seated welcome to the ninth circuit the judges the read the briefs in the record ranges to hear your arguments first case on fergie ms johnson versus mcgrath counsel yes good morning honors my name is david martin the attorney for m johnson regarding this case my concern by far is something a somewhat mystifies me and that is how my client's third client somehow got missed by bo you you are talking about the in sort of like point in part yes did you ask this court to expand the certificate before you go off blaming the state and the district court instead of did you do that ye hi it's my understanding i had this was somehow this particular issue and i went through it with my supervisor and it's my understanding that i did phrase that frame phrase that question in the appropriate way yes if i'm wrong this is the first this dichotomy here the fact that we've got people who are really not at all capable of stating these kind of issues it has been in my mind at least in the last several years by how whatsoever what's going on he doesn't even know he's issue has even ben been certified really the list of constitutional claim well all right now i think we're talking about a procedural or federal procedural or one hundred you get up your constitutional case they get you here now the judge is not asking you were was raised how it was described how would you characterize right now the constitutional claim that told the court like i wanted to the merits of what was in that is your constitutional coin that you client was deprived of due process by the failure of duress or necessity instruction to have given a trial right that's what he was that's not something that i i'm pretty much proceeding procedural grounds but my understanding of the problem with that tact is that had no relevance to his situation it was all stated in such a way as all the procedural hoops you're claiming that you're proud of the due process because your client didn't get this instructions tell me why on the merits you should when that claim because i don't understand it i understand your feeling that the necessity court nor this court it is being requested in the bretheren be for you as far as the claim being raised in the federal put the petition clearly the district court as well as our office did not did not  construe there to be a claim for instructional error the only reference that was made was the exhibit petition for review and considering the fact that the ineffective a distance of appellate claim was stated and the summary was given and it  that the attorney general's office did not address that claim and more importantly in the findings and recommendations the district court made it clear that in a footnote that it had difficulty decipher the claims and it done the best it had it could and there were two claims raised and when the petitioner never filed objections to the findings and recommendations in his notice of appeal he never requested the issue be certified or addressed and now on appeal in this court petitioners claiming that that claim was raised and it was it should be incorporated within effect of the systems of appellant counsel claim and clearly that does not meet the federal federal rules and petitioner had a lot of opportunities to try to raise that claim and say that no one had to address it and he didn't and therefore he should be precluded from now saying this claim was raised in should be considered by the court was pro choice so he reached this court there's no right to effective assistance of the public counsel on discretionary review so there's not even a merits analysis because he doesn't have the federal constitutional right to be in federal court the claim was rude he's raising goes a bit further than that because he's arguing cause and prejudice for failure to exhaust this claim on collateral review and he's arguing of course there was no collateral review the situ because understanding of the claim and again not having the merits because it has not been certified for appeal is that the direct instruction first of all the court of appeal did find that the necessity instruction should not have been given because petitioners on life w not in danger but as to the giraffe's claim that there was a threat to his daughter it didn't mean there was not substantial evidence to give that instruction because its own testimony had precluded the fact that he was acting to prevent a threat he already knew as a by his own testimony as of october seventeenth the day she had surgery that he was an appropriate donor and that on october twenty second when he actually of nine hundred ninety nine when he actually a skate he of that and corporation i guess for me that's the thing that concerns me a great a because i do a lot of this and i do a lot of giving at the client here incorporate this i guess especially i don't see the ambiguity when he says