had raised the question but that he had persuaded her not to do that and those materials are in the briefs and in the appendix the district court did not appoint a lawyer to represent miss eleanor in her post conviction action did not authorize an evidentiary hearing and in fact in a way and i mean this with great respect for the trial judge may in fact have inadvertently misled her about the sufficiency of her  the during the pendency of the first of the two actions this sentence was issued an order saying we need some additional information about one of your four claims and i submit to you that a reasonable pro s understand that to mean that the other three claims were sufficiently factually developed that the court didn't have any left over questions like seriously did you ask your lawyer for an appeal that was never asked or instead it had to do with well what did your lawyer tell you about the possible sentence that you were facing so and i have to tell you your honor said i don't want to persuade the court that the government concession that contained in the rule twenty eight a letter is incorrect and i have fear that if i talk long enough i may talk you out of accepting their concession which we submit is rightly made  i submit to you however that this court in a case called crouch versus norris which is now on all fours with miss l ners case really answers the question in a crystal clear way  before a ruling is made a final ruling is made the pro se litigant says oh i thought of something else instead of calling that a successor which it clearly is not since the first one is not finished it is more fairly understood to be an in artful rule fifteen c request to amend and while technically at the time miss l ner filed her second application she may not have gotten permission from opposing counsel she may not have gotten permission from the trial judge and therefore in a pristine non pros a world did not fully and with articulation obey the rules i submit to you that the law that requires this court and all courts to view pro se litigants pleadings with some fairness and generosity i don't mean break the rules i mean understand what they intended to set that having done that in the trial court i believe with respect to the trial judge that he would have in fact addressed the merits rather than simply saying you didn't get permission from the court of appeals and therefore you're out so it's our position that the decision to reject the second petition as a successor was an abuse of discretion what about on  familiar with the united states versus bennett just came out here couple months ago or a month and a half ago is not resolved your honor i feel this sort of tug to an indefensible position or be candid not only do i agree with you that there is no indication that i can find in the case law that elaine is retroactive but even if it was fully retroactive it doesn't apply because the enhance at issue in the case had nothing to do with her mandatory minimum she was nowhere near the mandatory minimum anyway that bennett says in that case it seems like bennett's right on point for what we have here now i will tell you why i submit that you should not affirm the dismissal and it comes very straightforwardly here's a lady who is pro se who has never had a lawyer look at her case carefully which had she in the beginning been given appointed counsel almost certainly would have done more than say well three of your four claims are contradicted by the plea agreement and the fourth you win but it's a p victory i believe an ethical lawyer at that point would have taken at least a look at the whole case the rule fifteen badly articulated premise is no different it may be that her elaine argument doesn't work very well but it may also be that the enhanced myths that she was confronted at sentencing should be looked at under strickland and that would have been done had a counsel been appointed and it strikes me that it makes the most sense to remand both plaintiffs to the trial judge so that counsel can be appointed so that she can be properly represented if at that point there is no additional claim i doubt that we'll see the elaine argument again elaine's not the issue it is the fairness of the process by which she was some airily booted  ground that cannot be defended as anything but an abuse of discretion now you may absolutely be right the issue that she raised or i suspect that her jailhouse lawyer suggested that she raise  doesn't have any legs but that doesn't mean that it shouldn't go back so that the trial judge can say i'm going to treat this case as a case and deal with it front to back in a fair way so i'm not sure that it hurts miss eleanor if this court says there's no elaine issue here either because it wouldn't apply on its face or because it's not retroactive and i i think it's disingenuous to pretend that that aspect of her second motion is defensible it's not but i submit to you that the first petitions first claim that is i asked for a lawyer must with all due respect be sent back and if you're going to do that it makes sense to send the whole case back and simply indicate that elaine is not a fruitful claim and we're not going to treat it as a successor because it's not that what that accomplishes of course is it tells trial judges when things are successors and when there is not when they are not which by the way i thought was clear and  crouch case that was decided some years ago so to answer your question way many words than you needed i think you're spot on but i don't don't think you should  successor ruling when it's not i think that creates needless confusion and i kind of like to save some time unless you have other question again the specific requests relief you request do you want it sent back said judge riley's issue to focus on the lane itself may not be the basis for sending anything to anybody but whether or not she should be given a reasonable opportunity if the trial judge gives her a lawyer which i think he should whether he will allow then the that lawyer to work with miss eleanor to consider filing a request for an amendment to add a legitimate claim that i think should not be good morning and morning may please the court as the court's well aware i did file that twenty eight jail letter and of course the chief justice himself sat on the franco court when that decision was made it's a business in of the united states that we are on point if with that case i could come to you and try and argue that my affidavit was better in this case than the facts and  franco however i think when it comes to the end of the day and lost the court's going to somehow change their mind it is the law at this point to go back re man and have the hearing so the united states is willing to concede that that would probably be the send it all back it does make it a clean record then for further appellate work i agree i agree also that the underlining arguments are going to fail in ms summers point however to make the record clean it might work to that advantage and again not to throw district judge strawman of the bus in any way that he did anything wrong it just might make a cleaner record send it all back if we are dry well thank you both the thanks for thank you for the government's concession and also thank you mr good for your concession on the alien issue and we will likely send it back  no no ruling today but i guess the question is what do we do with the alien issue and the side that thank you very much