well thirty eighty for ronald philip jr versus mark originally name is smith oral argument not to exceed fifteen minutes per side mr hardwick for the petition if there's a model if things are unclear the petitioner pretty much automatically loses because the position has to show things are clear but it's almost exactly the opposite when it comes to the question of procedural default was the procedural default in th case regularly applied or was it not and here you're almost pretty clearly was not regularly applied shortly after the state court of appeals issued its decision in doing they're all in chaos they disagree with each other now well let's try to set the record straight here's what we meant here's what we said all along it's because it's important and what exactly the procedural bar that the ninth district applied in this case is and it's a pretty it's an oddball procedural barn at this court is confused it's because it really makes no sense what they said is that once a court of once a judgment is affirmed on appeal for any reason whatsoever that's the raise sentencing issue that that's somehow a general stamp of approval on every single aspect of the trial court judgment and therefore the trial court judge trial court lacks jurisdiction to entertain anything that might call that judgment into question again as far as i can tell that's that was a unique ohio that's been a unique ohio interpretation and stop and even then it's not been regularly applied it is not as this is the district court held a ra is not a discretionary bar it is it is a it is a bar of subject matter jurisdiction in which you have there's also a second theory that's floating around this is a confusing bar because it's it's based on a misinterpretation sometimes the courts will say that once a judgment is affirmed somehow that the judgment never goes back to the lower court the court of appeals gets to keep jurisdiction forever and ever and if you ever want to do anything the trial court again you need to go back to the court of appeals first which is again a bizarre or you just  what the were the district what the district were correct in applying the procedural default to this case saying that this is a procedure that is claims for procedurally defaulted and that's all we're here on this case and so what the relief i'm asking for says to send it back to the district court for a looking for some sort of logic and reason behind this procedural default and it is we're going to confuse we're just trying to stay in your position and i'm sorry you're on well the position is the do this but that is not what that was not a uniformly applied procedural bar and i cited in numerous cases from others from courts of appeals in ohio saying where they didn't apply that bar where they just decided on the merits in one case and the second district even said we're not even go to apply race judicata to a plea withdraw motion in the us supreme court in state versus davis said lower courts are divided on this and so if courts are divided on it it can't be regularly applied almost by definition if this if they're issuing decisions all across the board there's not a regularly played bar supreme court dismissed that they declined to hear it which they had in the case of state vs andre davis a different davis case that court made clear that when it declines to hear a case it's not deciding the merits not giving any opinion whatsoever on the merits so that's supposed to the u s supreme court denying cert it we might want to read tea leaves into that if we want to but that's all we're doing reading t leaves there's no presidential effect whatsoever on the case in that state versus andriy davis to tell that involved applications to reopen is based on what one of them is a straight knowing intelligent voluntary claiming the other one is ineffective assistance of trial counsel so there are two claims before now that's if that's what the district court would consider if if this court rules for me this leave and that's the end of the case well if we got to the merits that would be an argument i'd have with the with the warden down in the district court the first he tendered to kill what the work what's the basis for getting to the merits i haven't heard of in a basis applied procedural bar and if if the state court had said there's no manifest injustice and you were untimely we'd be here we'd have a different question the state court said you this was raced you to do you could have raised it on direct appeal to be different us what we look here is was the procedural bar imposed by the state court regularly implied does not look well coulda woulda should or could they have five a different bar well then we'd have a different argument here and i'd ask this court to allow me to brief to brief other potential procedural bars because that's not what that wasn't what was it issue in this case with the procedural bar his case was denied entirely on the fact on the argument that once the court of appeals affirms motions after the fact in state versus bush considered someone who didn't know whether he's all about his eligibility for judicial release that's something that was clearly on the record secondly one of his claims here is that his trial counsel his trial attorney it gave him bad advice in the police process that's one of his claims in this case now i think it's utterly absurd to say that he should have raised that conviction while that lawyer was still his lawyer that's what that's about to say you have to raise ineffective they want to stress this is your not here to review what the true what the state court could have done we're here to review what this procedural bar the state court applied that that apply with special prosecutors and special prosecutors was not a regularly applied procedural bar that should be the end of the discussion unless there are any other questions i'll reserve my time for but all right thank you the morning you may proceed may please the court your honors mr hardwick good morning sister attorney general mark davis on behalf of the warn the grafton correctional institution as matter should never noted in this case the things that we say often have consequences and that's especially true for criminal defendants pleaded guilty and the issue presented is whether phillips voluntariness claims raised in his plate withdraw motion based on the ineffective assistance of counsel have been procedurally defaulted and they have clearly been defaulted for three reasons one phillips claim is barred by the state procedural rule establishing special prosecutors to the petitioners fail to bring forth substantial evidence that special prosecutors is not firmly established or regularly applied and three alternatively even a phillips claims were not barred under mop and they are barred by rescue to kata because the petitioner failed to bring these claims at the first available opportunity as this court required and rust versus sent now this court requires a four part analysis whenever examining a procedural default first is there a state procedural rule with which the petitioner failed to comply the petitioner philips fail to comply with the rule and special prosecutors would says that the filing of a federal courts in our brief we noted in just that the u s supreme court found the same thing to be true now special prosecutors applies to all matters within the compass of the judgment within the compass of the judgment the ninth district reviewed the plea when phillips challenge the sufficiency of the evidence that was the only thing for them to review they found that the plea was voluntary and intelligent and based on that the truck was without jurisdiction to reach a decision that was inconsistent with what the ninth district had already done when they reviewed the police the plea was actually when they did the review they examine the plea they  written plea of guilty they looked at the fact that this was a joint recommendation here the plea was clearly voluntary and intelligent now going to the second prong the night district clearly enforced that procedural sanction i think everyone agrees with that the petition court made a plain statement of the procedural default based on jurisdictional grounds waiver is an adequate an independent ground that precludes federal review going to the third prong of the mob and test with regard to actual innocence because  prejudiced promised an actual innocence of the petition ever argued that as a matter of fact the petitioner noted in his reply brief it minute that he had never argued those things therefore you have a clear default under the mop in test  he could raise that on direct review and here it's abundantly clear that he had that opportunity because he challenge the constitutionality of the major drug offender specification at that time he was clearly aware that that would be something that he could raise he also raised in effective assistance claims in a rule twenty six b application for reopening where he claimed that appellate counsel was ineffective and when he raised those claims he still didn't raise a claim that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness failing to raise an illegal sentence that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness regarding the constitutionality of the major drug offender specification and he claimed that the major drug offender specification was plain that when he initially raised his his plea withdraw motion and that decision was vacated however in the amended petition to the district court the the respondent i believe did raise risk judicata because  judicata litigation any claim that could have been raised on direct appeal and as as i was just saying this claim could have been raised not once but twice the fact that the second district didn't apply reza judicata and i believe the one case the cited by petition it doesn't mean that it's not that that doesn't mean that rescue to cut isn't applicable they simply found different rounds as a matter of fact none of the cases that the petitioner cites in his brief are special prosecutor circumstances or circumstances was raised and it was not applied and in mr hardwick's argument when he was arguing state versus davis in front of the ohio supreme court he one of the things that he said when justice o'donnell asked him what a what a rewrite  special prosecutors would look like in the instance where they were dealing with a motion for a new trial mr hardwick said that when the truck was ruling on the same issue based on the same evidence that's before it that is where special prosecutors applies now if you have  new evidence or you raise a different issue that's when the truck court may have first crack at it and he acknowledged even in that case that the state can still raise residue to cot if they think that the claim could have been raised earlier and we maintain that once again these claims could have been raised earlier  motions that's true with regard to rest judicata it's not true with regard to special prosecutors first of all and as the petitioner knowledge that is the only district that does it they do it under a rule a criminal rule eleven c two analysis i believe which is somewhat similar to a residue to kind of bar it's really a difference of semantics but that would still not mean that the rule isn't regularly applied and firmly established simply because it's not uniformly applied by every single district in every single case that that's the case however once again and this is it based on the way that they did the analysis if you look at the second district for instance in medicare it's a distinction without a difference and i would say that once again just because something is it uniformly applied doesn't mean that it's not regularly applied and i think that perhaps the difference in the difference in terms can a times make things unclear however it's the same analysis  and i think that that's the important thing here and once again that has to do with the residue to cut a bar that is a secondary issue to the fact that this is a very very straightforward mopping claim where the petitioners procedurally barred he went through all of his appeals and then went back to the trial court to withdraw the withdraw the guilty plea when he clearly could have addressed these issues earlier but there are no more questions the respect your question affirms this issue of law thank you first of all the question in this case is not whether the state court could have applied a different procedural bar it's whether the bar that it actually applied is regularly applied and firmly established it did not apply a race to tot a bar period full stop kata is not an issue in this case is irrelevant whether race judicata would apply secondly my client did ask for a hearing on his motion to withdraw and assist court in this in federal courts as regularly it would be absurd to raise ineffective assistance of counsel on an initial direct appeal because the record is almost never going to be complete you are not going to know what strategy decisions were made you need to have a hearing you need to have evidence outside the record he asked for a hearing he didn't get it and that he cannot raise claims based on evidence outside the record that direct appeal he just can't do it it's the disc or it's not fair to say you need to raise ineffective assistance of trial counsel claims a direct appeal based on the bare record that is prosecutors will this is a this is a subject matter jurisdiction this isn't discretionary if they didn't have power to rule they wouldn't rule because that's what social prosecutor says it is not just a discretionary barwell you could have raised  direct appeal it's not second to this is that those calls explain it can't be within the compass of the judgment if you couldn't of race it in this case his initial direct appeal the only he just did a direct challenge to his conviction and they said it was waived because he had a knowing intelligent voluntary plea and a very cursory opinion they did to say the court of appeals looked at that carefully and decided whether his attorney gave him good advice or not that was never litigated he never presented an argument about my claim and finally under great vs netherland pages one sixty five to six procedural default is an affirmative defense my posing counsel said that i didn't prove that this wasn't regularly applied his burden to prove it is