remanded for further proceedings that conclusion follows directly from gunnar versus welch which held that a hey vs petitioner's failure to pursue a trial counsel claim in an ohio post conviction proceeding is excused if its direct appeal counsel never imparts information central to pursuing such relief as this court noted in granting the certificate of appeal ability all of the same facts of going are applied to the case at hand and indeed appellate counsel's actions you cause us around but you still have to exhaust your cause ground in state court correct and does not appear to have been exhausted so how do we get around that well we disagree your honor we think that the claim advise williams in the face of repeated inquiries about his trial counsel clay and that single deficiency gives rise to two consequences the first is that there were three things that were actually raised below works under this court's precedent we think ok which of the three does it fit within we we think it fits within the first well again it's not whether or not it fits squarely within one of them it's whether or not the substance of the claim was raised to the state courts so i hope you know what purpose of comedy is to give the state court a chance to address whatever the problem is so they have to know what you're complaining about that's correct if you if you didn't use the exact words you know agree with you there but w claim was in your view sort of close enough that the first one the failure to advise because william stays out of the first claim that appellate counsel did not contact him and did not communicate with him that's a whole thing is a failure to raise in the first claim as i understand it right so tell me if i'm wrong involved failing to call the alibi witnesses failing to investigate the crime scene and failing to enlist a psychiatric expert which one of those or even close to failing to tell me what the time  clearly on both in his rule twenty six b affidavit and with respect to that claim it's one of the first sentences in his argument under that heading he states that i was not contacted and he says if i had been contacted i would have  some some of these errors could have been avoided and we think that here that it's we're talking about a single deficiency here would it be sufficient then to avoid this presentation requirement this is a requirement of to simply say in a petition that i wasn't contacted by my lawyer well we think that the whiting yes and we think that's all that is you know that would be sufficient to do for presentment purposes well it obviously depends on how well it's presented and also the overall context but we think here that the whiting versus burke case is very instructive there are you have a situation in which you have a haven as petitioner who makes the claim that his appellate counsel much like here did not raise certain arguments on the direct appeal that would have led to a reversal of the conviction and the question for this core was whether or not he had fairly presented a conflict of interest claim and the court found that he had done so even though his conflict of interest  factual basis had not been not included as a separate ground not specifically argued to any length and certainly could have been made in a more specific and more in phatic manner and in fact the court finds that fair presentment based on a single sentence in which whiting in that case simply notes the fact that his trial counsel and his appellate counsel were the same and so that was enough to fairly present a conflict of interest claim and we think that this case is even easier than whiting because williams proceeded pro se at the time he presented his rule twenty six b application to the state courts and in whiting's case he was actually counseled at the time and so if that single sentence authored by counsel is sufficient we would submit the same is true in this case with the pro se defendant whose pleadings are subject to the liberal construction standard now if there's any doubt as to the fair present we think that two further points away in favor of resolving that inquiry in favor of williams the first is that the reason that williams did not focus more on his last of the post conviction hearing is that he was not coun to the differences in ohio law and as to the correct view of a high a law by his appellate counsel and so in that sense that single deficiency is doubly prejudicial to williams because it would bar not only consideration of because so and we can see this from the governor case in the gutter case he raised the twenty six b application and he argued that he essentially should be given relief for his post conviction proceeding think that it really makes no sense to require williams to present a claim to the state court that the state court itself essentially deems improper and says you don't need to raise if your we we're not going to even consider this claim and so in that sense we think there no comedy or federalism interest if this if the court finds that governor controls here the state agrees such as on page thirteen of its brief that such a finding quote should lead to  because williams this claim is not subject to plenary rejection here and as the certificate of appeal ability recognizes again the merits of the claim are debatable they remain an open question and they are actually obscured by a errors but nonetheless based on the current record that we have williams has already facially allege the denial of a constitutional right as to the merits of the trial counsel claim the state makes a number of claims about strategy but we think there can he could have gone anywhere with this person well we know the specific place that the crime is alleged to have taken place it was within the parlor within the wing of the nursing home but as to that alibi witnesses we think that five witness statement so all of the fifteen or so people that were there or whatever the number was you've caught you've contacted them you reduce their their input to writing but they don't but these statements don't account for the full three day period well we don't think that it needs to account for the full three day period because williams remember is it is essential to trying to prove a negative here right he's trying to say i was not in that room with k w at that time and the more witnesses that he has to come in and say that they were with him they were constantly in his company the more likely it is that the jury can say you know actually somebody was with them and we do have witnesses that have testified such as shannon canal he states that he was there for two days and i want to point out that this case actually we can see from the trial transcript we know that the crime occurred on one of two days prior to the third day they were there when the mother passed away so if for example shannon canal was there and he says i was constantly in williams's company at that point and that matches up with those two days that alone would be enough i think for a jury to find that you know there is a plausible alibi your thing that coun the wording but this ineffective appellate counsel claim was not presented in federal court or in state court which means it's not defaulted or your argument on that point i think the gunner does not have any application to that no hearing in federal court on the appellate counsel claim and conceding that the state court got it right in finding no prejudice to begin with that second path because williams of sorts that he did present that claim in state court said that the defendant must present the same claim on the same theory presenting both its factual basis and its legal basis in state court or the twenty six b application raised a in effect of assault in effect of claim it didn't raise this claim because it raises it on a different theory and a conflicting theory on the basis of different facts mr chen argues that it's basically good enough to claim that you weren't contacted by cou nsel so you didn't have a chance to discuss issues so you couple things to that your honor first i think the argument that he is making is two steps removed from the argument he made in state court and state court he asserted that appellate counsel is ineffective for not raising the claims on direct appeal in fact will support his affidavit says in congress one in four that he did not that those claims weren't actually raised in the direct appeal brief and he says  him before making that omission in federal court however he says that appellate counsel is an effective for not advising him about the content and deadline for his post conviction position that argument assumes that appellate counsel should not have raised him on direct appeal but instead should have told him to raise them in his post conviction petition that's a different theory and was not fairly presented in front of the state court state court in time just what about the fact that if you have approached me that we his state court filings and i think that is correct law the circuit says you liberally construe a federal habeas petition but there is no room in the fair for present role for liberal construction of state court rulings because the question is whether it's fairly have that play out well i think that the important part to begin with is the either or he can't have it both ways you can't say both that this claim is not procedural defaulted and say that he can avoid  particularly deference to the state court ruling that there was no prejudice here because the underlying claims did not have any merit as to the whiting case that you refer to think that claim is very easily distinguished here because there was the same theory and it was based on the same facts and more importantly i think in that case it was raised in his brief here mr chung refers to one line it's a catch all paragraph thirteen of the attached affidavit an affidavit can't preserve a claim because it can't be ruled on by the state court paragraph thirteen simply says that the above deficiencies namely deficiency and not raising the claims on direct appeal could have been avoided if counsel had communicated with the defendant that is if you asked the defendant the defendant would have told him to raise the claims on direct appeal we know that because that's what his letter to counsel said and that's what is twenty six be applications as well and so we have a different theory we should have raised it in his direct appeal in state court from the theory in federal court and we have different factual assertions in the state court than the factual assertions in federal court and under hodges and in this court's precedent that claim is not fairly presented and again an important point here is that the state court  question of whether he preserved it in state court to some of mr chen's other points in reference to gunner as i said earlier gunner only provides the basis for the claim it does not excuse the default and it black letter law in this circuit that an appellate counsel claim must be preserved in order to serve his cause with underlined the fault that was decided by the supreme court in the edwards case in two thousand out of ohio in fact of this very very same scenario with a twenty six b application and this court in toliver i believe refuted his second point in toliver this court said that appellate counsel has no duty to advise his client about the proper excuse the default here and the reason for that is because of pellet counsel has no duty to invite advise him about the proper content for a twenty six b petition more generally this  that's that's the end of the line there is no third level of ineffective assistance claims to be presented finally this case is like gunner in some ways but it is not my gun or in a very important point in paragraph five of that opinion this court pointed out that this specific claim was raised in state court in gunner here it very specifically was not raised in the twenty six b and in fact asserted a different conflicting theory on different facts so there are no further questions or like to suggest this court rule on both sides of the either or because defendants can't have it both ways please the court i like to make two brief points the first is that there is no end to deference as to the ineffective assistance of appellate counsel claim as this court has stated time and again when you have an ineffective assistance claim that is being one that will give rise to the grant of relief not a cause and prejudice claim essentially that's in the joseph vs coyle case and i believe most recently in hill vs burke the second point that i'd like to make is that  the theories that williams raise in these twenty six b are not conflicting as as the state says here again we're looking at a single deficiency that gives rise to two consequences and the second of which is the loss of the post conviction claim and here i want to point the court to my reply brief page six where we list all the places and specifically i would say pages two thirty nine into sixty one of the record or two sixty i'm sorry where william specifically discusses with the state the fact that he no longer can file a post conviction petition so we think here that it would not be at all lost on the state court that was the consequence of the single prejudice the failure to communicate and the failure to  advise as has as to the claim and in fact that that prejudice is so recognized that there is a presumption of prejudice under the roe vs floors or teja case which is well settled so again we don't think that that would have been lost on the state courts and there are no further questions  thank you we know that mr chen you're appearing under the civil justice act and behalf of the panel let me just say how much we appreciate the excellent both written and oral advocacy you've given on behalf of your client here please convey appreciation to a can go on for continuing to allow you to participate in these cases it really does a great service both to the client into the court as well thank you