you your honor my name is david nasaw i represent the petitioner in this case larry on how the sort of played issue in this case actually gives rise to two sub issues the st of those sub issues is whether mr don how trying to revive that particular issue but there was never any ruling on the merits under the supreme court's decision income solace because being a roll sixty motion as a rule is a true rule sixt motion if a challenge is a procedural ruling by the corps such as the statue of limitations or procedural bar exhaustion or something that nature or whether it attacks a defect that goes opinion on on an issue that was like an ineffective assistance of counsel issue said essentially look the easiest way to resolve this case is to send back and ask counsel as counsel what happened your why why why did you hearing in connection i think with three nd amended petition i may be getting things nextstep in terms of when but i thought the attorney said that he'd investigated the claim  evidence needs to be explored that he abandoned mr john howard with respect to this particular issue his his wording and i'm paraphrasing it but i think i'm a little closer to it with all due respect you were just scrapers comfortable with drawing it at all so he'd somehow believe that the issue was still hanging out there even though he did not include it in his and in the  chastised both sides in a way because because the government didn't really file a valid response either so i think there was confusion on his part that led him to actually abandon this particular claim and this particular claim assuming that that that it could be established as as they cited my brief to this course decision  gross negligence is there's more than mere ineffective assistance of counsel as we think that it has to be in the line of some sort of gross negligence but have been attorney through gross negligence failed to present what would be a viable claim then i believe that we have in fact surmounted that hurdle and we should be allowed to at least go back and explore whether or not he's entitled to any sort of leave under found that it was properly should be properly we characterized it as a going to good use by a new claim and therefore had to meet the requirements of twenty to fifty five age but the court also recollection and again i'm not looking at it doing this from memory so correct me if i'm wrong but it seems to me that the court just simply has some marilee's you know some things were untimely other things didn't mean another sex just can't be used any time you can't get relief somewhere else i don't recall that the court ever came to grips with the specifics of this claim as to whether there was gross negligence claim as a sixty six dollars claim for attorney abandoned it and that's a that's a very high standard and i would note that it's much different this court found for purposes of the certificate of appeal ability that that reasonable jurist could disagree about whether or not the court needed to analyze this as a sixty six dollars motion but that's a much different standard than this court that get to attorney abandonment requires something more than a mere omission and that is all that is alleged here and so so the court properly considered that  here because it does have to it is it is an extraordinarily high standard and what the standard requires is that the counsel deprive the  the record so there is evidence in the record just support his investigation there and i would i would note that there's probably a good reason why coun just don't have the kind of abandonment the complete deprivation of of the ability to come before the court that you would have to see to to reach that high standard and again i think  i think it is important that this was raised as a sixty one claim because because really that is the argument here there is no are it's a real stretch to go to aband omission ordinarily does not go to the integrity of the proceedings so that i think it would have to read in that order ordinarily language in there and just to reiterate i i i i i believe that yes in fact an attorney can abandon a client on a particular issue and i think that happened here and i don't think that it the stage of the proceedings before this court which is a fact finding court that we can simply presume that counsel had a good reason for doing that particularly when he said i think that issue is still out there judge and essentially following that up with the with and again i'm paraphrasing but specially saying however i'm resting on what i've already presented to the court with respect to that particular issue so i i think one way or another there was some sort of gross negligence this thing was not included within the nd amended petition and i would ask this court to reverse in remand so that we can simply ask counsel why didn't you include this and try to get a ruling on under rule sixty six dollars on mr daunt hours claims whether or