and i just sort of want to go through a little bit of a timeline because i think it's important to try to separate them out because at issue in this hideous petition is only the case involving the charge that mr thomas murdered basically nothing there was no charges filed there was a police investigation it's on the one year anniversary of newspaper article appears of then leads to testimony from a witness named shroud threatened with criminal charges with these three individuals shroud the new wife and the other worker from the public's maintenance crew there they're  inconsistent with each other and they are it's hard it's it's hard to regard them as credible because each contain sort of blandish claims to the to the wife he maintains that his mafia family showed up and kidnapped the wife and to the other worker the public he claims  that they killed the wife in front of him and bodyguards it's just really strange stuff and then in addition to those three individuals and their strange story  there's the jailhouse informant ahmad dixon who shows up magically so that's basically the case against thomas those witnesses and a defense is that thomas that he perhaps because he was adopted or not he felt the need to fabricate big stories that made him seem really important and so it's sort of like this as his ex  says it's sort of this fantasy land about having his real family be mobsters are in the mafia with a lot of power and a lot of connections and it's unusual it's unusual case he's represented by richard nichols in both cases and then the judge sentencing happens one week later on july st and if the judge sentencing the how he proceeded one to help the state create evidence against his clients and to including in the past this waiver and it would make the point  procedural bar is invalid in silver is the invocation of the procedural bar that we've that's how it seems to me so that what's what in this case i think has been confused on direct appeal when the guilt phase issues are st rate if that's that's a different slant that's a different issue different way of if that's not a claim that is a response to the procedural bar argument being advanced by the state so in addition there is when it when that there are many ways to attack what the trial attorney did when the state tries to rely on the right right and i just asked the court to look at the most my files because this is a case that is just really nothing there when you break it down i would like to claims are properly before the court because the hideous petition itself is on the timeline of the first i'd like to start at the end in the sense about the effect of a ruling was turning this is the deadline on purpose as part intentionally on purpose as part of a litigation strategy what's the question counsel litigation strategy assumes that you have informed consent from your client does it not no i don't think it does it depends only certain things are the usually related to trial things like  that was solely for their purpose and not the client's purpose and that they had no conversation with the client was guarding the litigation strategy is that correct or incorrect that's what the district court found i'm saying as a matter of law whether or not this was a there's no rd party under agency she had to be acting in some other in her own interest or another party's interest she  there's no evidence that that was her purpose you know there's no no you're on a it's more as a matter of law just like the th circuit is that the lay of the name of the game and  want an answer to my question if you want us to find is a matter of law then it's always best the petitioner to missed the statute of limitations because they wrong help a time that there's no evidence that that was the purpose that you keep forgetting that fact that we just went over but there is no evidence of that and that's not part of the stipulation that the state entered into with with this with this and so there's no it that the fact finding that we have here by the district court is supported by the evidence is supported by the stipulation you know that she wanted to make it statutory argument it certainly reasonable to assume she had a reason for doing that and i'm saying that reason is delay so we know that was the reason is because there was a stipulation and she  testified that her reason was she wanted to challenge the constitutionality of the provision and that was her sole reason which was the reason that st of all it was never even discussed with her client and in fact she misled her client and she  earing well only partially in or do and she in many of those letters she refers to to filing it later or giving it more time so it's purple and the other thing is he has to be diligent and then they were serious read what even if you accept he did not know at the beginning but really by and by april of two thousand and three he should after the district court entered the original order dismissing that haiti as petition as and so eight months later he writes a letter asking the district court where the per se petition that he  but i'm saying there were red flags from bonner's letters to him years earlier  and and then your honor even i'm concerned about what a finding that in an attorney intentionally misses the deadline could still be entitled to  the person person supposed to do that not listen to the to the lawyer well he's already just told you that your petition is untimely and so i just don't understand why you couldn't write that letter earlier and he never testified  attorney client privilege prevents me from have had the ability to cross examine correct did you not what you presented is why didn't you honor actually we're the ones who called mary kate bonded to the stand so it would be a direct exam  then we have to take it as a knowing voluntary and intentional waiver of his riots in the nd case because that's what the guilty plea agreement wa in the mother murder case not by saying ok you can't use it in the wife's murder center stage because it was a result of not a voluntary and then and knowing what you're left with the fact that the defendant as i understand the ranking of the premises in your arguments you have to be left with the argument that no prohibit this no matter how well informed no matter how voluntary and no matter how much it's in his interest and i just don't see that you've got any basis for saying that we can't allow defendants to do this if they voluntarily want to do it i think it's in their best interest except the attorney misled him and he didn't know and his statements show he didn't know that the effect of this he did not know the guilty plea could be used in the capital case it's clear when you read it not advised it will be used in the capital case since it won't be used in the capital case and he's being represented by an technical against this client and he doesn't know that no one him forms him he's giving up his right to claim back even a sense of the murder of his wife because he clearly would not have done that he specifically says i'm innocent of killing my wife not knowing that he has agreed to give up any challenge to that conviction a defendant is fully in phone here's what's going to happen you're going to be waiving the right to attack the guilty verdict and that other case and that means you can't do it otherwise you could do it amendment for the prosecutor to propose the plea and that the state courts should not enforce it i don't think there was are any argument about the attorney laboring under a conflict of interest