until the judge issued her report and the magistrate issued the report recommendation so you know i pretty much come in with a table that's already been set i think that is relevant to some degree because you've got a prisoner here who is in prison from the time that actually isn't acted until all these various events start happening with him and it makes the record very very complicated as to exactly what was going on i mean i i know i could have done a better job of presenting these facts more clearly if i'd been the lawyer but i wasn't and  there's nothing i can do about that well sometimes there's an advantage to that sometimes there's a disadvantage that's where i'm going it seems to me that especially in light of the record as it exists that this is a very very bad case for for this court to decide a factual issue that's that's very tangled in the record i think there's something like five hundred pages in the supplemental record that my phone it was kind these declarations back and forth you've got issues there's to whether that edgar was even in the prison he was in or it wasn't whether if it was there there was anything else whether he had pencils paper and you've got the district but basically what she does is she doesn't tell us anything except that she does deny a motion to dismiss that's made on precisely these grounds we know that we know that the motion was denied and we know she's disturbed a way with respect to the application or tolling of the notes or i did not  i'm reading from the district court order denying in part granting in court requests for was we asked for a c e o a on the instructions and she denied it and we did not press that claim and are not pressing that claim by and my understanding of your question was you asked whether she we had asked for a c e o a on the statue limitations issue and we did not know yet but yes on that on the application of that oh well only in terms of applying to and i see that claim and apply and being the standard you can't you have to go through it but if you're going to challenge a state court fine so of course we did and we did have and put issue there but no we did judge and the district judge and i saw a motion to dismiss and then in the report recommendations as i'm not going to reach this issue because there's too much factual complexity to it it didn't even occur to us to ask for a  issue because we thought actually that we had prevailed on that issue just don't need to be critical in any way by asking that question i'm simply trying to force myself on in the issue that we were here concerned with is whether there was ineffective issues concerned moving to that i think that that's the main claim there's a lot of claims here that that are not in my view terribly solid again i was i was struck with these but the one that i want to press here when this poor fellow is is beaten and kicked by these assailants in this parking lot and then there's a gun that go there not really sure what happened in that parking lot or we well we know he been and of course we have drugs around there and so you know it's nose like that and but we don't know anything except that he was that he was for sure that he was assaulted but with fists and feet that these guys were armed one shot they say that there's bleeding from the ear and that's at s c are thirty four and also there is another reference to it  that he says he can't remember actually getting the gun out of the truck we know that that the there's a pregnant defense here of what we call imperfect self defense which is the honest but under reasonable belief in the need to defend we've got a guy who's just been shot in the head he's reacting to this thing and it seems to me that that there's a there's a very strong claim that can be made here based upon him believing honestly that he had to get get these guys before they got him even though that's that may be unreasonable given that ballistics evidence and the rest of it he got about a minute and hamp like why don't you tell us what it is that the more trial lawyer did or didn't do that constitutes on the and how that impacted the merits he didn't call an expert choop testify as to the facts here that i just ran down how those would have affected a claim for another level of this what do you need an expert when the evidence is clear that the victim was running away from from the the friend and the victim and then we have this this this car rushing at the guy at thirty miles an hour directly at if we have that kind of adrenaline rush that i think in the hands of an expert with the symptoms of a head injury all that the altercation described the moon as being minor one said that he had a small amount of blood on the left side of his head the other officer described the moon as quote a minor laceration and injury itself saw a picture of the he had some kind of viable mental defense but there's nothing to show that that particular doctor could have testified to anything other than the physical nature of the wound itself there's nothing to show that he was qualified to testify about the mental defenses or about the supposed link between traumatic head injuries and possible psychological effects counsel here raise the defense that he thought was a most viable which is a self defense type of defense since there was an altercation that as a result of this one and present he had to be treated for some kind of mental problems or brain damage or anything of this nature now that in the record that he provided had it really didn't support his claim at all other know i don't believe so he would merely contended that at that particular time he might have been suffering from some kind of mental  self defense does not require a showing of mental disability or met a mental defect it requires a showing that one's faculties are sufficiently impaired that it's an honest but on reasonable belief and and it seems to me that that medical evidence could have gone again back to this adrenaline rush with a car coming out and without should have to show brain damage ok thank you speculated are you speculating this was imperfect defense or do you have a witness who would have you