a finding procedural default and does not operate as a procedural bar for federal purposes this court in fact decided this very question more than thirty years ago in the maxwell case where the facts were materially identical to those here there as here the petition the claim on direct review in the court of appeal he did not raise it to the california supreme court and he then raised it in a b s petition to the supreme court this court held maxwell that there was no procedural default because the court in citing altruists didn't indicate that there supreme court it's also well established in california law that although under walter eous one should generally present issues on direct appeal there is a well established exception to the walters rule for claims of structural constitutional before a findings of fact were presumed correct so when it became along the deference given to findings of fact it's perhaps a slightly greater but there's no indication in the adam's case that the decision there was a close call the question in adam was whether one can make a conditional yet still unequivocal request to represent oneself and this court answered that question yes one can say i want to represent myself if your own willing to replace my appointed counsel in adams as here the defendant was saddled with a lawyer he had no faith in he felt the lawyer was doing nothing he didn't want to be represented by that lawyer the court refused to appoint new counsel and so he said all right if you're unwilling to appoint new counsel then i want to represent myself this court held that is an unequivocal invocation of the forever right and when that unequivocal request is made the court is under a duty to engage in the for the colloquy colloquy which as undisputed did not happen here here instead of warning wafer of the possible penalties of the max the nature of the charges and the various perils of salt representation the judge instead simply tried to dissuade him he told mr wafer know your lawyer he's a good lawyer i implore you to get along try again he'll try again mr cooper or he's a nice guy he'll do a good job for you he apologized give me a break we'll get through this this is not what was the age of the record are you looking at that's between seventy and seventy five of the excerpts of record your honor  passion just read i'm just trying to but pages oh i'm sorry i read various passages and they they run between seventy and seventy of seventy five restaurant or so here mr way for me to conditional and permissibly conditional request represent self he said the lord has been representing me all this time i feel he's not doing anything good what do you do when he says i want someone who's going to advocate the situation the way it's supposed to be done and i want another lawyer exactly and he's not that guy and let me get right to the heart of the matter here there's that one line where the judge says do you really want to go pro per and he says i don't want to go pro per i want someone who's able to handle my case to give me professional advice we expect and we expect certain things from mr cooper but we haven't gotten that that's exactly what happened in adams on page fourteen forty two of the adams decision the court quotes mr adams and saying to the judge there just what i have said before i have never wanted to be pro per but mr carroll my lawyer won't do anything most people your honour's don't want to represent themselves at a trial certainly a murder at a murder trial they want a lawyer who they have faith in who they feel is competent when that relationship breaks down and they have no faith in their lawyer and the court proves unwilling to replace the lawyer then the individual has the right under forever to say i'm going to go it alone it may not be the best choice but if the individuals absolute choice to make and when as here a clear indication of the right is made the court has to has to engage in the about findings of fact in another case bind us in this case because the question there your honor is the same question here was the invocation equivocal or not help but there are there are there are there may be differences in the way that people express things that's why we have a trial judge on the on on site to to make those kinds of months we don't see body language we don't hear voice inflections all we're looking at are plain words so so we have a trial judge who has made the judgment here that he didn't really want to go has tried to salvage the situation because he's not really willing to just let him burn through burn through counsel which we see many many many times it's the same judgment was made and that is your honor this person he's expressing he says it on the record adds i don't want to go pro per and s mr wafer says i don't want to search and i refuse to proceed any further with him he then says on page seventy one i would like to invoke my friend of rights i want to go pro per the judge then starts to try to  in a murder trial he's not a lawyer he doesn't want to represent or you you're basically saying the california court of appeal was effectively for close from reading this transcript and its entirety were acquiesce attorney will do a good job for me and so you're saying that that entirety of transcript the california court of appeal was bound through fine as a matter of fact that it was unequivocal a in vote and that none of the dialogue made any difference once he said i want to go pro per that was it and that is the equivalent of the battles we have had in the miranda case when do you clearly invoke aranda and their been lot a lot of debate in various cases including in this court debating whether or not the supreme court standard is absolutely clear and clearly invoked and that has been shaded as we know in various cases according to the actual testimony the actual colloquy that went on so we now we come back to this said again you're not really wanting to represent yourself you want to you want him off and that's not a good ground to represent yourself there are two separate rights and he if he doesn't do a good job ok come off defendant and so on and so yeah you're right if you really sit down and go through all of this in the senate concludes by saying all right sir i trust you so you're say you want you want to go all in before them on this record your honor intended when the judge says well you're going to go with it ok when the judge makes clear and then this i got your book says yes that's a position of and then he says thank you counsel your time for your side has expired thank you we'll hear from the state obviously the waters for doesn't bar entrance into federal court on that claim because it's already been fully exhausted on direct appeal that's not the situation what we have here is the forcing vasquez situation on where petitione raised a claim in the california court of appeal it was decided adversely to him yet no petition for review was filed he didn't file california rules of procedure which require that all claims that are brought on the record be raised on direct appeal rather than he's corpus so that water is far although in most situations doesn't employ here it does and in this instance but fisher did not fairly present his friend a claim to the california supreme court on direct appeal as the california rules required him to and it is barred for that reason briefly address the match will be summers case which counsel brought up much as an old case from the one nine hundred eighty s it has not been good law for thirty years it goes back to a time when it was assumed by california rules that all issues raised in the california court of appeal will automatically in the petition for review or march sixth one thousand nine hundred five the california rules of court would change and and from that day forward thirty years ago a claim has to be brought in the petition for review to be raised before the caliph with supreme this court in us tends to be lambert and in other cases said that it's no longer controlling authority because it is pretty a t p a it to and the supreme court authority which controls is fred  originally represented himself in the trial court for about six weeks it's a case where the petitioner had a malpractise claim already filed against his attorney and it's a case where there were four hearings in a period of six weeks each hearing the petitioner in their case unequivocally said i want to different attorney if i don't get a different attorney than i want to represent himself use absolutely crystal clear and that's what the court and adams  this case is very different we don't have four hearings in six weeks where the petitioner said the same thing over and over again instead we have the june hearing where petitioner equivocates it goes back and forth he says i wanted different counsel they discussed it for ten or eleven pages of the record with the counsel was doing a good job and then we can't when the court says i'm not going to remove counsel there has been caution on he says i want to go pro pro and then they proceed to discuss  yes you are but he is trying to become his own lawyer allegedly and those are the steps he doesn't need to take on the spur of the moment anything further counsel we don't see that he raises this fred to claim again in july august september until october on the very day of trial the jury's come is waiting to come into the courtroom all the witnesses are there ready begin trial in for the next first time in months he says now i which is it that you want what you want and in the end he agrees to go forward with counsel and i think it's an important point is the day of trial the court trial court does indicate he will let are barred by clarke right and we do have a recent supreme court decision walk every martin which upholds the clark bar for a time when this thank you thank you counsel the case just argued will be submitted for decision and has mr de la madrid arrived no no well we understand we will the next here argument in v