underlying claim of ineffective assistance of counsel the answer to that question is an unequivocal yes prior to trial the judge in this case the sentencing judge  case the trial counsel and post conviction counsel were one in the same and thus when judge mcdonald is looking at cars he's actually looking at mr chenowith actions in post conviction determine whether or not his failure to challenge the judge at trial was ineffective so in order for you to go through the m we see at that point that he completely just for starters any challenge to his own trial counsel performance so he doesn't raise any issues and i s the question then becomes is whether or not he ought to have at least raised the challenge of the judicial bias and judgment donald says you know you can't get to that underlying of trial ineffective assistance of trial counsel including the underlying judicial misconduct were raised in post conviction it was because he failed to do that that the claims were ultimately that in fact there's only three he say about the pleading the pleadings i'm i want to stay very carefully within the record and as i understand it the pleadings support and i'm and i cannot tell substantive claims of bias not as a question and i suppose my answer should have been yes and no they were litigated the substantive judicial bias claims but they were also litigated as the underlying specifically finds that the prejudice arising from that clain is the failure to challenge judge reinhart so the that they petition is not well play but the petition is clear and judge mcdonald understanding of that petition is clear that they have in fact raised in effect of the systems of counsel with the underlying prejudice being the failure to challenge judge reinhart bias and one of the reasons we know that is because judge mcdonald later says well look at his challenge to judge rinehart in post conviction that shows that he's not afraid to challenge judge reinhart and so it clearly high that the claim of judicial misconduct or martinez he should then apply that four step process in place for which is the ineffective assistance of post conviction counsel the prejudice resulting and then in effect of this that there is some merit to an underlying ineffective assistance of coun determined if he determines that martinez does apply and the default should be vacated then we should be able to move forward on the claims and selves that were erroneously defaulted in the beginning and please court park march twentieth two thousand and twelve there was not even a hint that claims thirteen and fourteen were ineffective assistance of counsel claims they were judicial bias claims that the state cour trips together there is no correlation whatsoever between claims thirteen and fourteen well i'm not trying to make a correlation i'm trying to understand if you claim twenty went forward and there was a close relationship and that close relationship precluded influence trying to with trial not to challenge and when this court found that there was no actual conflict of interest as a result of the relationship and that it was a tactical decision on the part of mr chenowith as to whether to file motions to disqualify  as to the trial stage as to whether to move to disqualify judge reinhart that's really critical in this particular case because the reality is is this court has already addressed whether claim twenty kind of stablish cars and and for that matter prejudice at least in the car in the context of a conflict of interest claim now we've argued that there is a distinction between a conflict of don't believe that there would be that there's a even on the record that we have before us that there is a sufficient showing of deficient performance because there was no reason for mr chen aware to not explore that based upon his claims that judge reinhart was already bias there's just no reason he could have if he thought that there was any merit to  counsel hasn't discussed that we would submit that the phelps six factors haven't even been remotely met in this case if you look at the cases where this court has reviewed sixty motions in the context of marking us this case is not even close to lopez and the other cases where this court found that those factors have not in fact been met and they have not been met in this case particularly because of the lack of due diligence i think i've spelled out in our brief very clearly the lack of diligence in this case the underlying time together on vacations but i don't have a particular problem with that when you look at as we've discussed in our brief i can't imagine a defense attorney not wanting to have one of their close friends on the case a capital case and be the presiding judge over that case i would think that that would be a tactical advantage that would result in  you can keep it to him so i think the client's entitle to the information that he may not be able to keep it to himself but the ultimate decision to whether to move for that automatic  trial counsel's ultimate decisions on what the fence to present you know but again it has to be informed it have to yes it has to be informed but i don't think there's an allegation and it can't be an allegation  that i appreciate selous representation of death sentence in death sentence murders but based upon the allegations that were raised in this motion i take personal offense to claims we have made that argument repeated only if you look at the structure of that amended petition and i appreciate the council's argument that they're the prejudiced prong of claim twenty and what i discussed with with judge fisher but points thirteen and fourteen if you look just at the structure of the petition they're not ineffective assistance of coun it is our position that it is different now counsel has a different reading of jones than i i know that judge gould is the author of jones and ultimately will find out what jones meant but it's very clear in jones that there is a distinct from from my reading of it at least that there is a distinct difference between a conflict of interest claim which requires a showing of actual conflict that adversely affected counsel's performance as opposed to an ineffective assistance of counsel claim that we choirs the showing of deficient performance and a reasonable probability of a different result if there are no other questions from the initially claimed twenty is a and ineffective assistance of counsel claim i have quoted in the brief the actual claim made it claims ineffective assistance of counsel it does no relationship as the probable cause for the failure to challenge the judge judge mcdonald clearly understood claims thirteen and fourteen were the prejudice being alleged and in his decision in the well it's the friendship that precludes the challenge and mr anderson says well there is a challenge in post conviction it is an innocuous challenge it is a nothing challenge it is a post conviction challenge that goes to the matters that happened on the record to the judge acting in his judicial capacity and asking questions of a witness during sentencing which did show some hostility but which the court found was within the confines of his responsibilities as a judge that and that was the basis of the bias he he question witnesses that sentencing next channel with had in his knowledge the fact that his friend th had told the family before the trial that he was going to sentence his client to death and doesn't challenge him how much do you want that judge considering your client's life or death and that is why they they were not unsuccessful the evidence was never developed because they were people and the last thing i would say is that because claim twenty is an ineffective assistance of  and present that evidence and litigated in post conviction the claims would not have been defaulted they would have been given a full hearing and mr would have had his day in court and that's what sixty b isn't designed to do  extraordinary circumstances this is an extraordinary circumstance where i thought you had to show that the outcome the proceedings with a been different in other words that he would not likely have is certainly some reason to believe that had mr pursuit so not been sentenced by judge wright hart who had pre determined his death who had orchestrated evidence to secure the necessary showing to