ok can you still hear us now is with respect to procedural the paul i would not presume at all to pretend to understand procedural default such as judge strawson and judgement and they wrote thomas vs any the only thing i would like to establish are some dates and the key dates are leads the motion for reconsideration was filed in franklin county on january th two thousand and sixteen at that point in time there was no appeal pending in the arkansas supreme court thomas versus payne talked about the fact that the procedural default has to occur is the initial collateral review court that franklin county that's where the default occur it does not occur on appeal you notice of appeal was filed three days later it was in february that the circuit court of franklin county finally for two denying the motion for reconsideration and then a supplemental notice will deal with while these documents i can give you the citations to them they're not the joint appendix but what the parties submitted to the circuit clerk's office was a thumb drive that was identical to the thumb drive given to the magistrate and perhaps the court is not as fully versed in what happened is we are but we gave afterwards they never found the thumb drive again when we were putting together the record we found this out and so the party stipulated that the attorney general's office would prepare an identical drop and send it to you  if the court needs the page numbers within the thumb drive where these notices of appeal in the motion for reconsideration are i can give them i can i can do it now reckon to do it later but the point being in terms of thomas vs paying the i don't the other can be an argument that the procedural default happened in the arkansas supreme court when the defaulting act was the filing of this motion for reconsideration with mr with note and it was filed in franklin county  lawyer do strategically he didn't find the note he did submit them during the evidence are you hearing in franklin county was the procedural the all the procedural rules violated by him also occurred in franklin county it's when he filed the rule thirty seven motion in franklin county on january th two thousand and sixteen and that's why the arkansas supreme court wouldn't reach the issue at all you know mr rove is rather going to talk about it in practical terms he could not have filed on a field on the rule thirty seven courts denial and not appeal the denial of the motion for reconsideration because if we're going to be fair to the rule thirty seven dollars court the group thirty seven court best that the attorney general can hope for is that if this court is going to deny application of martinez there would still have to be a real man for the district or court to consider this evidence under those standards right dr exam report from the hamilton house show this little girl's hymen is intact that's why bring it full circle back to judge holmes is a discussion of prejudice the now i might as well drop the footnote and get to it the state argued below and i believe they've argued here that you don't have to worry about sexual intercourse with a penis because there was digital penetration number  court will look at the joint appendix pages seventy three through seventy six this little girl talks about these fingers feeling weird because they're inside her vagina so once again if she's telling the truth she doesn't have a hymen because it's not like the hymen can only be pierced by a penis but not by a finger right so that is why also and you know it's frustrating because the state is characterize but it never was but that's why the absence in arc and saw of an alternative means unanimity instruction is so important in other words the state of arkansas never asked this jury to decide was you vote twelve nothing that this was a piano penetration or a digital penetration and since we don't know what they voted on what they decided upon that's why you cannot say that any of this was a harmless error well counsel that only the let me have proof that they convicted on a digital theory as opposed to peano theory but what i'm saying is if you're testimony pages seventy three through seventy six of the appendix even the finger is taken away because the girl says the fingers  uncontroverted evidence that there was even a touching of the lady you know where she says that several times on the pages you cited me too she says that because of my clients my client is not right so it's still up to a jury car if it results in the procedural default of an ineffective assistance the truck council claimed in the end initial review collateral proceedings here the claim was presented those additional facts have no impact on whether or not the procedure of the thoughts of purred so the discovery of new evidence has no bearing on whether the plane was actually child did not have permitted and hartmann and further hartmann playing with undercut because he felt as it was that when he was taken into aig when he completed his medical history upon being taken in and the absence of heart was in his failure and if certainly specially under arkansas law in which intel is the state in which the arkansas supreme court or the trial or finding evidence of committee was relevant to the issue of penetration so they didn't say why did they say it was absolutely irrelevant they say it's not a defense under arkansas law they said it was irrelevant ok i thought it was that just saying it wasn't a defense but you say in evidence with the recorded well of the conversation aren't with the mother in which he admitted having touched the child so the only issue at based on the arkansas of definition of right involved the penetration however slight of the light the image or in the record here in the district court is the actual instruction that was given to the jury before in the reference it is to do you know where it is physical exam examination which occurred when she reported the write it was not conclusively established in that examination that she did not have the infection and he also given at the federal hearing it was not inconsistent with the minor victim's testimony the absence of committee evidence is not the product hartmann of a trial which results reliable happened on appeal you don't lose your procedural default in franklin county because there may have been a subsequent briefing deficiency in the arkansas supreme court that would be to have result that is that the arkansas supreme court re deficiency would not ameliorate the franklin county procedural default under rule thirty seven dollars i mean the st thing nd thing is it's not as if this issue about ernie which notes were not raised is just ripped away the arkansas attorney general would have liked them phrase as with respect to double deference here's the what i would suggest on double deference don't you know the attorney general said we should look through all the way back to the franklin county ruling if the whipsaw situation for the franklin county court you know we have for no deference because the franklin county court didn't have the votes the judge ford found as positive or we admit the reality the franklin county judge camp in the us and then usually does decline to consider them in its ruling but either way that ruling from franklin county in light of ernie was testimony to judge ford would not be entitled to any deferen it's clearly erroneous though the fact the matter is that when it tried to get out of having had the committee and tried to call them his closing argument know that it was very dramatic courtroom testimony he was wrong judge for dropped a footnote on him for the misrepresentation jeff rosensweig admitted that a separate set of notes that i gave to him that said at the very top and i had a closing argument where the closing argument and that the notes that had the  client's mother's phone number at the top it would be in take notes when he took the case in but one thing i would like to leave the court with and that is we still are entitled if this is procedurally defaulted which i don't believe it is i think that the girl couldn't get clean media is or hymens in the sack and that completely contradicted her story that is how the results of the trial would have been different if you're a juror and you hear about this kid claim she'd been raped for several years and it h