rehearing and additions for on bach hearing i think the question here d is whether that stage is more like the direct appeal to judgment and opinion or whether it's more like a that on petitions for search of the united states supreme court folks who want to pursue that route do not have the right to effective assistance of counsel so my argument is simply this that when we're dealing with petitions for rehearing and britishness for on the bike hearing that part of this larger appellate process fall squarely in the camp of the direct appeal and so this court should extend the right to effective assistance of counsel at that stage to the states where we're dealing with the dishes for rehearing here i have a i have a very simple question and tell me if i don't understand it because it's based on state court practice but as i understand the austin case it says plainly that there is no constitutional right to attempt to counsel when it is for discretionary reviewed isn't  other it is the supreme court black letter law as to the titians st search to the united states supreme court yes ok also i'm a slow you down it says discretionary review it doesn't say petitions for server you think it's confined to it's facts or something i think it yes absolutely and i think that discretionary approach is certainly the basis upon which courts have found no right to effective assistance of counsel at the petition st search stage now the question if you if you accept the premise that the titians for rehearing and on bike hearing are discretionary which i can argue against but if you accept that premise the question is whether this discretionary approach which is entirely created by courts applies as the basis for the government's position which is you don't have the right to d expect the assistance of counsel or whether there's another basis that calls for extending the direct appeals right to effect of assistance of counsel and there are three bases congress has as provided for appointed counsel at every stage of the proceedings from his initial appearance through appeal including the ancillary matters appropriate to the proceeding i would add t  appointed defense attorneys have the duty to continue on after this court has issued its opinion and judgment to to follow any merit right to counsel at every stage of the proceeding through appeal now this mr morrison does that does and that or you just listed three i'll just call generally statutory six provisions or say th ns for your argument or is that a different argument then then arguing a constitutional right right that's based in the constitution well certainly it's a different argument but it's an it's a different argument that that doesn't really better because of course nobody has the constitutional right to appeals the court's going to read a kate appeals tomorrow if they wanted to in the court the constitution would not be offended but we've created d a complex statutory and rule based scheme that provides for appeals and following from that statutory and rule base  the right to effective assistance of counsel has been a pull on to that direct appeal up through judgment and opinion all i want simply saying is that follows naturally that the positions for rehearing and premise there and this particular case how does that play out what is the next step in a and i'll just say that a couple of questions in terms of sort of figuring out what when prejudiced but also kind of what happened here where the mandate was withdrawn as i understand it and and so your client was given an opportunity to file something pro se so in this particular case are there facts that are either unusual or standard or how would we have dressed it well you know unfortunately the most unusual fact is that my client's trial its or earth appellate attorney rather just fell down every step and i would suspect that we can all agree that the attorney did not do what he was supposed to do now yes this court did withdraw the mandate but when you're dealing with pro se litigants who are in the federal bureau of prisons it's highly unrealistic to expect that they can turn around and file a petition in the short for a timeframe that this court gave my client and that's the very reason that if appointed counsel believes that the decisions don't have merit we have a responsibility to move to withdraw and move to get an extension of i think it's twenty eight day so it's as somebody who's been doing c g a cases for over a decade you know i take it very seriously my duty to communicate with my client and protect my client's interests in petitions rehearing and it's it finding in favor of my client and extending that right to effective assistance of counsel it per text the integrity of the defen attorney's profession and the stakes can be so high either in reality where a three judge panel got it wrong or simply to to give  the the feeling frankly that their attorneys are looking out for them and that the justice system is working to give them every benefit so the stakes are high but the costs to extending the right to effective assistance of counsel are low up there is zero for the government unless there is merit to a petition frankly and there there is zero for the core and they might actually benefit the court because i can tell you working with my clients after this court issues a judgment or opinion there is no merit to a petition i can often share that with them tell them what i'm going to do withdraw give them a chance to file and quite often they don't file but if i simply abandon the and i would suspect that this court is going to get up higher rate of prostate petition so the stakes are potentially high but the cost so low and let me just add that sort of a public policy i guess you could say approach but as far as the statutory point goes at the risk would love as well you know it just seems natural to me based on statue based on the rules and frankly based on the c j plan that i as a that this court issues a judgment and opinion and i have a century done with my job that's not what the last us i'm not done with my job up i still have the duty to provide effective assistance of counsel to my clients and while i recognize that courts have said my clients do not have the right to effective assistance of counsel the petition st search stage well there is still a duty that i have i need to advise my clients on the right to the station i'm supposed to file it if it has merit so even though there's no with active assistance of counsel right there my duty appeal based on the twenty to fifty five petition that was filed by mr amada alleging constitutional violations pacifically constitutional violation of in effect the ineffective  counsel that was denied by the district court on constitutional grounds and there was one issue that was certified for appeal on that was whether a criminal defendant has a right to counsel for the filing of a petition for rehearing or if addition for hearing and bond and i frankly think the issue that was addressed by the certified by the district court was stated more broadly than necessary for the decision in this case of because he's the district court simply noted whether criminal defendant has a right to counsel  claims that in effect of the assistance of counsel in the district court that's that's the sipek lee was he raised he didn't raise statutory violations he raised constitutional violations and so i think this is a case that the court needs to look at specifically whether or not there is a constitutional right to counsel for the filing of a position for rehearing or or hearing  think i believe that this court in its prior decision specifically feel it has really addressed that issue while steele dealt with a petition for sir there's there's really no difference in what we're dealing with here we're still dealing with a discretionary addition when i listen to mr  think if i understand what he's saying he is effectively trying to bootstrap the constitutional right to counsel on a direct appeal to right and a statutory right regardless of what that means it's still a statutory right and in this case we're really not dealing with the statutory right because that's not the claim of mr ahma this court has already addressed that violation if one exists factually when one looks back at what happened here mr otton lot of appeal is counsel address that that was not follow through with by his by his counsel on appeal however when mr ahumada brought that to the court's attention this court vacated its mandate and allowed him the see with this and whether or not there is a twenty to fifty five remedy in this case this court in the walker versus the united states which we cited two thousand and sixteen cases indicated there is of that i think that distinguishes what happened there from what can and should happen in this case defendant has a right by statue for a direct appeal this port must hear that it's seal by statute and because of that there is a due process right constitutional right to counsel that accompanies that direct appeal court can say you filed a motion or you bother notice of appeal we're not petition can be filed but the core is not mandated to hear that it's within the court's discretion to grant that so that's the distinction between the direct appeal and the petitions for rehearing or rehearing and bond and why they're discretionary there is no mandate that the courts hear that it's discretion and because there's some discretion the supreme court has said in discretionary proceedings there is no constitutional right to counsel that applies in that instance and that's what i was suggesting that helpful is trying to bootstrap what is effectively and the court's decision here i think the case law is abundantly clear based on feel based on walker that there is no constitutional right to reserve six or the federal rule there is no remedy in the provided to a defendant in any one to fifty five proceeding and then there is no specific gravity that's available to mr ahumada in this case because he has already received whatever remedy may exist or a statutory or rule violation by the court's previous recall of its mandate and providing him with the opportunity to file  are not necessarily on the merits but based on the lateness but in any event he was provided with that opportunity so there is absolutely no remedy that's available to him in this proceeding however the court may decide that's the essence of my argument and in the position of the government if the court has any other questions of be happy to address them very well thank you  difficult to contact your clients when they're in the view of the system when they're being transported it is highly difficult i have tried to get attorney calls with my clients sometimes it takes a month to get somebody on the did raise the statute only raised the constitutional violation he hasn't adequately made his argument but of course the statute gives rise to a constitutional right by the government to logic appellants do not have the right to effective assistance of counsel on direct appeal because it's provided for by statute but of course that's not true so what the government does is it rests on this notion of discretion i would invite the government to file an additional brief showing where that discretion criterion appears in federal statute it doesn't it's a judicial innovation it critics would call it judicial activism what we have is section three hundred and six a which provides for appellants rights on ancillary is not defined clearly but boy if anything is ancillary it's the thing that the rules of appellate procedure say follows or can follow directly from up a direct appeal in that same court of appeals that still has jurisdiction over those petitions for rehearing i don't know how much how much more clearly i can state and i see that my time is up so i will rest on that very well thank you for the argument thank you to both counsel for your submissions the case is submitted and the court found