participating fully in a how he and his family regrettably were suffered the throngs of the dallas tornado considerably to so themselves they're regrouping from there but he's engaged with the cases and will listen to the oral arguments and otherwise confirm with them so whatever we decide will be decided by a three judge so that piece of information just emphasizes the stay in the marker phone and speak loudly and do it so that he gets the benefit of your argument as well as picks up the questions that i asked having said that we call the st case and states versus johnny smith if that's how it's pronounced rd councils behavior constitutes ineffective assistance of counsel and th the warrantless search of the contents of mr smith's computer was unconstitutional as a result of w fail to meet and did the government was unaware that it had to urge waiver and its papers in the district court make it clear that it had no idea that the waiver did not cover collateral contest of conviction the government's insistence that mr smith never raised any of the points made by the court and that certificate of  philadelphia lawyer would but there really can be no question that he is definitely charging it was error for no one to inform what anyway was ripley's meant he's definitely contesting his conviction as the court of appeal pointed out was permitted he is clearly continuing his if the appeal waiver had never been raised and he was quite evidently claiming violations of his th th and th amendment rights  the main reason relief is appropriate arises from the government's insistence that it is entitled to obtain waivers of constitutional rights to mr smith at the same time it is moving to have him examined because it has reason proposition that failure to secure a a valid and proper waiver of indictment by a grand jury deprives a court of jurisdiction and  to be raised by a defendant at any point and on and by courts on their own motions however that supreme court ruled in cotton that because a waiver of a grand jury can be accomplished under rule seven day but subject matter jurisdiction can never be waived it followed that a voluntary and knowing guilty plea sub not complaining about what happened here i'm not i can't i can you he didn't deny them when she said i see you he didn't deny it but he had no idea what it weighed and in addition if you if you see the waiver of a grand jury and the guilty plea we're greta on the same day it wasn't until five months later that that plane was entered in the interim mr smith had been committed to i believe beaumont low for a mental examination to see if he was competent to stand trial at his st opportunity mr smith call his appointed lawyer and said you want to go to trial she said no you can't be agreed to plead guilty and if you if you don't plead guilty your wife and mother in law will be investigated probably charge examination and at the same time it was saying he knowingly in voluntarily relinquish no rights this is the sentences that this is this case may be a one off it may be a usual situation that d is not repeated may be unique pro i know but the fact of matter is the government really ought not to be allowed to inform a court that it has reason to believe the defendant is mentally unstable at same time it is insisting that it he it has the right to obtain intentional and  that signifies that he wasn't competent or otherwise didn't understand what was going on he had been convinced by his lawyer that he was not allowed to to withdraw his guilty plea it hadn't been entered he didn't have a strong but he didn't know was entitle to rely to a degree often the person standing in front of him or her that she asked the questions and the person gives answers which seemed to be responsive to the questions in which don't otherwise indicate anything to the contrary i mean that's what happens with the rule of levon and so i mean it's a lot of things raised you know well after and all that but any they're just looking at what he said there's nothing in terms of the way  were turn to the status quo before a grand jury was allegedly way i've told mr smith that you may be in a worse place and he said he's agreed that this is what he wants i don't know whether this court feels it is able to grant suppression but it seems to me that what the government has done is conducted a search of the contents of mr smith's computer to see if it has justification for a warrant for a search of that computer this is circular reasoning it certainly doesn't of void the constitutional question and i know that many things are possible in the patriot act but it we ought to expect more from our government than than having our frivolous  nor barry sing e mails and other contents of our electronic equipment read as just as course it's pointed out today we do almost everything by computer and the rd party d smith and miller is on life support there there the supreme court ruled in carpenter that historical self cite data showing w a specified person made a specified call on a specified phone could not be obtained without a warrant that effectively overruled judge plans to save him and in re application form historical self cite that if you can't get that kind of thing without a warrant how can you possibly go into someone's computer without a warrant up and then based on that  to the extent this court can address this situation because there's been no suppression motion there's been no facts educed at any point in the district court in this issue the matter is covered by your president united states versus waste this is a peer to peer network it's not the carpenter cases not historical cell site data that can be used to get a whole bunch of data to track people and track location this is something which isn't much different than it's a peer to peer network as the we scored recognised it's ip addresses that are shared routinely and that's all that happened here now it wasn't now once the officers got that i'm understanding they just didn't get an ip address and go bust in the door they then went and got us a search warrant executed the search warrant such to the extent the court can address it i don't think there's any basis for suppression anyway staying on that and actually going a little work working backwards here in the order that mr frazier explained it there's a lot of things the mysteries are brought up of what mr smith is saying but i think it's important to remember there's been no facts a stopwatch no facts credited by the district court here because we didn't have that here or any hearing for that matter and the facts that mr fraser is relying on are really allegations in the twenty dollars to fifty five dollars process they are allegations only and they're not here and they're not here for several reasons  primarily because the district court did deny it without the hearing and we acknowledge that the district court erred in invoking the waiver still a spontaneous but i don't think that changes the allegations into any more facts going to the waiver issue on the indictment i think the court and don't borrow has said that the use of a bill of information even in the absence of a waiver indictment is a non jurisdictional defect which a defendant cannot raise and the failure to actually secure such a waiver does not effect the district court's power to hear the case i think the superseding bill of information here certainly gave the court jurisdiction judge clement you asked about whether it was in open court though the waiver for mr smith did indicate that they had gone over the waiver they had executed and that the rearrangement the district court confirmed that he had indeed waived his rights to indictment mr smith did not object to that he said he reviewed the plea agreement that's at page four hundred and twenty dollars of the record  of the case law it is our for the district court on its own to invoke a waiver that we did not involve in we that was a do that was a deliberate choice not to invoke delay so our answer did not raise it we acknowledge that so we do acknowledge that was a simply is whether there was ever in the district court ever it doesn't vary in a c l a a substantial showing of the substantial showing that reasonable juries could debate a constitutional claim and also when it's c e o way that was filed mr smith did not say the district court erred in invoking the waiver and mr fraser mentioned a lot of things and we agree and you we've listed on page one thousand five hundred and sixteen of our brief every claim that mr smith raised in his motion for c e o way the closest he comes to really talking about waiver is talking about that the district court didn't him for him with the waiver was that he was counsel mr baez and i'm at no time does he say the district court should not invoke the waiver in almost the almost assumes that the waiver was proper and that wasn't here and that was one of the reasons we we bring we bring it up in our brief one of the reasons we saw for the motion to reconsider policy is that when the claim sounds an ineffective assistance of counsel we will not invoke a waiver on that so that's why we chose not to and we do think however that you know well two thousand two hundred and fifty three c two and three are not jurisdiction raise the claim here we don't see where mr smith raised the claim that the district court erred by invoking the way we've looked at it several ways in giving the pro se litigant as much a liberal construction as you could we still couldn't find where he actually said the district court erred by raising it and so that's one reason we think the c e o way was defective and that it should not issue we also think the nd part of the c e o was also defective because  and fifty three c three requires the c e o a to state in which specific issues the prisoner has made a substantial showing well the nd part of the c e o way of dealing with the constitutional claims never did that in fact  o never says that mr smith made any substantial showing or even go so far d as to say reasonable jurist could debate any of the constitutional claims the grant just directed to government to respond to all the constitutional claims mentioned in mr smith c e o ed when we saw there was such a broad standing grant of c e o way that we didn't think it was specific and still not really specific to saying which grounds of any reasonable  court statement in black of requiring the movement to actually at least raise a clean at least say the district court erred by doing this i'm not expecting them to do it in perfect lawyer language but at least something they can liberally construe which is fairly say yes he raised that the other thing it would do it would encourage litigants to bring the error to the district court's attention and were it would encourage pro se people to do that as well and that's something that gets lost this is not mentioned in our brief but i think it's could follow the rule sixty b motion to reopen the twenty to fifty five judgment and i think on this basis where it is not a not a success of twenty to fifty five not a disguise twenty to fifty five like i know the court has seen several of these so i think that when the sixty b is something that johnny smith and others injured in mr smith's situation could do if the judge improperly denies that twenty to fifty five for an improper reason and we can claims that is spewing out over here to this and then you argue well we've got to get to the propriety or not of the grand of the c e o way when underneath it all is a base level  grants etc etc you follow him santa many cases even presented to us that way in brief by the pro se by either side so it's like coming out at the end of the tone here's his opinion that goes all into all of these areas which were never briefed below never really presented to us and grief here and something about that pitcher just doesn't seem worthy of all that when counsel had presented to you follow him saying would write more on this issue of if the court wants i realize the importance of the issue especially in light of the concurrence of blacks versus davis and workings alice versus they are is out and this obviously is the court is very well aware is an intricate part of the law that's an excuse i wish we would have done something better and clearer for you but i did not come as one minute to no action you know critical in the sense is that one it's the reason why we granted all argument this as opposed to straight off is because but i mean i get your point on the ceiling and i think i think i'm going to alice taylor you can get to the merits because the see awake review jurisdiction here the case what i don't think you can really do on the merits is give mr smith the relief they're twenty to fifty five judgment for the errors that occur and let the district court look at this in the st light that's the usual course discourse as a court is not of course a court of st view if you wanted to go through and actually address and warm as we've stated as we stated below several of these cases several of these claims we do not think of knowledgeable for twenty to fifty five review we think they are procedurally defaulted we raise that in the district court below recognizing of course that even under procedural default mr smith would have the opportunity to show cause prejudice or actual innocence in light of the record though that cd or the factual basis the p s are the evidence of child pornography that's documented i don't think he's going to be able to make a showing of actual innocence but that's probably the best course to remand if you do that to the extent that to the extent that you find even the c e o way problematic for not specifying the constitutional claim which we think it does i apologize for this i am going outside our brief i would just say perhaps the court might be informed by an th circuit case of spencer versions united states seven hundred and seventy three f for the court and the th circuit a minder standing while saying it wouldn't be so lenient in the future for a defective c e o way because everybody had briefed the matter they supplemented the c e o way with a constitutional claim so that's one avenue for you i still think the better avenue would be to remand and send it back if you find the c e o way should not be vacated if you do find the c e o it was defective and should not be issued i think the answer is to vacate the c e o way and dismiss the appeal without prejudice to mr smith we don't believe there's enough in the record here to vacate the conviction vacate the sentence or suppress evidence it's just not there at the most we think the court could do is vacate the twenty to fifty five and remand to the district court again if the court wishes any supplemental briefing more than happy to do that other than that or are there any other questions and with that sit down thank you very much   i'm not contesting jurisdiction in fact the certificate of appeal ability grants this court jurisdiction to consider these issues i also believe this is an excellent opportunity for the court to exercise a supervisory jurisdiction to see the courts and then the circuit followed the rules laid down by this court and i should note that the certificate of appeal building was granted by