for a minute as i understand it maybe this a question for mr mayor brown but as i understand it he was in custody on the assault to conviction here on so there couldn't be a double jeopardy claim brown i'm not sure i even see a double jeopardy claim expand that line well actually we're prepared to address that because that is one of the errors that we believe the distant coordinate in this case so what happened here is that on a remand myster that if he had known that he wasn't facing a first degree it's all he would have gone to trial and didn't really have anything to lose and this was not the issue or on a before the court the only issue that the court addressed was the double jeopardy and we believe it's not appropriate to for the district court to bolster its erroneous determination that double jeopardy occurred by pure speculation that mystery shore did not know about the charge well that was the first amended complaint or indictment charging document charged them with first degree yes there on it was but then history schorr who is and i know that the charge i know the sentence i'm going to get and he actually repeatedly told the court why he is doing that he said i'm doing that because i don't want my daughter to be here and i don't want weapons in han all right so why haven't you given the subtrend scope to that november sixth hearing the full transcript november second hearing full transcript so that we can come firm that he didn't that he did understand that he november second hearing is where he said something about being a seeing one charge with his understanding no your honor i think there was no confusion about or with the first degree assault however as was stated mistery shore was guilty to second degree assault he no longer and voluntarily did so he explained to the court repeated lee while he was doing that when the himself at trial and the jury hung on the first timer yes you're on but could we really expect a pro se criminal defendant to understand that we could've demanded that the state proceed to trial on a first degree assault wait for the jury to be impaneled and then move to dismiss based on double jeopardy well  from the argument with a court if he had any issues as their records on demand that we provide show him off and engage in very lengthy and sophisticated colloquy with the court you had any questions or problems with any of the court's rulings he made sure he raised that but this was after the charge was amended what you're describing now you're on that was the in between so we're talking about so the case was remanded he was initially erroneously charged with first degree assault there were a couple of hearings with the same judge who presided over his first trial and other judges as well to hearings in court before the charge was if you will reduced to second degree i believe there were even more but there was a least two at least two guests on who they were at either of those to the district court explain to the pro se plaintiff that he could demand to go to trial on the charge nah we were on i don't believe so but that was not the issue and  issue that was raised a first as i said the first hearing was at his that mr restorers requests the us you know no point standby counsel well and the court ultimately appointed the lawyer that he wanted yes your honor and mystery shor counsel to quote unquote file stuff for me because i cannot do it from prison and he said i can handle arrangements i can handle everything on my own and he actually went as far as draft his own motion appointing  and he explained at the hearing that that's what i'm getting i know i'm getting a few for months and i know i'm getting weapons and hands me off my sentence and that's why i'm pleading guilty so he would have been told we can assume by the prosecutor that if you forward we'll file a second amended that says second degree with weapons and he has met or maybe he was told first and second degree let's let me enhancement we don't have anything in the record to way that tells us what those plea negotiations were we don't hear oh no but mystery sure signed a guilty plea without reservation and he pled guilty without reservation he again he's a very sophisticated very outspoken pro se petitioner if you said that well somehow somebody is twisting my arm and forcing me to plead guilty he would have said that because he lion's share of that he's confiscate he was representing himself and although i would say that he did a commendable job for a press a litigant he is not sophisticated he is you can review the pleading yourself you can look at the words he used you can look at the concepts he tried to describe you can look at that he was not educated he was not sophisticated and he was not that intelligent that set but he did his best in any  well i guess i want to the issue for the court is it looks to me like judge mira went through a pretty standard for read a inquiry when he first asked to represent himself and  i guess has been represented he represented himself through a successful appeal and reversal and then asked to continue pro se appearance but requested the assistance of standby counsel the record seems to support all that are you suggesting it does not what it does and i can talk about the friday issue but let me just give you some more facts so you can understand he actually was represented on appeal he had counsel in the first appeal that was an oppressive m p l for the suggestion that he was always representing himself in the state court and always wanted to is not true he had counsel in the first trial he didn't want to be represented by the public defender's office so given no other option he went pro se and he represented them south at trial and for whatever reason he wasn't convicted of the top count of assault one and he was acquitted of two counts of the  then he was assigned counsel on appeal he had counsel appeal he came back and some of the confusion your honor is because the dates of the transcript so the same date for two different hearings and i didn't create these transcripts and i wasn't even involved but first for example  i thought that the record showed that the first hearing was set up at his request for an arraignment to find out what he was charged with a point sam by counsel because he was having problems now that was she the problem is there's there's two hearings on the same day i think that the first hearing actually was he was asking for an arraignment and the judge said i can't find the information but i assume i guess you're charged with assault to that's what happens yeah but i don't have an arraignment i don't have the information and it gets even more confusing because as you see he asked the judge to sign an order and they say well i was in the judge who heard the last hearing so we have to put in that judge's box and he'll get another hearing date scheduled was an order appointing lot frier fry whatever the name was the lawyer that he wanted as standby counsel because he was having problems filing his motions from the from the jail and it's true that he said mr fry who had represent are pro se nobody told him he was entitled to counsel but i'm not i don't want to argue the first issue right now want to focus on the double jeopardy issue because to explain to the quote what happened as he asked what he was charged with he was repeatedly given conflicting information said i can't find the information i think it's a solemn second degree then later finally the prosecutor filed an amended information that's what he called the assault on the first degree so he says inconsisten y he says i never even knew i never received that first amendment and then he says i would have pleaded guilty if i'd known i was not charged with assault first could well i think what he says and there's a declaration from his standby counsel who explains i told him what he was facing he was charged with assault in the first degree i gave him the standard ranges that was about twenty years more than he would be facing on assault to what's your double jeopardy violation it's this court's decision in brazil it's this court said that washington and that was an assault wonderful two case actually this court reversed and it's a hideous case and found that it was contrary to clearly established law happened was there was silence a came back and he faced the same charge that the jury was silent on this court reversed and said that's a double jeopardy violation what so silent constitutional law isn't it correct that in any time prior to impaneling of a jury the state had amended the charge to second degree there would be no double jeopardy argument well i agree that if the state had said what mr habeas corpus and the basis for his conviction is a second degree assault charge so that was basically it can be a double jeopardy violation well i i strongly disagree it can be the illegal charge was part of the plea bargaining process and was used in essential especially vindictively and that's what we do with his statements at the at the police that the reason he was pleading guilty was he didn't want to subjected daughter to another trial and he was getting the weapons and handsome and drops so that he was looking at a standard sensing range with a low end of eighty four months which is  up and said i moved to dismiss this charge on the grounds that my client is being held more than once in jeopardy the under the violating the fifth amendment the united states constitution and the court had said you  washington's rules he couldn't because of jointer principles there's actually mandatory to wonder but absent that consideration i've never faced a situation like that so i haven't piece out all what the legal arguments would be i would argue that as in black and black religion the other cases bringing the person into court and repeatedly charging them based on the same conduct even though  aware of it but let me ask you if you ask you this isn't the heart of the constitutional violations found by judge peckham that he should have received a is is there a supreme court case that says where an individual has been previously charged given an adequate threat a hearing if they're implied all through a second through the hearing there's nothing not a supreme court case that says that and i conceded as much before what the judge found is that the state court under those circumstances needs to at least advise the person of his right to counsel and there has to be some waiver on the record but i can see that there's not a we have a vindictiveness and coersion here based on what the defendant told the judge during the plea colloquy well if that's i don't think that's a fair summary of the way i saw the disposition because of course his lawyer gave an he did but what i would expectant as a practitioner i've seen this all the time you're seeking some mercy from the court and you're showing some responsibility  accepting responsibility and say i want to accept responsibility for this and that's what he said immediately after he was informed that it was illegal to charge him with first degree he spent the last i don't know how many years ten years trying to i'm doing split me well and i think that although he used those words i think it's a gross mischaracterization to say he knew beforehand that isn't the real concern here he doesn't want to be tagged with violent felonies because there strike that's why he's trying to get this thing s is going to impact a lot of things not only his sentence it'll probably impact is eligibility for release and so on well and i think he would need to be potentially be sentenced in the federal matter a lot as i said i'm not representing him on that and of course he filed this while he was still in state custody but now moved to federal custody and that was disputed early in the litigation as well but the point is the same point which is that he was unfairly charged with the first degree and i think that it was exactly what a trained defense attorney would do is say take it to some point in the trial once jeopardy attaches and then make the motion but in blackledge and in men are these a plea cases these are not cases where you went mandatory time so i could do a map of my head and figure out how many days off he would get the painting on the offensive but i guess what i'm trying trying to see is the plea makes a lot of sense to me from the defendant's standpoint if i credit the truthfulness of the statements that facing twenty years he's already served let's say sixty she but he has and he has only served a few years while he was in sixteen months even i guess you and i can disagree on what the record shows but is that he would have gotten an additional twelve because that's mandatory time you know you can't run concurrent with the hundred two outwell one hundred two the the problem is that was a gun count i wasn't there i think there might be a double jeopardy violation to run the twelve months concurrent with one hundred two months but this is all that's not part of the record it was an argued by ok we share a bit so i think that maybe he wouldn't have gotten any benefit of this much benefit by putting guilt ok counsel you counsel was saying that brazil was on point in terms of double jeopardy violation rozelle was not on point because mystery sure was not convicted of first degree assault  claim the responses position is that the claim was never properly exhausted to begin with so the district court could not have addressed it in the first place he never mystery shore clearly knew how to present washington and settle on principles but under this course precedent of blockades versus more simplest citing to the state court addressing the federal claim is not enough to apprise the state court of and the context shows that mr rush or again clearly knew how to present pedal claims he problem exhausted some of them by citing to the federal constitution by citing to the federal case law but he never said this a double jeopardy meaning can be conveyed by allusions and connotations if mr rhys or wanted to raise a double jeopardy double jeopardy violation claim all he had to do is say this violates my federal constitutional right and he could have said well he actually did but the fact remains that he was correctly charged before the he pled guilty to this to the second degree assault and he's in custody for  basically was going through the file and said well mystery sure it looks like you have been charged with second degree assault but they couldn't find information and then i thought i read that his standby counsel waived arraignment yes  k and then your own counsel the case just argued is submitted and we will stand adjourned for the week