of appeal ability in this case on two issues which are before the court today the first issue was whether mr fowler was denied his due process right to the effective assistance of appellate counsel in indiana state court and the second issue is whether the federal district decided thirty one years ago yes have followed by this court since and so i'm asking why that dark room is controlled so that action is not controlling here because the the matter of having an impartial tri be the better thing for this  he might not have known and it is the duty of the tribunal to preserve impartiality and also the appearance of impartiality not not to put the onus on the criminal defendants  spot the possibility of to stop the possibility of them partiality when the judge should have known better and to federal statutes direct the judge to have done that  concrete way we haven't replied the ballast reread dr into a claim that is arguably not necessarily conclusively but arguably based on four fifty five b three right you argue partialities and here judge magnus jensen was a trial court judge in the employment of the indiana government and she sends mr fowler to the sense that he was appealing improper for a judge to rule on the habeas merits that as it would be for that judge to rule on the merits in a direct appeal which is due to the extent there is a claim of actual blindness here it rests on section four fifty five b three and it's kind of iffy whether the reference to employment includes employment is  not really subtle question then you should we extend the ballast ri ri principle to cover things like that or not i agree with your honor that this that no other court in the country would require a petition for writ of mandamus to make a close four fifty five b three claim one way or the other either the odd circuit out on that question that's why i asked whether we should be pushing the doctrine one way or the other or whether we should be saying to the supreme court tough luck guys you just have to grant certiorari on this well i don't think you have to answer that question first of all because there this whether a district court judge has sat as a state trial court judge has always been approached as a rule for fifty five any issue and and that that was my position your honor is that this issue that fowler is asking the district court to decide was no it has nothing to do with the difference of issue it has to do with the difference of capacity be three applies to an end of the judge  has always reviewed these circumstances as four fifty five and not right and so i want to focus on whether the dallas jury room makes any sense at all under four fifty five a yes i believe it does that's the only context in which it's been applied yes the rule essentially says that the if there is any injury it is to the jewish general process as a whole and not to the individual that as to the judicial proceeding as a whole and not to the end of that it will judge whether the individual judge has a bias or a conflict of interest and so the appearance of impropriety is a step removed from actual impropriety which the factors and or the tend to address the the fact that an appearance of impropriety is this sort of a structural claim that has to do with broader principles doesn't mean that there are no individual rights being asserted when someone makes a four fifty five  claim in this case it's just it's you know it's difference between an actual bias which requires more correct in the nature of proof correct and rights but the it exists to protect all three categories the appearance of impropriety though courts have historically viewed that asked more of an injury to whether we don't apply bellisario stary or not there is no error here there is no violation as of a substantial right the district court judge was not asked to review claim that she had before passed judgment on she was asked to review a claim that occurred after her involvement in a particular case and that is distinguished she was asked to review the legality of the sentence no she was asked to lea you can't defend against a recusal motion by saying i got it right but it's not about whether she got it right or wrong that you were just arguing fowler has always agreed that the change in the law occurred after his guilty question but made a reasonable determination on that question and it has nothing to do with the recusal issue but it doesn't the question asked by al or only applies to how does a change in a law apply to the guilty  participate in considering a petition under twenty two but before that appears to be a categorical rule you haven't asked us to overrule those cases right what we've got is the argument based on that the applicant just waited too long to raise this argument you're right we have not asked to overrule wedding ten because in fact this case is different than wedding ten and wedding  ten the harm that it was an identified and what he intended wasn't a bright line rule about whether a district court judge had participated in a proceeding and state court it was about whether judge pratt sitting as a district court judge would be in the position of reviewing a claim that she had addressed and that was the the harm that was identified and wedding ten which is what we do not have here we do not have  status not actual eyes right thank you your honor under the sections that we have raised here actual bias is not required second as the odd court out among the circuits we would urge this court to move in line with similar circuits not requiring a writ of mandamus from criminal defendants or habeas petitioners to spot the possibility of partiality on the part of their tribunals and to make sure that the tribunals take care of after all themselves is there a middle position here maybe that it makes sense to require mandamus when a motion to recuse has been litigated in the district court but not whole the issue has been overlooked and is raised for the first time on appeal i think that would be a fair middle ground and there's usually i mean mandamus is always available and not always available but it's at least an option that might review matters before it did review matters that she had ruled on in the trial court she ruled on the merits of whether mr fowler had entered into an unknowing and unintelligent and involuntary guilt that one she obviously entered ruling on before and so that would be one of the merits where she was ruling like in writing ten on something that she had talked about before and though the issue before this