may please the court mr miller's lawyer on direct appeal mean an excuse for mistake despite mr miller asking him to appeal the length of his sentence in an appellate issue that was supported by four on point decisions of indiana argument been raised sentence would have been affirmed and i'm i'm asking not whether you agree or disagree with that obviously you disagree with that but that seems to me a proposition of state law that is this sentence was proper as a matter of state law and of course a collateral attack under twenty two fifty four does not entitle you to disagree with state court decisions on issues of state law so my principal question for you in this case is is there anything here or than that decision on an issue of state law your honor it is it doesn't leave probabilities it's not asking for likelihoods you just tell us what would have happened that's why i'm asking you how you get to right away from the fact that this seems to be a state court decision on an issue of state law only and in a federal collateral tax state court decisions on state law are conclusive that is correct your honor but the question is shown how there's anything other than an issue of state boy or well your honor and charter says wilson this court addressed that very question in charlotte the question was whether appellate counsel was ineffective for failing to raise i'm sorry the direct appeal by more than four years and in that decision this court addressed the state law question it and it said that there are two different questions being posed one is an issue of state law which of course this court cannot refute the other is a question of federal law which is whether there's a reasonable probability at and the indiana court of appeals what have reached a different conclusion the latter determination is something this court is competent to educate that much is clear from shopper says wilson and because otherwise petitioners could never raise an issue of ineffective assistance of appellate counsel for mishandling a state law issue that's what this in fact deciding an issue of state law then it would have been picked up because the correct question at that point was whether there was a reasonable probability that mr miller's appellate counsel's missta about the prejudice analysis yes your honor and prejudice would have been found in this case had the indiana court of appeals looked at all of the case law available to it at the time of collateral appeal at the time  were no less than eleven decisions of the indiana supreme court in the indiana court of appeals that revised sentences for offenders like mr miller convicted of the same offense multiple fences multiple convictions model counts that is similar when they talked about when the court of appeals talked about walker when it talks about fifteen it justified its discussion of each by saying each was available to mr miller's counsel on direct appeal particularly enlightening is the filed right it saying that these decisions were available to counsel at the time direct appeal is not the same as saying we decline to consider any other decisions i think that's  judgments question that's correct your honor however the fact that both the state and mr miller brought cases post dating mr miller's direct appeal to the court's attention the court decided not to address those decisions and it that might be correct your honor and of course we are continuing to assert that the court of appeals decision was an unreasonable advocation of strickland and we would be happy if the the court agreed with us on that if there are no further questions i'd like showing that the indiana court of appeals unreasonably applied shortland when it is not to consider subsequent cases cases that wouldn't have been available at the time of miller's direct appeal hindsight  permissible but it's not required the only clearly established federal law that we have that says hindsight is required is the situation that was in front well where the defendant argued that attorney was ineffective for not making objection that would have been good law at the would have been about objection but by the time you got the heaviest of you know that you're you're missing the point would not have been a valid objection it might have been accepted by the court in error rate ok you're right that is limited to those unusual circumstances and this is not one of those unusual circumstances the law has not changed since the time of mother's direct appeal and this isn't the type of claim that it makes sense for the court to consider hindsight  conviction review because the subsequent cases wouldn't have been available to miller's attorney at the time district appeal so they did not make it any more likely that the outcome of a struct appeal would have been different when are we supposed to use hindsight than  so there may be cases where the nature of the offense is similar but the characters of the offender are different and mother wouldn't have been able to point to those later cases on direct appeal to show that his case was an outlier in light is only required in that one moment in circumstance but it's permissible in other circumstances but it really doesn't make sense in this case i would also point out that the subsequent cases that miller cites that says the court should have they said the court should have considered don't make it any more likely that his claim on direct appeal would have prevailed because those cases considered the same type of factors of the cases considered in the cases that were available as direct appeal that those cases considered for example that he was a father figure that was a factor that the court considered  very limited to terminations about whether there was a reasonable probability that hadn't known as appellate counsel raised this issue on direct appeal his sentence would have been revised the indiana court of appeals didn't decide that question twenty five percent said your honor even if that is what the court said they said it based on case law of limited tools the period of time you know and that's but that's where we're back to just have happened in the alternative world or state findings of fact protected by twenty two fifty four they are in fact your honor i see that my time is up and so i would answer the question  while we're talking you can answer thank you your honor the findings of fact are in fact protected however this is an issue of law of whether there was a reasonable probability that miller's sentence would have been revised on direct appeal and that's what i'm asking this court to look what are you know but that just gets back to a reasonable proposition probability of whose law state only