statute bars an evidentiary hearing where the petitioner has failed to develop the record in state court and the petitioner does not satisfy the requirements of the statute in this case the district court failed to apply the statute the district court essentially determined it would be unfair to apply the statute and granted an evidentiary hearing let's see where in the land of martinez right no your honor i know we did not  there's no merits ruling right yes and so to judge by is this point which i share the same concern he'll didn't get a merits ruling and surely it's the state's position that's because hill tripped up some procedural rule even when there is no adjudication in state court and what martinez applies to is where the state actually asserts a procedural bar and says this claim is procedural barred do not reach the merits we are saying position is because martinez said that they'll be in america's ruling when we have these two levels of i c right when the reason there isn't wasn't a merits ruling is at least allegedly i the defendant has to have an opportunity to show that that might be excused an opportunity to show cause and prejudice martina's supplies as an equitable rule to show cause to excuse a procedural bar not to allow the petitioner to present evidence on the merits of his wife if your argument is you're not asserting procedural bar to sure and there's been no and we take the case in the posture that it is to us there's been no ruling by the washington supreme court on this particular i e c claim if that's the case mart i don't see how pinhole story applies and i don't see how that why there is a bar when there's been no ruling by the state court on this particular claim your honor the part of pin holster we're relying on is the part that says that twenty to fifty for each to applies even if the claim has not been adjudicated the court in penn holster the majority of the penn holster decision governs twenty two fifty four d but there is a language that talks about twenty two fifty four applies separate from twenty to fifty four d and so as this court recognized in lopez versus ryan the court will have to extend martinez in order to say twenty two fifty four forty two does not bar an evidentiary hearing on the claim would have raised procedural bars that correct we could have you could have if you had done so then martinez would kick in and then he would have his rights to do so that's correct so that whether or not he gets a full hearing on the i a c claim depends on whether the state decides to invoke procedural bar or not your honor who now control his case and there's nothing more he can do so if you if you accidentally said we invoke procedural part that would be a good get it get the hearing you get a martinez hearing but if you're if you're careful in your language and don't use those words procedural bar then he can't do it so i don't know you're on it because the misunderstanding is he's getting a hearing on the merits of the claim on the merits with no evidence but no it's the evidence that was presented in state court  that's his fault in the statute bars him it is the state's this in the state's business one must be that it's his fault surely it's his fault if he didn't get a merits rilling and what mightiness teaches us is that there needs to be an opportunity for at least him to at least show that that the claim right if you go to the merits then you are talking about the claim and what this court is going to have to do is apply an equitable rule to overcome a statute the plain language of the statute this court is going to have to say our rule of equity trumps the statute but that's that's and that was that was exactly what justice scalia complained of in martinez what but what the court in martinez said was that because it is the cause issue it is not a constitutional claim we're talking about rice's mighty two didn't bar the hearing right the two does not bar the hearing on the issue of cause but when you move to the claim then you are talking about the merits of the constitution  i think i think the last thing you just said to me i mean i agree with you about if you're talking about the district court wanting to move to the claim i e the underlying claim and skipping the first step i think you may have a point but why would we skip the first step if he has to show right if he has to show an excuse for the failure to get a merits hearing in state court why shouldn't he have to have the very same burden he would have in what we have previously called a referred to as a martinez hearing big because your hon and maybe in a different case he would have to do that at this point just comes up to us on it you know like a tory review about whether there's going to be a hearing if if if if we don't agree with you that this is all going to pivot upon whether or not the state has or has not asserted a procedural default if we instead say there's no merits ruling that just a court decided that having decided that surely it's not the state's fault but but he'll should have an opportunity to demonstrate why he should be excused then then isn't it your position that he has to do both levels he shouldn't be relieved of either level at the at the hearing just as it would have been a martinez hearing it it would be our position that whenever the court reaches the actual merits of the claim that when you talk about merits or time it reaching the underlying right if you lose on that point present the case that he should have to prove both levels just as he wouldn't mightiness hearing he would he would not see what happens if he goes back to state court the state court would then determine the prosecutor would determine whether or not to assert a procedural defense and the state court would make a determination whether to apply it and if he was i go ahead i'm sorry if he presented the evidence to the state court the state court did not strike that evidence that would be part of the state court record here he presented some evidence to the state court he just didn't present all of his evans but if you went back now and the state court said sure that you've been here before you should have raised it the first time you're here you're done can come back can he come back to this court and say well i've now i've presented it and you'll think you'll say there's a procedural bar that we may say that there's a procedural bar and then can you get martinez i'm just wonder if there's if there's another step he has to take care but the result is always going to be the same no your honor we may not a sort of procedural bar as we did in this case we may not have sort of procedural bar you know what would you say if the state court said you've already been here once and you can't and you didn't race the first time so you're done it would board in other words could the federal court raise procedural boards will your honor i think that the could there have been rare instances where a court has raised your procedural bar but i think this court has looked down on that and this court has actually held work in the context of this case that why couldn't the federal courts because you're asking us to decide this case on the merits we have know it you know he wants to present this evidence you're saying we can't considerate i time bart he'd be have a second or successive petition so it is well i suppose we could go through the mechanics of the stay in a bit and go back and get that ruling you know washington as well as i do and mr hill would have no opportunity to present this additional evidence in state court so what the government's argument here is is that really the supreme court of the united states did nothing in martina's they they said here's what they set if we assert a procedural bar or if we do not assert a procedural bar i want to be clear that they're not using the word waived because procedural bar and so right in this circumstance he would have to waive in writing he would have to waive it in writing but they're not saying they waive that they're saying they're not asserting it that leads me to believe that at some point they may assert that the language when it's not it waver is usually a conscious then the technical term is that they forfeit it right not there are they careful to use the word not assert which i'm not exactly sure what they mean by that so if we if you then by that he just told you which is that's typically an affirmative defense and he's not fairly or not asking us to require him to assert an affirmative defense our you know what i'm saying that he can't waive it to get around martina's right so what are you saying that we should do are you saying the state excuse me forgive me that the court should require adjudication along the line of cases fall of the of the procedural default and then move on to the martinez claim the equitable portion of the martinez ruling now his position is that under martinez the intersection of pin holster and martinez allow us to go on to the disc to the district court and present cause but i still think it's the government's position then that no matter what evidence you develop about cause in the district court then holster still applies to any evidence that you've developed and the court can consider that of the underlying merits face that's his position all right so yes do you read the district court's order that is on appeal to to say that the hearing is going to be only on the underlying trial counsel i no i think it's a combination of i a c and i you see on on the post conviction proceedings that when the state keeps saying they want to go to the merits i just want to be sure your position is not that you expect to be relieved of either any burden that you would otherwise have in a martinez hearing is that right no although i think i've shown cause and i think i've shown a substantial claim but you just said no and i think the answer has to yes i would yes larry that you  defense perspective but it's always been my opinion that under martinez hearing i have to show cause i have to show prejudice i have to show that i'm going to win and to get anywhere now that somewhat collapse the merits meaning to the underlying and i heard you loud and clearly in your briefing say we want to go to the merits but there isn't any evidence to to which from which the claim could be adjudicated but i think you've answered my question by here no i have a very yes and perhaps i'm just misunderstanding you state the government and i have very different views of what the merits are i view the merits as that evidence that i have now developed which martina says i can then print present de novo because i have never  mr hill is ever had his first fair round of examination of all of the facts that we develop he's saying well no pin holster sneaks in here right here and no matter what evidence you develop now  the federal court can't consider that so the merits is always going to be limited to the paucity of evidence that was developed by a pro se defendant in the washington state courts of appeal from prison without c to take a look at some of this new evidence yes tourney declarations and protect us but i'm having trouble with is i think his name is dr white hall i think his declaration it appears in the in the excerpt with the supreme court case caption on it but the but the briefing tells me that that was not submitted to the washington state supreme court if there were two different declarations was one of them submitted yes and one then there became a question about the dissociation and the s d and its relationship to the intent here and so there was a second declaration by dr white hall in the federal court that expanded upon the declaration that he had given to the washington state supreme court but the washington state supreme court remember he did that  seems to me it's not that this went without mention in the or at least attempt to mention this claim raise it in front of the washington state supreme court but it was deemed untimely yes but i just wanna be clear there were two declarations you  want to see that there's i can see there's a difference that it's you know we have different evidence of medical evidence on appeal and we also i mean on in the district court and also more information from dr white hell about the fact that he had been the t rial attorney had never asked him about the rampant right and everything ok ok thank you i think the court understands our position here i agree that martinez is an equitable relief at least at the show show cause stage but what the government is arguing here is that martinez is essentially a frolic in a detour and that as long as penn holster and the statute are out there we don't get to have a full and fair hearing thank you ok thank you doctor's declaration he did some it went to the state supreme court it was a very conclusionary declaration his subsequent declarations were only present in a federal court so it's our position that the statute requires the court's review be what was presented to the state court since the hearing is actually on the merits of the claim and not on the issue of cause and i would submit that this court would don only have to go beyond pin holster would have to create a new role and actually overturn the statute by playing an equitable ro ok thank you thank you matter submitted