying your honor is that what padilla also talked to the fact that they may not be knowledgeable in that they might have to advise him of the potential certain certain things happening not the certainty of it in this case the defendant the petitioner contends in any in any event that he specifically sought to learn that information that's not what his petition actually says what his petition in federal court actually said was he asked his attorney whether there would be any other consequence imprisonment or otherwise for that particular crime and there was no other consequence for that particular crime but more importantly you're honoring and again we know prior records for range indicated he had in pennsylvania five which would be basically the highest prior record score that you had that as a result of having that particular prior record score he was subjected to certain minimum minimum sentences now again the court in pennsylvania has discretion but the point of judge heard of this question is that you've got to separate disciplines criminal law and immigration law and the court said that you can have  ineffective assistance of counsel here you just have criminal law maybe it's criminal law in a state court maybe it's criminal law practiced in a federal court but usually counsel does both and is aware of both so the bridge isn't very very far here and yet when the bridge is far between immigration and criminal law nonetheless the court thought ineffective assistance of counsel i understand and what i'm indicating the claim of the defendant petitioner is that he asked counsel that the record we submit reflects that he was on notice of it not only by counsel because as i indicated the record reflects the ranges he was on notice that he had this prior pardon he was a big trouble but he didn't know he was possibly going to qualify for career fender status if he committed a federal crime and i don't believe your mother tried it would be expected that tourney in the state court would again as receive in some other jurisdiction or even the city you know has been a hearing so we don't know all the details about what we say you know what we do know though your honour's as they indicated he was on notice that he had this prior record score that was factored into the sentence he was receiving for that he was on notice and the indicated to the court in his guilty plea colloquy that counsel hadn't done it nobody had done anything promised him threatened him or done anything put any pressure on him at all to plead guilty so i think the record reflects that is contention to the contrary is not true by the by the record in along pennsylvania is you can't basically lied to the court and then come back later and say i lied to the court that's what the defend petitioner we submit is seeking to do in this case the record as i indicated in this guilty plea colloquy says have you been promised anything and even threatened has anybody done anything to put pressure on you to plead guilty he's now saying yes they did put pressure on me but promised me that there would be no further sanction in this particular case so what he's now saying is in direct contravention to what he said when he entered  as you're as you're coming up mr ackroyd what rule would you want us to adopt in this case if you were writing the opinion of put it bluntly don't take defense counsel off the hook  i i would hope it would because i think if you have if you sit defense counsel if there's a rule that you look at that school lateral consequence you don't have to answer the guy's question correctly you can tell him anything it won't matter that is not the rule that we want to write that's not the rule i think that the it says should be the rule of direct collateral where it comes to the obligation of an attorney who is advising his client to w plethora of constitutional rights and submit himself to the jurisdiction of the court for sentencing that attorneys obligation minimally is to answer a question the client brings to him about an important matter in the case and not just blow it off by telling him out don't worry about it it's going to be fine if let's assume we are fully on board with your argument that i think tells us that the reason why ineffectiveness occurred is because the second that client of yours plead guilty you have rendered him deportable the very act to hear what you've got to convince us of is the pity and needs to be extended to clients like jones who when they plead guilty back you know one there perhaps rendering themselves inhance of all depending upon what happens in the future what's your what's your argument to persuade us that th not in a meaningful distinction your honor i think the meaningful distinction is depends goes to the issue of when is the client actually prejudiced by the bad advice he has received from counsel in previous circumstance you're right the moment he pled guilty he pled guilty to a clearly deportable offense there was very little that anybody had to do to deport him other than to show the record of that conviction in jones's case what the the thing that jones clings he was misled about was not something that had the immediate consequence it would have a consequence later on but the consequence when it happened would be as onerous to him then as it was stupid dia now it's simply a delayed notion of when that horrid prejudice would be visited upon you but it doesn't make the advice any less effective in the prejudice is always going to depend upon the on a few days of the person that pleaded guilty you know won and that's an odd species of prejudice isn't it when we talk about prejudice typically it's it's not subject to future events to be determined later many of which are perhaps in this case all of which are within the control of the actor himself well but that at that moment that let him cross that border and take that plea and if that advice was was ineffective assistance of counsel the fact that he suffered the ultimate prejudice of it later on down the line simply means that it was  reaction had he known he was subject to career offender designation he would not have committed a crime in those you know later though that's not the equation equation is whether he would have pled guilty in two thousand and one when he later committed the crime since wouldn't necessarily attribute that to jones or anyone else at this point i know that that the moment and this is this is why again johnson i think is important here because johnson talks about what is that moment of prejudice for a defendant in a career offender said it and i great job the person had a possible max of ten years pled to go off to before he ends up getting out after two years and everything that causes him to be here today is as a result of his own later violation of a federal law if that's the case how do you go back and blame counsel ten eleven years ago the same way you could apply to this case applies to all of them so all counsel sutton's that it should be almost like a miranda warning of defense counsel just let you know i know you're pleading to this crime by goodness if you do something in twenty eight another crime you could be a career offender and know you want to because that kind of that kind of a rule would would essentially back to where the direct collateral consequences rubric you know we would just be we would just be expanding what we're considering direct consequences what i'm saying to you is this the rule about counsel at a guilty plea is you have to give proper constitutionally valid advice to your client if your client says to you what it is what can this conviction be used against me later on that's not a complex question and if counsel in this case told jones no it can't that is in effect almost what you're saying is that the next step was is to be as part of the plea colloquy that the sentencing judge in a state court should say let someone just well let you know in pleading guilty not only do i want to be free please here a knowing plea but you need to understand that if you are convicted of another crime in the federal system you could be sentenced as a career offender i would think that was not necessarily a rule in it to be applied in all cases but when you're advocating it when the lesson of what you're advocating be every criminal defendant should say tell me every every consequence that could possibly happen here and if they don't list everything like this defendants do that this is been the law i mean jones filed this claim before but the it was on the books why don't more people do this for one very simple and extraordinary compelling reason the plea bargain they got was the deal of a life it's safe they don't want to overturn it for any reason it's going to be a rare case in which something like this happens and joan still has an incredible burden to carry if there's a hearing in this case to prove all of the things he needs to