to why are we saying that when we have to agree with you that the defendants who do less should be rewarded for their innocence in the sense that they are entitled to review if they don't do anything worse those who did not do what they're supposed to do are first that the supreme court put in a person and child's term and then they kind of fight legislature and the question how do we get around that understanding it's my belief that all they need to do in these cases is it to get around the state's hurdle it's a sam f be the biggest conflict with the custodial statement i remember whether he saw that he had a gun or he didn't see the egg in between the custodial statement and my client's testimony there may be some proper guy don't remember what it is the right if it is i can't i imagine it was think it could be those two things together it's more than just a general a general throwaway comment  him go through this without following the law is that the statutory law or the case law would be absolutely unprecedented it would contradict these five appellate court cases that dismissed it would contradict this court's two opinions regarding the care we characterization where they said at least you have to file a motion to amend this would be absolutely unprecedented his five failure to seek leave to file the successor petition african recategorized requires this court action to dismiss it without prejudice history then to go back and follow the procedures that's what the courts did at all these five cases all five of these cases that held you have to first filed this motion to seek leave all of them said we're not going to reach the merits we're going to send it back if it wants to seek leave to file this again he we're going to explain to the court why this is a legitimate actual innocence claim this is not a bar to making an actual innocence claim that the court was concerned about more teams again this is no different than first interview second stage review third say for if you  decision ortiz whether you know whether that defiant defendant ever files leave we don't know whether he did or we didn't it was never discussed in that case it reached a third stage evidentiary hearing and that's how it came up on the view and that defendant was making only an actual innocence claim unlike here but again your honour's this is in a prudent legitimate statutory step but if and it's got to meet the appellate court decisions are in an unanimous we're not relying on just one or two opinions were relying on five opinions every single one whoever's it would have been simple for them to do that they did not instead they explain why the calls and prejudice part of the statute didn't apply and certainly when you make a claim of actual innocence you have to do that more than just make a bold claim of in this is much in this reply brief but i believe sign it at the end of this discussion of the first issue here it makes that you've got to do more than just make a bold allegation of actual innocence and that's certainly true you've got to do more you've got to seek that lead to file are you know well calling him names they're not terribly sharp so no i would disagree with the idea that we send this big don't worry the procedure harder we'll explain it more clearly his position legally then the state of the merit certainly in those cases the same argument could be made by sent back we know what the court's going to do but yet that's exactly what every single poll court cases done they didn't assume that lead would be granted they didn't assume that they didn't find it it would just be a waste of time