arguable basis of prejudice that isn't the standard for a first petition in the first petition all you need is an argument based as a constitutional violation and a prejudice is more exacting is more demanding and if it has anything if it's whether there's just a claim in there because like you said prejudice is more exacting so even though these are two separate states to leave to file state in the first analysis really all we would be doing is having the court consider these things kind of at the same time to the claims to see whether or not there's any prejudice we don't look in terms of whether or not he's had a chance to raise them so his claims are sort of they're sort of two categories there's this ineffective assistance pellet counsel claims or claims that were raised on direct appeal and this it's incumbent upon the defendant to demonstrate that what was overlooked prejudiced him i'm somehow on is it his review before this court for the end that's where the prejudice is and that's what i'm asking you do to makes sort of  that they were improper aggravating factors in his hearing these are all arguably you know valid for claims that it could prejudice without having the opportunity to have a hearing on this look outside of the face the pleading it's hard to prove to have you know five fact finding credibility determination but we do that all the time if this were his first petition we would do that all the time and you would only look to whether it's arguable whether it's capable of you know finding supports whether it's non make a strickland sort of showing that the appeal would have there's a reasonable probability that the appeal result would have deferred would have changed had these issues been raised that's a substantial showing right there and i don't think  you know he's made several allegations that you know constant race certain issues i counsel if we forfeited certain issues i mean it's difficult to talk about how you know an admission of hearsay saving you know from a defendant and counsel that's your office has access to the entire record of the proceedings below and it seems to me that if you want to make a claim a prejudice even an arguable basis a prejudice it's holes on your office to demonstrate that these errors were substantial prom possibly reversible error and and bring it to our attention it cannot be that simply you get that a a false or to show prejudice and i thought might have enough from the record alone but any i think because this is a position that's not yet been even filed the fact that he's showing that these claims are defaulted with respect  there be some standard white why shouldn't we simply try to quantify the amount of showing by giving it some sort of label and i'm asking you what you think it should be ok i believe that  do you there is that your argument that even if the standard is arguable basis of prejudice that he hasn't met that standard yet i would say first of all that case said since you said yes then let me ask you this if if you think that is enough that is a hurdle that the defendant could not meet here then why isn't that a sufficient hurdle to put on that's certainly the test and the question is how much how much of a showing does he have to me to at least have his sex as a petition considered by circuit court we're not talking about proving that he's entitled to relief under a second successive petition we're simply saying what sort of showing does he have to make to get it before a trial judge would certainly have to show something in the records and work me to show second petition he has to make that just or that article faces a constitutional violation and that entitles him to get to the second stage why if that's it if that's the screening out of frivolous  apply to successive petitions because we're in fact forcing the defendant to make that showing at the initial stage and knocked at the success did i was that clear i'm not sure i think you're saying why can't we just apply that just standard choose to test the tension but it is in a sense were collapsing the first and second stage in a successful petition he has to make what hypothetically but you will concede that there are some valid successor petitions that should be considered by circuit court true and so the question is how much of a showing did those individuals have to we're going to be saying if we accept your position that we differ from the second district we're asking we're asking your office to tell us what you suggest we say whether the words more exactly well first of all that i would nothing in the record to support these claims and what it was makes some showing and it's it's got to be higher than it's just standard the defendant has and now there's nothing in the break just for nothing absolutely nothing record also the seat is it really a factor that we should be taking the consideration with or whether he made a mistake or whether it was a strategic decision isn't it really more important to look past that and look to see whether  the third stage a defendant a petitioner would have to make a substantial showing of a constitutional violation correct and then and only then is he entitled to wait and the question is what what kind of showing have you made here was substantial