claim for ineffective assistance of counsel i don't have anything to add to my pleadings there are several issues that we presented in this case and i'm prepared to answer any questions the court may have trial it also seems pretty clear from the record you may not agree with this but that there was no challenge to the indictment itself to a defect in the indictment before trial yes in arizona the procedur twelve point nine requires the filing of a pleading to challenge the grand jury presentation before trial that was not done by mr qualls trial counsel however his trial over the case at all and that's the difference between a challenge to the sufficiency of the evidence and the challenge which is based upon no evidence being presented and it was undisputed  use in the sense you're trying to you're trying to bootstrap the the raising of the probable cause or she relative to the indictment in such a way that your honor about the fact in the indictment is going to clear that you can raise that type of challenge to the indictment at any time even during the trial and so that's a different it's a different argument than simply a challenge to this efficiency of the evidence presented to the grand jury there was your client's defense was that he admitted having sex with the individuals but he did not they said they were older than fifteen so i can see a very good strategic reason for not wanting that to give the instruction of less than eighteen because then he surely going to be convicted whereas  they don't believe that the victims that happened when they were under fifteen then he walks away even though he still has had sex with a minor and also to i'm having a hard time with the fact that what do you have for the proposition that sexual conduct with a minor under the age of eighteen i was considering containing a lesser included offense of sexual conduct with a minor under the age of fifteen because under the age of the difference whether or not it's a lesser included who to defend so i believe that i struggled with that like myself but it ultimately it seems to me that particularly like i know in california you don't even get to lesser included offenses the jury sent structed if you if you can't agree you know if you believe the defendant's not guilty of the greater then you look at the leicester and here they don't believe the defendant w appropriate when the greater offense is either as described by statute or as charged cannot be committed without necessarily committing the lesser and so  statute in this case thirteen as fourteen zero five subsection may is what i believe to be the lesser under eighteen subsection b is the greater under fifteen and the of also is clear that if the evidence that's presented by the defendant in the trial supports the giving of a lesser included offense the court asked to give it and in this case there was evidence i'm well because of the other problems with the case primarily with the way that the indictment was worded this on or about language as well as the jury instructions that also they had to find on each of these accounts separately and discreetly well they were instructed along those lines your honor however there was one the honor about instruction in particular  was highly prejudicial because it specifically stated that  yes it indicated that the state was not required to prove the exact date or period when the offenses occurred so long as they occurred on or about the date alleged and that it occurred prior to the fi perhaps hundreds of incidents of such ill misconduct that was testified to having occurred according to the girls before their fifteenth birthday it's but all the way up until the time that they were approximately twenty years of age so what happened was it allowed the jury this instruction to convict mr qualls for conduct that was not proscribed by this this particular statute allowed them to convict for conduct that occurred from fifteen to eighteen as well as conduct that occurred from eighteen to twenty that's not even a legal and that's a problem with that statute or with the jury instruction right and there's further questions by the panel do you want to his first issues concerning the defective indictment to the court of up for the first time on appeal to the court of appeals and of course i know you need to do this ahead of time so what you're saying is we can say the district court was wrong and we can go with that i think we know that ye actually you know didn't fall under the fifteen years they were in the girls were not under fifteen that's what he's claiming but that isn't correct more station of a child under fifteen and sexual conduct with a with a child under fifteen both require that the victims be under the age of fifteen the armor about the dates in the indictment that said on or about all concerned time frames before the victim's fifteenth birthday so even though one of what we're talking about the instructions are to say what's required before you can find someone guilty correct yes and he was on notice of all of the charges that were given to him he as the as the court of appeals found he was provided sufficient discovery with the police report the tape recorded statements of the victims and their mother a timeline that was drafted by the victims as well as diary entries from one of the victim's journals so he clearly knew the notice and the time  and his whole defense was this occurred after the victims were fifteen and it wasn't even that it occurred a month after they were fifteen his whole defense was this occurred when there were sixteen and later there was at least two years difference that he was talking about it wasn't it wasn't something so close so there was you know he was on notice as far as the indictment and the are about language didn't render the indictment effective at all because of because of that because of the argument that can be made that's a pretty serious charge anyway correct and there was there was no there's no way a reasonable juror could have found that should've objected or requested a more specific you know no unanimity instruction the instruction given to the jurors told them that they were to consider each indictment separate and distinct and they had t had to decide each count separately based on the evidence and although there were you know there was others four feet for the evidence presented at the other acts the prosecutor made it very clear during her closing argument counsel wasn't in effect of her for not objecting to it and moreover petitioner has a very difficult time showing any prejudice from counsel's lack of actions as such callahan  thank you with respect to the procedural default issue a couple of things i like to point out there was no specific reference to the united states constitution in the in the press briefs in the state court we concede that however the ref there was a reference in the reply brief to a violation of the petitioners due process right to a fair trial and if we cited some case law you know i've given that some thought too and certainly an argument it wouldn't be fair to the opposing counsel to bring that up in a reply brief but whether or not you're putting the court on notice of what your argument as perhaps that's a different issue well  this is this court has not really been too friendly with the argument that you can bring something up in a reply brief and as a matter of course it's been it's been fairly presented there may be one or two cases where a pro se did that and where it was allowed under the special circumstances of the case but i'm not aware of any case where it's been allowed where where the  review we also characterized the error as being fundamental in the pleadings so we were directing the court that it was an error of certain magnitude which would encompass federal constitutional law well fundamental review though doesn't doesn't satisfy doesn't fairly prevent it i mean plourde and mormon and some of those cases indicate a fundamental review is not tantamount to the kind of review that's necessary to preserve the issue i understand  simply deny the allegations it was i didn't do it by defense in this case to the contrary the defense was yes these things happen but the  that they didn't didn't start happening until after a certain date then you're not guilty of what you're charged with if they happen after the girls were fifteen you're not guilty of what you're charged with so it's not it isn't that guilty or not guilty and what the case is that we've started to talk about is when you put on this all or nothing defense a truly no defense at all in these kinds of cases because the jury's going to want to find that that defendant guilty of something having admitted the wrong doing some wrong doing and so by his counsel not getting are requesting that lesser included offense then he's really done his and a disservice and at a bare minimum under strickland he has to discuss that issue with the client and he did not do that in this case we were never even offered an evidentiary hearing where we could establish those facts and so i think whether or not you know it was a tactical decision is one issue but whether or not that has to be discussed with the defendant is another and i think that in this case because that didn't happen that's a violation in another