panel of eight military officers and to be convicted with the concurrence of two thirds of those officers at the time the captain who works court martial and direct appeal as a congressman or any military of teleport and authorized those eight officers to employ a preponderance of the evidence and or during their deliberations or to use one charged offense and to prove another charge the festus court of appeals for the armed forces or calf as concluded that was it was an obvious violation of basic due process for them to do so and kept in the ward receive the ineffective assistance of counsel on direct appeal when his military appellate lawyers failed to raise that preserved issue you what is  ward is entitled to do novo review and we believe that that's what happened here with the quorum nobody's petition that we submitted to the air force court and then ultimately to the court of appeals for the armed forces because on the same day that the is that when the when the court when the catholics saying to article seventy six bars form notice that isn't full and fair consideration under any standard but if the court work moves past burns and seeks to wade into what is quite accurately a circus with on what the meaning of full and fair consideration is we believe the captain or can prevail under that standard as well and we believe that the the most accurate statement of what full and fair consideration is is set forth in the d c circuits sanford decision which is a two thousand and six decision because remember that burns is the last word from the supreme court that article three courts have jurisdiction to review courts martial that are void due to lack of jurisdiction and then importantly or some other fundamental defect and we believe that the the violation of the presumption of innocence is clearly with in the petitioner was arguing that raising the error at the time would have been frivolous and the th circuit concludes on the contrary as the government points out litigants in other cases taking place around the same time as evans's two thousand and fourteen trial and two thousand and fifteen appeal raised this is very hard to read and so it was deficient performance for wards attorneys not to do the same thing that attorneys from the same office were doing at the of how the army jag school put it in if you had earned instruction what's called the military judge's bench buck but as i said there is no military case that said that you could use of privileges which are codified unlike the federal rules of evidence and so it had this evidence come in under four hundred and four b that would have been a permissible use of this came under military rule of evidence for thirteen which also has a federal counterpart and the cafes has held that it violates the presumption of innocence in the manner that it was used in this case and beyond a reasonable doubt is the standard in courts martial and has been since the says that there are two problems one is this preponderance of the evidence that's going to the jury and the nd is using uncharged conduct to prove either on track conduct and will concede that for a for b allows that hold in the military and  ward would be entitled to have his direct appeal voided and directed back to the air force court of appeals but to your question retroactivity under teague you don't go through the indeed the the cap in rights again in two thousand is looking to the legislative history for federal rule of evidence for thirteen and that the framers of that rule intended for it to apply only to  charged misconduct not charged offenses in the same case and so when bills takes a look at this in two thousand and sixteen and says that it's obviously constitutional or to be cases and with respect to the other aspect of the due process violation beyond a reasonable doubt as as i said is in article fifty one charlie and has been since may st of one hundred and fifty and in fact with respect army practice  jurists not now standing the fact that it makes it into a pattern instruction that is signed off by an army six at the at the army jag school in charlottesville also have the willing bring case which affects how familiar at the same sort of willing bring that has been before this circuit and one of the issues not addressed by this court in the in the collateral or review of his case was  bringing because if anality under article seventy one dollars seventy six cents that he should raise his collateral relief in an appropriate forum and so willing bring if he seeks to have the benefit of theft president in his case has to go to jurisdiction to review collateral attacks of court martial involving fundamental constitutional error but it can prevent a miscarriage of justice by voiding captain ward's court martial and authorizing a rehearing in accordance with statute and the  st point your honour's the supreme court has recognized that military law is separate from civil law because health records have played no development in the creation of military law and have never engaged in a supervisory role over the military evidence indeed the supreme court recognized that in military a v s corpus inquiry the scope of the matters open for review has always been more narrow then in civil cases is for that would respond respectfully submit that those that those authorities were up and one at the issues which shows that the jurists reviewing the occasion understood the issues recognized the authorities that control them and which upon close inspection of my colleagues argument there is something to be that there if it's truly the case that hill's did not announce a new rule and was really born out of the precedence that was preexisting at the time holding is explaining why quorum of it is not available in the military court so there's also an alternative holdings that directly addresses the issue that petitioner raised here which is whether or not ylvis to apply retroactive the lewis court held that it is not an important as the lewis was the binding his decision on the criminal court of appeals and it was decided one day before petitioner ward's petition for martial out right addressing issues such as whether or not a service member is actually a met an active member at the time it also if that happens whether whether the military tribunal had a personal jurisdiction over over the defendant at the time argue was not excusing the obligation to find the defendant guilty and he found a mere pondering of the evidence indeed i the last thing the page one hundred and six into one hundred and ninety seven i think underscores the military judge his instruction to the panel to be clear that all the time that that the standard of beyond a reasonable doubt must be met and and so with that being the understanding of of  error and and and in light of the hills holding new rules that that the interpretation of the military rule of evidence was it was unconstitutional  violated the confrontation clause and so the analogy here that is that crawford is that the military will the evidence allowed and the evidence i'm in for charge conduct proper the rule for  as a similar circumstance here and that that bill should not be applying retroactively for for the reasons often explained in the military in the criminal court of appeals decision in lewis that was cited when denying petitioners bears noting that they were all unsuccessful and so in the in the wake of all these unsuccessful challenges the government would submit would be reasonable for petitioners direct review appellate counsel to have the opportunity to choose forego that challenge in favor of others that she or he might gain mining might be more successful and so given given that strategic choice and in judgment the response respectfully submitted that court should address it and you can find that at five hundred and eighty six f rd thirty two and the circuit employs a two part test st a review of the military terry court's thoroughness and examining the relevant claims at least worth for onus is contested and it is contested here and then to a close look at the merits of the claim albeit with some degree of deference and certainly more than kaufman's innova stand there here you have a fundamental errors that will be reviewed according to the burns in article three courts for the american servicemen and women have article three courts available to them i think   as the calf held in bill's just just opposing beyond a reasonable doubt with the preponderance of the evidence standard would tax the brain of even a trained lawyer and in a system that already denies servicemen of of rights i mean as we sit here today american men and women in uniform are the only americans that could be convicted by a non unanimous vote all hill says is that you can star in upon prince of the evidence into those deliberations as well we believe that that issue hasn't been addressed by the military courts but even if this court were to hold otherwise that the military courts haven't manifestly refused to consider those claims with these two truncated orders in captain ward's case we believe that these are the fundamental errors under sanford and it's not just the d c circuit the th circuit would even go further and have a to nova review and i would also point out in the non your honor i think that's that's the problem is is when you have the court in gray say the article seventy six no longer gives the court jurisdiction for court notice and they want to look further if you want to look behind his as you say sanford give that ability to factor test your view you examine the thoroughness of of the military courts this disposition and you see that  once you do that under the full six of them and the th amendment claim captain ward is entitled to relief and i think the final point that i would make is that the the courts neither the air force court nor the caf addressed the th amendment claim that that captain