an indication of just exactly what the procedure was whether it was conducive to an accidental fire in the whether it was so my recollection is that that all the horse all those things would be nice to know as you say that none of them were introduced into evidence and the gun was not recovered my little action it is that the gun was described as shiny or my client described it as be something that looked nice to me you know the look somebody said call me maybe chrome something like that but i think that none of those facts were introduced into the judge makes credibility terminations on the post conviction case we're not to far along we're still at stage two where it's a term terminations as to whether there's been a substantial showing of a violation of a constitutional right you know i was thinking about this again probably for the fiftieth time the other day in court to me there are some analogies to be drawn between the different stages of post conviction case and certain determinations or certain motions in civil cases so for example even though the procedure is not exactly the same as stage one we're talking about which relief can be granted where the case should be dismissed seems to be that it's an awfully similar determination to whether post conviction case is frivolous there's just no way storage of alleged enough in this petition to be similar quillan if you will to a motion to dismiss the pleading for a motion for summary judgment because because then you determining whether there is any material issue genuine material closing argument is a relevant if he had said i do not want you to render a verdict on this instruction then i would buy your argument if he had an opinion and so it's there are still some issues to other   jury that if you don't buy well you've got to give the manslaughter not necessarily and i think in a sense this is going for a field because they're different tragic just to allow different  amounts of detail to be discussed during closing argument about the instructions that the jury will get some judges just allow them to touch on the name of it others will allow them to paraphrase it other and number two he says these facts equal and acquittal when in law they don't all of it is that if you're handling a dangerous weapon in the presence of other individuals and somebody gets hurt that's at least reckless and at least reckless that movie was shot from a maximum distance of eighteen inches and was not a contact wound and there is no evidence in the state's case of a minimum distance you listen to by the prosecutor  the head the more indicates it's an intentional killing as can see all the way back he rides right into the sea all the way back to your client who's in the back seat right now whether it was intentional or whether it was accidental he know this is a far less serious crime and we're going to allow defense counsel to just not talk about this whatsoever i mean that's the problem i've never heard of given that indicates though whether the contents of the petition are putting would sustain that it's not the same standard there are still guided counsel by strict versus washington but i don't think that changing my are in my argument is at this stage of the case all i have to show is this is arguable the substantial showing which is of an arguable basis for whether there's a reasonable probability the result could have been different the that's that's where i'm coming from and it sounds like from the conason questions of the panel that's where they're coming from as well and you are coming from a different position well my position simply is that  when he abandoned the found terry manslaughter instruction by not arguing well i don't think he abandoned it and no i don't think his council is ineffective i mean when said all his all his client wanted was a verdict of involuntary manslaughter first of all i don't know where they come from it's nowhere in the record but i thought that obligation w really to get an acquittal and she did not abandon their position whatsoever because as you have pointed out the instruction was given it's our position that and what's important in this to our standard of review in the way he should be proceeding on a stage to post conviction titian here today i think the law is really clear that what you want is what and paul says very specifically at the beginning of the holding underneath the circumstances those circumstances of the guilty plea are not the case before us and the other point is important to look at is that the list of cases the defendant goes through and i went through them all again the other day about involuntary manslaughter and murder those whom reasonable doubt cases and when the defendant was ar choice because the jury has instructed the jury rigorously these in the third forms they were tool you can either find him guilty of murder five or not get into murder or find it find him guilty of involuntary manslaughter told you can't render a verdict of guilty of murder and involuntary manslaughter they were told the same thing about the involuntary answered they were in the river they were given the definitions and they were told you must follow the instructions maybe thirty six inches and the doctor said i don't have the gun i can't give you anything with precision he said it's one to eighteen inches and then he said the same thing again i don't think that it shows i think that when you're in  car and if they are going to make its decision between because the doctor never said it was and i don't think you really matters of whether  snow was testifying at the trial and in which the defendant's name came up he did he was and the defendant was able to cross examine the three attorneys who were involved in those two ca is the case along with talking about roxana's we're talking about the issue of recklessness we're talking about the importance of closing argument it seems to me that we've made an argument case that there is a constitutional