good morning honors yes and may it please the court it's really an honor to be here today before the eighth circuit and arguing this case on my have to admit i'm a little nervous it's my first time here in front of my professor and in front of opposing counsel who happen to be my eighth grade basketball coach back in sioux city now i'd like to start today by talking about some of the facts briefly mr  old when on january twenty first two thousand and nine he faced the federal criminal charges in this case he had come to the united states as a child with his family grew up in iowa became a lawful permanent resident and graduated from a city i on june eleventh two thousand and nine he pleaded guilty to the charges based on the advice of his counsel which he understood meant that he would be able to remain in the united states after pleading guilty unfortunately that was not the case some commitment that the law isn't going to hold him in jeopardy for e that's correct your honor a chance is not a commitment the difference here between almost certain and certain  is very important and the leak case that we cited two hundred twenty eight a letter a couple of weeks ago and opposing counsel responded to a couple of days ago has some important language about that towards the end chief justice roberts says that but for his attorneys incompetence of the would have known that accepting the plea agreement would certainly lead to deportation going to trial almost certainly and that almost could make all the difference now under strickland and ineffective assistance of counsel claims there's the two prongs deficient performance and prejudice and lee talks to the prejudice issue pretty directly how do we get to the stricklin issues when we've got a issue of retroactivity of the applicable supreme court precedent well your honor under the deficient performance problem that strickland there were really two types of deficient performance mr perry affirmatively mr advise mr braai guarding the certainty of deportation that you can you can help me there because as i read what we have in our record about the conversation at the bench  i didn't get the impression that it seemed like the judge who wasn't certain that the defendant would be deported seem to have from hold some optimism that perhaps he wouldn't be understanding your circumstances and usefulness and it seemed that the lawyer didn't make you need a strong affirmative statement he simply was more silent than than representative of test is not whether they told him you will not be deported the circuit has not really decided on the difference between failure to inform an affirmative miss advice but going to leave that paragraph that i read earlier that difference district court held that once the advice is given that takes you out of an analysis of a failure to inform and that's what exactly what we had here and again why wouldn't he prevent deportation consequences could be found to be deficient performance under strickland and we say to a number of cases in the first cotto good gender gag car in the four circuit kwan in the night downs morgan in the eleventh where the before pedia affirmative miss advice about deportation proceedings was deficient performance and then even after pill and after tried the courts had found that and we would argue that that is affirmative mr advice because it is advice given that was incorrect in the immigration statute it was clear at the time that being convicted of an aggravated felony renders you deportable but there's isn't there a chance that the government elects not to enforce that under the facts of this case that was not the case and that's essentially i think what docket is isn't it determine a resident to the point is that that the government can elect not to enforce or you know at least some argument can be made they can elect not to enforce some of those things so there might have been a chance respectfully no your honor and in leave united states renders you deportable and the having that certain deportation was also found in both of the district court opinions in the state every completely at random at a portable but that doesn't necessarily mean you will be deported doesn't it may not your honor furthermore in this case however under the failure to inform about the permanency of deportation now that he's out of the united states mr brown house is permanently banished from reentering so under eight us eleven eighty two eight nine eight two he's not able to reenter the united states because he's permanently in unmissable without  r let's say you carry the day on on the affirmative miss advice and you show prejudice can show that he would have wouldn't have taken the plea offer given the strength of the evidence against him respectfully honor that's not the task for prejudice in these types of cases under hill v lockhart the test is whether it's reasonable for those offending to choose to go to trial or to choose not to plead guilty and insist on going to trial and lee clarified that that when there's the hail mary's chance of going of succeeding at trial when the alternative is a pleading to deportation it is reasonable to choose to go to trial especially when you have strong ties to the united states as mr bras does coming here as a child and really only growing up in the united states  returning to the difference between failure to inform and affirmative miss advice to the district court and the original opinion under judge o'brien characterized the need to fish and performance as a as a failure to fully inform and cited to our role that he had created himself without authority and as i said leave the united states kind of gets to this really important constitutional issue of the difference between almost certain and certain when the outcome is permanent deportation the district court granted a certificate of appeal ability in this case it did your honor what was the specific issue on which the court granted  certificate it was on the issue of whether it teed up by federal review of federal convictions under an effective assistance of counsel acts that is not an open question in our court it's a completely open question in this court your honor based on yeah it's kind of a close call i mean he did inform him something about and the and said you have a chance and i think the argument as he had no chance so that's a misrepresentation how do you respond that well what he said in its details he said you're likely to be deported you should assume to be deported or you plan on being deported things of that nature and it's almost certain  you will be deported after you spend enough time the marshal service will refer you to immigration which will likely deport you only where he doesn't use as you certainly will be deported now i know the district court judge strand makes a finding that the statute does make it statutory grounds is clear or appears to be clear but isn't forced as she applies for citizenship after being out of prison for a number of years after clearly being certainly deportable under the statu probably although it's arguable i guess and to some degree with she has a range that she hasn't applied for citizenship or seek that she doesn't get deported we hear of those types of cases all the time as a prosecutor i hear those cases the time in the sense of somebody suddenly is deportable when why did it take so long why was it not done simply somebody dropped the ball somewhere or someone just didn't enforce some of it it's kind of a fact of bureaucracy especially in this types of told you will not be deported he was not told you will likely not be deported or assume you will not be deported he was told you will likely be deported in the only word not used in the way in which the district court framed it is the fair game for him was the certainty the absolute certainty which it really is an absolute certainty in practical application it is absolute certainty in regards to if you look at the statutes again this is the failure to inform case he claim he should have been informed of specifically the wording that should have been used i think framed in the briefing is that he should have been informed that he would absolutely certainly be deported and probably also you can't ever come back right i think the district court also threw that in i don't know that you probably you would be certainly deported and you would not be able to come back there were no mistake there were no representation at all on the la it was a new rule of law new procedural rule wasn't dictated by precedent defense conviction it was final before that prior to today a council didn't have to advise of those types of consequences case with the court assume since the parties were treating it in that way then that would be true in that way but the fact of the matter remains that all the federal jurisdictions decided by the district court have apply to federal cases cases like this where it's to people coming back five years later saying i was misinformed i was not informed i was badly informed well you would you could certainly have that but more importantly you have the fact that  defense counsel such in this case mr perry being required to advise regarding matters that were clearly not the law before you know misled by saying he just he would be failing by by not  holding defense counsel in pribumi a cases to have needed to inform about collateral consequences when clearly across the board i believe it's ten circuits and i think twenty eight out of thirty district  district court in this case all said that that was the way the law was before you beholding defense counsel to new rules that they couldn't possibly have thought would apply and this case would be different had  mister ross raised this and have his case on direct appeal when the supreme court changed the law that would have that this a different case that would be correct but a collateral attack you hit the  was there anything in the law to indicate that there's a difference between a twenty to fifty for collateral effect and a twenty to fifty five collateral tack when it comes to the application and i didn't see any difference noted in any of the record here clearly on the amount of time it spends talking about finale versus my time talking about comedy it seems to us the primary focus appears to be finality and teague in harland's you know great discussion in regards to it on variety of different levels but it does also mention county which is important but i think the emphasis in t was finale and i think finale is important the kernel justice system specially when you're trying to look at it when mean even the government conceded that the trial council conceded that he told the defendant in that case not that you may not be deported or you might have a chance of staying in this country you might have a chance coming back he told that defendant you will not be deported it's not in the plea agreement therefore you are you know it's not a plea agreement you will not be deported that was an affirmative misrepresentation in that particular case which is completely different than in this case where if he said repeatedly both district courts found judge brian in judge strand he repeatedly said you will likely be deported you will likely serve time and be reference referred to the immigration authorities and be deported you should plan on being deported you should assume you should be deported but they didn't use the word certainty that's a big distinction between just not saying certainty and saying absolutely you will not be and that's the distinction and lee why it's not a political to this case and putting to you ought of the mixture he can't prevail under any circumstances sorry in other words under the facts in this case the admi i mean if you look at the record  vice have to be here or there was a really nothing wrong with the advice because it's it speaks the truth that you're likely to be cheaper but the truth truth was walked that he was going to be reporte implying you're going to likely be deported is probably deadly accurate and the practical application of the mandatory law well we're hoping your legal career is more memorable than your basketball career i would do i think that last four points a whole season but i'd like to clarify your honour's that we do agree with opposing counsel that this was a failure to inform regarding the permanence of permanency of deportation now it seems to me that there's a question about whether the affirmative miss advice regarding the possibility of deportation did apply here i'd like to  of the things that mr perry characterized in his evidentiary hearing i told him he would probably be deported or almost certainly however at the sentencing hearing he said there is no guarantee it is going to happen and mr bro he said in his pro se petition council told petitioner not to worry had he known of his possible deportation he would have insisted on going to trial now the central question here is whether this court will uphold mr brown houses sixth amendment rights to effect assistance of counsel and there really are the two pathways finding affirmative miss advice under strickland and lee or under the failure to inform finding that he does not apply now i'd like to counter what opposing counsel said about teague as well that twenty two fifty five has applied to federal cases it has not ever applied to federal ineffective assistance of counsel claims brought on twenty two fifty five and as we know those are encouraged to be brought i believe it was judged under yesterday that question and counsel yesterday answered this court encourages those to be brought on collateral appeal mr ross could not have really brought this on direct appeal mr perry was his decision as promptly as possible thank you