petitions raising issues that implicate actions taken by counsel outside the presence of the trial judge not ordinarily be resolved without a hearing these are precisely the type of allegations by mr millions in his petition he alleged that his trial coun the only other evidence in the record were mr million's a sworn statement at the change of plea hearing and that there was another thing where he didn't he didn't submit an affidavit from counsel he didn't submit an affidavit in his petition that family members were witnesses to the conversation with respect to an affidavit from counsel respectfully the government or the district court should have directed mr knows the trial counsel to come forward  evidence and develop the record so that this is not resolved solely on the conflicting statements by mr helio's the alleged promise was that he would get a four year sentence the alleged promise did during both before the sentencing and during the sentencing counsel defense counsel asked for a five year sentence in that so that is correct your honor but that is not necessarily inconsistent because the government obviously this part of the sentencing if what mr one million so legends was true that it counsel could go behind the prosecutor's back there's no reason that counsel wouldn't play a charade in front of well your honor the record shows that mr millions would not have pled guilty for it if there were any sentence longer than six years in a letter that the government submitted an opposition to mr  petition documenting a conversation between trial counsel and mr miller yes mr one million was made clear that he believes anything larger than six years would be a death sentence so if the government had  and knowledge unequivocally that he understood the exposure in terms of potential sentences and then later argued for a five year  sentence how does that not preclude determination that he suffered any prejudice even if the allegations about trial counsel are accurate then of the to judge chin pointed out asked for a five year sentence which the district court did not do what sort of going to get that he would have pled the prejudice prong and doesn't he have to show that but for that there's a reasonable probability that but for counsel's errors he would not lead guilty and he would have insisted on going to trial right he has to show that counsel indicate that he would not have pled guilty to anything longer than six years because he felt it would be a death sentence all right we'll hear from the government i thank you your honor can you hear me yes ok it's  five so there are a number of claims that judge thompson was considering in trying to resolve the twenty to fifty five and certainly the supreme court cases as well as this court case is mindful of the scarce additional resources  context so if a district court judge had on the one hand you know nothing because it was a trial and the defendant didn't have to subject himself to a real weapon colloquy and on the other hand you had allegations the district court did observe interactions between counsel and the petitioner at trial and the claim in that case was that the trial counsel never invited the petitioner of his right to testify a that counsel could later go behind the prosecutor's back and and there was nothing that prohibited mr millions from from developing the record but there was also nothing that requires him and the court should keep in mind that mr one million was pro se on the petition and there is precedent from the supreme court