good morning good morning your honor renee manus of the federal public defender's office on behalf of mr release our appeal today presents a very narrow procedural you want to serve any time i will reserve the standard two minutes ok thank you thank you our appeal today presents a very narrow question regarding when a petitioner has met the martinez hurdle in this case because even the district court acknowledges on page thirty six of the excerpts of records that reasonable jurors may debate whether or not mr wiesel received the offer that under that is the underline ineffective assistance of counsel claim if reasonable jurors can debate that issue then mr wiesel has met the martinez standard backing up the ineffective assistance of counsel claim that we have is the failure to convey a plea offer that is a recognized claim of ineffective assistance of counsel the supreme court has confirmed for repeatedly the debilitation or has or a defendant has the right to effective assistance  some concern for me martinez talks about trial errors things that happen at trial that can be raised this is not a trial this is plea bargaining should martinez there's no case that we found that extended martinez to a colloquy should should something that was defined as a narrow exception to a allow you to get past the procedural bar be extended to things that happen outside of the trial context where there is no record for review and it's going to be he said he said that's actually a fascinating issue which no one has joined in the briefs i believe if you look at martine is it talks about exceptions for claims of ineffective assistance of counsel and it has narrowed that in the recent villa case it narrowed it specifically to claims of ineffective assistance of counsel the supreme court has clearly confirm her md that ineffective assistance of counsel is the realm of criminal representation including in the plea process so while you're accurate no i don't think i am not aware and because the issue has not been raised in litigated in this i must say i did not research it but i cannot understand why ineffective assistance of counsel in the pleas process would somehow be distinct from ineffective assistance of counsel at trial or ineffective assistance of counsel it's since the law because we're looking at an exception to a procedural bar where it wasn't raised timely and so and it just the language in martinez very specifically says be happy to look at that but that was that was not a question that was raised the issue that was raised by the district court was that this claim was not substantial because there was no evidence however the district court eg knowledge again at page thirty six of the excerpts of records that reasonable jurors may debate whether the offer was conveyed it you might say it's a he said he said question but i don't think that that's completely accurate because if you allow the factual development of this claim at the trial court level what do we have we have a lawyer who says i can't remember my practice was to do it i would take by investigator we don't know who the investigator is we don't have that investigators testimony that he recalls he may well recall maybe if that's there another e mail something about that we'd like to do a little more investigation before we act on it so the prosecutor's firm here about making an offer  and your client says he submitted an affidavit that stated in relevant part i am absolutely positive prior to my case i was offered a play for ten years for each of the two counts for a total of twenty years in prison including misdemeanor charges for county jail time i do not remember if both counts were to be run consecutive or concurrent i do not accept this deal mainly because of the county jail time this is not the same offer for one hundred twenty months referenced by the district attorney john crow in his affidavit occurred to offer during my post conviction proceed proceeding it's my position as it has always been that if i would have been for centuries with a ten year pl offer for two offenses to be placed in custody of d o c i would have accepted while that it seems like what happened the error though so we know what the prosecutor said we know what he said we know defense counsel i guess we're asking him what ten years later or something like that to say exactly what happened but he said it would appear that you talk to him about something and it would appear there was some passage there because the investigator and then the guy has a bench trial right and so and it's in front of this is all during this in front of the same judge right that's just citing the district court basically weighed the evidence and said i don't i don't think you've made a substantial claim right and the weighing of the evidence is where the problem occurs because when we're considering the martinez exception it's whether or not reasonable jurors can debate then we move into the factual development because actually there there's more to this deal the prosecutor statement and it's affidavit it was a deal of between seventy five one hundred twenty eight months you could ask down to seventy five i would be at one twenty mr y you says he got a deal where he's very clear he thought he was doing twenty years in prison and you must also remember this is really i know he said they offered ten year for two counts but he couldn't remember if it was consecutive or concurrent it to me i mean the prosecutor indicated he made one offer and whether that offer was transmitted to the defendant and the defendant didn't understand what was he the defendant's very i got an offer for this ten twenty maybe it was concurrent maybe it was consecutive but the prosecutor never made that offer he's very clear he only made the one offer for the hundred twenty months which is the ten year sentence now maybe it maybe the defendant didn't understand it when the attorney explained it to him but what about the fact that both the prosecutor and the defense attorney are adamant and i don't think any investigation would find otherwise that the client wasn't going to take any deal that it didn't matter he he won't he was adamant he was going to beat this charge and he was going to trial again i think we're jumping to resolving the factual issues when the question before us is whether or not there should be factual development in order to track how do you develop that fact i mean these two people are going to have any recollection different than what they put in their declarations which there's no equivocating both of them are quite clear that this defendant was going to trial and now of course the defendant lost and he's gotten what three hundred months or something so he's going to say at this point twenty looks good yeah i want to i would have taken one twenty i wouldn't have gone to trial but how do you have to weigh that it some point had and what further factual development are you that again the testimony or the affidavit of the trial counsel says he doesn't recall but he would have taken an investigator we don't know who that investigator is we do not know if there are any records billing records we know he went twice but both times were before he asked for the offer to be extended was the offer extended we don't know the question what mr weiss says he understood it was for twenty years and we also submitted in the further experts all right it doesn't say that exactly he does specifically say for a total of twenty years in prison at one twenty three so i will reserve i rest of it thank you very make sure you have time to answer that thank you the play park in process and our call part of the trial yeah i mean i'm going to i'm finding it hard that anyone's ever going to be able to pull that out i mean data law doesn't directly address it but it's not this isn't martinez but on its face it does seem like you know if if martinez is intended to protect the right to counsel of the that the constitutional right to take effective assistance of counsel a trial that right extends to the plea bargain process and for that reason martina's is really to get two thousand things that there's no other way you can get to it that's right and if it says that the plea bargain if it's read to say the plea bargain is not part of trial then where where could work could petition or bring that up i'm not sure that there would be a way for petition to bring that up if that were the case ok so if we assume that we can look at it here tell  me given the factual record conflicts and given factual conflicts in the record was it appropriate for the court to resolve on their record with out an evidentiary hearing here i mean what exactly do says he's satisfied martinez because his claim the substantial but that's not the only test dissatisfying martinez showing that your claims substantial satisfy you know so much you know is was a special application of the cause and prejudice excuse to procedural default identified in coleman in have to look to whether it substantial and then you don't get to the next you know if it's substantial then you have to then you go from there and you seem to concede that the district court might have put too under that i think as i understood my concession your honor was more that the court may have applied move framed its analysis under the wrong prong because that analysis if sound is enough to defeat his say substantial to get past martnez because the definition of that is not wholly without factual support that seems to be a fairly low threshold so assuming that any defendant puts in an affidavit saying i learned there was a plea i didn't get and because the failure to communicate a plea is considered per se deficient performance you're going to get past the the bar you're going to have going to get a martinez exception to have the court then consider it but then when you get to that in the strickland analysis do they actually can actually demonstrate that there was an offer that would have changed the decision of the post conviction review in court then then where are we in terms of the evidence here  perhaps the district judge should've said your past martnez but you're not going to satisfy the second half of the so i don't entirely agree with your honor because to get past martinez you know it isn't enough to show you have substantial claim part of martinez is showing that your his claim would have succeeded and that's what this court held in claiborne and the post conviction counsel well he did not amend the petition when he left and he can't be faulted for not having the initial petition had no idea it came up in the response he then raised it investigate it but he did raise that he presented it to the post conviction judge and the judge said i'm not convinced by the record here that this would have made a difference then he would have carried he raised the fact that he didn't raise the claim because if you had then it would be procedur defaulted right as i read the record as present in the further excerpts accompanying petitions reply brief what counsel said was you know this is new information and this this goes to show the prejudice on the claim that i did raise the claim that he was arguing was that  if counsel had properly advised petitioner about consecutive about his exposure to consecutive sentences and he would have he would have taken a plea rather than proceeding to trial and in showing the prejudice that resulted from that he said look here's a clue here's an offer that was made that he would have taken if he had been properly advised i do not understand count post conviction counsel to be raising this argument at trial raising when you claim a trial or rather at the post conviction hearing i also would that make a difference did you mean between trial and state post conviction yeah i can't say definitively that it's not highly unlikely thought to be the case generally state post conviction or it is handled you know by different court and different judge if remarkable didn't have merit even if it mislabeled that as saying it was once not substantial that that legal conclusion is sufficient to allow this court to affirm under the other prong of martinez and that problem is one the defendant a petition needs to satisfy in order to get past and so if if if the district court decided based on the evidence in front of the court there was no need for an evidentiary hearing what should they have to show to show that that was just a couple of points of clarification the judge at trial was judge basinger that's in our further excerpts of records we provided some of the sentencing transcripts the judge imposed conviction was judge billings that's in the respondent supplement supplemental experts records the post and fiction judgment i want to be clear the question of whether or not trial counsel was ineffective in failing to convey a plea offer was in no way considered at the state post conviction level oregon has very serious procedural bars if you do not plead it is not considered it was not pled i want to respond to what i think what i understood their argument let's just say the district court was wrong and it substantial could this court affirm any way to contend the p c r counsel was effective in that he recognizes the claim when it appears at the post conviction trial that mr weiss tells him i never received this offer and then he attempts to argue it but it has absolutely no effect under oregon law there is no statement from post conviction counsel that he considered this claim rejected it there is no affidavit in the record to the extent that there's an analysis that post conviction counsel looked at this and made a tactical decision not to raise it i think that's completely blinded by the fact that this claim is not even possible until november when the conviction petition is filed  august and then the trials in march so saying that postcondition council in august somehow made some tactical decision not to raise this claim just does not make sense in light of the record he couldn't have or is this claim he initially filed because he had no idea it was brought to his attention and when they filed the opposition and submitted the affidavits in response to the two issues he did raise about the communication of please and how they should have been interpreted and then the defendant said oh wait what is this hundred twenty months i never got that offer and actually the claims weren't about communications of police the claims were about waiving jury trial right whether he should proceed to jury trial or whether he should waive his right to jury trial and proceed with the bench trial there were no claims whatsoever regarding when he gets a three hundred something months to the say oh i want a deal now what he says is that he was unaware that there was a deal of eighty five  there was there was something can fade to hamburg he just didn't end that twenty years would be better than the three hundred something right it's three hundred months so it's twenty five years a new law was going into play at this point in time just that this law which required the twenty i want this other deal i mean i've seen defendants a lot of times cobol hey king saks i never thought you know now can i go back to the other thing by are giving me you know i have seen defendants both say that and not say that as well and i