his third sentence he was arguing the fourteenth amendment claims however i don't know if the record doesn't show whether he was in contact with is direct appeal to chinese because he was in texas individual dependents the duty to go ahead and make arguments that it should be made and we don't have anything in the record to show that he was wasn't trying to do that as a time but i think it's important to note is that to direct appeal is still pending the district court dismissed that the titian for lack of an answer the question before the court was do we count procedural default as the merits decision and what if there is just never an answer is that also  taste they found that sometimes the prisoners argue this was a primitive slave disabled from answering the state's argument because this male never got out and the court said if that's true it wouldn't he still needs to have his day in court about procedural default to get all the accurate facts before the district court and that's why the first petition cannot be up against him so your so your argument is based on your ability now to make a clerical attack on the first  because the know from the record and it shows that he had his direct appeal still pending that information never got it fancy to the court that they made a decision that his claims were procedurally defaulted when they weren't complicated case in that there were a number of proceedings but if i could just walk through starting with the original sentencing just to establish that by the time the titian are filed his first petition when he was in texas  believe that's a question of lawn in this court does have to look at look at what the state procedures what state procedures were available but we also have the fact that we know what claims he exhaust now he actually defaulted much further back in the proceedings not raising a double jeopardy claim at the original state court sentencing  had no jurisdiction to do that he also asserted independently that the sentencing court was bound by the original plea agreement which had contemplated that he would be sentenced under the sentencing guidelines as opposed to seems like a collateral attack on the earlier case and is that proper in this proceed if it's not then i i do and that's really reach all these issues but i think that's absolutely correct that proceeding in this case the first and if i could just finish my sentence i used the amount of time in the first proceeding in this case the petitioner in this case was able to be heard there was no frustration of his and his ability he chose so i'm not sure that this is the kind of taste that howard is that there's a question whether he was able to be heard he was able to be heard the district court decided the merits if he did not for their challenge  we only know that now after the fact his case was still proceeding we don't know what he would have done had we allowed him to proceed with his direct appeal before going to federal court there are there were additional remedies at the time he filed just first take his petition he could have as the state outline continued on with another post conviction to bring up any claims that he was precluded from bringing