in failing to investigate and present mitigating evidence at sentencing the district court concluded that these claims were procedurally barred because mr scott had not raised them and they proceed to leave proper rule provided because the rule had in fact been amended for years previous to when mr scott tried to amend his petition and the rules used to say in one thousand nine hundred two in earlier that a petitioner could amend this petition prior to the entry respect to the probability of a different result well your honor i i do not see in mr stance a difference with what the standard be for showing good cause but it's important to note that the state court judge in grounds for him having found that the underlying purpose of rule thirty two requires the denial of the motion of a kid i would disagree that is not the strong this court's position that what this court is charged with doing is making sure that the state court clearly and explicitly invoked a state procedural bar this court is not in a position to go back and say well had we been  state court judge we may well have found no good cause that is not what this court's role is now it was the state's obligation to your position is that the procedural bar is an affirmative defense it is it affirmative defense and in fact your honor i would point out that in their answer to mr scott's federal hideous petition even the state could not identify a state procedural rule upon which the state court rely they drop in a footnote saying by the way these claims are barred because the state court precluded mr scott from amending his petition but they don't identify a particular rule and the fact of the matter is is that there is no rule in one thousand nine hundred six under rule thirty two point six  mr scott who would have amended his petition has he shown could cost judge kohl never made a finding on good cause because he didn't believe he could do it at that stage in the proceedings in fact he highlighted in his order that he could only do so before granted time in which for to file well the judge granted her thirty days in which to take whatever action she thought was appropriate and then she filed that and he denied it based on the fact that he had no authority to argue that the granting of the thought for now even if i said there is no rule that would have precluded the judge from doing what mr scott was requesting that he do so that should end this court's analysis with regard to whether there was a procedural bar to the claims that mr scott raised with regard to and there's no procedural bar what remedy do you seek our remedy would be to have the case remanded to the district court for us to be permitted to brief on the merits those claims that were properly raised in state court and raised in federal he's petition that would be our that would be our remedy on that claim and the this report would determine whether it's a assistance of counsel and determine whether those claims passed muster under twenty two fifty four d well in that situation there would be no requirement that we satisfy twenty to fifty forty because the state court never ruled on the merits of our claim so the district court could review those claims you know i would also point out we did identify three claims in our brief there is an additional claim when mr scott alleged in the post conviction petition that was filed in this case that his counsel had been ineffective with regard to the present presentation of evidence regarding the victim's father's request for leniency that claim was phrased in the in the language of ineffective issue but based on our review of the the attempted amended petition in the state court and the petition that was filed by first lady's counsel those would be the only claims that would be properly exhausted and could be reviewed disagree your honor because there really isn't a matter of interpretation there is no interpretation involved with regard to what will thirty to sixty d sense and it's clear that there was a change in the law so the next step would be even if you felt that you were confined by that there is no consistent application of that role because in arizona in fact the legislature via the arizona supreme court changed the rule in one thousand nine hundred two so there's not never been a consistent rule with regard to the issue here procedural bar under federal habeas corpus procedures lead was a trump ok but there was no explicit order in this case it's that clear there was no explicit order and even if there weren't explicit order point six d that said no you must review every claim raised and they use the words lurking behind those claims you must do a complete review so the judge was just wrong but more important even if the court felt confined by that and i suggest that the the record is pretty clear the record is also clear that even if that were a and acceptable state rule it is not regularly in vote especially in capital cases in arizona and we provided the court with two examples in which the in get in capital cases the state court had allowed amendments to occur after after entry of the final judgment and in fact more than just a simple amendment those cases sent back for an entirely new post conviction  case now we've we've raised another issue in this case which made obviously seem very far reaching and we have asserted that mr scott had a general right to the effective assistance of counsel and his post conviction proceeding for alleging claims that in effect of assistance of counsel a trial and direct appeal that would require reading bombing very narrow process right and that is a right that has been recognized by the united states supreme court for at least twenty years since and it's the lucy because in arizona a post conviction proceeding is the first of he'll as of right case from her imagine that because we are not asking this court to recognize a new rule of constitutional procedure we are simply asking this court to recognize that in arizona post conviction proceedings are the first ri fairness and so our argument is it is fundamentally unfair to make mr scott go into state post conviction especially with a lawyer he had in this case his only opportunity to alleged post conviction of counsel  an equally i think valuable role to mr scott which is that after he sent that letter and there were a series i believe the first sent more than money he sent five yes yes yes but that mr bassett was no longer acting a mr scott's counsel and the state has not scuse me the state court had an obligation to respond to mr scott's concerns this went on for almost a year and nothing was done so there didn't respond so they acted as if you continued to represent him but your your point is he didn't have competent counsel and the record shows that he didn't want competent counsel he wanted to represent himself i disagree with that interpretation of the record what he said was in fact he finally wrote a letter saying i would rather die than have this man represent me so he wasn't eager to represent himself on post conviction he had a counsel who would not like i said was don't i don't want to be forced to keep this this  an ongoing for almost a year colloquy between our client and i want to get you off on the fence that's all i'm suggesting is we can't ignore the record as we review your argument that he had ineffective counsel in the record shows that he didn't be that the ineffectiveness that we are most concerned about occurred before mr scott wrote his first letter that was when mr bassett filed a one claim three page post conviction proceeding post post conviction petition so the ineffectiveness had already occurred by that point would be our would be our argument i would also please you if you were going to tell me how to read as well as opinion oh yes your honor performance violated his sixth amendment rights he's saying it's fundamentally unfair under due process to force me to have this man is my counsel so that is that is the that is the distinction here between one another the other  cannot amend your petition and this is really no different than than a ruling that there is an exception to this rule for good cause the that doesn't mean that it doesn't it's not a procedural bar if they find that the exception does not apply in this case it would be like arguing in a rule thirty two petition that you have newly discover i'm talking now i'm suggesting a successive rule thirty two petition where official comes in and says i have newly discovered evidence so i have an exception to the rule of preclusion and the court looks at it and says that's not newly discovered evidence therefore says i have no authority to grant and you of the forms of relief request it's not just you're right judge cold does not specifically address that good cause but the same claim was raised in the arizona supreme court and the same y dismissed the petition or grant leave to file an amended petition the rule was amended and it's under the new version it's clear that that's not that's not the procedure it's the court now looks at it and says are there claims that are precluded that we can identify upfront if so we're going to summarily dismiss them if not we're going to go to a hearing if there are no colorable claims we dismissed the petition there's now no longer a provision or you can  order to amend the petition the this was enacted after after some victims rights legislation subsection a and subsection be restricted the prosecutors and the defense attorneys ability to to obtain extensions of time it says now you can only get an extension of time for extraordinary in extraordinary circumstances i think when you read rule thirty two point six in its entirety the new version it's clear that it was an attempt to speed up the process to reduce delay in the rule thirty two process and it would be a logical to conclude that speeding up the process would be accomplished by by now granting more on this is an argument that has been raised for the first time in this court this was never raised in the district court and it was certainly never presented to the state court and the decision came out three days after the petition for review w of next thing i want to hear from you as an answer of my question if you don't want to answer then you can go on to something else and i'll just simply say there was no west of the state but you're just to just answer the question not tell me why it's misunderstanding what i would suggest is that this is a different type of rule of rule thirty two point six says that there's an exception for a good cause so the fact that a court may reach a different conclusion in a different cas his ruling you read it differently well i did read it that way although he also says in the entire framework of a rule thirty two that's me suggest that he's looking at what you're really trying to do is file a successive attrition and that's that's barred under under rule thirty two point that in other cases because that's why we have the writ so and we did we would review and we would say now you can't do it that way but what i wish you do and i know the time is running down what what do you see is the i i'm not sure if you have questions on that i'm happy to address that i think that's that's pretty clear that that that claim is not viable there is under both in pain testimony  at one eighty three arizona and that's that misstates the holding of williams in williams the defendant attempted to put on evidence from one of the last arriving victims that she did being is this a question of state law and if the arizona supreme court if the trial court and the arizona supreme court rejected a claim on the basis of a procedural rule like i don't think there's any question that the that neither the trial court nor the arizona supreme court addressed the merits of these other claims they denied it based on a state procedural rule and so for me i think the bigger issue is simply this is this is fate lies too that can be revisited and i think when you have when it's a rule that provides an exception for good cause i think it's very difficult to say that this rule is not regularly applied this is that's where i was trying to go with this this and usually suggesting that we have the same rule of preclusion as it you do not meet that exception then it's a procedural rule that precludes review in federal court and from my perspective that's that's the same principle that should apply here with rule thirty two point six it's a procedural rule that should apply unless the exception is really what he's attempting to do is to file a it's excessive attention especially when you look at rule thirty two in its entirety what he's trying to do is inconsistent with that and again i would go back to the at the change where the defendant was abandoned at trial or didn't have didn't have the assistance of expert mental health experts if you read through the mental health expert reports from dr take your own doctor don much i agree with that but what i'm suggesting is these doctors were not limited in their review to simply assessing whether he was competent to stand trial they were asked to to look into his mental status time of the offense and they went through a very detailed analysis of that and when you couple that with with mr scott's repeated attempts to deny involvement in the crime that was argued this relatively limited involvement in the crime in the first with the first attorney there was an attempt to keep some of the pre sentence report out because there was harmful and there was damaging information and it for example during his interviews with the mental health experts they asked him why why would you be blamed for this and they said well they're there suggesting that i had some sort of homo sexual relationship or interest an inspires and that's not true i'm not i'm not how most actual and there is and then the pre sentence report contains evidence that he was arrested and convicted of misdemeanor convict conviction for indecent exposure based on sexual conduct with another man and ended up an adult bookstore and i think it was it was reasonable for the the trial lawyer not to want to go down that road and that's why i think he didn't one no i think i can disagree with that and it's been based in at least in part on we don't make that analysis because there is no right to effective assistance without having without raising that claim it's difficult to know exactly what what the attorney would thinking in terms of what should i raise what should i not raise and congress that that we don't we don't go down that road under twenty three fifty four i in fact assistance oppose conviction counsel can be the basis for to and i think that happened in this case and it's important to take a step back as well and note the type of procedures that we have in place for the appointment of competent counsel that at the trial stage that mental health experts are appointed  be one of the victims if he hadn't gone out of town they want to kill him then the son was is that with the record i think there is some testimony to that effect but the question in terms of you we know what the trial court would have because he knew our client had brain atrophy because our client told him and there was evidence easily found that would have just demonstrated that the issue is never been resolved by the court and the reason it wasn't being resolved by the court was because there was a finding that would be what we would recommend is the very least i understand you're honest concern although if this court for example were to find that a direct appeal can counsel was in effect on the record the issue would be then to the court