gordon representing the strips and the petitioner in the talent here i'd like to reserve no more than a minute we have a threshold issue here which was brought to the attention of coun in the immediate aftermath of runs twelve versus the when this court issued an order the day after asking counsel and directing counsel to be prepared to address following issues whether the district court lacked personal the same motion similar ruling was made in fields another the cases cited by the court also in footnote one so i think that if we can resolve that way in the event however th yes i am i'm so sorry it was raised immediately in the government's first answer here it was never even mentioned at all by the government and it is not subject matter jurisdiction such as we all learn in our  so i don't think it does because of the rights and then by curing and also because this is a person as an employee of the state of idaho who was really the prosecution was done in the name of the state of  waiver by the government should clearly be included among one of those exceptions when there is no other countervailing issues or equities here as there is not here there isn't a venue complication  one of its rationales on the lot of all purpose of quote preventing rampant forum shopping violet's of prison inmates that was an important consideration of the patea court it doesn't at all apply here because what we have i so i feel that it's important because of the interplay of the two considerations proper respondent and venue therefore i would ask that you in the and alternatively if you ultimately decide the need in these arguments is availing to do as was done in the stanley case this mess with leave them and in the district court to allow the naming of the proper party turning now  quote so long as the defendant is represented by counsel those performance is not constitutionally in effect and under strickland there's no inequity in requiring him to bear the risk of our allowing error that results in a procedural fault but here however this is a matter that the state has chosen to take on a larger risk they have by defining a greater right taking on a greater risk issue was the failure to speak in a timely manner and discretionary appeal namely a petition for review to the state supreme court after a decision of the intermediate appellate court the underlying representation as carrier says explicitly i think that you can fashion a ruling showed that says where space voluntarily takes on a larger burden the risk allocation should change and the incompetency of  within the meaning of the strict on standards as defined by that and applied by the state should create a situation where the rest falls on the state  to a lot of cases beginning with douglas versus california in one thousand nine hundred fifty three first appeared the issue there and was whether it would be counsel on one appeal or not at all and the united states supreme court said you do have a right to counsel intervention of a federal haber's course court has taken on that burden i think that poses an altogether different situation and we're not asking you to find constitutional grounds to force either hoda do something that i was talking about incompetence of counsel for in the context of collateral proceedings there was no counsel and the appropriate findings as required by our state supreme court as to whether or not there should be counsel were police court on the jurisdictional issue the state would object the motion to the to a man and being made of oral argument at this time i recognized as precedent for that but really it's all a matter of it doesn't matter because the state and mr gordon is right i believe that this is a question of personal jurisdiction we've never challenged the the issue of naming the proper respondent and at any time therefore based on the precedents that we cited a number of them in our supplemental authorities the issue i do believe is waived particularly under the issue of personal jurisdiction and naming of the proper respondent and quite frankly your honour's the reason that i have to object to the naming of the respondent is because i don't know if that's right or wrong the time to make those arguments is before the district court i don't know if that's the right the person that has custody or not and again i recognize this ninth circuit precedent directly on point but i  i just don't know how you can come into an appellate court name a respondent and not give someone an opportunity to to challenge that not knowing for the first time i want to go right to the issue of cause and before you get ye rule twelve you have to assert it it's a question of personal jurisdiction i believe that it's pretty clear from the law that the facts true it's not subject matter jurisdiction i mean the issue of cost and and ineffective assistance of coun we need to distinguish a number of claims that are were made in the appellate spiration and for that matter by the district court if you read the district court's opinion particularly in regards to the first claim that was which he claims went into effect in january of two thousand and one that also excuse at that time they had to be typewritten and we know that he didn't comply with that particular rule so the notion that somehow cause exist smith and that is why it's so important in this case to distinguish between the procedural part of what happened before the trial court is really totally and completely irrelevant as far as the procedural bar that's in place in this case the procedural statutory right to counsel and that statutory right to counsel must be effective under strickland is an entirely different issue and there simply is no case law anywhere in the country that that type of assistance of coun discretionary in post conviction cases i recognize what the article supreme court said in the in the hernandez case but under eight fifty two yes counsel has to be appointed in in post conviction cases  unless it's determined that the issues being raised are frivolous and of course and we don't know in this particular case that that finding was never made by any court because of smith's failure to comply with and under that statute or that there was a top hat but none of those cases discussed the appointment of counsel on appeal post conviction appeal which is an entirely separate issue then post conviction counsel before the trial court in fact it is pretty much the norm that counsel or not appointed on appeal in post conviction cases because of because hernandez the idaho trial court respond in the time given of twenty days mr smith has been refused copies also we hope the court understands and can read this for he had to hurry and as they did before medical reason and no legal help mr smith was having difficulties plea from a person with no resources requires that the least that the state short court should make a finding that there is no genuine issue before denying him counsel by the time