are not treating petitioners differently will include the complexity of post convention proceedings which this court recently warned against in people beating it will also create a system of disparate treatment among similarly situated petitioners defenders the same attorney may be hired in one project post conviction case that is appointed in another case in fact the only reason to hold that reason assistance would not apply to private counsel would be based on the belief that record doesn't show i think you're right this way is the question if if would you agree that if the defendant hired him after the deadline for filing the petition that nothing about the i'm timeliness of their petition is coun showing that it was mailed in september of two thousand and nine when they affirm it came down in june of two thousand and nine but first he never said anything about how to not actually getting notice so he didn't say that part of never got notice just that he didn't get notice an explanation and combined with the fact that he never said that carter didn't get notice of the decision this households attempted explanations at work and space he didn't cover at the time that the additional slate so  in going back to your question with the trial court discussed the merits of the petition because the trial court was unable to actually find that it was on time and this court should not find it that the not always intuitive it's extremely complicated and it has some technical pleading requirements when somebody hires a private attorney into the attorneys in the state are going to run the gamut from very experienced in post conviction matters to not experienced at all so any role th not a private attorney reasonable assistance is required of a private attorney under the post conviction correct right and in this case the court found that they were not right so were were  to face that whether a private attorney or most provide reasonable systems and then the second question would be as it pertains to your client where the reasonable  period you have to at least put something in there as far as the time period that it was late and we have we have nothing from four months before the petition was even two until two years later when it was  was drafted by private counsel and it does not adequately present just like the best example of claims six in this petition council allege that trial counsel was ineffective for not calling witnesses that would have petition there's a few claims that reflect the council wasn't particularly familiar with the strickland standard as in he alleged and you know chocolates and effectiveness without going into prejudice he he put in there a claim that mr carro received ineffective here's what i would have argued and here's how it would apply so these are just there are more examples in this petition but because of that you know looking at the way that this particular private attorney drafted the petition this court should not have any confidence that an attorney who  doesn't provide reasonable distance in even addressing timeliness necessarily complied with the with the rest of requirements remember that most post conviction petitioners almost all of them in fact are in prison so a lot of times you know a family member i going to hire an attorney for the petitioner a family member may start listing some of the claims and there's not necessarily any reason to think that all attorneys are going to consult with the petitioner doesn't make the track down the recall should and that's what reasonable systems requires but just because somebody is privately hired doesn't shouldn't give any confidence that they're that they're going to automatically better be better than it when it at the very least appointed attorneys are frequently more experienced post conviction because they handle a lot of  specifically her claims that posting this shit post conviction counsel didn't even argue practice it should be noted that counsel abandoned defendant abandoned all of those claims on appeal he didn't raise any issues regarding the substantive claims he simply raise the issue that counsel was under these counts the defense counsel i'm sorry counsel today also argued that seemingly there is this presumption of a reasonable business when it comes to are of the position that all defendants whether represented by a point of counsel or private counsel are entitled to reasonable assists in that the appellate court was unfair to the extent that they held that defendants who are represented by private counsel aren't entitled to reasonable assistance then yes they were but we should also look at that decision even though we can see that their position was incorrect then it was based on a pla reading of the post invasion hearing and rule six fifty one see the court unfortunately didn't mention or discuss this court's decision of people versus mitchell where it applied the reasonable assistance standard hindsight which the court doesn't even allow for the sixth amendment right to effect of assistance of counsel so why are we now looking that in the lesser right looking at counsel's performance and hindsight second guess a and saying what someone counsel as a whole and pepper paraphrasing but counsel argued that this was a a an issue of a death by a thousand in effect a council did a lot of little things that to his ineffective so in the grand scheme of councils argument it was always the reason this petition was late was because of trial counsel who was also a pelicans now whether it was councils argument was compelling or  is it determinative of whether it was reasonable as this court said and perkins which actually dealt with the six fifty one c issue counsel make the best argument that he could and that's all we have in this case council made a good faith argument reason for overcoming or attempting to overcome the lateness of a petition was a cheat defendant had his substance of claims reviewed by the court the court decided that those claims and not have merit and the court dismissed those those claims on that basis alone there's nothing in this defendant suffered no prejudice because in his hindsight view counsel didn't explain enough counsel did exactly what he was required to do to be reasonable and if you look at six if you want to see under that counsel to be reasonable counsel has to consult with the defendant examine the record make amendments so that the defendant's claims are properly presented to the court and in this case counsel would be considered reasonable under six fifty one c and arguing that it seems that defendant is arguing that although he's argued that all attorney should be treated equally and often the ship had a reasonable assistan he's attempting to hold the council to higher standards under six fifty one see if appointed counsel would have been sufficient been considered reasonable then based on this record private counsel c considered reasonable as well and again if you look at the record counsel that everything that you could do so overcome the lateness of the petition and if you notice defendant doesn't provide any other excuse for why his petition was late there are these there's this court recognized early on in this case there is no information no discussion about when posting pics of council was high so it is very possible the post invasion counsel was hired so based on these arguments and the arguments that we've presented in our brief we ask that this court hold that all of our defendants are entitled to the reasonable assistance of counsel whether counsel is privately retained or appointed and merits are premature at this point because without because right now there is no explanation for the late period of time in no way to overcome the time our as this court noted the claims can't even be presented until the time  council drafted the petition and while we don't know when he was hired we know that he put affidavits in the record from mr cardoza mother and brother from february of two thousand and eleven which was seven months before it was filed so that's part of the time period that counsel could it was it at least it explained why it was late words here and envelope from two years before it was due is not an explanation for why it's late remember counsel never actually said that mr carter didn't get state meet me this offer that i rejected he doesn't put that in there he doesn't know how to write that claim and that's a pretty well established basically you have to show prejudice so the the state's point that the court in this case in deciding the merits sort of negates any consideration oh it doesn't matter if you did a good job on his because the court discuss the merits of this song first the court did not make a decision the not because it it matter you know you know that the merits you know the merits and ultimately matter it was ensuring that what is a very very limited right to counsel provided by the post conviction hearing and is realized when an attorney feels in one regard in the record clearly shows that there can be no confidence that that attorney complied with the rest of the requirements this is this a petitioner in opposing fiction here in case he gets one bite at the apple absent you know compelling circumstances he get one chance to present his claims and the act requires that any attorney representing him adequately presumptious claims and it's not a high standard you just have to do it in the proper legal form to allow a court to make a determination the the  lack and then ultimately counsel's lack of any explanation for the timeliness should give this court no confidence that the rest of the petition was as good as it could be either if you put the claim in the petition