matter i will reserve three minutes of my time if i may this case arises from a state post conviction petition that was filed in two thousand five mr finlayson was on represented at that time in the state of utah there is no appointment for post conviction counsel except by pro bono counsel in two years later mr nando was appoint was a took the appointment pro bono in two thousand and seven the file was discovered the file was lost in two thousand and nine letter to the court to this issue in two thousand and eleven in a year appeal in the state court petition was in trial in federal court and it was dismissed on procedural grounds on that basis the lack of prosecution and we contend that that is not an adequate state rule this is the st case that that was applied to it was a rule that was not regularly followed in the vast majority of cases there was one other un published decision where it was applied however it was not applied in the way in the manner in this particular case therefore it's not an adequate rule unless the prosecution arens about that is very clear that the rules of civil procedure are a part of post induction proceedings so there's really no question i mean we're a whole we have you know maybe one published opinion saying that in the context of the hate yes action generally there is an overlay and that was in effect in two thousand and five and that overlay was an interest of justice exception to any procedural default in the state of utah  that would be under hers st as cook which we rely on and so when there was a procedural default of any kind to be applied the court had to look at the underlying merits of the cases so the talked about in the civil cases starting from westinghouse is some notion of an injustice and the way that the injustice was looked at in mr phyllis's case was simply that he could have an opportunity to file another post conviction petition to raised these other claims and therefore there would be no injustice but they didn't look at the underlying merits which is what's required was required at the time in utah and therefore they were applying this rule that was looked at in the regular civil context but failing to look at it in the context of habeas corpus post conviction petition as the state if you typed it and therefore it was it was applied in a new manner in a way that had not been applied ever before and that is why it is that adequate it also relates to the independence that they have it is not fully independent to relative to post conviction default is at the reason that you cited the ads for a state case as well yes well well that case is a limitations case and it's not clear to be at all that that applies in this context where we're talking about well forty one dollars b why would it be that adams st state says anything to us about how one would apply on forty one what adams versus state in julian are limitation claims timeliness any other general procedural default in the state of utah at the time of this petition not now but at the time of this petition was controlled by her sources cook adams in looks i'll revisit her quote with that in mind but i mean if you have any it's shows that you know making but that would suggest that that in fact is the case and the reason i ask that question is when you look at her men were which is the one k s in which they  westinghouse factor you have to look at the factors that are in they say to julian which is also in adams and said there can be no danger in their continued imprisonment has been deprived of fundamental rights would be justified by the mere passage of time and so they're looking at that in the finlayson case really for the st time here ms didn't raise it was just is an injustice because he had plenty of time to raise those issues but in finlayson itself they're taking in the adams and julian language and saying that's part of westinghouse in a post conviction and that is a new that is a new rule it's not been appl before ok well that goes perhaps to the question of independence but the at a point still remains to be said why not in fact would it be the case that one would have to find more than one conviction in order to be able that what what is looking what you're looking at certainly if there was one case out there and it happened to have been unpublished it was in two thousand and four before this issue was presented to the beliefs in case it's not cited in in this by the state in the state case but it is it is it is one case but it doesn't set the framework and the framework is that westinghouse has to include in these criminal cases the concepts of purser's as cook and that's why it's not adequate yes you could apply a  limitations case you could in a certain situation dismiss a case on that ground as long as you are when you look at it you measured the merits as well and the court didn't do that and that's what's new in this case ok that's over so and so it does double duty essentially is what you're saying this this need to have the hearts persons component both means that state law was involved and therefore it was not independent and it also was not adequate because we've only got the one case is that that's not that's the argument yes and here and didn't have herman said that out i think i would be in a different much more difficult position but it ok if i could move on to the martinez issue this is a matter that the two district court judges have looked at as to the rule in in utah on appeals and have come up with  raised on direct appeal through the ancillary rule twenty three dollars b motion are those claims which are obvious from the record that rule twenty three dollars b does not put onto appellate counsel the duty and being right you also may very well articulated argument that oh oklahoma's rule three point one one is different because here there is no obligation you the the the question really and i think it's it's actually pending in front of the uta supreme court now in it it is what is the responsibility of a direct appeal counsel in raising a claim of ineffectiveness counsel and what the utah court supreme court has looked at so far as if it's obvious from the record then there's a ability a kick they can raise it they're not supposed to go out and do what one of the court of appeal decisions that i've cited says it's a fishing expedition they're not to amass evidence of ineffective assistant counsel it's basically if it pops up it shows to them then they can do that they have the opportunity to do that and the rule was originally established to keep to have those things done expeditiously to keep people who have a valid six member claim not in custody as as that attorney say well it's not because from the record you're telling me a lot of things that i don't know i have to go out and look at the file i have to go out and and investigate i have to amass evidence and that's not situation that would be basically saying to the to the just to back to the state court judge saying i want to remain and because i have to now go out and find these alibi witnesses i'd like to get  investigators to do that i need all these funds i have to go out and do that because i don't have concrete affidavits from his alibi witnesses that would justify reman i can't speculate because my client has told me that so i'm very limited and what the state court has done is to say if it's obvious from the record you have a duty to do it if it's not obvious from the record there is no duty to do it and there is no real opportunity because you're argument because it's not obvious from the record or that they would they would have state that if it unless the the council went outside the record and took it on his or her responsibility or on her on her own to go out and find those alibi witnesses the court is not going to remain and under rule twenty three dollars b to do what they call a fishing expedition or an attempt to develop evidence that  not saying it's improper to do that you're just saying that the wall did not contemplate that that was the duty of the lawyer to do that right right but but but also if you if you if you don't do it you have if you don't take on the next responsibility you can raise that in post conviction and you do not require to raise it on on the on direct appeal and therefore martina's applies but well let me ask this question to wrap this up i know your times over want to explore this issue where do you have any case that says this question of what the of the lawyer is or the or what the what the lawyers should be considering themselves applied to do under the state will really matters for martinez trevino rubric i mean and this goes to just back at your earlier point where it seemed to me that will just contemplate did you have a chance i mean it's not it's a question of and so does where does this whole duty concept but you think of for example in in most instances there's no prohibition in most states to file a post conviction petition at some point even while the appeal is pending you have that a problem you have the possibility to do that  very narrow opening to address a problem where you could create a fundamental injustice by not allowing for a trial counsel and effective assistance to be pursued and i don't see anything in that narrow opening that says well we have to consider well they were they were hard to do or did they see me the operative thing was opportunity and what i want to know from you i'm asking specifically if you what's your best case that says that this whole question of duty what you're obliged to do should matter at what i think or of trevino talks about what is the scope on appeal what what issues are raised how can they be dealt with or do you deal with them outside and i think that would be the issue is what is the practice in that state and they can vary in the what i think judge benson found is that there is a limited narrow ability to raise ineffective assistance of counsel claims and that means that other claims that are not in that narrow limited circumstance you can't raise on direct appeal counsel claims on appeal so the question really is only whether the trevino it exception that expanded that applies in utah in cases where the actual operation within the state makes it virtually impossible to raise claims and that is not the case in utah not only do appellate counsel have the opportunity to raise ineffective assistance of truck counsel claims on appeal but they do it all the time in fact the majority of all ineffective assistance of trial counsel claims can be raised on appeal i think the argument that mr barnes make somewhat that is somewhat intriguing that i just want to be specifically to make sure i understand your response to start with your honor that is false the rule itself says when final in a twenty three dollars b motion the motion requires an allegation of facts constituting ineffective assistance  that proffer can be an affidavit and it can even just be an affidavit from the defendant and hearsay may be included in the proffer now some of the old cases disputed that but griffin makes that very clear that those cases are refuted that for the proffer for the motion hearsay can be sufficient in other words the defendant can say john thompson told me such and such always can do that and once the evidence if the motion is granted and in evidence or hearing is granted then counsel also made use compulsory process to require witnesses to testify at the hearing so in fact the rule itself contemplates that outside the record mr finlayson is comparing apples and oranges when he's talking about things obvious from the rafters what the obvious from the record issue deals with is when a petitioner in close conviction makes a claim of ineffective assistance of the counsel for omitting a claim he has to show that the claim was obvious from the record but if defendant and appellate counsel are aware of allegations a fact not fully appearing in the record the defendant does have an obligation and burden to remove  winnow out cases or claims that he thinks are less likely to prevail on appeal so council doesn't have to raise every plane and council doesn't have to always seek a twenty three  hearing and requires an allegation of facts not fully appearing in the record and when it pallete counsel file that motion for an evidentiary hearing they have to make a profit on facts but that proffer can be by affidavits and it can even be an affidavit from the defendant or from someone else in other words hearsay can be included in the proffer w ineffective for not raising a claim i didn't know anything about and that's where those cases come from is when they're talking about ineffective assistance of appellate counts ok but i would be your contention though that there is nothing in the wall itself that would preclude counsel from raising ineffective assistance of counsel claim that were not obvious from the record and in fact there were i mean there were not only was a valid procedural default and i guess my my question would be that that sort of framework did double duty at least as i understood in mr pond's argument that both the need to fold in this this heightened if you will standard as it relates to fundamental miscarriage of justice both men that the you talk rule forty one b was not independent and also that that since we only had one hers harms case that all of these forty one dollars b cases really would not be a stablish regularity or even handedness so what's your take on that the state's position is that argument is completely irrelevant that that's going to raise apples and oranges that st of all the interest of justice exception in the post conviction remedies act only applies to the post conviction remedies acts statute of limitations in other words if the petition was untimely the court could look at the interests of justice to decide whether it would allow the case to proceed at all or not that's what i  cases and hurst as one talks about procedural bars and the unusual circumstances tast and when it would be unconscionable not to reexamine a claim that was already raised or that could have been raised on appeal but the difference here is that those of course discretion and post conviction to look at those things are looking at whether the claims can proceed at all includes conviction and that's an entirely separate from the rule forty one dollars emotion which is if you got to court already years titian is in front of the court and you just simply didn't proceed with it you did nothing to go forward with your case so if i make or i'm sorry going to agree so it would be your view that the westinghouse framework you know in forty one b in that context does not cost them plate incorporating this heightened interest of just a standard that was in hers because i noted in the harms case that they cited westinghouse and they is another forty one dollars because that was not a post conviction case which at least led me to believe that that in forty one b this whole notion that the madams versus state doesn't apply so if i'm clear what i'm saying is is that your position then that in the forty one dollars b context westinghouse interest of justice does not incorporate any sort of heightened interest of justice than correct ok a required looking at whether injustice would result or whether injustice have occurred and that requires looking at injustice to both parties so it's not just looking at the petitioner it's looking at what injustice particularly as the court says when the plaintiffs it's had more than ample opportunity to assert its interest now so a court if you apply the the westinghouse factors can dismiss even when there is within the justice with otherwise occur now you take mr barnes argument that when you're looking not just the run of the bill sobel case but you are looking at a post conviction challenge claims were barred because they were untimely or were raised before or could have been raised before and that may have already occurred in this case because in fact the court ordered the state to respond in a state responded with failure to prosecute are not unusual any competent counsel understands that if you never proceed with your claims you face the possibility of the petiti that was dismissed rabbo you to prosecute not just in utah but anywhere well that and that's an interesting question your honor i think there are a couple reasons for that st as we may not see very many cases on appeal that doesn't mean that doesn't happen in the state district court because petitioners who are proceeding with a state cause conviction action oftentimes they're minute hand or purpose is to get out of prison and so they're motivated to proceed with their hips and yet once they get out of prison sometimes they don't care anymore because they've already received what they were aiming for fighting for and so they do sometimes drop their cases and don't continue to prosecute well let me let me ask you something else about just about proof so there really is a durgo but they're already in utah about this rule being applied and he has contacts so very few cases i mean i think there's only one other one that anyone has cited missed one how is anyone supposed to prove who whether the rule was evenly applied or if at all dies at the district court and we're end we're just not seeing it oh i mean and they do that today like they did in wyoming where you go someone has to go scour the records of all he vs cases and cite to default can be applied even if there is no exact president for the precise factual situation but even if there were no conviction cases that were dismissed or a failure prosecute the rule itself is applied all the time or frequently each are to civil cases and most conviction cases are civil cases and so we do have a lot of cases to look at to see how the rule is applied and how it's been applied for the last forty five dollars or fifty years the westinghouse case that set out the things to look at is from one thousand nine hundred and seventy five and that very clearly establishes how the rule is applied and that it is adequate thank you very thank you not to do very limited function and not to expand the record not to require people to go in and do a hey vs do in effect of a sister council i disagree with with the state in terms of the argument that it anybody can do it it's been done it's been done recently that way because of people of concerns about that but historically it's not been done it's been very limited  and i have a case it's in front of the utah spring court now mcclaughry versus state that we argued thirty four months ago that is dealing with that issue of what exactly are is rule twenty three  how expansive is it is that something that everybody has to go and do that just because you have the opportunity therefore you have to do it or not yet when you're appointed as appellate counsel and i think those are