petition are tried to hire a new jury in court let me so i think i think to characterize that as limited to the right to counsel of choice is somewhat overly narrow  his procedural investigation into why he wanted to change attorneys but in any case so then the question comes down to well how twined are these two these two one if one takes takes the view that the state court claim was limited to a claim of ineffective assistance of counsel qualified or a plane was limited to a claim of denial of a right to ch standard set out in the lewisburg as to whether or not these two claims are so distinct that the california courts would not have been on notice or had a fair opportunity to address want to represent this person but i need a few more days we can really you know well like a vice presidential candidate there may please the court good morning i'm kevin vienna deputy attorney general for responding to kelly in this case in order to have exhausted in the state courts mr blank's was required to present the same federal theory and the same operative facts he wholly failed to present either the legal theory or the operative facts for a choice of either that my my counsel is not competent or something has happened to our son and the rubber breakdown has occurred in our relationship for a choice of counsel claim a day at the last minute if that even was made but for a choice of consequence the opera facts would have been he was new counsel he is able to retain new counsel because the right to choice of counsel to limited rights applies only to those who have the ability to retain counsel and that he has counsel who is willing to represent him none of those were developed in the state court in any way in any way no number of occasions and how defense counsel or telecoms are discouraged from developing all the issues in the in the oregon supreme court that does not apply in california which has a different rule california court rule twenty eight a which makes quite clear that a petition for review may appeal any decision by a court of appeal this also was different because mr black's claims in the in the california supreme court were also say though that on the merits of the facts of this case the issues are different from lounsbury lonsberry involves what turns out to be to what turned out to be described as two different points in the co the district court that is a procedural issue on whether the burden of proof was properly applied in a competency hearing and the substance of a claim of whether mr lounsbury was competent to stand trial the the ultimate outcome of whether he was substantively competent or not that's definitely not the case and in a circumstance like mr black's when when an indigent client like mr black's who had appointed counsel status hasn't changed that is he would have to demonstrate the ability to exercise choice of counsel and that's why the operative fact that some of you know his relatives his mother or father could pay for the  certain amount of time then it would have been a different there would have been a different inquiry by the court i think constitutional compel different any obligation is there a problem here i think it might have been a good idea bland and and unlike shelby white act maybe he wanted a new counsel maybe he could have gotten one that the evidentiary hearing the district court showed that he had made a little or no movement towards realizing that for two legal claim articulated and there were no operative facts described on which they could have made a ruling have a marzan hearing technically marzan is does not cover this exact situation but i but what the claim and the facts are so close that any california