simms appellate counsel had lost track of him while he was in the prison system and wasn't spending his mail to him instead mr simms filed a personal spiritual restraint petition which i think he almost immediately realized was probably not the right thing to file because he did make an attempt right away to withdraw that and refile a second personal restraint petition that would have been blank i think in hopes of being able to preserve his issues down the road he made restraint petition he had raised the issues that he wanted to raise and i think he was in a situation where he was in prison and being shuffled around because he was starting his prison sentence and didn't have access to a library and other things petition and that the law has subsequently changed after russell armstrong if you could get behind vanderburgh and you could get by the washington rule sixteen point four and some kind of substantial compliance because he's definitely in which there were other witnesses that testified to the behavior and yet found him guilty of the charge in which there were no other witnesses and it goes back to the credibility of the victim in the case now there and i presented this in the there was substantial information that was discovered basically some of it was discovered immediately post trial by a letter by a woman named faith hudson and that woman alleged that she had been threatened  and to by the victim in the case that if she came forward and testified about false allegations that she would come to some kind of harm there was also a witness that had been subpoenaed by the defense a person by the name of justin johnston that person would have testified that if you was present during a conversation that took place with the victim about false allegations that she was making that person did not show up to court and yet where the only witness against mr sanders was this woman and that was to go i think it credibility issues with regards to this one certainly the court did find did find him not guilty of another count in which there were other witnesses  and in reading the record you can only come to that conclusion by deciding that the court did not believe her and instead believe mr simms alibi so i think that if there had been additional information which apparently was available at the time of the trial at least some of it was available at the time of the trial if the trial counsel had made a motion to ask the court to will hold on the trial or look for the witness or material witness when i think those things almost made the difference because then the court would have had a little bit know your honor what happened in this particular case is i believe that this court appointed counsel so we don't have counsel appointed and i would say that that's a major problem in procedural default issues because certainly say it gets so complicated maybe it was getting more and more complicated every day it's just an absolute quagmire so to have someone sitting in a prison with inadequate library facilities attempting to put together a petition and determine if they're procedurally defaulted and determine their time limits and things of that nature is very convoluted so yeah it would be nice if somehow we could come to a place where we can have counsel pointed out earlier because i think less people would run into these problems other than that and i will reserve the rest of my time thank you overrule ransom what would be your response to that would be the reason your honor why i said there were two basis for distinguishing the case of the other races being that the rest of us is false conclusion regarding the your honor that question was raised to standards versus united states back in one thousand sixty three by the united states supreme court i understand that there are some procedural rules are so fundamental only in the operation of the system but this procedur review in wash and supreme court after the washington court of appeals dismissed his consolidated first personal strength addition and the direct appeal in two thousand and one and when he did see review on his second personal strength addition he made no effort to explain why it is that his case falls within the ends of justice exception a lack of understanding of the rules or his pro se status alone is not enough to satisfy the and the allegation that counsel was in effective on appeal is also not sufficient to demonstrate cause for the procedural default because mr sims was not entitled to counsel beyond the or russell vs false is no longer viable we didn't have that opportunity because we didn't take that opportunity because we didn't feel that procedural default even applied to mr pearl's case the alleged procedural default mr pearl's case was on direct appeal he challenged the jury instructions that were given in his case later when he filed his personal straight the decision he challenged counsel's actions and not getting better jury instructions in this case and the court watching supreme court we believe in error decided that heel that sounds like there was a big issue in the yes rights of the issue that mr pirtle raised in his personal strength addition was not the same at least in our view was not the same as what was thank you thank you i just wanted to follow up on one thing and that was that you asked if if he did not file the personal risk and for the petition would we have been in a different circumstance if in fact you just called it something else we'd be in a different circumstance a feud called a supplemental instead of a personal restraint position we'd be somewhere else and that's what the problem is when you allow procedural rules from different states to override or bar people from then done a motion for discretionary review of his direct appeal if any one of those other things that happened other than him filing this p r p and then trying to do it then we'd be in a different circumstance than we are now  d i think it is difficult to allow that every litigation rule from a state court should bar somebody from having federal relief and i think that that's not the ninth circuit's position at this point with russell armstrong so without that i would ask the court