and instead went to trial where he faced ten years to life there's really no dispute before this court that the allegations in mr torres chavez's twenty two fifty five motion suffice if if proven to be true to demonstrate that his trial counsel's performance fell below an objective standard of reasonable this really the only issue before the court is whether those allegations which we would submit are specific and that they stress a fire when that advice was given where that was that advice was given and precisely what mr torrens job as his trial counsel said to him the question is whether those allegations will be disregarded at this early stage when a district court hasn't even held an evidentiary hearing on those allegations and we submit that this course of case law would not allow that to be very specific mr tars jobs's twenty to fifty five motion alleges that his trial counsel was ineffective during plea negotiations on three separate bases one was for advising him to reject the plea for the mandatory minimum sentence in the face of overwhelming evidence and in the absence of a viable defense the second is the misrepresentation that the government quote lacked the evidence to convict him and the third is the misrepresentation that mr chores chvez the misrepresentation of his sentencing exposure telling him that quote there is no way that he could get ten years each of these independently if true would be a basis for finding the counsel's performance fell below an objective standard of reasonable as for that reason mr torah chavez entitle to a hearing in fact the standard under twenty to fifty five is even lower than that and says the question is whether the motion the files in the records conclusively show that he's not entitled to a that's clearly not the case here if you will the honors i'll start with the last basis i mentioned because i think it's the quickest which is the misrepresentation  sentencing exposure that mr tourist have is that there was no way to get ten years at the government doesn't challenge that that if true again would show that mr tourist have his trial counsel was deficient and the government makes three arguments on that point one the government suggest that it was waived because it was raised in his in mr george tab as a memorandum of law as opposed to in the form motion itself as we state in our brief and  basis for finding waiver in this case mr torrens job as his memorandum a lot of law was clear and he signed it under penalty of perjury which is not even a requirement under this court's pro se liberal pleading standards the second argument the government makes is that it was not included within the certificate of appeal ability again as we explain and our brief that is not the case this court granted a certificate of appeal ability as to counsel's advice to reject the plea agreement and we see this as an integral fact going to counsel's advice to reject the plea agreement and thirdly government suggests that the advice that he there's no possible there's no way he could get ten years is immaterial because five months prior to receiving that private invested vice from his own counsel at an arraignment proceeding the prosecutor stated in open court that the mandatory minimum was ten years that we think that is an impossible argument in an argument that this court should reject  it makes little sense to say that the defendant here should have credited the prosecutor statement in open court five months prior to his defense counsel's own advice particularly given that the record of that arraignment shows  specifically advised the defendant to the correct sentence in his case sixty years seven weeks after that defense counsel went to trial went to the defendant and said actually i think your maximum is thirty years and what the government argued in that case was again the truth the trial court's advising the defendant and the counsel advised the defendant seven weeks earlier makes the subsequent misrepresentation immaterial and this court said no it's the subsequent private advice provided by trial counsel which moots the prior statements made in court and it's precisely the case here as well the owners will move on to the allegation that trial counsel misrepresented the strength of the government's evidence because i  do think it's important for the court to appreciate just how overwhelming the evidence was here and i'll point really specifically to the district court still finding here and specific statement here at the time of trial isn't even entitled to a hearing here here's how this case proceeds mr tourist chavez was told rejects this plea for the mandatory minimum sentence because the government doesn't have the evidence to give him and addition to that this did miss advice of the sentencing exposure which i've already discussed mr torre shabba says ok i'm going to take your advice and go to trial after that the trial judge states in writing that the evidence against you mr torre shabbas was overwhelming allegations and so now you have mr torrance chavis who has advised the government lacks the evident evidence to convict him finding out that in fact the evidence was quote overwhelming and the government has of course repeated that over and over again before this court on direct appeal and what the court when when mr trial when mr torre chavis comes back to this court comes back to the distort and says look my trial counsel totally led me astray here what the district court says is you know this sort of claim  reserved for those instances in which the the evidence was overwhelming that is quote not the case here if you see how troubling that is to someone like mr torres chavez who receives this advice finds out it was totally  to say it was totally wrong and suddenly you know they take it back and say no the evidence wasn't overwhelming here and we think that that would be it and it's especially troubling because we're not simply saying that you lose mr torch after saying we're not going to give you a day in court on that claim that you were when of course it's obvious that's what he's going to get your honor we don't know on this record what why trial counsel would have given him this advice and why he did there are reasons one could posit i mean it could be the case the trial counsel thought he could get a better  sentencing range was fourteen years to seventeen years and the court selected the bottom range but it is would be within the district discretion to offer or force the government to offer the same plea agreement here of course we don't know what that plea agreement even said because the government hasn't produced it so that would a please the court would ask for the judgment of the district court be affirmed in this case we do not believe that the district court abused its discretion by denying the defendant relief without an evidentiary hearing  in this case the district court was guided by the united states supreme court's decision in strickland versus washington stricklin roses washington instructs the courts to give a strong presumption a reasonable as to the conduct of him about the overwhelming evidence after the trial was over and took all of that into account rather than looking at what the phelps counsel at the time and i just don't see how without a hearing including burgers is to slow down and colon versus pen holster the supreme court is instructed that a court in reviewing whether or not defense counsel has been ineffective is to entertain the possible reasons for why defense counsel would give the advice they have given it's not the government's burden to actually affirmatively show through the introduction of evidence why counsel decided to do what counsel did but merely to to look at the record and and offer an explanation as to why that advice was potentially proper in this case judge what we have is a situation where defense counsel or i should say the defendant in his petition merely suggest that he got bad advice he doesn't tell the court why the vice is that just says i got that advice and i lost a truck under those circumstances as the court said in a low you can't turn the presumption on its head by then requiring the government to come forward with affirmative evidence that the defense attorney was actually performing or had a reason for what he did or why he acted the way he did what i can say from looking at the record is the judge knows at the date of arraignment that she issued a deadline for the production of rule sixteen material that obviously would indicate that the government was tendering discovery to the defendant prior to trial it's reasonable to think that prior to trial defense counsel knew who flight record judge again that the burden of demonstrating what the defendant knew or what the defense counsel knew is not a burden that rests with the government what what we have in this case is that the senate has merely says i got bad advice without explaining why the advice is bad it's reasonable to think that defense counsel knows prior to trial what the government's evidence is there is evidence in the record that we tendered discovery to the defendant as is the normal practice in this district well in advance of the trial and so the government i think is well within its bounds in saying that let's look at the record that actually compiled a trial to see what it is that the defense attorney did it trial to determine why he would offer the advice that this was not an overwhelming case and in fact this was not in in advance of trial six months prior to trial a situation where it was a foregone conclusion that the senate would be convicted yes it may have been the case that after trial the government did have a very strong case and presented a strong case but it's sort of like saying if you're watching the super bowl that everybody should have known that the broncos were going to beat the panthers after the game was over before the games began we don't know how how was cross examination going to go for the government's witnesses six months prior to trial there was only one witness a flipper fight if you will that was in a position to dennis apply the defendant's voice and the  let me let me go back to talking about some of that it was in greater detail there was no surveillance of this defendant at any point during the investigation that tied him to la familia mr kahn of this drug trafficking organization there was no forensic evidence that tied the defendant to la familia mitchell connor is fingerprints were found on the drugs we had seized ledger's during the course of this investigation and none of those letters had the defendant's name on them they had the flippers name on them similar to this one in the sense that the evidence at trial really depended heavily upon the testimony of a flipper now after the case was over yes i think that the court was correct in saying that we had come we did stablished the defendant's guilt through a powerful showing  the defense counsel first of all the the primary witness that implicated the defendant was a flipper who got a deal of defense counsel is also able to challenge that the the primary witness the government had by saying that he is he contradicted his grand jury testimony at trial then obviously had a motive to lie in this case because he was trying to get himself out of trouble that he had previously blamed the defendant for his drug trafficking activity when he'd been stopped by police on a prior occasion a different matter so there was there fertile ground for the defense attorney to work with in this case because if it were not for the the flipper the primary flipper in this case that was the one that was who had fingered other defendant the government would have been in a position to bring these charges in the instance yes we did have a monitor that corroborated what the flipper said but again the monitor was also subject to confirmatory biases while she worked for the government and after the flipper had a den of fire the defendants voice she came along and  was six months prior to trial and if i might speak briefly on the issue of the mandatory minimum argument i say our view is that that argument was not actually made in the district court if we take that argument in context and understand the sentence in the single sentence that's referred to in reference to that argument it comes at the end of a paragraph which in the sentence preceding it and with jack freelander he was sure that he could get tourist chevys out of jail due to the lack of evidence and then comes  sentence trial attorney jack freelander assured tourist shows there's no way he could get ten years this is part of a parcel of statements that come throughout the motion in the memorandum where there are surance is a good outcome or a projection of a good outcome by defense counsel it's not a separate claim there was never any contention that the defendant was unaware of the mandatory minimum you'd expect and one of the reasons why we point to the affidavit is the affidavit never says at some point i had no idea there was a mandatory minimum and play  i was i was misled about that and in fact i brought up the the transcript from the arraignment and the the prosecutor that attended the arraignment said well the court asks anything else the prosecutor asks no judge unless you want to advise the defendant of the maximum penalties and then the court says why don't you do that please and then the prosecutor at the rises the defender of the mandatory minimum as to count one and then the court after and as to the other sense counts as well then the court says mr tourist you have as if you cannot afford an attorney to represent you in this matter sir the court will point to do you want to do so do you understand that sir and the defendant answers yes i understand and immediate succession so this contention that the defendant somehow was unaware of the mandatory minimum which is a contention that is nowhere to be found i think in his certificate of appeal ability which again talks about this whole notion not even of evidence he actually expressed leap you look at page eight of his certificate to kill bill if i may just finish my answer if you look at page eight of his certificate of appeal ability he actually did addresses this idea of i wasn't even frist in the evidence at trial what i was interested in was having the court address whether or not my attorney at some sort of conflict because of he had a better relationship with the u s attorney's office there was not even a dialect in mexico including the specific dialect by mr gore's chad as she concluded now the government says that she was impeached for instance on the basis that she doesn't have training in fact when asked that question she said i do have training and she had previously  testified just a few pages earlier in the transcript that she's trained every day in this nature and that again she understands all of the dialects and she testified that she was ninety five percent certain that this was him and then i just briefly like to comment on the flight records which i crossing document showing an individual named alfonzo tourist chavez and touring in san diego you had flight records showing a flight from san diego to phoenix to chicago in the name afonso taurus shortly after you have after the offense that we're talking about here you have a flight record leaving midway airport going back to san diego you can't member it was through phoenix or not in the name alfonzo shah is now the only impeachments that powerful evidence which was  what are we to make of a defense lawyers assessment of a plea offer of ten years against potential of a life sentence after charge how how offer from the government cannot in any way we speak to in the mind of a defense lawyer the case isn't the strongest case if the government is willing to make that plea your honor i don't think so and i think this said just the opposite that when it's the mandatory minimum sentence that's even more evidence that it would be unreasonable to advise them to reject it and in terms of what trial counsel knew about the evidence i very much agree that we don't know the specifics of that but what we do to briefly in the government's argument is that at the arraignment proceeding the government said that it was prepared to make it sixteen point one disclosures and so the evidence i just described the flight records the voice recordings there twenty six voice recordings twelve of which included his voice all would have been almost certainly would have been known by defense counsel because the thing was five months prior to this advice being given and so i think the best inference from the record here is that he knew about the vast majority of evidence and so i think