jurisdiction we have to consider this claim or rule on this issue that the district court has not been given an opportunity to give a thumbs up or thumbs down to your claim that this is in fact   st petition so doesn't require authorization from the from the circuit court so what's your response to that an interesting question that i had not considered i think and i so i think ultimately that that would be what would be asked for here because if i recall that was a petition that was filed in district court in two thousand and nineteen but there was no ruling  single ab's proceeding so there's no really no way to argue there's an abuse and really the only way i think that he might encounter difficulties is a few steps and sometimes a procedural snare like the jurisdictional problem that a potential jurisdictional problem we've been discussing but i just don't i don't believe it's really a problem that needs the court back to court if we take it outside of the context of where we are now and just think of a subject matter jurisdiction the motion for example the court has to make a ruling on the subject matter jurisdiction  represent ok yes i'm matthew buchanan i'm general counsel at the department of probation parole and pardon services in south carolina representing the state   does not have to say that the case was ruled upon or the matter was ruled upon it just says it was presented which in fact it was yes then it was dismissed we would say that there were particular claim claim eleven because they had no other choice that's not really supported by the record it could have been an attorney decision because the attorney rate recognise that it was meritless the flooding up on your part well yeah it was a it was race pro se that it was it was included in a pro se appeal but then he was represented by counsel he was appointed counsel then that counsel later on dropped that particular mr what do we do well if if you disagree then i'm assuming that he will eventually try and file that claim in the district  court but particularly for judicial economy i think it's appropriate to rule upon whether or not it is nd or successive now because obviously if it is nd or successive then you might as well rule that it's a e precisely and that's part of the point that i've made in my brief is that he is actually arguing something counter to what he argued at the sentencing court because he penalty trial during sentencing he argued his here his attorney argued that he was not parole eligible and he should therefore be with the jury should be told that and then the judge erred ruled that he was prolific will and did not present that fact to the jury now the it ended up being a harmless error because the judge erred when when he did that because that was contrary to statute and we can know that this was an error because his codefendant also happened to his brother was in fact sentenced to death and then that sentencing was overturned in torrance of the state i'm sorry state the torrance  se the judge erred and ruled that he was parole eligibility so here we are now he's trying to take advantage of that judge's error by saying he was paroled eligible when in fact the whether or not this is the tactics i mean i think i submit though that this goes towards the clean hands of the equity principles of the abuse of the that's why this that's why i submit that this is relevant t the the i think it's an assumption to make that the it the case was simply just abandon because he didn't have any other choice and i think it also very well could have been withdrawn partly on the merits so that they didn't tie up the remaining right and in fact he said that he was he was pursuing the issue nd successive and i would i would submit that it is in fact nd the success of the we do have some evidence to show that this this was not purely a clean hands equity abuse of the rich simply because he's arguing something that he countered to what he argued at his original trial and the statute is talking about you're going back to the trial on the criminal offen it all right thank you very much so you're asking that it seems like i'm going into the merits and i'm only pointing out these things for the appointed withdrawing it because it was meritless so that's that's something that we don't know it's not the support in the record of how or why that attorney came to that decision to withdraw rather than appeal the  apply regarding the argument that it is simply a continuation of the existing petition no i do not think you honor thank you i really just got to two quick points i want to make in conclusion and certainly for you to entertain any questions but the st is this notion of wealth of why coming in the eleven was abandoned i think it's a fairly of exhaustion concerns in the fact that it was an exhausted so i just wanted to note that the record does continue to have those that that was the real reason for the client not being pursued at that time the nd point that i really want to make is  going to return to this notion of jurisdiction because that's obviously a very very heavy concern on the court's mind but i think that the way it works is if if you just use the word craft but thank you in the spirit in which is man i think the way that the opinion w the the you know he doesn't need the authorization is entitled to adjudication of all kinds raised in the original patient as stated in the martinez case therefore sophist is not a nd or successor petition we dismiss what it's meant to limiting so i don't think that there's any you know a handy in the authority that says that any and every equitable concern however couched might be relevant to this analysis i just think it's a question of you know