all right you may proceed with your and may it please the court in this case the district court's extreme an unreasonable departure from this court's precedent and from the united states supreme court's precedent resulted in a federal court a state prisoner's criminal judgment on a claim that has never been adjudicated by a state court or a federal court the district court action not only resulted in several errors of law but also ran contrary to the entire purpose and structure of the federal habeas practice and rules now the first error that the court made was by excusing mr franklin from having to exhaust all of the state remedies that could be available to him after the state responded that mr franklin's claims were an exhausted the district court determined on its own without any evidence or view of case law practice that mr franklin could not file a state petition for hippias corpus just on the district court's own reading of the state corpus rule but as we've discussed in our brief there are several indications in missouri law in missouri practice that a state hideous corpus petition could have been available to mr franklin the question is not whether it's available but whether it was manifest on the record that the district court could excuse him from having to pursue that remedy and it was not manifest on the record in fact the district court didn't consider any cases or any practice in making that decision and reviewed only its own reading of the rules second the district court erred in excusing mr franklin's procedural default the district court relied on martinez versus ryan it the district or found that the form of release that mr franklin pursued in state court was sufficient adjudicate his claims but it found that because he was under represented at that hearing that it could excuse this procedural default but the problem with that analysis is mr franklin's default did not occur in the state proceeding it occurred when he failed to appeal from the state court proceeding this court has repeatedly limited martinez versus ryan only to its back this course repeatedly held that martinez can't be extended the on a national initial collateral review proceedings excuse an inmate's default look to smitty versus lockhart but the relevant issue here is that mr franklyn did effectively raise his claim in the state court proceeding that he chose to pursue the twenty nine to seventy proceeding he did rais claim and included all the relevant information about it so we can't say that the procedural default occurred at that proceeding it only occurred when he later failed to appeal it so his pro se status had no effect on his ability to effectively litigate the claim at the state court level done no more than raise it the way he wrote wrote raised so it's your point yes that's absolutely true or at least there's no evidence that counsel could have done anything different and the state has not fall to tim for any thing that he did in the twenty nine of seventy proceeding we don't say that he didn't raise the claim correctly he did he just failed to appeal which this court has already held and arnold versus gore meyer is a procedural default that cannot be excused under martinez versus ryan so the district court should have dismissed on the procedural default issue third this court the court erred by failing to show deference to the state court decision it's arguable that the state court decision was not a merits ruling but the district court under federal precedent decided that the state court's ruling must have been a merits ruling even though it was summarily dismissed without requesting a response from the state the district court found that the state courts ruling must have been unreasonable under federal case law because they could not have applied the roe versus flores or take a structural error prejudice standard but this court's case law has held that state courts don't have to rely necessarily on this circuit's case law this court of course has expanded roe versus floors or take two cases where third in the fifth circuit have held that people who defendants who have waived or partially waive their right to an appeal the roe versus floors would take a structural or standard does not apply in those cases so under co versus taylor the state court was allowed to rely on other circuits precedent in order to make a reasonable application of federal law so the district failed to give deference under open and if it had it would have summarily dismissed mr franklin's claim as the state court did fourth and perhaps most seriously the district court failed to hold an evidentiary hearing on mr franklin's claims or allow the state to present evidence to contradict them or to cross examine mr franklin or his evidence which they conclusively refuted his claim by both saying mr franklin never instructed us to file an appeal from his state guilty plea which could have all the facts which he absolutely could have lost on the facts even without any evidence he could have lost on the facts simply if the state had effectively cross examined his allegations and the district court never gave the state an opportunity to do so and so the district court basically it said it didn't want to give the state a second bite at the apple with the evidence but it took the apple without checking it for worms state never got any b apple these four errors constitute an extreme case in which the district court up ended the purpose of federal habeas law which as we know from precedent is comedy and finality that allows for review but with respecting state now your honor thank you very much i'm jonathan sternberg and i represent the apple e jerry franklin you want as there is nothing extreme about this case except perhaps even in terms of a peculiar quirk of missouri post conviction that makes it generally unclear how a person in mr franklin's position that is someone who pleaded guilty to an offense in under missouri state law but is incarcerated outside of missouri and as mr franklin is serving a concurrent federal sentence can seek initial collateral review in missouri state court judge jackson correctly under this court's precedents and the u s supreme court's precedents determine that violated p c r exercise that he requested assistance of counsel i believe he did your honor yes well give me a good new record site i consider that very important and he says that  well no he does not it doesn't appear he specifically does i'd have to go through it it's written in very small print it's quite long but it's pages one hundred thirty six to one hundred forty of the appellant's i thought not i think if he had requested and had been denied that would involve that would bring it within the first of the two the situations described in martina's which is no council or ineffective counsel but here we don't have there was no counsel that's all it says it doesn't say if he was deprived by going to my question or whatever just move the press i didn't understand your question your honor i want to know if there is a case involving there was just a pro se happening i'm not aware of any case that says that but i don't think that that reading of of martinez is correct martinez specifically says that there is no procedural default if in the initial court review collateral proceeding there was no counsel not if he was deprived of the right to counts not and also missouri rule twenty nine zero seventy doesn't guarantee a right to counsel like ordinary missouri post conviction relief does see ordinary misery post conviction relief twenty four zero three five that discord has heard review of many many times only applies when someone is in custody in the missouri department of corrections here that clearly doesn't apply and of the gravy state case and just last year in the missouri court of appeals confirms that it doesn't apply in those circumstances state hey b s corpus which seems to be my opposing counsel's main thrust that my client could have filed some sort of missouri state corpus action that fails as well he ignores again grey versus state which is the only missouri decision directly to discuss this from missouri court of appeals western district just last year it's in our brief he doesn't  i think the briefs largely cover most of what i've been saying i'm happy to address that roger because that seems to be from the reply brief the other main thrust of my to read your honour's a quote from my opposing counsel reply brief he and opposing counsel just told your honour's that judge jackson never gave the state the opportunity to contest these allegations nonsense she issued a show cause order ordering the state to show charge from from trial counsel that says i didn't do what is alleged if me they certainly had that opportunity and in fact in her order did naing them so it's not about an apple with worms about an apple that they were offered and never decided to take seven the post conviction relief in missouri state court they could have presented that in opposition there they had notice certainly of his federal hate vs proceedings for both the initial proceedings and then after they were state they filed a trying to argue that this court that the u s supreme court says that there is some circumstance akin to here where a district court must hold an evidentiary hearing the u s supreme court has never said such a thing and they certainly didn't say it in that case moreover  even there they're out of whack quote is predicated on the state court record being insufficient to justify the the petitioners were seeking relief and that's not something that judge jackson found at all the fact she said taking the record was before the state court as true which again the state had the opportunity to respond to if they so desire they had notice of it they certainly knew when it was denied they told that they were the ones with form judge jackson of it cheap she found that based on the record before the state court as twenty two fifty four d traditionally i mean it's it's the the way that they talk about comedy in finality will twenty two fifty four d does not allow a federal district court to go beyond the state court record bet that there can't be evidentiary hearings where the state court record sufficiently demonstrate demonstrates a basis to deny relief it simply says that under twenty two fifty four d the federal district court doesn't get to hear that's all of those concern here that's not what happened at all that was the standard missouri clique colloquy where the judge says now you understand that as to whether you're guilty your or not guilty you're not going to get a direct appeal and he says i understand well that's not a waiver of the right to appeal you still get he had he wanted to he could have filed a notice of appeal and the missouri attorney general's office wouldn't have been able to argue to the missouri court of a thank you i'd like to start by addressing opposing counsel's argument that colon versus pin holster can apply to prohibit the district court from holding an evidentiary hearing in this case converses pinholes there is a case that talks about how district court should not go outside the state court record when they claim was fairly presented to state court and decided there in this case the state never had an opportunity to refute mr franklin's claims in the state court because the state court summarily denied his claims now opposing counsel talks about how the state had notice of this action in state court but the record doesn't reflect that mr franklin didn't file is the definitive service on the state bar claims and the docket entries don't reflect that the state was ever served with a copy of mr franklin's petition in fact the state court notified the court of the  decision i'm sorry the state notified the district court of the decision later but two years almost two years after relief had been denied and mr franklin state court case which strongly supports that the state didn't know about it until they later examined the documentary's of the case and found that  had been denied but the state importantly never had an opportunity to present evidence and when the district court found that the state court must have unreasonably applied federal law that should have triggered a responsibility to require the petitioner to or in fact of counsel at the post convict and therefore post conviction proceeding and here there not i see the that language doesn't apply to this case because that would apply martinez to a fault that hadn't even occurred at the proceeding martinez contemplates so when when the supreme court was discussing that rule that statement in martinez they were talking about a default the had already occurred and could be excused by the lack of counsel at the initial  doesn't excuse him now to talk about the also opposing counsel talked about how their problem with this case is that missouri lost generally genuinely unclear about how mr franklin  obtain relief and that may be true but that supports our argument that his claims are an exhausted because it's nothing versus nix requires that the district court find its manifest on the record that the petitioner can't pursue other forms of relief and without examining the record even if the cases opposing counsel cites turn out to be the correct remains very law the district court didn't examine those cases and it wasn't manifest on the record that the petitioner couldn't pursue state heaviest relief and therefore the excusing his responsibility to do so so to sum up in this case the district court excused mr franklin's responsibility both to pursue his claims in state court to file them at the correct times in state court and then eventually to prove his claims the district court should not have excuse these errors and it's resulting in an unprecedented vacation of a state judgement based on a claim that has never been proven and never been examined thank you