arizona's rules of criminal procedures and particularly our rules of post conviction relief this case presents several issues that if not entirely controlled by the arizona rules certainly are impacted by them given our relatively short time to discuss these matters this morning i would like to focus my attention on the issue that we presented as argument number two the other issue and i think with some in bunnie are compatible and i think that when you look at the way the arizona rules and the arizona court provisions have construed those rules that  the court could and should find that the finality of the state  at the issuance of the mandate because it is still an active case until the court of appeals issues that mandate not unlike the situation in bernie and the situation in pain versus what on if i may just a moment moment could i ask the deputy clerk to start the clock please ok i would like to reserve some time your honor for rebuttal as well so i'm trying to keep an eye on the clock for that purpose will give your opposing counsel little extra time as well because of the clock situation well getting back to the statute as i understand it in the languages expiration of the time for seeking such review is not what we're trying to construe well it is your honor but you have can't do that in a vacuum and ignore the state court pronouncements on that very issue we've cited in our opening brief a number of speak court cases which have i decided for the purposes of arizona  that the appellate review is not final until the mandate has issued and that certain states step to limitations for the purposes of bringing for example civil lawsuits based on the resolution of the review for bringing other issues before other courts based on the resolution of that review do not begin running until the mandate has  issued i took you want to detour counsel i'm sorry go ahead and that's fine argument thank you then turning back to the other issue the situation in this case is that mr hammer only was very dissatisfied with his trial counsel and filed several propre motions at around the time of his sentencing one of those motions was a petition a notice of petition for post conviction relief under rule thirty two of the arizona rules of criminal procedure this was done more or less contemporaneously with the notice of appeal that was filed on his behalf and the matter remains pending in this pure court during the time that his appointed counsel were pursuing his direct appeal in the arizona court of appeal there is nothing in arizona law which prohibits any petitioner other proper or otherwise from pursuing sort of a dual track review of his conviction both in the court of appeals and in the trial court at the same time and when we recognize that we can see that arizona has perhaps not as unique a procedure as california does in its original jurisdiction for post conviction he's petitions in all three levels of california courts it may not be quite that unique but it is certainly not a straight forward of the latter do your direct review and only then and only then can you begin your clavicle review because there is only permits parallel proceedings we have to look at the the lawsuit for thinking versus roe and recognize that mr hemmer only in this case had a properly filed pending rule thirty two position petition before the courts of arizona from november i think was fourteenth of two thousand and seven all the way until the terminations of the supreme court review that is not because three four days later a second petition was filed which the lab aerated on the claims raised in the first petition and under king vs roe the gap or the interval only overlapped timelines in that case apparently the petitioner was filing these original jurisdiction rates in every court he could think of without waiting for a resolution but the decision on basis of that case does not turn on the fact that there are overlapping king the address specifically how we determine whether and i'm trying to avoid the term success of petitions because i think that carries a lot of baggage the second petition raises new claims not raised in the first petition or can virtually whether they speak the second petition to elaborate facts in support of the claims that were raised found that the first petition had resolve those claims on the merits then it would have treated it i think as a success of a petition because that petition that first petition was dismissed without prejudice it was not treated the second one was not treated as a successive and therefore barred petition in fact the state raised the issue with the state trial court that the second petition was marred because of the first e r twenty seven three twenty eight the courts specifically hold petitioners not precluded from raising these issues so the state trial court treated it as a valid non barred non for clued petition and when the ruled on the merits in fact granted us an evidentiary hearing on one of our issues the night is an evidentiary hearing on the merits on the law if you will but not on bar or preclusion on the other issue that we were attempting to raise at that time so the state teach to the state courts determinations of their own procedures and if the state court treats it as one full although interrupted but none nonetheless one for round of litigation on in our case mr hammer only did in fact set forth not just through check marks but through handwritten annotations what claim he desired to present and contemporaneously with the filing of that he filed a hand written had fallen below that normally expected level of competency so i think that the court can look at that petition in see that there were claims raise their claims which were dismissed without prejudice permitted by the arizona trial court to be refiled some thirty four days after that dismissal treated on the merits decided on the merits and that therefore the entire line of post conviction relief litigation should be treated as the one full round of post conviction litigation to which every convicted beginning is entitled and that would then told the entire time period second two thousand and three is when they denied the petition for review from the court of appeals denial of the petition for review from the trial court's denial of the petition for post conviction relief the petition for his corpus was then filed february twelfth two thousand and four handwritten capitalized language ineffective assistance of counsel is for associated attorney and then the names of the attorney in the name the attorney and his bar number yes rajel and the fact that that is that particular passage that you're relying on yes your honor and the two check marks immediately above it in which it's asking about are you claiming ineffective assistance of counsel even though that section says respond only if this is the if there's been a previous rule thirty two and everybody concedes that this was the very first petition notice of petition that he had filed there was no previous one but he was so eager to put that claim before the courts that he checkmark those two provisions added to handwritten notation as well thank you counsel thank you on the case just argued will be submitted for decision and we will proceed to argument