Good afternoon. May it please the court. My name is Matthew Stigler on behalf of Ryan Wheeler and I like to reserve three minutes my time for a rebuttal. Okay. So Stigler, let me ask this is the thing that to the extent that you may have an argument which is somewhat appealing. How do you get past the edgestand? I mean this is a guy who is at least the record is that he told Mr. Conjack that he wanted to go to trial that he was being railroaded. No alibi witnesses. Mr. Conjack's testimony was that he didn't remember Mr. Wheeler but it's his practice to pass these offers on to the client unless the client unequivocally says that they want to go to trial. Stigler said given the outburst from Mr. Wheeler before they couldn't conclude by the promise of the evidence that he would have taken the deal had been offered to him. And so how do you get past the second point of the court? I think that the rule that controls here is a rule that this court has recognized several times that a state court decision which analyzes ineffective assistance to counsel and I'm quoting from Jacob's verses horn now where it analyzes based on a single factor to the exclusion of other relevant factors that that involved an unreasonable application of Mr. Strickland. The court's made the same point more recently in Simmons verses Beard where it said quote a state court's fact finding may qualify as unreasonable where the state court had before it and apparently ignored evident supporting the habeas petitioners claim. So to me the critical point in the Ed Pett analysis I don't think this court even needs to reach necessarily whether or not the court got it right in their analysis of con Jack and their analysis of the innocence because the critical thing that they did was that they failed to consider the most important evidence that's in front of them
. There's this part there I'm sorry which is what? Well the objective evidence about whether or not whether or not there's a reasonable probability that he would have would have played guilty here. What is that? That's that's the question that they're looking at is is this guy going to play guilty and in looking at that they failed to ever ask the question is this a plea offer that's a fair will plea offer? Before or after he sentenced, I mean what's a favorable plea offer depends at the time you take that picture after he sentenced to 15 to 30, 10 to 20 or really good but before he sentenced and when he's not even at the trial stage. But before he sentenced it looked even better because before he sentenced he was facing he was in addition to the three families he was convicted for. He was also facing a charge for attempted murder which had a higher sentence than any of the others. What year was this? The trial? The right, the trial was the same. 2001 I believe. Okay. What's the objective evidence that if this plea had been conveyed he would have bought it? I think the most important objective evidence is and what the State Court didn't consider at all is whether the plea offer was favorable and whether and the strength of the evidence against the trial. Was this a good deal and what happens if he turns down the deal? Yes, but that's whether, you know, that's for the State Court to determine if they're being sentenced. But the question is what did the defendant have that he had in his mind at that time which shows that he would have accepted the plea offer? Not whether the judge would have accepted it if he would have been in his shoes. What about the defendant here indicates that he would have taken the offer? Well, I mean, a part of the reason why I'm answering the question the way that I am is because of what the Supreme Court has said in Strickland versus Washington and in Hill versus Lockhart in the appropriate way for courts to analyze a prejudiced circumstance like this. And what they've emphasized is that the probative evidence here, the really probative evidence, is the objective evidence, not the idiosyncrasies of the particular decision made. So I can talk about, you know, what was in the deal as mine. Not that he should have taken it. Not that a reasonable defendant at that time with that alternative should have taken it. But the objective evidence is what about him that indicates that he would have taken it? Not that a reasonable defendant would have taken it
. So you don't want to hear my, I mean, you're not asking about, he was facing 100 years at that. Is relevant, but I would like to hear you, Tom Nees. What about this defendant that indicates that that time he would have taken it? Not that he should have taken it. I understand that, but I think that whether he should have taken it is a part of what has to inform the courts analysis and whether he would have taken it. So not necessarily, I mean, he certainly suggested that he wanted to get a trial. I mean, I mean, do we look at what would have reasonable person have taken it? Or would this person have taken it? That's my question. Not whether he should have taken it if he was reasonable. But what about him indicated that he would have taken it as given? In my mind, that's the less probative part of the purchase case. But let me lay out that story as I understand it. This is a defendant who in three of his six prior cases had pled guilty. This is a defendant who, at his counsel's advice, waved his right to a jury trial in this case. And who did not insist on testifying at his own trial. And had no objection when his defendant, when his counsel at trial said, you know, they haven't proven guilty on a reasonable doubt. But at no point did counsel say this guy is innocent. And so I think those are all. Excuse me with the photoctrucino justice system
. The fact he waved his right to a jury in proceeded before a bench trial. Something like 90% of everybody coming through the criminal justice system in Philadelphia waved his right to a jury in precedes before a bench trial. Even people with rap, she's the one reaching from the ceiling down to the floor. Especially them because the judges that they get seem to be better, proceed to be better on reasonable doubt. So that really doesn't help. And the fact that he waived a pled guilty and fee of a six, that's half empty, half full. That means he didn't plead guilty and fee of a six. In fact, he did it before, and 50% of the cases. That means he didn't do it and 50% of the case. I don't know how any of that helps you, especially when you throw a debt percentage into it. But the standard here is a key part of it. I mean, we're not asking whether there's a certainty that the reasonable probability, he'd need to improve it as more likely than not. But I ask you about that. Is the prediction a question of fact? Because we've recently had a decision of this court. It's in an immigration case in Kaplan, K-A-P-L-U-N. That's suggested that a prediction
. That was in terms of what the ALJ had found and the BIA and the standard of review. But that's suggested that a prediction of what will happen is a question of fact. And so if this is a question of fact, then don't we owe the state for a death sentence? Well, I think that this case could be decided under either prong of 2254D. I think that it would be perfectly appropriate for this court to look at this case as a 2254D2 case and ask whether this is a case where there was an unreasonable determination of the facts and led to the state court record. And... And why is it unreasonable just because he previously fled in half of the cases? No, Your Honor. The reason why it's unreasonable is because the state court adjudication here overlooked the most probative evidence that was in front of it. They failed to consider any of the objective indicia about whether or not this is the plea that he would have accepted. They didn't consider the fact that this guy was facing over 100 years of the time the plea offered came in as part of their determination about whether an offer of 10 to 20 was favorable. They didn't consider the way to the evidence. That's the problem with this. And it is kind of like reading TV because what is favorable before trial hitting in is very different than what looks like it's favorable after you've been convicted, and especially once you've been sentenced. And how do we know 10 to 20? That's a substantial hit. And he may not know the 10 to 20 means he's going to do 10, or maybe he's probably going to do 12
. He might be looking at the 20. And so I'm not going to run that risk because the appeal is going to violate me for his chance of gets. And I'm not going to do 20 years. Or he may look at it and say, geez, 10 to 20, I know I'm going to be out in 20. That's how a lot better than 130 or whatever the number is out of two. But we can't say that either way it seems to me the state court looked at that equation. We couldn't say what was on the reasonable. Well, but I mean, I think it's unreasonable and light of what they failed to consider in terms of those the effective circumstances. But I also think that it's unreasonable and light of the way that they gave to the testimony of trial counsel. I mean, there's a finding of fact in state court that the trial counsel didn't remember the particular circumstances of this case. I mean, this is five years later that he testified that he does hundreds of cases each year. And so he wasn't able to give any testimony about whether he actually told the defendant about this plea or what the defendant's reaction was. No, because he was hopeful from a file for the fact, excuse me, fact funders perspective, what he said was, I cannot remember Wheeler, but I do know what my practice is. And I don't see any reason why I would have prayed for my practices. I always communicated to Wheeler unless. And the unless is unless the client unagriivably says, I'm going to trial
. So either side of that equation means that either Wheeler knew about it and turned it down or Wheeler said beforehand to contact, forget any talk to the TA, I'm going to trial. In either event, he wouldn't have taken, you could find that he would not have taken the deal. But what I'd submit is that there isn't any reasonable way to look at this record and conclude that that conversation happened. There was a conversation between Conchak and Wheeler where Wheeler said to him, you know what, I don't want to hear anything about whether there's a plea offer. I'm not interested, I'm determined to go to trial. The contract met his client the day before the trial actually happened, had no prior contact with him. There was nothing in his files about whether or not there'd been a plea offer. And as far as the State Court record here shows, he walked in and they had a conversation about whether or not there was going to, whether or not they would have a judge trial or a jury trial. And Wheeler was trying to get him to go talk to his girlfriend as he could provide an alibi. There isn't any indication here. I mean, and there's a, you know, there are a lot of cases that provide a real contrast there where the lawyers have had a lot of prior communication about whether they want to plead guilty. They've talked to them about prior plea offers. The Boyd on Bonn cases is a potential example of that kind of communication over time. I'm sorry. I know it was over. I have no doubt about that
. In this case, he did not, he said, he turned to set originally, he could not recall whether he discussed the plea, but later on said that whether, he did not want to plead guilty on any circumstances. He doesn't know whether the client wanted to plead guilty on any circumstances. Well, but the State Court found his fact coming out of that case found his fact that he had notified him of the plea. And of course, the trial lawyer was, he came in after the plea had been rejected, as I recall. Right, weeks afterwards. I wasn't going to talk about it when before, wasn't this lawyer? Weeks afterwards, that's right. Yeah. And that's an important point to make with this is that, which way does that cut? Well, I think that it cuts in his favor because in Wheeler's favor here, because what contract had to say about whether or not he was willing to accept the plea offer five weeks after that offer was already dead, was that was not evidence on which a court could reasonably base a, it's present, a federal decision there. But that could throw some light on his mental state of the defendant. It could throw some. And he thought he was in, he wanted to go to trial. He wanted to show, he thought he was going to get off. He thought he had an alibi. Well, but that's beside the point. I certainly agree that it should some light on it. But I would submit that the evidence about the strength of the evidence here, about whether the plea offer was a favor will plea offer, did that kind of objective evidence sheds a lot more light on it? Then we have to give the evidence of the state for determination
. Yes, Your Honor. And that difference is light out in section D2 of 2254, that only an unreasonable determination of the facts in light of the state court record. We say it's an unreasonable determination of the facts. I mean, that's, that's where I started. That's a tough one. I assume that my time is expired. You have to have everybody but some other way. No. Crucely, no. I'm fine. It's painful. OK. This is OK. Thank you very much. Mr. Goldberg
. Anybody even tell you look like you're almost exactly like Bill, Missouri, where you came in? I thought that's Bill Missouri doing it. The CEO of Channel 12. He's probably the best. Yeah, sure. Right. I used to sing with Randy. Oh, that's why. Yeah. And that'll stay. Interesting. I never, nobody's ever pointed that out to me before, Judge Meiki. May please the court, John Goldsboro, from the District Attorney's Office. I'm sorry. I didn't hear the list. Goldsboro, like City of Gold, El Dorado. So, Ronald, of course, the state court
. Does that mean like, Barksite, do you? No, not OK. Thank you. So the state court factual findings do control this case. They're reasonable. They're correct. They've been unrebutted. The state courts found, based on evidence presented, and as a matter of credibility, and the record that Wheeler would not have accepted, the guilty plea offer had it. He not noted it, because there was a clashing testimony in front of it, including from Wheeler himself. Why is this a fact question at all? It, why is this a structural thing that, what's the difference between this and an attorney going to sleep during a trial? Here you have an attorney. He's asleep. He's not giving his client a, he's not communicating a plea offer to his client. I don't see any difference between that, and the attorney is just going to sleep, and not being present during a part of the case, which we've held to be, which courts have held to be structural. And not a question of fact. In other circuits, it has been held that prejudice is presumed in this sort of a situation. However, there are several reasons. One of them is that the Supreme Court seems to be indicating that it's not. That in fact, a, now this court did say. Where no Supreme Court case had held failure to convey is not a structural error. Well, in Hoffman versus Arabe in the ninth circuit, as your honor, I'm sure your honors are aware, that's my favorite circuit after the thing. Absolutely. I'm suffering some prejudice here. It was a similar situation. And the, the, the ninth circuit had ordered reinstatement of the guilty plea offer. And the Supreme Court granted, sir, an added suicide. I couldn't get the embankment court to do that in boy. Well, go ahead. The court added the following question. What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations. If the defendant was later convicted in sentence pursuant to a fair trial, the ninth circuit had ordered that reinstatement in response. The petitioner dropped the question, even though he had, of course, won, and that he dropped his claim of ineffective assistance regarding the plea bargaining. So, moved to the question and the court decided not to consider it. But this is one of those questions that it has not
. That in fact, a, now this court did say. Where no Supreme Court case had held failure to convey is not a structural error. Well, in Hoffman versus Arabe in the ninth circuit, as your honor, I'm sure your honors are aware, that's my favorite circuit after the thing. Absolutely. I'm suffering some prejudice here. It was a similar situation. And the, the, the ninth circuit had ordered reinstatement of the guilty plea offer. And the Supreme Court granted, sir, an added suicide. I couldn't get the embankment court to do that in boy. Well, go ahead. The court added the following question. What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations. If the defendant was later convicted in sentence pursuant to a fair trial, the ninth circuit had ordered that reinstatement in response. The petitioner dropped the question, even though he had, of course, won, and that he dropped his claim of ineffective assistance regarding the plea bargaining. So, moved to the question and the court decided not to consider it. But this is one of those questions that it has not. I'm pointing out that they are indicating that perhaps a fair trial as was also indicated in the dissent in Williams versus Jones, the 10th circuit case last year, 571 F3, 1086, the dissents at 1094. It's indicating that perhaps a fair trial is, in fact, contrary to what this court said in day and in caruso. A fair trial is an adequate and sufficient remedy for the lack of conveyance of a guilty plea offer, which is a prosecutorial fact that they didn't adjudicate. It doesn't mean they held it. Well, I understand that. But they seem to be interested in the question because they suisponted it to the grant search. But they didn't adjudicate it. I understand. And that was my question. Yes. And I don't see a, I see that there's a basic six amendment violation here because he doesn't have an attorney, the attorney has one, the attorney is not functioning as an attorney when he didn't convey a plea offer. And to me, I can't think of many things more horrendous, shocking and appalling than a defense attorney, not conveying a plea offer. But then what happens is he goes to a perfectly fair trial and none of his rights are violated at that fair trial. So the question is, is the sixth amendment covering a greater span than the Fifth Amendment? And this court held in both day and caruso that it does. It covers more than the Fifth Amendment. It seems there's an academic debate
. I'm pointing out that they are indicating that perhaps a fair trial as was also indicated in the dissent in Williams versus Jones, the 10th circuit case last year, 571 F3, 1086, the dissents at 1094. It's indicating that perhaps a fair trial is, in fact, contrary to what this court said in day and in caruso. A fair trial is an adequate and sufficient remedy for the lack of conveyance of a guilty plea offer, which is a prosecutorial fact that they didn't adjudicate. It doesn't mean they held it. Well, I understand that. But they seem to be interested in the question because they suisponted it to the grant search. But they didn't adjudicate it. I understand. And that was my question. Yes. And I don't see a, I see that there's a basic six amendment violation here because he doesn't have an attorney, the attorney has one, the attorney is not functioning as an attorney when he didn't convey a plea offer. And to me, I can't think of many things more horrendous, shocking and appalling than a defense attorney, not conveying a plea offer. But then what happens is he goes to a perfectly fair trial and none of his rights are violated at that fair trial. So the question is, is the sixth amendment covering a greater span than the Fifth Amendment? And this court held in both day and caruso that it does. It covers more than the Fifth Amendment. It seems there's an academic debate. There has been contrary articles in both the Harvard Law Review and the Brigham Young Law Review on that dissent in that 10th Circuit. What does the University of Maryland say about it? Pardon me? When are we the University of Maryland? What do they say about it? Well, simply, they're on both sides. The Harvard Law Review takes this circuit's position that the sixth amendment covers more than the Fifth and that the offer should be reinstated in a situation like that if it's absolutely proof. But the Brigham Young argues know that there, that, in fact, the point of effective assistance for counsel is a fair trial, which was the point of the dissent. But when you get ineffective assistance for trial, then you get into the question of fact, which my colleagues were addressing to counsel, and you have the district court sitting there not as a district court judge, but as a psychiatrist, and determining, or psychologists, to determining whether in the plea would have been accepted or not. And I want to say something. I've been there. I've been. I've heard. He took the deal. I've been on the fence of the term. And you'd be surprised, a number of defendants, or you wouldn't be surprised, who come up claiming not guilty. But you put under their nose a something that is very appealing. Oh, sure. And they plead out. Sure
. There has been contrary articles in both the Harvard Law Review and the Brigham Young Law Review on that dissent in that 10th Circuit. What does the University of Maryland say about it? Pardon me? When are we the University of Maryland? What do they say about it? Well, simply, they're on both sides. The Harvard Law Review takes this circuit's position that the sixth amendment covers more than the Fifth and that the offer should be reinstated in a situation like that if it's absolutely proof. But the Brigham Young argues know that there, that, in fact, the point of effective assistance for counsel is a fair trial, which was the point of the dissent. But when you get ineffective assistance for trial, then you get into the question of fact, which my colleagues were addressing to counsel, and you have the district court sitting there not as a district court judge, but as a psychiatrist, and determining, or psychologists, to determining whether in the plea would have been accepted or not. And I want to say something. I've been there. I've been. I've heard. He took the deal. I've been on the fence of the term. And you'd be surprised, a number of defendants, or you wouldn't be surprised, who come up claiming not guilty. But you put under their nose a something that is very appealing. Oh, sure. And they plead out. Sure. So why do we have to even get involved with this making the district court judge or a state judge determine what he would have done, reading his mind. When how many judges looks face and can read someone's mind, who's in that quadri of going before a judge for a criminal trial, and having a plea agreement that was never conveyed, whether he would have taken it or not. Well, because in all cases of ineffective assistance, we're trying to predict what would have happened had counsel behave differently. Well, how can a judge predict that? Right. And you have to look at not only what the testimony is, I mean, they had a hearing here, of course, but the testimony is of the defendant, what the testimony is of the attorney about the likely inclination. But of course, there's a certain randomness, but you have to also find some kind of objective evidence. I think some circuits have asked for more than just. I have an objective partner. Your state were told us what he thought was the relevant objective facts. What do you think are the relevant objective facts? I believe all of his pro-state pleadings maintaining his innocence. I believe his testimony at the PCRI hearing. Well, it shows that he was amenable to pleading if he wanted to. OK. I see. I see. You were in the middle of an answer
. So why do we have to even get involved with this making the district court judge or a state judge determine what he would have done, reading his mind. When how many judges looks face and can read someone's mind, who's in that quadri of going before a judge for a criminal trial, and having a plea agreement that was never conveyed, whether he would have taken it or not. Well, because in all cases of ineffective assistance, we're trying to predict what would have happened had counsel behave differently. Well, how can a judge predict that? Right. And you have to look at not only what the testimony is, I mean, they had a hearing here, of course, but the testimony is of the defendant, what the testimony is of the attorney about the likely inclination. But of course, there's a certain randomness, but you have to also find some kind of objective evidence. I think some circuits have asked for more than just. I have an objective partner. Your state were told us what he thought was the relevant objective facts. What do you think are the relevant objective facts? I believe all of his pro-state pleadings maintaining his innocence. I believe his testimony at the PCRI hearing. Well, it shows that he was amenable to pleading if he wanted to. OK. I see. I see. You were in the middle of an answer. Thank you. You were all. Only when it was Meredith. Thank you, Your Honor. No, I'm really interested. And I mean, he tells us what he thought was the objective evidence suggesting he would have taken the plea. Have he known of it? Yes. Now, and you know, my position has always been that the lawyer has an absolute responsibility, but he didn't do it this time. Well, at least the state court so found. Well, the state court so found them. And that's, you know, that's a historical fact. We have to accept that. So what is the evidence that he would have taken the plea? Or that he would not have taken the plea? Is his maintaining his innocence and his alibi witnesses over and over in these myriad pro-state pleadings that he is filing while he's represented that were before the PCRI court. The PCRI court and the trial court were the same judge. Temen received all of these things and had all of this before her when she was deciding whether or not he would have accepted the plea. She knew this guy from his pleadings as well as from the trial
. Thank you. You were all. Only when it was Meredith. Thank you, Your Honor. No, I'm really interested. And I mean, he tells us what he thought was the objective evidence suggesting he would have taken the plea. Have he known of it? Yes. Now, and you know, my position has always been that the lawyer has an absolute responsibility, but he didn't do it this time. Well, at least the state court so found. Well, the state court so found them. And that's, you know, that's a historical fact. We have to accept that. So what is the evidence that he would have taken the plea? Or that he would not have taken the plea? Is his maintaining his innocence and his alibi witnesses over and over in these myriad pro-state pleadings that he is filing while he's represented that were before the PCRI court. The PCRI court and the trial court were the same judge. Temen received all of these things and had all of this before her when she was deciding whether or not he would have accepted the plea. She knew this guy from his pleadings as well as from the trial. And so when he comes to say, hey, you know, I would have accepted this. She already knows he's been saying I had all these alibi witnesses. It was a completely, you know, I was completely innocent. And he's been saying this over and over and over again. And then he says it again. Despite his attorney's attempts to shut him up during the hearing, he says it again. I had alibi witnesses and I would have been shown innocent. Not only that. But also the testimony of John Kahnchak, of course, about his regular practice, which I see no reason to discredit and judge Temen didn't either that he would have talked with him about this. Now, of course, it was after the relevant period. But it is an indication, as Your Honor Judge Slougheter mentioned, of his state of mind that that he did not at that point come back and say, look, there was an offer for, can we renegotiate? And we all know as a practical matter, it's always possible before trial to come back. And it may not be the same deal, but there could have been a possibility of coming back. But there was no such a problem. How many criminal cases have you tried? Personally, I've always been in the appellate level of the clerking. Well, you've heard, have you not that most criminal defendants come claiming that they're not guilty? Is that correct? Certainly. And what percentage of those plead guilty when they see the lights of the jurors eyes or know that they're on the horizon? You know, what percent? It's over 90, isn't it? It's got to be
. And so when he comes to say, hey, you know, I would have accepted this. She already knows he's been saying I had all these alibi witnesses. It was a completely, you know, I was completely innocent. And he's been saying this over and over and over again. And then he says it again. Despite his attorney's attempts to shut him up during the hearing, he says it again. I had alibi witnesses and I would have been shown innocent. Not only that. But also the testimony of John Kahnchak, of course, about his regular practice, which I see no reason to discredit and judge Temen didn't either that he would have talked with him about this. Now, of course, it was after the relevant period. But it is an indication, as Your Honor Judge Slougheter mentioned, of his state of mind that that he did not at that point come back and say, look, there was an offer for, can we renegotiate? And we all know as a practical matter, it's always possible before trial to come back. And it may not be the same deal, but there could have been a possibility of coming back. But there was no such a problem. How many criminal cases have you tried? Personally, I've always been in the appellate level of the clerking. Well, you've heard, have you not that most criminal defendants come claiming that they're not guilty? Is that correct? Certainly. And what percentage of those plead guilty when they see the lights of the jurors eyes or know that they're on the horizon? You know, what percent? It's over 90, isn't it? It's got to be. But if we're going to accept this and isn't the fact that it's not until the last moment that defendants, when a plea agreement is put under their nose, that they plead guilty. Correct. Certainly. But they usually indicate that they're interested in negotiating it and considering it. Right? And here, what he kept saying was, I'm innocent. Well, most defendants coming up to try and do that, don't they? Like you said, they're not guilty. But I'm willing to consider your offer, it's given your offers. He didn't do that. That's what I'm saying. He didn't do that. That makes a difference, because you should not do that. I believe it does make a difference. I believe it does. And because it supports Judge Tammond's credibility-based factual finding here, which is presumed correct, has been unrebutted, is reasonable in light of the evidence presented there, which does not include this extra letter, by the way. So that- Which extra letter is that? He presented for the first time a letter in the federal court. And the administration of Strawbridge correctly found that cannot be considered, it wasn't before the state court
. But if we're going to accept this and isn't the fact that it's not until the last moment that defendants, when a plea agreement is put under their nose, that they plead guilty. Correct. Certainly. But they usually indicate that they're interested in negotiating it and considering it. Right? And here, what he kept saying was, I'm innocent. Well, most defendants coming up to try and do that, don't they? Like you said, they're not guilty. But I'm willing to consider your offer, it's given your offers. He didn't do that. That's what I'm saying. He didn't do that. That makes a difference, because you should not do that. I believe it does make a difference. I believe it does. And because it supports Judge Tammond's credibility-based factual finding here, which is presumed correct, has been unrebutted, is reasonable in light of the evidence presented there, which does not include this extra letter, by the way. So that- Which extra letter is that? He presented for the first time a letter in the federal court. And the administration of Strawbridge correctly found that cannot be considered, it wasn't before the state court. So let me just see. Pardon me. So another reason Judge Cowan that I think we shouldn't be looking at the percentages is that would be 10 of my two-to-to-to-as you suggested, making this a chronic sort of case. And this court in both day and Caruso has laid out a three-part test for prejudice that the defendant would have accepted the offer that the court would have accepted. We have nothing about that. And that a lesser sentence would have resulted here. And we have evidence from that hearing showing that he would not have accepted the offer that supports Judge Tammond's finding. So I don't see any reason- Did that's contract testimony? Is the evidence from that hearing referring to contract testimony? Yes, contracts testimony as well as Wheeler's testimony that he had all of my witnesses and would have been found innocent. Had they been presented? No one has found innocent. There are people who have found not guilty. Yes, no, I understand. No one, please. No one claims they're innocent. They just say they're not guilty. Certainly. But his contention was that he was actually innocent
. So let me just see. Pardon me. So another reason Judge Cowan that I think we shouldn't be looking at the percentages is that would be 10 of my two-to-to-to-as you suggested, making this a chronic sort of case. And this court in both day and Caruso has laid out a three-part test for prejudice that the defendant would have accepted the offer that the court would have accepted. We have nothing about that. And that a lesser sentence would have resulted here. And we have evidence from that hearing showing that he would not have accepted the offer that supports Judge Tammond's finding. So I don't see any reason- Did that's contract testimony? Is the evidence from that hearing referring to contract testimony? Yes, contracts testimony as well as Wheeler's testimony that he had all of my witnesses and would have been found innocent. Had they been presented? No one has found innocent. There are people who have found not guilty. Yes, no, I understand. No one, please. No one claims they're innocent. They just say they're not guilty. Certainly. But his contention was that he was actually innocent. That's above it. That was his contention. Unless the court has any further questions, we respectfully request that the court affirm the district court's denial of the rip. Thank you. Thank you. A part of the way that this court needs to, that a court appropriately assesses prejudice here, where counsel has failed to notify the client of the existence of the plea offer. It wouldn't have- It wouldn't have an issue if he didn't have that. That's obviously the underlying and effectiveness of the client. Certainly. And a part of what the court should be looking at here is not just what this client sort of thought about in the abstract before he knew about any plea offer, but what he would have chosen to do once he knew about the plea offer and once he'd been a competently advised by his lawyer about what he's supposed to do. The fact that he's saying that his girlfriend could have provided him an alibi, evidence which he abandoned at the hearing. A lawyer is going to tell him that that evidence is not going to be very strong against the sergeant in the Philadelphia Correction System who observed this guy from a foot and a half away, who watched him for two minutes and looked at 300 pictures that didn't include him and didn't pick him out. But once you saw the picture and once you saw him in person said, that's the guy. A competent lawyer looking at that evidence was going to say, you need to think pretty seriously about taking this deal because if you don't take this deal, you could end up with a much more serious sentence than what you've got here. And the evaluation of prejudice needs to consider not just the fact that he was sort of irrationally saying, well, I'm innocent and I've got these pleadings, but how he would have come around once you'd sort of face the cold light of day and realized how weak his case was and how much trouble he really was in here. Okay, Mr
. Secretary, thank you very, very excellently. I do bad both. I have not seen either