you may perceive that afternoon your honors and may it please the court this capital he is corpus k should be resolved by an order vacating and remanding for further proceedings in light of sasser versus hob assistance of counsel claims or at least those that are presently before this court solely on the ground that they were procedurally defaulted mr dan's be had argued that his post conviction counsel and state court performed in effectively and that the ineffectiveness of state post conviction counsel excused any procedural default but the district court ruled as a matter of law in effect of assistance of post conviction counsel can never excuse  procedural default this court's decision in sasser versus hobbs establishes that the district court's holding is erroneous so the question now is what should this court do and i think in deciding what to do the court should look to how the fifth circuit and the ninth circuit's handled trevino and martinez respectively when those cases were on remand from the supreme court both the fifth circuit and the ninth circuit entered one paragraph per curiam orders vacating in remanding for further proceedings in light of trevino on the one hand or sasser on the other the reason is that the supreme court had already ruled in those jurisdictions that ineffective  state post conviction counsel could be cause to excuse a procedural default and the district court was best position to apply that rule to the facts in the first instance here sasser has already ruled for arkansas that in cases arising from arkansas law ineffective assistance of post conviction counsel may be cause to excuse a procedural default under certain circumstances and so as in trevino and martinez this court should vacate and for the district court to apply that rule to the facts in the first instance of a canon remand is appropriate not only because the disc district court is in the best position to make this fact facts sensitive decision in the first instance but also because the district court may hold an evidentiary hearing or may decide to exercise its discretion to stay this case and hold it in abeyance to allow the state courts to consider mr danby's ineffective a of counsel claims in the first instance in trivino the fifth circuit decision on remained in trevino specifically noted that the district court should assess whether to stay the claims and hold them in a to allow the state courts a first shot to hear them and that would certainly be an appropriate thing for this court to do in this case the state does make an effort to distinguish sasser in its brief but none of the distinctions that it tries to draw are persuasive use the sasser declaring as a rule of law that a panel must remand a case or do you think that is in other areas a panel has discretion to proceed to the merits or remand depending on the circumstances your honor the way that i read sasser is to say that if the ineffective assistance of counsel claims claims it could have been that i'm starting to roar well i'm saying if you read it that way then it suggests that we should do a substantiality analysis and if we conclude the claims are insubstantial then we would not remain and if we conclude they are that way no your honor slapped versus mcdaniel says before granting a certificate of appeal ability that a court must find that the petitioner has made a substantial showing of the denial of a constitutional right  and so this court's grant of a certificate of appeal ability and all that i thought all that had to be was fairly debateable that's what the supreme fairly debatable about whether there's a substantiality that's not what slack  is that where the claim is debatable amongst jurist of reasons that that is a substantial claim so maybe it was improvidently granted then if we misunderstood the standard no your honor i do not think that it counsel at the guilt phase the state before you go to those important but one on a question on sas or as i recall sasser the court said there were no fewer than sixteen ineffective assistance again i don't know exactly whether the potentially meritorious language is equivalent to the substantiality a whether they're saying there's a potential that the district court could find there substantial but i'm saying what about the other twelve yes it did it that's right it did undertake some preliminary review of the merits of the claims and it found sasser held that the guilt phase claims in sasser were not potentially meritorious and therefore remained was not warranted ok so i would agree  that at least under our precedent there's authority that we don't have to remand everything we've got into some kind of threshold analysis right and my position after that is that number one that threshold analysis has already been conducted and primary argument that the state relies on to say that mr daines b s claims of ineffective assistance of counsel at the guilt phase are not substantial is its argument that that there was no plausible claim of self defense because mr daines be mr danby had a duty to retreat if he could have done so in complete if in complete safety now i think that this is wrong for several reasons the first of which is that it overlooks that mr daines because petition alleged prejudice not only based on the fact that he that the jury might have determined that he acted in self defense but he also alleged that the evidence that tended to show self defense or tended to show that there was a struggle also would have supported what i call a lesser included defenses such as extreme emotional distress or  so if for example trial counsel had introduced evidence that the gun went off during a struggle rather than after mr dansby gained control of the gun so we've we've argued that are witnesses who would have testified that it wasn't a struggle for the gun and then gunshots that they both happened at the same time if trial counsel would introduce that evidence it could have supported a self defense claim if not it could have supported a claim that mr dansby acted under extreme emotional distress which would have led to a manslaughter conviction and all three shots all through my understanding is that in brinda dance  that there were two gunshot wounds and bring to dance because case there were some witnesses who testified that there were three shots it's not clear whether all of those were fired by mr dansby and there was also evidence in the record there's evidence that we've alleged trial counsel should have presented that all of those shots were fired in rapid succession and during the struggle for the gun the second reason that the state's argument against guilt phase prejudice can't stand up is that under arkansas law it's the state's obligation to disprove self defense beyond a reasonable doubt so the state argues that mr dansby could have retreated with complete safety it would have had to prove beyond a reasonable doubt that mr dansby could have retreated with complete safety and it doesn't just have to show that there is substantial evidence that a juror that a reasonable juror could have found that he could have retreated with complete safety beyond a reasonable doubt it has to show that there is no reasonable likelihood that the jury could have had a reasonable doubt and certainly based soley on the pleading kimball were always armed and that ronnie kimball had pulled a gun on him and threatened his life on a previous occasion so he wanted to speak with mrs dansby but he knew that these people were armed and that they had threatened him on a previous occasion riggins gave to the police on the day of the incident and his his initial statement to the police which tribal council in effectively failed to introduce was that when he came to the window after hearing the first gunshot the first thing that he saw was brenda dansby with a gun in her hand up in the air and that raid and b that she had control of the gun and that radians b was struggling to get it from her in addition the statements that mr dansby gave after the offense describing his version of the incident both the statement that he gave to jeffrey talley who testified at trial and also the true statement that he gave to larry  you would testify to at an evidentiary hearing on remained was that the first thing that happened was ronnie kimball answered the door threatened his life and reached for his gun and that he shot at running kimball only after ronni this is that brinda dansby was shot with her own gun so that that also indicates that she's the one that pulled the gun out or at least that's what will prove at an evidentiary hearing on remain furthermore i don't think that any of this goes toward showing that the crime was premeditated which is what the state is required to show for a capital conviction  now the state's theory of why mr dan's b s claim of ineffective assistance of counsel at the penalty phase the state has a theory for why that isn't substantial and it says that the reason is that mr dance because childhood wasn't as difficult as those that have as the childhoods of supreme court cases and cases of this court that have resulted in penalty phase relief but the state overlooks that mr danby's theory of penalty phase prejudice isn't that just as a generic matter he had a hard childhood rather mr danby's theory of penalty phase prejudice is that the particulars of his childhood caused him to develop a very specific psychological problem in secure attachment and that this insecure attachment goes a long way to explaining the specifics of what happened so mr dan theory of penalty phase prejudice is strong because the mitigation that trial counsel ineffectively failed to discover and present had a tight nexus to the offense and while a nexus to the offense is not required is not a constitutional requirement for mitigation to be presented it certainly makes mitigating evidence more persuasive so mr danby's theory of penalty phase prejudice is that experiences during his childhood over which he had no control inexorably led him to develop these deep seated psychological problems that produced the offense the state also attempts to distinguish sasser by arguing that this court can decide that post conviction counsel was not in affective based on the record alone and sasser of course says that that should be handled by the district court for the on remained after an evidentiary hearing but if this court were inclined to take a look at s argument of ineffective assistance of penalty phase counsel ineffective assistance of state post conviction counsel it's certainly find that that claim is also substantial the state the theory running through the state's brief is that post conviction counsel somehow made a decision not to raise the claims of ineffective assistance of counsel that mr danby has raised here because counsel did raise other claims right right but  the problem with that organization on the ones that you want to raise are not clearly stronger than the ones counsel did raise that don't they that's the state's interest so so the problem with that is this this case was dismissed at the pleading s petition alleges that post conviction counsel never even did the investigation necessary to discover these claims actually post conviction counsel didn't do any independent investigation all post conviction counsel did was rely on notes from trial counsel about things that she thought went wrong at the trial so the notion that post conviction counsel somehow made a strategic decision to raise these claims is contrary to the allegations that mr dansby has presented in this petition which is post conviction counsel didn't even know that these claims existed moreover if the state allegation is that post conviction counsel made a strategic decision to raise these claims it's only strict decisions that are made after a reasonable investigation they're entitled to deference and mr danby's allege that post conviction counsel not only failed to conduct a reasonable investigation but that they failed to conduct any investigation at all so there's certainly sufficient factual issues to remain to the district court to have an evidentiary hearing on whether post conviction counsel was ineffective a third way that the state attempts to distinguish that her is by arguing that mr daines be somehow forfeited his right to an evidentiary hearing but that's just not supported by the record mr dan's be did withdraw his request for an evidentiary hearing on his first amended petition after he filed his second minute petition so what happened was the district court sets an evidentiary hearing on mr first in the petition in the interim mr dansby files a second a minute petition and says i don't want to hearing on my first i'm in a petition i want to hearing on my second i'm in a petition and the district court says ok i'll cancel the hearing on the first i'm in petition but i want to review the state's response to your second i'm in a petition before i decide whether an evidentiary hearing is warranted after review the state's response it decided that no hearing was warranted basically on grounds that contradict denied that hearing on grounds that contradicts sasser the final argument that the state gives for distinguishing sasser is that the district court allowed an expansion of the record below again that's just a misreading of the record the district court allowed mr dansby to expand the record on his confrontation clause claim on the confrontation clause claim that this court considered several years ago and the expansion of the record was limited to the confrontation clause claimed the district court specifically denied mr danby's request to expand the record on his ineffective assistance of counsel claim so as to the claims before this court there was no expansion of the record and the district court denied mr dance because requests to expand the record the last substantial issue that the court may have to consider here is whether and to what state has the state's response brief acknowledges that trevino should apply as a general matter to gateway claims of ineffective assistance of counsel the state's position is just that mr dan's b s gateway claims are not substantial so as a matter of law the state says that trevino should in theory apply to gateway claims why is why why did why would why should we create another equitable exception to coleman for gateway claims when you already have the sixth amendment claim available if you make the showing well it's not another equitable exception it's the same equitable exception because what the what the supreme court said i believe it was in murray v carrier is that at if you are using a claim of ineffective assistance of trial counsel to excuse a procedural default then that claim in effect of this is of itself has to be exhausted and is subject to the procedural default doctrine but if the procedural default doctrine applies then it applies in its entirety so if we're going to apply the procedural default doctrine to gateway claims of ineffective assistance of counsel then the entirety of the doctrine has to apply both of you and i think the other side of the argument is that the court attempted to cabin martinez to trial counsel ineffective assistance claim and what i'm trying to understand is what i understand what you want but i'm trying to see why you need that to get relief because if you can show ineffective assistance that was your gateway you've already shown prejudice under strickland on the sixth amendment claim and you only need one claim to get relief so i understand your legal argument it can you just explain as a practical matter why ye s frankly i raise this argument and we raise this argument because i was not one hundred percent clear that we had raised freestanding claims of ineffective assistance of trial counsel related to every claim  something that your honor said which is that martinez is supposed to be limited and i think that the way to understand how martinez is limited is the way that the ninth circuit understood it in when because there is that limited limiting language in martinez that says we're not thrown out coleman coleman still applies with the exception of the circumstances here and what the ninth circuit said that meant and what i think is the best reading of martinez in light of trevino is that coleman continues to apply when what forfeited the claim what caused the procedural default is ineffective assistance of post conviction counsel in a eating other than the initial help and that's the way to read martinez is limiting language that was the situation that was actually presented in coleman in coleman it was ineffective assistance of post conviction counsel on appeal that caused the procedural default and the limiting language in martinez clarifies that coleman continues to apply to that extent and we agree with that we're not asking the court to hold otherwise our claim is that it was ineffective assistance of state post conviction counsel at the initial review collateral proceeding so i think that the logic underlying martinez is that a substantial claim of the denial of a fundamental constitutional right deserves one fair opportunity to be heard and where ineffective assistance of state post conviction counsel deprives a prisoner of his one fair opportunity to have a claim of a denial of a fundamental right heard in state court that the federal courts have to step in and provide a remedy and that's the logic underlying martinez if the default was only by a direct appeal counsel wasn't the claim heard by the original trial court if there was one claims of ineffective assistance of appellate counsel and so mr dansby was deprived of his one fair opportunity to have that substantive claim heard of the underlying claim whatever it is you say appellate counsel should have raised on appeal was heard by the state trial court trial in r c in that scenario i don't think that the trial court's hearing of the claim counts for the same reason that the supreme court has said that there is a right to ineffective assistance of coun good afternoon your honor may it please the court i'm christian harris for the happily what i propose to do is to attempt to take mr dance music in the same way in the same order that he raised them because of those with the same points that i intended to talk about  i want to start off with the way that mr dan's been characterized as the holding in sasser i think judge called in is absolutely correct in his reading of sasser in the brig in the supplemental brief i understood the court did not do that in sas or with the way what it look what it seemed what the court did was as you pointed out that there were sixteen ineffectiveness claims raised and the opinion states that you carefully scrutinized the record and determine that twelve of them were without merit or procedurally barter both and for other claims those claims that were very closely related to sasser as mental retardation claims were reminded and i want you to do the exact same thing that you did sasser and i took the invitation i want you to carefully scrutinize the record mr dance because claims not only in light of the pleadings which is not all that we have of course in the heaviest case but in light of the state court record and i think when if you do that you'll see that those all of his claims that he's outlined are either martinez does not apply to them for one reason or another or they are plainly the record the state court record we took the court's invitation for supplemental briefing on trevino especially after the sasser panel opinion came out to be a command that we do our very best to take of these forty some odd  claims of ineffective assistance that you can glean from the second in a petition that are skimmed some of them are scattered throughout the petition and do our very best to take the rule of martina's in conjunction with the state court record  and our brief represents our best effort to do that we tried to categorize the claims according to appellant ineffectiveness of appellate counsel claims claims two that are barred by arnold versus door meyer because they were raised in ruled upon by the state post conviction in the initial review collateral proceeding but simply not taken up on appeal and i did my best to take the remaining claims which are multifarious and scattered throughout the record and  difficult to glean and try to divide those into categories and explain our best effort as to why those claims are not substantial and i was quite surprised to see the dance we did not do the same thing his brief doesn't give you any guidelines as to why any in particular claim of ineffective assistance is substantial under martina's he's trying to shore that up to some new arguments that i haven't heard before and i'll do my best to respond to those one  certificate of appeal ability which i think is the spirit as argument the idea that you somehow have already done all that work for us and determine that all claims are stansell doesn't make any sense because then you wouldn't have asked for supplemental briefing i assume  applies to that but remember martinez used a c f signal when it cited martinez as an example to determine whether a claim had some merit cited miller elegance cockrel you mean miller yeah i'm sorry your honor miller of the c e o i standard  of course c f of course means that the the authority cited supports a different proposition that sufficiently analogous to be helpful to determining that particular claim and so the c o a standard is supposed to guide the court discretion in an analogous fashion when you're when especially if you think about it in terms of a district court trying to determine when it's faced with a petition whether the claims have some merit or not the standard might be helpful in that in that initial  exercise of judicial discretion the cia standard is not a burden of proof in other words but what do you have to say about the arguments raised today about the guilt phase the pound the phase and well at a fiction council  effectiveness at a high level i have several things to say about the how to approach how it how of the court should approach the application of strickland to post conviction counsel's  claims i'm sure we don't have time to go through chapter and verse every so all of these all of the types of claims but in general if we're going to measure post conviction council's performance according to strickland then you get the presumption that every decision taken by counsel is the result of a strategic choice and it's the response burden i mean the petitioners bring to overcome that and in this case we say that post conviction counsel strategy is is apparent from the record it's you don't automatically get a hearing on every stricken climb that comes before you with respect to the specific claims the first one that we talked to mr vance you brought up is the idea that we rested all of the self defense claims and the new argument has been brought up here as far as i can tell for the first time that it wasn't simply the idea that that the that that his claims would show that he would have been acquitted of capital murder because he could make out a self defense defense but that he could have the strategy has now shifted again to be  allegation that he might have been able to be convicted of a lesser included often purposeful first degree murder or negligent homicide as far as i can tell those allegations were that theory is not in the second amended petition the citation given background about that the third amended petition so i can't find an allegation about purposeful first degree murder or negligent homicide with respect to the self defense claims and i we're here on an allegation that the district court in its in its two orders denying relief erred in finding that these claims were procedurally defaulted based on the allegations in the second amended petition and it's and it's completely unfair to hold the district you can't you can't reverse whether that you can't reverse the district court based on allegations that are in a petition that has not been that it has never considered and  brief background on that is during the brief interim between the last argument that we had and and the supreme court's g v yard this case was briefly pending by the rehearing petitions this court where the case was very briefly before the district court again and mr dansby filed a motion to file a third amended petition that was  most of it was devoted toward attempting to repleat the confrontation clause and brady claims and there was a footnote that said i reserve the right based on what happens in martina's to repleat all the rest of these ineffective assistance claims which continue if you give him the opportunity to go and do that but he followed motion for leave to fall if they're going to petition and that motions never been granted or acted upon so with respect to the self defense claims that the number one point to hammer home about those claims is that the evidence of guilt and for sentencing in this case is incredibly strong the arkansas supreme court called it overwhelming this court said that there here behind her left armpit and all right here on her inner ear and locations that are extremely doubtful to believe that that was those were in self defense and run it campbell is found at the end of a blood trail having been shot once in the chest and five times in the back the that forensic evidence was confirmed by all of the eye witnesses that testified and the confession witnesses dansby including danby's on confession through the police officer so the credibly strong case for with respect to sentencing all three of the aggravators likewise had overwhelming proof there are three three aggravating circumstances were found one was that dan's being put another person in substantial danger of death roughly speaking that was just a dance being when he entered his danby's brenda's house with two guns and start shooting run to run a kimball that he previously was convicted of that he committed a violent felony and two of those were proven during the during the aggravating during the penalty phase one with a transcript of a revocation hearing where he raped brenda dans being at knife point and the other where he abducted her from her sister's house a gun with a fate so the reason that is important is because we have to judge post conviction counsels decisions not only with the not only with the presumption that  what conviction counsel did was strategic but also within the context that post conviction counsel is operating which is much different than you operate on a trial post conviction counsel had to at some point post conviction counsel has to make a list of claims subject to the rules that govern post conviction proceedings in arkansas it's rule thirty seven you have page limit and time time limits for submitting the claims dansby overcame both of those because the state didn't object to his expanded petition but at some point counsel has to make a list of all the claims that are important enough and compelling enough to include in her post conviction proceeding what i heard today is the argument that post conviction counsel didn't do a reasonable investigation of dan's beast childhood and therefore no strategic decision to omit that claim is titled the deference and that if he'd done the investigation he would have found this in secure attachment psychological problem that would be mitigating if you want to speak to those points yes your honor that is an invalid theory for two reasons number one counsel did the state court record shows that counsel must have investigated and your child because she called multiple witnesses both in the guilt phase and in the penalty phase two to demonstrate that he was a good kid that came from a good family his pastor testified in the guilt phase his mother testified his sister's testified and the second reason is that the d about that and taking that in the face that counsel decided to present as a whole what what penalty phase what counsel tried to prove in the penalty phase was that fundamentally a good man a good kid from a good family and from a good community and that i don't know why he did what he did you've convicted him of it more trying to explain that he was fundamentally a good person don't know why exactly these tragic events happen we know it had something to do with brenda dansby because dr moneypenny told them that they had this on again off again relationship brenda dance me sister testified that ray was not like that except when he was around brenda dan y so something it had something to do with brenda don't know what it was as parole officer testified that he completed the parole for his first offense as without any incident this is a otherwise peaceful person don't know why he did that but he's  a high level they used a combination of the sort of psychological defense that dan's been now says wasn't done combined with the family sympathy defense that he was a good a good kid from a good family that's  childhood sort of defense in attachment disorder defense that danby says now and the reason that another reason that's invalid there's no showing at all that somehow counsel in order to find that counsel is ineffective in presenting the defense that she did it at penalty phase you'd have to show that she was not sure she was being so unreasonable and putting together that defense that she wasn't even functioning as an attorney does an incredibly high bar that stat court record simply does not support and so what dan's defense is about the insecurity tacksman disorder boils down to is that they have a different way that they would have proposed to human to try to humanize dansby to the jury which would be to show that he was a bastard son of a person who was a hustler and a gambler kaido branch dancer his biological father and then his mother was  a terrible person who went through serial affairs a sort of serial monogamist borderline that she was a whore and there's no evidence in the record at all that dance we would even agree to that kind of defense it would have necessarily destroyed whatever mitigating evidence that that murray dance was testimony in the guilt phase in the penalty phase had create any kind of mitigation value of her testimony there's no so that the choice that is that it would have been one other way to do it i don't think you can look at the presentation that mr dansby submitted to the jury and say that it was an irrational presentation that came out of nowhere clearly wasn't  presume that this defense counsel who knew that jury having bordighera them not only in dan's was case but in previous cases this was a an old panel that she and both she and the prosecutor had before that prosecutor living in that community of eldorado at that time you have to presume that she made a strategic judgment to present dansby as a good person from a good community rather than a trainwreck person who came from an incredibly horrible community and it just so happens that there is a supreme court case vs pinholes or that endorses that logic sometimes a family defense family sympathy defense is more is can it can reasonably be chosen over the type of humanization that mr dancy puts forth now if i could move on to if i might move on to direct appeal in effectiveness claims there three reasons that we think that direct appeal ineffective assistance claims shouldn't fall that you shouldn't hold certainly that direct appeal direct appeal and effectiveness claim should should not fall under martina's one is the language of martinez itself as a general matter i think even danby has conceded that as you pointed out judge call it in the language of martinez attempts to cabin martina's and that sort of thing i get the sort of feeling from mr dan the language of martina says trial counsel in almost almost every time that they refer to the risk to the extent of the exception they say trial counsel the holding of the opinion is this this opinion qualifies coleman by recognizing a narrow exception inadequate assistance of counsel at initial review collateral proceedings make skews a claim of ineffective assistance at trial trevino invokes the same the same language about trial counsel and both cases are go on to state that  the reason that it's unfair and the where this equity springs from is because the trial is the most important part of the criminal justice system and therefore ineffective assistance of trial counsel claims are the most can within the limits of human fallibility determine whether one of our citizens is guilty or innocent martinez refers to the importance of trial counsel again and again and there's not any indication that it that martina's certainly  thought that direct appeal ineffective assistance was on the same plane and it's not and i can explain that my distinguishing the no one case the dancer relies upon the right to effect assistance at trial and the right to effective assistance on direct appeal come from two different parts of the constitution direct douglas versus california and evan sources lucy tell us that the right to ineffectiveness the effective assistance on direct appeal comes from the due process clause in the equal protection clause it would be constitutional if the state did away with the system of direct appeals altogether and that's the fundamental reason that the no one case is that you should not follow its holding because no when states explicitly that the right to effective assistance on direct appeal comes from the sixth amendment which is a significant error of law no one says this on page twelve ninety four the opinion th right to effective assistance of counsel applies equally both trot to both trial and appellate counsel that's an error of law that is significant douglas versus california says state doesn't have to have direct appeals at all but if it does d equal protection compel you compel us to grant you the right to an attorney and have it says ineffective attorney which is the same way because we don't want to money defendant having an advantage over an indigent offender defendant on appeal and so the central of the trial as the cornerstone of our just of our criminal justice system simply does not apply to direct appeal it's important very important but it doesn't apply to the same the same the same extent and unless and until the supreme court does either overrules martina's or expands martina's to claims of ineffective assistance of counsel we think not only is it bad doctrinally for that reason but you're bound as an as a as a court of review to apply martina's as it is written and of course mr vance will say well you know mr harris told you last time don't i it doesn't apply to you have to apply martinez narrowly doesn't apply in arkansas because we could raise claims on direct appeal but then that ended up not being right but i will persist in saying that and that you're duty bound to apply martina's as it is written and trevino doesn't signal trevino's just an application of the of the principle of equitable exception to a different set of state post conviction rules to ask you about the argument from mr danza be that some of his claims are not exhausted in state court action or you respond with the case but does the state also waive any exhaustion that mr dansby claims are still available such that we don't have to worry about whether it's been abrogated and so forth or have you considered the question i can't i can't i don't frankly i don't understand dancer argument that we've waived that no i'm asking whether you are now waiving it because i think i read your brief to say you don't want the you think the claims are exhausted because there is no flore dan's v a saying well know if that's what we said but there's some subsequent arkansas law that suggests maybe there is a form of ailill but if the state is saying and if we're willing to hoard we're willing to give that up and waive exhaustion and let the federal court address the matter in the first instance without a state court ruling in the potential that ed would apply and so forth then i think the state can waive exhaustion so i wondered when i read that you were arguing that they are exhausted because most of my brief was trying to push back against the idea that dansby is using exhaust and one of my defenses as an office against me i understand it's a little bit of an inverse of the normal briefing on this issue  your position in the brief as i understand it is that the claims are exhausted yes right you know i think they're exhausted by virtue of their procedural default but he saying he could still go back and so you might is there are there any other questions a court has about direct direct appeal and effectiveness i have one other point i'd like to cover which is  expressed in the the knowledge on bank rehearing on bond in sas or about the massive delay that is intended upon the it's intended upon this case and i think that the procedural history that my friend has a uded to about his withdrawal of his first amended petition and a request for a hearing on the second a minute petition leaves out a significant amount of behavior litigation behavior that you can only call gamesmanship that led up to the up to his decision to ask judge dawson to cancel the hearing he leaves out that numerous serial requests to the district court that irritated the district court finally about continuances  unaffected misunderstanding of what claims would be considered at the first hearing by the way there were also some ineffective assistance of counsel claims that were set to be heard in that hearing and if you look at judge  original order they weren't the same claims that dansby raises now they were the claims that the arkansas supreme court adjudicated on the merits hard for me to believe that dancy would not find a way to a deuce evidence in his original hearing that would be  propounded overbroad and burdensome discovery requests on the state the judge and that judge dawson called a fishing expedition and there's a lot if it's that procedural history is covered in the in my statement of facts from my original claims in a different way if they get recast enough of course they'll be time barred but we think that we what we would like the court to do is do the exact same thing that you did in sas or oh one other note about sasser as well about those claims it looks like to me the first question that's going to be resolved by the district court and sasser is whether or not those four claims were in fact raised in the initial review proceeding or not raised that it became sort  of swearing contest between the attorneys of how they read the record and could could very well be the case that the district court will say those will will determine that those claims were raised and then defaulted on appeal in which case arnold versus dorm are w consideration of those claims we don't see any reason that those that and if not then they'll be then they'll be adjudicated different in the same manner that is described in the rehearing panel rehearing opinion but we would like you to do the same thing that you did in sas or carefully scrutinized these claims together with the state court record and i think you'll see that the that the record conclusively shows that those claims either martinez doesn't apply to them i didn't even mention r r r r r no claims that in his petition they were barred by arnold was one claim i think it was twenty six that they argued district court violated damer vs mcdonogh on yes didn't see a response does that that is one of the answer does it fail for some other reason i forget what i forget what dansby says now on that but i think there's some question whether it really was defaulted the procedure history i five seconds left may i try to answer the question as best i can you know i'm i'm under the  was there was a there was not witness i'm sorry a very near member and one of the potential jurors said that she was just in dan's b s second grade teacher justin dance because the boy that is the son and the it's alleged that the question that counsel was ineffective for not properly striking making an argument to strike that juror for cause and i think if you look at her answers you'll see that she in line with the plausible law which is generally speaking that the juror has to say that they can set aside their impressions and fall of the law she said exactly what you what is required under the law to deny a strike for cause and so  and i don't remember any additional argument or in additional reasons that that juror was struck claim twenty six is interesting too because it is a claim like some of the other claims that allege for the first time in the in the second amended petition  that claim we say post conviction counsel reasonably decided not to make any ineffectiveness claims against d d because she was their witness their main witness and so the to the extent that claim twenty six says that sailings testified enroll for it in the in the initial interview collateral proceedings to the effect that i was backup counsel the scope of my representation was such that i couldn't actively participate in the trial but my goodness i saw things go completely off the rails and i saw a jam make all these mistakes during voir dire and i kept trying to urge her to to fix the mistakes and then she just wouldn't do it the second in a petition for the first time says that it was incumbent misalliance to i suppose jump up and push miss thorton out of the way and take over board are in order to prevent those things and that line of questioning is plainly inconsistent with what is obviously a reasonable rule thirty seven strategy of use one of the what use one of the lawyers as the witness against the other so we answered that that we somewhat botched our response to claim twenty six are in our response because we originally read that entire claim as only being aimed at d d sailings and those claims are are are indeed procedurally defaulted because post conviction counsel quite reasonably decided not to allege that their star witness was also ineffective during the rule thirty seven petition they said which is the notion that so our theory of guilt phase prejudice is not limited to self defense but also encompasses lesser included offenses my colleague said that that's being raised for the first time now that's just not the case i'll point the court to the of counsel for failing to produce self defense evidence and he says quote reasonably competent counsel would have investigated and presented a compelling claim of self defense and then add a minimum the jury would have convicted him of a lesser charge such as manslaughter and would never of found him guilty of capital murder or sentence him to death so it's obvious that based on what he says on page sixty four that mr daines beast theory of prejudice is not only that the jury would have acquitted him outright but at a minimum that the jury would have convicted him of a lesser charge such as manslaughter that's exactly what i argued here today so what i'm arguing here today is not new it's exactly what our good in the district court as far as the briefing the position i took in the briefing in which i maintain today is that the court meant what it said when it grant them to see a way on these claims that the claims are substantial on the merits that's what the court found it granted to see a way and it was right  so for the reasons that i've said today now i also want to address what mr harris said about the merits of the ineffective assistance of penalty phase counsel claims their argument suffers from the same flaw that their argument about post conviction counsel suffers from which is that it is a post hoc rationalization and in wigan's versus myth the supreme court said just as you can't second guess a strategic decision made after a reasonable investigation you can't invent post hoc rationalisations for councils performance they again have said that look penalty phase counsel had these two defenses to choose from and their choice was not an unreasonable one but that's not what we're alleging were alleging that penalty phase counsel failed to conduct a reasonable investigation and that they never knew that this other theory existed and where penalty phase counsel failed to conduct a reasonable investigation as they did here any so called strategic decision is not worthy of any deference that strickland another point it's not true that ronnie kimball was shot in the back five times the record was that he was shot in the back one time let's see in response to judge collins question about further state remedies i didn't read the state's brief to say that there were no further state remedies the state said that says that motions to recall the mandate don't count for federal hate b s purposes and that's the only possible remedy is a motion to recall the mandate so i've read the state's brief to be saying he may have a remedy but it's not one that counts because of wootton you mean and therefore it is exhausted it doesn't count right but not of it's not the state courts wouldn't hear it they i think that they would hear it go well go ahead yeah take your time i state does it in its brief there is no support for the proposition that an ineffective assistance of counsel claim is counsel didn't ask this question counsel didn't ask this doc didn't introduce this document and ineffective assistance of counsel claim  is the way that mr dansby presented it in his petition counsel failed to discover and present evidence of self defense and the prejudice is he would have been acquitted outright or convicted of a lesser included offense so it should look at the claims that a medium level of generality for the inquiry to even be coherent makes sense and if you do that it's clear that mr dan's piece claims presented in his federal petition rely on substantially different facts specific allegations of deficient in performance and prejudice that were never presented in state court and therefore the ineffectiveness is of post conviction counsel at the initial collateral review proceeding and for those reasons this court should vacate and remand for further proceedings and a lot of sasser ok thank you very much we appreciate your arguments both in your briefs and then your oral arguments today and we will