may have pleased the court consul this case is disturbing to me i think based on the totality of the circumstances even though the appeal bill and one issue before you the issue and it's i think it's over and over described in strickland and it talks about frye but my belief is that the six men protection that is to have competent consul attaches a minutely when you sign on with that client that at that point any dealings with that client's case that comes to your knowledge is your obligation then to say to that client here's what i know here is the decision that has to be made and then you have to come to some decision between yourself and your client in that discussion you explained your client here are the positives here the negatives here's where we can reach and in this particular case the attorney not only didn't have that discussion he didn't do anything to convey it he simply ignored it and let his client go forward the problem is that with the background and experience in criminal law that you have to look at this client having this criminal charges that appear to have been very tight in other words they seem to be very clear that a result of guilt would be incurred and if you look at that result based on what happened then what your next option is an attorney or at least one you should explore is what can i do to mitigate this sense records show that the government we would be willing to take a proffer i think that's memorialized and she provided a form for a proper means that you go in and yes you're taking a chance because what you do is disclose all of your criminal activity and you and once you've disclosed that then to the extent that information comes from that proffer that can be used the government can then decide whether or not they will give you some departure but it also indicates cooperation and how many points you'll get for that so it can affect your sentence likewise so it kind of opens the door to the potential for it and for the departure yes and and that's is what's so bothersome about case is that's a lost opportunity that you can't correct in this particular case and in this particular case we have a defendant who's understandably i think hampered by his of english speaking english by using interpreter ramirez communicated to counsel any willingness on his part to cooperate or to if scuse me and he did file an affidavit and again that's part of the appendix where he said had i known anything about this i would have cooperated and because he was on the low end of this conspiracy as far as primary he had every reason to do that to cut his sentence because he winds up doing two hundred or getting two hundred forty months and that you know they talk about strategy and stricklin and one of the things that again bothers me there's no strategy to non disclosure is simply a lie i think it's trick negligence but i think that it's not conceivable than an attorney would discuss this and also when you do a proper judge it's oftentimes that you go in and you'll sit down with the county attorney and say now here's what i'm this proffers about and here's what i think will be revealed we'll give me some inclination it's not a commitment i understand that but some inclination toward this kind of information coming to you and if it leads to other convictions and usually the responses yes i will tell you if that's it's adequate and sufficient and it's good it will lead to some benefit to your client but again if you don't know what that is it's never been submitted to you you're at it stink disadvantage as a client and it just struck me that that is one of the main lines of defense when there's overwhelming evidence against your client and you prosecution that it's willing to consider a proffer constitute a formal kind of offer that normally accompanies a plea agreement judge in to me if you write me that letter you send me the proposal i consider that if i accept it we have a formal agreement because you you will bide by it if you're the government you'll bide by it if you're the defendant because you signed it so i think it's a contract and i don't think that you have to get to the formality of a commitment for departure because i've never seen that actually in writing usually that's conveyed to me and we then discuss it  an attorney who will not talk openly with you and tell you what needs to go on that's where i come into the prejudice he's prejudiced not because we know what will happen because he never had the opportunity to have that event occur and i think that's what and i think that's what frye says your honor i think that frye talks about the specter of representation and i think when they talk about that they're talking about all phases of that representation i think that to call that a a tactic or tactical decision by an attorney is just is is ridiculous you can't make a tactical decision unless you've informed your client he's prejudiced by that very nature of that i'm going to reserve my argument if i could your honor look so you're back again yes good morning again i'd like to distinguish this situation from the friday case because in friday they were dealing with offer that the government had issued to the defense counsel and defense counsel never told a client about it in this case we don't have a formal plea offer and when you read plead to and then it would have all of the right that he is giving up by pleading guilty and that it would also have any sentencing concession that had been agreed to between the government and counsel and it would also have a statement by mr marion that he had discussed the plea with his client or his attorney and that he fully understood it and that's what a formal plea off state you know for a i that we are not defining the bounds of appropriate bargaining because there is such a wealth of different ways that attorneys bargain that we are not going to define the limit of effective assistance in the bargaining process so that's why i don't believe that the fry case  never expressed a willingness to cooperate and never indicated he possessed information that would be helpful to the government now he does have his affidavit apparently that was attached to his twenty two fifty five  he says he would have cooperated but he doesn't provide any any specifics his claim that he would have received a lower sentence is speculative and it speculative because there are many instances in which people go ahead and sign a proffer agreement they go in they give their information and for whatever reason the government decides not to use it or the government believes that they aren't being entirely truthful which then causes problems in being able to use that person's testimony because then their credibility can be challenged and here mr ramirez asked his attorney to withdraw his plea before sentencing his own actions be lie his claim now that he would have cooperated i don't think he can argue well  you know i was totally willing to cooperate when he's asking his attorney to withdraw his plea and if the court were to get into those things and the equitable  argument that was made in the brief again i would argue as i did in the last case that the certificate of appeal ability he was limited to the issue of disclosure of the latter not the other three issues that are listed and discussed in the brief and in looking at the recent case of white thomas versus united states number twelve dash eight fifty three decided december sixteenth to two thousand and thirteen there is a footnote that talks about the expanding the certificate and in that the thomas case the court noted that the individual defendant had filed his certificate of appeal ability or his requests pro se and that therefore they felt well we'll go ahead and expand the record in this case because the issues weren't as clearly defined as they might have been in this case it was the district court that issued the certificate of appeal ability and so for those reasons i would ask that the court not expand the certificate of appeal ability in this case as it did in  sutton i i listen to what is said but i keep going back to a proffer was an offer it had an agreement attached to it to accept my client never had the opportunity to accept it so then it is a formal plea offer it's just the beginning phases it's us it's a part of it but then when the supreme court says we're not defining the bargaining process i think in closer inspection of fry you'll find that they look at the totality of the circumstances and in this case when you talk about prejudice lost opportunity as a prejudice i mean you you are not able as a defendant to take advantage of proffer of dealing for a bargain sentence and protecting yourself down the road all those things are available i don't think they're guaranteed because you can get down to the end and even a judge would not necessarily have to follow that i mean it's only speculation that but i don't think i think that it is part of the right as a defendant to be have everything disclosed to him and have the opportunity because i really think this is about opportunity i think when you simply say that he didn't do it i do not think so i think that when he wanted to withdraw his guilty plea the record is clear as to why he did that but he still at that point is ignorant of the fact that he had a right to even proffer and at that point he was becoming at odds with his attorney and i think that's probably what prompted that letter because he didn't know what was going on and he didn't know what he was facing he didn't know how to deal with it he remarri and i don't i think that that's what happened but i think that this the totality of the circumstances it just goes back and it goes to a lost opportunity and what could be more prejudicial to me if i have three options and you tell me to do and i don't get to consider the third and in this case he doesn't tell him any opportunity he doesn't explain it to him he doesn't prepare and i think that that's the inherent prejudice of having consul who doesn't deal with you on a fair unbiased basis where he explains it to you because it's not strategy and that's one of the big things we keep talking about in the other two cases strickland and in fry