assistance of counsel claim is excused for cause under the supreme court's holding in martinez vs ryan and the second is whether the introduction of his cousin statement violates the confrontation clause the constitution intended dress those in turn with regard to mr seniors claim of an effect of this is and counsel should not be barred from presenting its meritorious claim because under the supreme court's holding in martina's versus ryan he fits within a category of individuals that are allowed to present that petition and even if this court disagrees that martinez doesn't control equitable principles as announced in martina's still dictate that he should be allowed to go forward with his claim in martina's the supreme court reach an equitable holding that certain individuals those who assistance of trial claim in their collateral proceedings the supreme court went on to hold that one part of that class of individuals those who had in effect the turnings could not present that do have the right to present their claim and as and as i demonstrate in my opening brief the reason for this is clear even the most ineffective attorney is going to realize that a state court washington so so i'm having some trouble if it hadn't been presented at all and you're making the pro pro se argument it might make some sense but if it's raised once but not successively i'm having trouble linking your time where they raise arguments all over the map once they raise before about a bunch of new ones and then the court on the watch and supreme court says well that that's a brand new claim but here we didn't even raise the claim raised before i don't disagree with your honor that i'm sorry i guess i'm just having a distraction here with his legal right to your saying well the washington's court of appeals could have been clearer statement i think it was more than being unclear in that they told him he may not raise the claim i think if you look to the supreme court's holding in martinez it talks about the fact that petitioners on the one in the law may not comply with the state claim and that based on the supreme court's holding in martinez and based on the equities of the situation is enough to demonstrate cause for an obstacle that he couldn't overcome given the court's language the fact that he was not represent not entitled to an attorney the fact that the court was misconstruing his argument entirely let's assume that just for the purpose of my question ok the panel were to conclude that it's not been the fault in a b s we can give that what happened in the trial court with respect to this sure what's your best supreme court case that says under circumstances like this it's constitutional not to either question your move to disqualify them for what for cause i don't have that case on the top of the had your honor i'd been briefing this issue specifically i think the more prudent course of action would be to remand the case to the district court to deal with that issue given that this was the issue that we've been dealing with but i can look to see if you don't get off the no criticism and intended you don't know off the top of your head a supreme court case that would be helpful in this regard because i can think of some that would not be helpful were never prejudice up to now managing and that case you want to talk about the sure and i have the same question what's your best supreme court case we can argue later whether it's close enough but what's your best supreme court case on the adoptive admissions issue confrontation cause support our position including crawford just because all those cases physically dealt with police encounters they all come back to the fact that it's an issue of what is the primary purpose of what the conversation was and in this case the primary purpose of the conversation was that mr swagger was attempting to demonstrate that mr sr had done it we know that i think that the to the statement and the shaking of the head say why it was being asked no she didn't say why it was being i mean that you you can make the argument perfectly fair argument that that was wagger arguing that you had effective pro se at the level of the court of appeals but then and effective one before the washington supreme court but you're you're arguing that somehow he was misled by the washington  i have the exact language here but i don't have it right at my fingertips i think i can get it to you thank you thank you the court john sampson assistant attorney general for the respondent addressing your honour's last question about what the state court of appeals actually said and this is that excerpt a record thirty six what the court said was he may not recast a legal argument simply by changing some of the facts or the legal theories and what the court said was they had previously determined on direct appeal that the juror was not biased your forty three i believe was the number was not biased and therefore was properly kept on the on the jury and what the court was saying was since you can't show that the juror was biased you can obtain relief on a claim of ineffective assistance  discovered evidence in his petition for review to the state supreme court so it was his choice not the court of appeals decision that determine what claims he would proceed on to the state supreme court in the march and is the u s supreme court was very clear it was creating a very narrow exception to the general rule in coleman as to what constitute cause for a procedural fall in martina's then they dealt with the situation where the default occurred in the initial collateral review proceeding the first proceeding where the petitioner could raise the claim here in that first proceeding the petitioner actually did raise the claim and for that reason martinez does not apply and i came across a case late last night as i was preparing for argument it's out of the eight circuit and i will submit a supplemental citation authority i just didn't have time last night it is franklin versus holly eight seven nine fed third three zero seven it was issued just this january january  two thousand and eighteen in an essentially resolve this issue and it found that martina's did not apply because the petitioner there who was proceeding pro se in state court which the page the page cited said three thirteen your honor sure would be how generally in twenty eight j letters if we got those you know we usually get a flood of them on fridays so even though they're a little late but we're happy to read them over the weekend and i apologize  application of the martinez rule to this case simply because the claim was not defaulted in the initial proceeding it was defaulted when he sought discretion to review the supreme court has said that there is no right to counsel and that the team has doesn't apply do appeals from the initial proceeding which this was and finally i would point out that this court's decision in one versus in clear which is cited in the brief said that this court lacks authority to expand martina's the supreme court has been very clear that martinez is very narrow and only applies in limited situations coleman applies in all other situations and this court and one said this court flexi authority to expand it only the supreme court can expand the martinez rule moving to the uncertified issue which is the confrontation violation there are two reasons that this that the district court properly denied this claim the first is it's not testimony her say so crawford does not apply this was a statement made by two cousins talking in a in a private apartment before they had actually been signal not as being suspects by the police and it was informal conversation that was not a witness bearing testimony it was not a statement being made in lieu of actually appearing in court in fact mr swaggart east comment wasn't even a statement it was a question the statement was the response the the shaking of the head by mr senor that was the statement that was admitted and that was his and that's the second reason it's not a confrontation violation it was his own adopted statement now there's argument in the briefs about whether or not this was properly admitted as an adopted statement but those are issues of state law not issues of federal constitutional law the only constitutional law issue is if it is his own statement is that a violation of confrontation clause and it's not because it's not testimony from from a witness he can't cross examine unless a court has further questions i would ask in the court of from the district court thank you thank you i'll be brief again i just want to stress that the point is not what should mr sr done of course he should have presented has come to the washing court of appeals question is not what we're not turning it down of course an attorney would have presented the kind that watching the court  the point is that the way that this opinion was written with regard to mr senior it led him to believe that he did not have the right to present it but you know what i've read that quite a few times it seems like it and reasonably took it to mean because i had hard for me to see how he recently took  the end of the day even if this court disagrees with whether mightiness applies which i believe crowley does because again if you if you read through martinez every time it talks about things that are not included specific references attorney errors not pro se errors