this is what we've got her in her post conviction her appeal of her from the denial of her post conviction really application to tell me where to look in the excerpts excerpts of record forty four work can do and the next two footnotes alaska cases and then it goes into the detail of the fact and then it says what was assistance standard which has it's a tougher burden to meet why wouldn't i want to focus solely upon the alaska standard which as i understand the law is lower well just common i think you might be smart tactical approach be to serve the alaska argument before the alaska courts and not pursue the federal argue yeah but in this case i don't i don't think that there's been any any anything but the attention of the full alaska supreme court to both federal and state basis but i feel this is just alas he doesn't have that long  and federal law are the same yes the second prong it's a little bit more liberal to the defendant yes the law of the state lies liberal now we're looking at that but that determination as to whether or not her for example her failure to t ell a defendant that the judiciary that the court had the ability within the context it's an essential restrict pro life pro eligibility i understand that let me let me ask you about something a little different from there i understood  that when we first started talking about where her federal claim was raised you directed my attention to the state court of appeals decision and i said no let's go to the petition for review of the supreme court i want to see what the supreme court federal and state constitutions guaranteeing effective assistance of counsel if i remember peterson right possible i don't think i was on the panel and my recollection was that the same thing happened there peters raised the federal claim in the briefing to the intermediate appellate court but didn't raise the federal court in the briefing to the state supreme court and we said sorry didn't exhaust you didn't fairly raise the federal claim before the to i can't remember for sure but i think they assume that erroneous advice amounts to meeting the ineffective assistance subsidy standard whether her state her advice was so poor as to be ineffective assistance i don't know if i'd go for that but let's zoom in but then they say there's no prejudice because if what was wrong was she told her clients the wrong standard for withdrawing the plea she told her manifest injustice instead of fair and just recently something like that so where she lost in state court wasn't on whether there was ineffective assistance it was whether bell fan was prejudiced by it and we know that state laws more liberal to the defendant on prejudice in federal law is so it seems like she got a perfectly good reason to rely on state law there's no reason to assume that anybody's talking about federal law where she wouldn't be able to get to first base in some cases that would win under state law and she she murders too brutal putting salt in the ones and throwing the naked woman out and all that stuff i don't remember that specific i remember it was a memorable decision in this particular case i don't remember that specifically in the context of the record here but i do know that fact the secular determination which is whether or not you know you're to advise the defendant of the judicial ability of strict parole eligibility age at the state courts found that that was did not rise to the level of incompetent representation and that's certainly one of the issues that she was like after changing present federal court thank you very much if you briefing before the oregon supreme court in the petition for review to the organise supreme court so that's how in peterson the the discussion of the legal issues before the oregon court of appeals or on in under alaska you repeat the case the procedure in alaska is that you file a party who seeks discretionary review by the supreme court has to file a petition for hearing which sets forth the issues for which they seek review and the reasons why review is warranted there is no opportunity to incorporate  the record for the last you know i'm not certain that i i i imagine they are part of the record because under the appellate rules i know that the entire trial court record by rule is part of the record on a when i used well i guess the court of appeals didn't exist when i did criminal defense but as i recall it the reason that the state supreme court used to get the whole clerk's record on appeal is that i would always put that in my designat as i recall they got whatever the designation of record said in the designations would typically say the court's record plus whatever transcript the defendant wanted to pay for is that changed yes or no longer do they use does admissions of record galvin in her petition for hearing are the alaska supreme court i took this the standard the federal standard of confidence from two circuit court decisions i believe it's easily i can't remember the circuit or i don't have the citation i can't remember the other other case but they adopted the standard but the alaska supreme court departed substantially from the in the in the prejudiced prong of the standard and i dotted a standard akin to reasonable doubt where as the u s supreme court when it decided strickland several years later adopted a reasonable possible probability standard and if there's any doubt that the alaska supreme under the under the federal constitution and finally she cited no state case that analyzes the right to counsel under the federal constitution and that's what peterson requires if you're going to rely on a state case there were choirs that that state case have discussed the federal question and in the cases that she this government sites in her that kitchen don't do that the closer she comes is and the arnold case which simply refers to richer which as i say it when you when you read richer it's clear that the alaska supreme court was adopting a standard for ineffective assistance under the state also asserting a federal claim here and it shouldn't be too much to ask of a hideous petitioner to have done something to characterize her claim may know the answer this question but do you then agree with the observations that i was making that in this case because of the difference in the second prong it would have made  different from a tactical standpoint as to whether she wanted to sort of think well tactically certainly absolutely because as i think everybody be able to separate them i mean it's it's she has to prove she can't say well i'm presenting i'm presenting you know that this is the first prong of performance problem under the under federal and state law but i'm only i'm only presenting them the prejudice