good afternoon your honors and may please the court my name is katherine parrish and i'm here on behalf of mr leave halverson along with my co counsel mr david baron who is sitting there at cal table this is a case that was infected with error from beginning to end and everywhere in between the problems began with the indictment itself which failed to specify the statute under which the commonwealth ultimately sought sought however since conviction this resulted in  designing and presenting an entire defense around undermining an element that the commonwealth did not even need to prove in order to find however some guilty it's the error leaked into deliberations as jurors consulted bibles in the bible in the jury room as well as biblical scriptures and it's perhaps most prevail and unclear in the prosecutor's penalty fees closing argument in which a central theme was convincing the jury that how person would kill again now this type of argument this court has already found to be error even with the twenty to fifty four d barrier reversible error in another case and in that case th what was said was essentially that the jury was doing everything except signing a death warrant for another unnamed future victim what's different in this case is that the prosecutor gave that future victim a despite the fact that he had no criminal history at the time of the crime and that no jury found beyond a reasonable doubt that he was a principal actor in any murder for purposes of argument today my plan is initially to talk about the indictment due process claim and the associated ineffective assistance of counsel claim that are related to each other and from there my intent is to move on to the sentencing phase closing argument claim and then move on to other claims as time permits and as this court has questions first of all with regard to the due process claim in the associated ineffective assistance of counsel cleaning one of the following propositions must be true either the ineffective for not understanding the law with in this regard the work there's no reason why counsel might have thought yes that's within the scope of the indictment but it would still be useful to  yeah i come down to it so first of all your honor there isn't because this issue was not raised at the post conviction level there isn't a clear record as exactly as to what however since counsel's intent was we did request a hearing on this issue and we did not receive one  the evidence of his intent is in the trial record with regard to specifically in the closing argument in the i'm sorry in the portion of the trial where they were talking about the closing instructions and how ever since attorney very clearly says my understanding is that under six point one my client cannot be charged or convicted as an accomplice this issue this issue of ineffective assistance of counsel for not knowing that  the law was that you could be within the scope of the indictment without actually shooting something true like when was that first cruise was first raised in a motion to amend the petition which was filed four days after the martinez decision came down it was not a rich originally raised in the b s petition because it was not raised at the seacoast conviction level and at the time of the court did get at least a motion with respect to it how di court the district court ruled on the motion that it would not accept that amendment essentially what it said is it looks at both the question of whether related back and the timing of the motion that was filed and it's our position that denying that amendment was a disc abuse of discretion the ruling was essentially accepting that for purposes of that motion it related back to claims that had already been raise that had already been raised because the indictment issue had already been raised and it came from the same core of operative facts it relate back or did not really he assumed for purposes of his ruling that it did really back there was not a ton of analysis on the issue because i question why is each side are you about relating back because the the standard for an amendment in a civil case is is first of all the question of whether the sought after claims relate back t claims presented in the original petition and they need to or they can't they need to relate back in order for the an amendment to be permitted so the law is you first look to the question of whether the claims related back  secondly one to determine whether they relate back to court is to look at the timeliness issue and whether they were timely read phrases that they didn't relate back that would be untimely as if they didn't relate back the amendment would not be amendment was submitted only four days after the martinez case came down and if you look at this court's decision in the jones case which we cited in our briefing this court has remained at least  an amendment in light of a martinez decision and i believe that one what it was a much longer period of time it's and see there are two months or two years but in this case it was four it was filed four days after the martinez came down and that was dirtiness decision came down and that was the first the first opportunity for there to be cause for excusing the procedural default had the claim been raised in the original he was petition there it could have been considered a frivolous can't claim because there was no way for of there was no cause for excusing procedural default so our position on that issue is that particularly in light of the change in law and her martino's which i think all courts have acknowledged that in every circuit prior to martinez coleman was the law of the land and martinez was a little bit of a surprise i think for all of us and so particularly in light of that change in law that it would that too in light of that and in light of the timing of that amendment that in the first place  the ineffective assistance of counsel claim with regard to it it just simply was not brought up in post conviction why the post conviction lawyers didn't bring it up is not entirely clear  other claims that were brought up yes why why it wasn't brought up it's unclear we do have an affidavit in the record from the direct appeal counsel who are also the post conviction counsel who said it at the time of the filing of the original petition and they said essentially at least with regard to the direct appeal that they raised every claim they could think of and there weren't strategic reasons for eliminating claims based on that affidavit i think it's fair to kind of presume they took the same approach with regard to post conviction but there hasn't been any evidence presented as to this issue so we don't have a clear record with regard that  you know i get the other issue with regard to that so so with regard to the ineffective assistance of counsel issue i think this court's precedent in jones  establishes that an amendment is appropriate recently there was also the supreme court case and bach which we had submitted to the court at twenty a letter on his well where the supreme court even acknowledged the change in law that martinez caused and basically said you can't expect attorneys to have brought up this issue before because coleman was established in all circuits to be the law of the land and buckets well it was a longer time period when they raised it than the time period in this case in this case it was four days and that's that the district court which way that cuts have become down in four days it sounds like between thirty seconds and five and four days to some extent i think four days was sufficient time to ask for years it is these are lawyers on the case who are watching these cases very quickly and know that you know this is going to be an issue  and your honor but i think one of the issues in the timing as well was the issue of prejudice when looking at timing the law says let's look at prejudice to the other side at this point there had been a hearing there hadn't been factual development of issues and it was still some time after that that the court made its decision on the underlying case and there wasn't any real prejudice  to the other side as as a result of that delay and a lot of delay in this case yes there has your honor there was plenty of delay in the state post conviction process as well certainly all of hat's true your honor although twenty five or thirty years it has been a significant amount of time as the condition since the conviction however with regard to the timing i think the law is with regard to the timing that you're looking at the prejudice to the other side and that's part of why we feel it was an abuse of discretion and i think that's also supported by the precedent in this court and jones as  as some other cases that we cited too from other circuits which have made similar decisions as well as the supreme court's decision and bach as well i want to i want to just talk briefly about the sentencing phase closing argument as well because and this is a case one of the cases and one of the things that they said in bait and bait to it was the same position we're in here where there was a twenty to fifty four barrier that didn't need to be overcome and this court found in that case that had it been been kong one of the things that this court said in beats in emphasizing why these comments the closing comments were such a problem  commented that that the prosecuting attorney had structured the entire closing argument around the idea that it was an inescapable fact that that person would kill again we see that in the closing argument in this case as well and a ctually some of the cases cited by the commonwealth i think actually support what we're saying in hicks versus comment collins where they did not find or where this court i should say actually did not find the comments to be egregious enough to merit a reversal one of the things they said is well this wasn't really an improper attempt to compare or associate this defendant with the feared and highly publicized group that for that language in hex would say said wasn't going on and hicks is exactly what was going on in this case the entire first part of the closing argument was talking generally about killers and murderers and and what these killers and murderers do and you can't expect these killers and murderers not to kill again and the prosecutor specifically cited these names these names of charles manson and all of these other notorious killers and used those names and placed mr howe person and mr willoughby in the context of these of these particular notorious killers and was essentially arguing this is what killers do  the argument itself was not based or rhetorical flourish these are the kinds of look at these people you're familiar with they can still kill because they're alive but obviously if some is not alive you can continue to kill well for instance you know and it makes it colorful and maybe that's bad but it's a little bit of an exaggeration to say that he was comparing them to those people well we're going to say that they were alive as opposed  specifically to the evidence of this case so that deference apply to this issue yes this is something we're evaluating where i can see what you're saying about you know sort of when some color it's not just a rhetorical flourish it's using names of people who are reprehensible right but the state court said that it didn't see that they really were used that way or had that effect yes and then we got to say was that decision reasonable or right and i think there are three issues with that first of all the state court in determining that it was reasonable was not looking was reasonable i'm sorry yes in  court in determining that these comments were ok essentially first of all looked at the guilt phase basically saying there was a ton of evidence against these guys so these comments were probably not prejudicial and that commentary about the evidence of they were not prejudicial or do they say they were within the range of what was ok to do well they they said they were generally a fair commentary on the evidence which used because they looked at them as a rhetorical flourish rather than is a direct comparison we might look at them differently than we would while there are two things i think it was in  the what i said previously that it was really looking only looking at the context of the guilt phase and the effect on guilt phase not on the effect of sentencing but secondly we think it's a service for for the prejudicial sure right and th a question about whether it was reasonable to say that it was ok to do this right so it's our interpretation is that it's also the comments themselves and the analysis with regard to those comments are also an unreasonable application of the facts because the vast majority of this was not a commentary on the evidence in this case and that's exactly what the state court said that it was a fair commentary on the evidence of the case but there is a big bulk of time when looking at these comments in the context of the overall closing argument where there is no discussion whatsoever of the facts of the case again he's talking think the extent to which that's allowable is debatable under the law and depends somewhat on the context of those of those comments so when talking about deterrence arguments for example  sometimes the court has ruled well these these send a message to the can unity arguments are ok if they're based on the evidence and talking generally about capital punishment but in this case so for example and those are some of the cases cited for me i want to understand your human you're saying it's ok if they're talking generally or if it's related to the evidence of both but those seem to be two t conflicting issues yeah i see what you're saying so your honor i think the issue is here the future dangerousness argument partly it was not based on the evidence comments that are giving general background on capital punishment there have been some rulings that those comments can be deemed as proper but in this case we're talking about when you look at the volume and the quality of those arguments what the prosecutor was essentially arguing is this guy is a convicted murderer and therefore he should be executed which the law actually requires a much more  detailed and and thorough analysis of whether a person should be executed there is very clearly established law that the decision of death requires an analysis of much more  k yes the factors are within the jury instructions there was no specific but if you look for example at the golf case where they found that the comments were improper but there wasn't prejudice were definitely you're talking about closing argument yes closing argument ok yes so in the goft case there was also an additional instruction limiting instruction given to the jury saying prosecutors argument  evidence you got to just look at the law such a limiting instruction with regard to the argument was not given in this case and so while there are there were jury instructions given in terms of what the what they could evaluate the jury instructions were also fairly broad and said essentially you know you have to look at aggravating and mitigating factors if just because you find these mitigating factors doesn't mean that you can't impose death if you still think this aggravator is there and death is still appropriate so there was no instruction to the jury that would have counteracted the effect of these very inflammatory prosecutorial conduct comments specifically and the other thing i actually should comment on that and just specifically and again i've already pointed out pointing to a specific person in the courtroom who the jury had spent time with and saying this person's life is at risk the other thing your honor you asked about texas and they say people the people whose lives are potentially at risk when we're talking in general or for instance the people who  scored them stuff like like mr simlins right like mr different from saying he's at risk from this person i think in the context of the overall arguments it's it does sound like the prosecutor is saying he is at  rest and the prosecutor did specifically ask are you willing to when the risk judge rogers you had asked previously about the twenty two fifty four d barrier there is one aspect of this argument that is not subject to twenty to fifty four d and that is the issue of the commentary on mr however since constitutional rights that issue was not brought up in state court and so are are it is an issue of whether that default is excused by ineffective assistance of appellate counsel for failure to bring that argument up and i think those comments themselves on how persons constitutional rights that is pretty well established in supreme court law if you look at griffin versus california  caldwell with respect that that's one of the weaker arguments that what he said was improper i think it's just sort of again this sort of like well what they did that we're talking about whether to punish this person who never gave his victims any constitutional rights a little bit different from saying the defendant is a sleaze because we're giving him constitutional rights or because he's demanding his constitutional right there were multiple really it's very different well and there were multiple comments and i'm not sure if in our briefing we put the totality of the argument before that in there but there were multiple comments throughout the closing argument commenting on that however since rights and and that question was asked right after a whole diatribe about the rights that however some had had exercised and previously in the closing argument as well the the prosecutor had commented specifically on at a different place in the closing argument about he was talking about duty which is another issue but he was talking specifically about how the police had done their duty and been very respectful of how person's rights so there was a big portion of the closing argument talking about how persons exercise of his rights and the how we've seen that happen in the comment came directly after that good afternoon may please the court mr barron in this parish with respect to the indictment in the lack of notice given to mr adversary and his defense attorney as noted it was procedur defaulted therefore if you look at their excuse for that default the ineffective assistance of the public counsel federal law and state law at that time was very clear that if you are indicted as a principal you can be instructed but the jury can be instructed that you are an accomplice and in this case that's exactly what happened all three defendants were indicted as principals and after the evidence the jury was instructed that mr howard stern could be found guilty as an accomplice not only in the murder of joe norman but also with respect to jacqueline greene and joey durham as you're posing counsel argues if you accept that  looks like counsel was ineffective seeming to ignore that well that is their argument that is their argument and i respectfully disagree as i stated in my brief i think there's a difference between a legal argument and an actual misunderstanding quite often i want to make the legal argument why would they make the argument that he wasn't a shooter if it didn't make any difference for the same reason you said earlier if it benefits this case if it comes to exactly it comes into into waves first it narrows the criminal liability he could face with respect to the intentional murder count and that he was a principal and there wouldn't be an accomplice instruction so it limits his criminal liability value so the encompass instruction is contained within the general instruction about intent to commit the murder that's what everybody supposedly knew well no no the i mean the argument they make ill and he killed by the argument that he makes is that the way the indictment is written you've got  an intentional murder indictment with the intentional murder statute if there's no statute there's no mention of accomplice liability and there's no citation to the accomplice liability statute he cites the rule of criminal procedure and says well based on that you know he hasn't had fair notice of this he shouldn't be held liable for accomplice liability the state of the law at the time is that's not correct and the when you look of the more difficult argument you need to accept i mean we except within the context of trying to determine the state of the law in one nine hundred eighty three which i will readily admit ten years old i didn't know the state of the law and trying to go back and piece all this together the intent of the prosecutor which i know they deem irrelevant but mike malone who was the assistant prosecutor who actually argued this issue with the judge stated what we've we've indicted in this way on purpose this this was by design so that he is eligible for accomplice liability but if for some reason the judge buys his the fence attorney who's michael maloney which is really confusing but if they accept that argument well then now there's a piece of intentional murder this accomplice liability component that's gone and then i can take my argument about lack of evidence with regard to  being a shooter and i can completely undermined susan hutchens who's the star witness for the commonwealth she's the one who value of it is just to destroy the the credibility of abilities in which is a huge component of that she's the one we have to have testimony in order to see that that's what his theory was because on the surface it has some plausibility crime no i just seems like if you don't need to show that he shot and you spend the whole time saying that he you could get him and ask him what were you thinking i would have well i just didn't understand the law that would be different from your explanation that you're supplying for him now sure and i guess in my mind i would equa sufficiency arguments that every attorney makes a directed verdict arguments because they feel like if they don't they're going to be found ineffective but nine times out of ten watching those arguments as an appellate attorney they're going through the motions because ground seven in ground fourteen of their argument are ineffective assistance of counsel claims where they have taken the same issues that were were labeled frivolous and actually argued and level of trial counsel and let those arguments were not made by collateral attack counsel yes or and so will a brown seven in ground fourteen of their petition and i raise that when they first filed their their petition and i raised it again when they filed their motion to amend and that's part of the reason the most argument with respect to the timeliness was the even though it didn't have supreme court precedent to support that kind of ineffective assistance of counsel they made similar arguments anyway so they could have made them with respect to this exactly and the timing as you said it cuts both ways it suggests perhaps they were sitting on them for some reason and i don't know that for a fact i don't want to definitely don't want to suggest that but but they were able to very quickly raise eleven claims at the very least if they had raised them earlier they would loss woodenly well not necessarily because martinez did the same thing and that's part of the reason the judge denied it because of been the martinez case that goes to exactly that's exactly right because martinez and that was part of the reason the judge denied it because he said the difference between our sin and martina's martinez raise these claims in his petition and he gets all the way to the supreme court and now we have the martinez rule so for that reason yes i do not feel like it's their strongest argument because procedurally it's it's a mess quite frankly that having raised it not knowing whether the law would change they would have at least preserved it to the order from judge bunning with regard to prejudice to the commonwealth as well as the timing issue the fact that they didn't raise them previously and they did raise other similar claims in the in their petition what if we happen to disagree with you on that what's the proper thing for us i would say on the on the timeliness of it what if misguided from your perspective we say it was timely because five days earlier would have been frivolous i would suggest that at worst case scenario it has to be reminded for that issue in us can you best case scenario for me it i would argue did it within a few and i says a lawyer to us to do in that situation it would be futile to do so because of the reasons i stated earlier with regard to the fact that making a legal argument that doesn't i guess so again not knowing the full power of this court to deal with an issue like this where it's been i would sort of my i guess legal position would be something to the effect of the equivalent of a cert merits that it didn't need to be a part of the appeal now again like i said i would i would still argue that the way you could still argue it is to say that it was probably the motion to amend was probably denied as futile rather than as right  and they well that's that when the argument but to make a pretty strong futility argument to for us to affirm that denial of the motion to amend on the ground right and i feel like i do i mean if you look at the futility argument they're making the argument claim five is the same argument that senator maloney made so if it's if it's not futile you're talking about them bringing this exact same argument now  argument that senator maloney made to the trial court that wasn't appealed is with regard to this accomplice liability thing they're raising this accomplice liability question now so but that's the that's the first part of the argument i thought the second part of the argument that wasn't raised below was to assume the center maloney and the core were on board they understand what kentucky law is and that is that you can convict someone of murder even though the evidence that you show and that the jury buys just shows doesn't show that he actually shot  don't hate that his whole defense was based on them on a misunderstanding or misapplication of that understanding that you could get executed as a  argument itself that's why because they just can't win right what is it that makes it that they just can't land can't be a martinez argument it's got to be a merits argument as to why they can't i guess you'd have to say well there's there's i don't know i that somehow if we can the or what is the value of arguing that if it doesn't make a difference i guess is what i'm asking what is the value of value of arguing that he didn't shoot him that he wasn't the trigger finger if you can just as easily be convicted if you didn't if you weren't the trigger for it because it because it muddies the waters muddies the water it could have this you have this person who i mean susan hutchens she bought the ammunition she was on the scene she's the only person who walks out of that house that doesn't have a gun who comes out alive she picks up the sh takes the property off the victim she helps clean the house she helps clean the van she cleans their clothes she does a ton of things to assist in this crime to defend the defendant's attorneys both willoughby's and how insinuated in their closing arguments that she had more of a role in this than then she let on she got a role as he got a tip saying this was a defense that was based on simply on not shooting you're saying the fact that the emphasize not shooting is just sort of part and parcel of the idea that he was a minor figure in what was going on maybe didn't even want to go on is that the idea correct of the brum from the evidence it would seem to be easier to conclude the evidence showed the evidence showed that she carried a thirty eight pistol thirty eight was the other well because it suggests that maybe she was involved somehow because mitchell will be says i shot everybody susan hudson says no  i remember hearing shots in closing my eyes and when i opened them they both had guns that mr maloney tried to demonstrate to the jury that he wasn't the shooter yes his job is to poke holes in the commonwealth case and create a reasonable doubt and he had didn't have a lot to work with he had a very unsympathetic defendant he had bad fac he had a situation where the best way to do that is to just assassinate the credibility of the commonwealth's main witness and he did that intoxication was the main defense this was not the only defense presented but to the extent he had a job to do why not take why not take that chance what's the harm in it other than just muddying the waters which i can understand but if it wasn't just motoring waters but shot i'm suggesting that by muddying those waters it creates enough doubt in the jury that maybe they don't want to go all the way to intentional murder maybe they want to go with manslaughter only focusing on the guilt phase wouldn't it also make sense if you anticipate that you might actually lose that you're going to curry some favor with the jury in the mitigate phase if in fact you're not the shooter yes absolutely well and and not necessarily because that i guess that cuts both ways as well but but it it definitely lets the jury know that there's not a whole lot of evidence here against how personal his main focus in mitigation was duress that he was be and for that reason he he participated in this and he testified to that but again because of what was available in the guilt phase i don't feel like it was in the reasonable choice on his part to make this argument and see where it goes because again there wasn't a whole lot else to go with here and you know even even the the commonwealth's attorney when they make their closing argument the guilt phase mike malone says you know you don't have to like susan hutchens to believe or i don't even like her so you know this isn't somebody they're holding as you know the the best person in their community you know they're doing the best they can with the evidence they got but there's a very good reason to knowing that that's the way the commonwealth even feels about this woman to go after her and attempt to create some sort of doubt that might get you less then an intentional murder conviction short it's less likely that they intended if he didn't actually shoot yeah yeah we're at least there's not enough evidence to make it clear because everybody different things mitchell will be claims he shot everybody then when he gets on the stand he says no i shot one person and then i blacked out i don't remember what happened after that so by the time the guilt phase is over susan  disagree with their characterization of the argument itself if you look at the entire argument as a whole the majority of it is spent talking about the mitigation evidence that they've presented and arguing in favor of the death penalty as you said earlier judge rogers the value of the death penalty they they speak about deterrence and future dangerousness i cite a case on my brief where that's perfectly acceptable to do with reference to the famous murderers from other states when you look at it in context it's clear the able to potentially kill again because they weren't given the death sentence so he's not comparing what these guys did to what those other people did and as i stated in  brief as well that also doesn't particularly help his case because these are famous serial killers and these guys aren't they they did kill three people but they did it through the through the context of one particular incident so if you see it in context there's no comparison being made and then on the flipside when you're analyzing overall fairness jodrell he was mitchell willoughby's attorney he gets up and specifically names four or five different serial killers and does compare them and says hey these guys didn't do anything as bad as these other guys did and they don't have the death penalty so don't give our guy the death penalty and in the context of don't make a right now and i'm not saying they do but if you're going to look at the trial in the the the analysis is looking at the overall fairness or church trying to determine whether this the kentucky supreme court unreasonably applied darden versus wainwright and which looks at overall fairness you to wrong certainly don't make a right i'm not suggesting that but i am saying that you know in the context of what they're alleging the commonwealth did which i don't feel like they did you know their g mean they you know both of their closing arguments they they literally mean they sound like sermons it be hard to imagine those types of arguments being as common today but again you know we're talking about thirty five years ago when larry roberts was the commonwealth attorney correct correct so i don't feel like the the supreme court unreasonably applied federal law and then with with the the comments with regard to the victims constitutional rights if you read the entire argument and you look at that terminology that's used in context it is mr roberts making an argument against showing these particular gentlemen mercy and maybe using that example wasn't the best example but it wasn't done in a way that that i feel like would've  made those comments as the things supreme court said they were brief and probably irrelevant but not necessarily improper and in any event if viewed in the light of the entire argument certainly wouldn't rise to the level of prosecutorial misconduct and he was simply trying to tell the jury don't you know these guys are getting ready to get up and tell you to be merciful and don't show these guys mercy they didn't show their victims we're looking for constitutional error right right were doing that with regard to the germ misconduct issue which i know was brought up in my opponent's opening but not really discussed or put more or less there isn't anything that would suggest that this jury used the bible confusion over the law we cited in our brief versus alabama i think there was a two thousand and fourteen case from the u s supreme court that i think is the lead case on this issue right now and the facts of that case is that there was confusion of the law in fact what happened is the judge in that case had misstated what the law was and the defense attorney didn't do the research and correct it so i think looking at that case this distinction between a mistake of law that might be reasonable and a mistake of law that may or may not be reasonable i think that case makes it pretty clear that that distinction isn't really real an attorney has the responsibility to compute yet two things with regard to that i think if this court finds the judge was wrong about the law we went on the first claim on the due process issue mr maloney did not happen this so the second thing i would say in terms of whether there was any kind of strategic reason that mr maloney would have tried to capitalize on that confusion and there was that that was the second point i was going to make here there's been a lot of discussions of strategic reasons that mr maloney would it may or may not have had in that discussion the commonwealth is asking this court to a school i've to mr maloney reasons that there's no evidence in the record of at this point we need a hearing on this we requested a hearing on this and in order for those concerns about whether there was a strategic reason for this a reasonable strategic reason for this to be resolved there needs to be a hearing on this and i believe he is i talked to him about a year ago i think we actually looked it up before coming out here today but my understanding is he is he is still around and i believe a hearing would be possible so there does need to be a hearing on that if the question is whether there was a reasonable strategic reason for this there needs to be a hearing on that the other thing with regard to the jones case that i wanted to point out in terms of timing and prejudice issue because the district court ruling was based on timing and that timing consideration under the law is based on prejudice to the other side in the jones case in which this court found a remained for an amendment to consider for a full consideration of the issues being raised pursuant to martinez that was filed two and a half years later it was the case was already in the court of appeals so certainly any prejudice would have been greater in that case that in this case where the case was already the court of appeals and and was necessary mr craig well also discussed grounds seven and grounds fourteen as arguments where we did bring ineffective assistance of counsel claims that hadn't been brought by the way you mentioned the case is already in the court of appeals or team is already was quite poor along in its appellate journey to work on it when it was first raised or by the time it was ruth it had been decided i believe it had been your honor i'm i don't know off the top of my head but i did by the supreme court and yet later oh yes so it didn't just pop up honor he had mentions ground seven and fourteen as as claims that we did raise even though there were procedural default issues argument as to those claims was that there was no default the district court actually found as to ground seven there was no default and as to ground fourteen the court found that there was a partial default but not a faulty fault and considered that as to some of those so those were not frivolous the faults that there was a dispute yes were those defaults in the collateral level or in the the collateral they were in the i believe they were as i took your reply brief to be saying that all of the examples that he came up with were in pellet level rather than the trial collateral thing now at least with those two they were a trial collateral your honor it's absolutely possible i'm wrong on that i think yeah i wasn't up on the case at that level so i'm i'm not a as for a million with the issues that i wasn't a part of but i think the briefing and things will reflect that  and i see that your time counsel the court thank you very much for taking the case under the criminal justice act i think you did a very nice job thank you judge and your matter we will take it under