good morning may it please the court my name is c b kirshner appearing on behalf of petitioner appellant kyle ronny and i would like to reserve two minutes for rebuttal of possible and the district court in this case ruled claims three and nine of mr rogers amended petition to be procedurally defaulted without considering whether or not he could overcome the default pursuant to martinez versus ryan now respondents have essentially conceded three out of the four martinez elements are met in this case the only remaining question is whether the underlying ineffectiveness claims are substantial and do we need to decide that or do we can we send the whole thing better just to corporate not because he didn't interest mccain you can absolutely send the entire thing back to the consider well in this case martinez was raised before the district court and just court still being considerate i don't know if there is a per se rule that it has to be considered but in a case like this where it was raised before this to court and where mr ronnie was never given the assistance of counsel it certainly should be considered that a week it shouldn't be ignored without a by the district court if the issue is raised yes your honor i would agree with that it should be considered by the district court additionally this is i suppose the other possibility is some middle ground that says we don't side whether it's a substantial but if we at least consider whether there is a substantial question whether it's substantial i said julie yes yes this court certainly has the authority to do either if this court believes that we have made a sufficient showing that the claims are substantial this court could simply as to that here's my question seems to me you have made an adequate showing that there was as there was a lot more they could have been done with regard to questioning the medical evidence presenting more medical evidence and so on but i can't find any hope up to the cry white white i so the question is would it make any difference as to an attempted murder conviction how injured the defendant name victim was in this case it would make a difference for several reasons one the prosecutor actually argued that the extent of the injuries was relevant not just to the conspiracy to commit murder charge and the attempted murder charge but also to the battery charge because it's relevant to whether or not there was substantial bodily injury and the remaining charges which all included use of a deadly weapon and the prosecution actually argued to the jury and a baseball bent i once headed for say a deadly weapon  a it was not a major league baseball bat it was a small kind of souvenir fishing type of a baton but it also goes not just the extent of the injuries to those elements of those crimes which were not subjected to adversarial testing by defense counsel but also goes to the overall credibility of the victim which was certainly at issue here anderson he's the one that said that one of the two defended said now you're going to die things like that there was no other evidence supporting that other than the victim's testimony and if the jury had heard that he testified to suffering seizures and brain injury and severed nerves and then heard from medical experts that none of that was true they certainly had reason to doubt the remainder of this testimony and would have been so instructed but again it was also relevant to the elements of several of the offenses the extent of the injury so i would say that yes there is at martinez purposes it's slightly relaxed prejudiced standard and we certainly have met that based on the medical records that mr ron the included with his petition as well as the supplemental records that we asked to be considered at this time and again if this case were remanded for further from the development we could present those records as well as answer several of the questions hopefully all of the questions that respondents actually pose in their answering brief such as whether or not there are other medical records out there that have never disclose whether they would support or dispute the victim's testimony whether an expert would have been helpful to the defense and perhaps the biggest question whether or not trial counsel had a strategic reason for not objecting to lay medical testimony and not presenting exculpatory medical evidence on behalf of his clients all of which should be answered and if this case were remanded to the district court we would certainly be requesting a hearing get an opportunity to develop those facts and you would be representing him and yes your honor now that we have been appointed the federal public defender's office and i expect myself personally would be assisting with the remainder of the case so we would continue representing him at this point if there's no further questions i will reserve the remainder of my time for a bottle thank you good morning your honour's and may it please the court benteke on behalf of the respondents of peleus i first would like to clarify the record rodney did not raise a merchant as argument to the district court rather he merely stated and an unauthorized s apply that martinez did apply in this case because he did not have counsel and a state petition that was roddy did his actual petition this is what you're referring to are you talking about counsel not raised in the district are denied our motion to strike the saw reply however there is nothing in the order that shows that the district court considered the arguments raised i think that's your problem and he didn't strike at that it's there and it was there but aside from that in a situation where after martina's with a fairly unusual situation where there was no counsel is our pursuit children faults would have just from just say wait a second here yes your honor i can't speak to what the district court thought when considering that argument that was raised  but the martinez claim mr romney's an effective assistance of trial counsel claims are just without merit there is absolutely no prejudice here the medical records that he introduce for the first time on this appeal and the medical records he relied on in the lower court show that he the victim receive substantial bodily harm even if the victim was testifying exaggerating his testimony there was no prejudice to any of i don't think suggestion that since he was telling some fairly farfetched or is about what happened to him or that's the claim that his credibility in general would be offended all trial counsel did challenge his credibility during his cross examination so the jury already had the opportunity on this basis on the basis he was making up stories what happened yes you're on a trial counsel made statements such as if your medical records would say for example that you were having seizures and the victim said they should but essentially i'm not really sure that's a little different than having the records there and saw the show we did they don't factual that yes but independent independent witnesses testified at trial that they witness rodney having seizures they personally trial counsel should have impeached him with that record with us there's also the his testimony that when he went to the hospital the doctor said something to the effect of this infection could have gone into your brain but yet  there was nothing in the medical records where the doctor had advised him asked to that so wouldn't know that then something helpful to have a trial it would have been helpful to have a trial however there there isn't any prejudice to ronnie that he didn't have those records because all the state had to do was prove substantial bodily harm what about the attempted murder charges well there were there was testimony that i'm just it's undisputed that ronnie received several lacerations from a knife that he required approximately seventy four sutures there was an apparent testimony from a witness that she when she arrived she was the first one to arrive on scene that he was there was blood everywhere it was the worst that she had ever seen the paramedics that first arrived on scene testified that the victim had to go to a certain hospital about how to trauma center so the record all overwhelmingly demonstrates the elements of the crime and the state provided overwhelming evidence to support that so there was no prejudice to that to rodney that the medical record those medical evidence wasn't in any way challenge for these medical records to come in if the judges don't have any other questions i would well if we thought that the issue should have been considered by the district court and we simply remain to consider that a problem i believe it would be futile just because his ineffective assistance of trial counsel claims are without merit but other than that i don't believe it would be a very briefly your honor first of all the martinez issue was not just raised by mr ronnie it was also raised by respondents in their reply to the opposition a motion to dismiss are one one six eight they discussed the why they did not think martinez applied for several paragraphs so the issue was before the district court date the dischord had the opportunity to address this issue and opted not to do it but it is not being raised for the first time on appeal second of all the fact that counsel for respondents and myself might debate exactly what is said in the medical records were interpreted them differently that's exactly why this case should be remanded to the district court so we can consult a medical court whether or not the court would grant us one i don't know if this court instructed the lower courts to hopefully that would be followed certainly we could do as much as possible with affidavits and submitting evidence if the lower  not to give us a full hearing and finally point out specifically the example that counsel for as fond ince mentioned as far as the trial attorneys attempt and i use the term lightly to impeach the victim with his medical testimony trial counsel did make a question saying well if you're testifying you had seizures that would be supported by the medical records right and victims and i don't know what's medical records but it should be that question only works as a trial attorney if you follow it up by presenting the medical records or some additional testimony from a medical expert that's not just that question is not impeaching the witness whatsoever it's setting it up for  impeachment but he didn't follow through he found that out by not following up and that is evidence of counsel's deficient performance so again we would ask that this case be reminded to the district court with instructions to have an evidentiary hearing on the mar last question for me before you step down so in the state nevada court there is no counsel for a post conviction relief for the first appeal is that accurate correct your honor it's