afternoon your honors please the court my name is stephen farrell representing petitioner appellant stephen was urging this court to reverse the district court's denial of mr west motion to reopen his abs proceedings under rule sixty six i'd like to reserve five minutes of my time for rebuttal plea may thank you because post conviction counsel failed to argue the trial counsel were ineffective due to conflict of interest and further failed to ever urge the post conviction court to review that claim under the proper federal standard they were ineffective because the substantial claim strikes at the heart of the sixth amendment right to counsel in a death penalty case and because the claim was timely brought up the district court abus discretion in failing to reopen haiti's proceedings first of all i'd like to address an argument that respondent first raised in their marriage brief to this court that was not raised in the district court below and that concerns where the default in this case the current in the in judge farland original district court opinion he found that the conflict of interest claim was defaulted in the post conviction appeal however a careful examination of the records in this case and we filed just earlier this week a supplement to our appendix with the original petition because in the original petition trial counsel in the council in the trial court of the post conviction case failed to ever argue the proper federal claim of conflict of interest certainly trial count or post conviction counsel had found the facts that would have supported such a claim but counsel never advanced the proper federal standard which at the time would have been governed by kyler b sullivan subsequently now would be governed  retailer but at the time they never advanced that standard therefore the post conviction court never reviewed it under that standard although the post conviction court had many of the facts in front of it where the claim is not presented under the proper standard and is never reviewed under the proper standard this court is well aware that a procedural default has occurred and that procedural default occurred in this case in the post conviction trial court therefore martin applicable to this case you say you say that what you call the default occurred because it wasn't argued well enough or properly enough even though the court the the post conviction court appears to have ruled on it what happened was the facts were certainly presented and it must have been obvious to the post conviction trial court that they were talking about conflict of interest but all of this was presented as a strickland claim and was reviewed as a strickland claim therefore when it was presented to judge farland in the district court in the initial hate these proceedings judge farland found a default well but i just want to make sure i'm clear here after my team is in trevino as i understand it if a claim is adjudicated ruled on in the post conviction trial court and then no appeal is taken then trevino doesn't kick in because the default was not in the trial court read was that the appeal so i'm looking at the decision and this is  paginated in many different ways but i'm looking at page fifty three fifty four in the right hand corner or two seventy five to seventy six at the bottom where the post conviction court  conflicts of interest denied the petitioner of the effective assistance of counsel and goes on at the end to say the court concludes petitioners failed to meet his burden of proof with respect to this allegation so why isn't that enough of a ruling that it should have been appealed if you didn't use your predecessors didn't like the way it came out because that was a ruling under the strickland standard that's the only standard that the post conviction trial court reviewed it under because that was the only standard presented and that's why i gave this court the amended petition because that is the only standard advanced even while trial counsel is talking about all the problems that should have given them notice that this was a conflict of interest claim and should have been governed by kyler v self so if you would look at it from a premier tina's point of view such a claim would definitely be defaulted i would think that there would be almost that's a procedural default so your is your argument now that it doesn't matter how good a job council did it should the trial has to be reversed because of this alleged conflict i think right now we've got kind of two issues both the sixty six issue of extraordinary circumstances as well as the underlying claim but yes on the underlying claim it is our sixty six the first hurdle yes that yes yes the reopening under extraordinary circumstances they answer judge bugs bugs as question yes it is our contention that the case should have gone back well but is that the reason i raise this is the tide is you might say that our extraordinary the circumstances  and that's why i'm pressing you that it appears to me that you're saying that if you drilled all the way down to the merits the claim is not that there was anything wrong with the trial per se counsel could have been perfectly competent you say you would still win because of the conflict of interest well i think it is specially i just read because retailer as well as color be sullivan which holds that where conflict where there is a conflict of interest that affected the representation the trial is not perfect as you said and in this case certainly where the conflict of interest was that the attorney was taking direction from mr west parents and mr west parents directed the attorney not to look into significant mitigating evidence of abuse that they had inflicted upon their son that that is not a perfect trial if that's the reason that he didn't present that evidence well but let's go back to you know we've ruled in a certain sense on the trial in terms of the ruling of no prejudice the last time it was here for him on the full abs do you allege some additional deficiency in the trial that is i understand your argument about well they didn't produce present certain evidence but essentially rehash that through the first time are you alleging additional failure to present something which i didn't see in the briefing and i may have missed it in other words your claim would would have would appear to have more logical traction if you said and now because of the conflict we think he should have presented some other evidence which isn't all of the evidence that we found last time because last time you presented a great deal of evidence that you said should have been presented the first time well there was some evidence that was in the original  petition that this court found to be defaulted because it wasn't presented in post conviction and there is so therefore there is some additional evidence isn't it and correct me if i'm wrong that when we ruled that there was no prejudice we took into  is things didn't we know into account those that evidence that was never presented to the state court this court refused to consider in its original and in fact it's in a footnote of this opinion reason because it was never presented to the state court go ahead so there is some additional evidence but i think most significantly is there's a different standard on conflict of interest because prejudice may not appreciate traditional prejudice analysis may not be able to capture everything that counsel that's affected by counsel the supreme court instituted a different standard because it's a different type of error that it goes more fundamentally at the constitutional right not only does the the defendant have a constitutional right to effective counsel but even more importantly the defendant has a right to conflict free counsel is there prejudice presumed it if it adversely affected which is different from the reasonable probability of a different outcome under strickland it's a much lower standard that when the wind the defendant can show that the trial counsel's performance was adversely affected by their conflict of interest and i point this court to the dialogue between mr mcconnell and mr west sister and the extremely unprofessional way that mr mcconnell dealt with mr west and his family trying to get money out of them after they had already paid him ten thousand dollars and said they had no more that's the type of thing that sort of hostility to the client and his family that may be harder to quantify as color be sullivan said in holloway versus arkansas those cases that recognize that a conflict of interest may be a little bit different than just the traditional prejudice standard and so i'd like to talk about the extraordinary circumstances that i think are involved in this case and one of the things that respondent argues is that most courts don't find extraordinary circumstances in martina's situation and i don't think there's anything surprising about that extraordinary circumstances or indeed extraordinary circumstances and in this case not only do we have a significant new case but it's a significant new case martina's that is that was put forth by the supreme court in order to protect the bedrock principle essential to the fair administration of justice which is effective assistance of counsel and in a claim where counsel was operating under a conflict of interest that's a very significant factor to weigh in the analysis of whether this claim or whether this claim should be reviewed because it's never been reviewed under the proper federal standard there must be a case by case inquiry and even though most courts find that indeed the petitioner is not presenting extraordinary circumstances here i believe the petitioner is and  mcguire specifically say the trevino and martino's taken together are not extraordinary circumstance by themselves yes that and the wire case relies heavily on the fact that significant mitigation was presented at mcguire's trial and that the new mitigation of the mitigation that was not presented wouldn't carry much weight was largely cumulative here we go back to the essential right that is recognized under martinez and trevino and that's the role of counsel in ensuring the ferry administration of justice and where counsel is operating under a conflict of interest we still evaluate do we know the import and merit  in this case the that the evidence that you propose never was introduced of the significant abuse that yes yes and it suffered at the hands of parents yes and i think it's  would what we all know that in in these really horrid cases it's hard to find one where there wasn't a an upbringing that would make you cry right so so we have to then say how does this one at the sixty six stage does it also have to meet extraordinary in terms of the mistreatment of the the defendant here there's a i have a couple things to say on that your honor and first of all when the parents who inflicted that abuse are the ones giving direction to the attorney you can't have any conference company no he followed it right that's the sin here right but having followed it do we still nevertheless need to evaluate would it have made a difference essentially i think under the supreme court precedent no that no is just what the judge moore's question i think was is it presumed it's not presumed it's presumed if it adversely affected yes that's what we have an additional tape then i'm really going to adversely affected and that's and i thought they would almost be the same thing how bad was it is it the heinousness of it that makes it adversely affect the verdict or the situation or i think the adversely affected goes to the  tence prong of the strickland test that has never been evaluated this court resolved the issue under the prejudice standard and talked about competence but in my read of the opinion didn't actually make a conclusion on that and none of the review in courts the state courts also relied on the prejudice problem and the adversely affected i think goes much more to competence saying did they make decisions that were incompetent based on their conflict of interest and if they did then yes prejudice is presumed that takes us back to what do you specify that counsel did not do here because of the conflict of interest that is not in compas by the failure to investigate the failure to find the evidence that we discussed in the original papers what would you point to i can't point to any specific amount of  evidence but i think the test is just very different and that the other thing that i will point to though is in talking about you know that every client has a bad history and that there's probably also one would presume a death penalty case are going to be some heinous facts we have evidence here that the diff the attorney himself was angry at the defendant angry at the family and not wanting to do his job which is a tough job in these circumstances and when there's an added burden of these people aren't paying me and my last check this is going my law practice is going down the tubes i really hate these people and that can be communicated to the jury in an awful lot of ways and certainly the mitigation presentation in this case trial was extremely minimal it just in compass is a few pages of testimony it doesn't say anything very particular about the defendant other than some character witnesses thought he was a nice guy to be fair we went through that the first time and you're sort of now saying correct me if i'm wrong that you don't have any additional things that he should have found that we didn't talk about in the first time but we should be more skeptical of any reasons that he gave or any analysis is that fair i don't think so i think we have the supreme court looked at these cases differently than they do in strickland where a good faith conflict free attorney is going forward doing their best effort and they say in these cases that it's often a the result the prejudice that springs forth from a conflict is often very hard to quantify but it's there and that's why we will have a different standard in these cases saying if we find that it affected the representation then it was that takes us back to what does affected the representation mean if you don't tell us something about  the representation would have been different in other words to be crass about it your previous presentation was he didn't do this because he was stupid or sloppy now you're saying he didn't do the same things because he was stupid sloppy and evil  the cases like holloway and kyler what the court looked at was was there a viable legal strategy that the attorney chose not to do because of the conflict here we can show that because there was a valid possible legal mitigation strategy that the attorney chose not to investigate and not to present because of the conflict of interest let me ask you something else about the whole conflict because you're obviously talking as though we know that it existed the first post conviction court did address this and did not seem standard is that in extraordinary circumstances to go try to go back twenty five years and have a damage in cheery hearing about whether it happened at all i think that that would be a proper response from this court is to get a finding on whether there was an order this back to the district court to find out whether there is evidence that support we believe of course that there is and we presented a lot of that evidence and i think that there would be a finding that there was indeed a conflict of interest and then evaluate the claim under the proper standard that is to say that despite the barriers of sixty six when you raise even a colorable claim in the alleged claim at this late to date that's an extraordinary circumstance to go back and back and back yes your honor because in this case it goes at the heart of what was the decision in the penalty phase when you have conflicted counsel that's conflicted on the issue of mitigating evidence you've never had a constitutional penalty phase and although it's certainly not dispositive this is a death penalty case where the defendant's life is literally at stake and the evidence was never looked into never presented because of the conflict of interest and we have certainly presented abundant evidence to show that that was certainly a reason the council didn't look into it and there should be some sort of finding certainly there's but before he's executed there ought to be a finding that either council didn't operate under conflict of interest that there was a constitutional proceeding that issue has never ever been reviewed well when you say it's never ever been reviewed again we have something in the state post conviction is there a reason that that was not raised as an additional reason in the straight federal hate b s i mean it was all know that it was raised in the straight federal hate this and the district court found it defaulted because it was never presented in post conviction it was raised and i think post conviction counsel and maybe even that post election court didn't see the forest for the trees you know was focusing on the strickland standard that stric case and even though they had that evidence we're either unaware of the standard or simply fell out of it going back and looked and you may you may be right and i might be wrong here but in terms of the briefing on the original federal hate b s appeal was that a point that was say to use my my earlier inelegant statement that it wasn't just that he was stupid he was also evil because i don't remember that but i haven't gone back and checked no it was it was raised but it wasn't pressed because i think the default was fairly clear and on that certificate of appeal ability the question wasn't was the substantive claim right it was whether the district court was wrong in defaulting it and i think that the default is pretty clear here and there wasn't didn't delve into that right that the court found it to be defaulted and did not look into the underlying claim it was proper to be to be considered default then but after martinez we have a basis for going back to say we we can show cause and prejudice back in two thousand and four when the case was decided we didn't have a good argument for cause and prejudice there were some arguments made but we couldn't say it was fairly presented and fairly resolved we simply couldn't say that because it wasn't it was difficult this is a case where the defendant told his trial judge that his attorney was following directions from his it was following directions from his family raised in the original trial that same family that inflicted horrible abuse on him during his entire to trial counsel's own words declare that he could not work on the case without additional financial assistance from the defendant's family the trial transcript in this case bears out that very little mitigating evidence was presented and certainly none that would have shown the defendant's parents in a negative light while these facts were presented by the hotel and i don't recall what was shown it was not parental mistreatment right in the original what was the or of that in the original trial there were i believe three character witnesses who said the defendant was a nice guy was a nice guy there was evidence presented that he was a veteran the his wife talked about what a good husband and father he was  lot bringing stuff no no upbringing stuff at all none of that nothing that would have been contrary to the parents wishes this is indeed an extraordinary case where the principles of equity mandate that rule sixty six operate to reopen the hades petition to look at the original conflict of interest say that we could have that equity overlay even though the standard ought to be whether this is an extraordinary such extraordinary character is tor really yet that that's that that's part of the balancing of factors under sixty six is the underlying claim that the court has no further the his claim is that is that his counsel had a financial conflict of interest due to his arrangement with the petitioners parents that is the claim and then he has two theories about why that constitute a conflict and that's the theories are he was being paid enough and he was he was refusing to to do work on the case he felt like he was being paid was being paid enough and secondly that he had received m m e understanding it a little differently but because they were paying the bills and and were walking it paying any more they insisted that the defense not include evidence of their particular mistreatment of their son that is also there i would look at it is both being both asserted in his post conviction petition as well as federal davies and in this in this particular city that that he that he the council had become aware had been he'd been communicated to him by the sister that he that the petitioner had received child abuse from the parents and that the the lawyer then refused to go forward on that because he was being paid by the parents that's that's also the claim here and i understand the claim to be that the conflict of interest claim was never raised in the trial post conviction the court also disagree with that in the respondents part of the appendix series just that was written i'm sorry it was a recent petition or was it what i'm i was stating what your opponent argued that the conflict of interests claim was not raised in the trial post conviction the court what i happened to be looking i know there are many documents we could look at i happen to be looking at the amended petition for a post conviction relief which was recently submitted because that a supplemental appendix and it is i don't see in that conflict of interest claim so i just i'm curious because you said it was raised i was just curious where you were going to tell me to look so that i could find this right or i don't  that the he claimed that the his effective represent his counsels and represent a fact innocent representation was contingent upon him receiving more down through at least six roman six my understanding of your opponent's argument is looking at those pages which are the ones that i've been looking at that may be and in the affective assistance claim is raised but not a conflict of interests claim and my understanding is that that's the key argument that's being made so i'm sort of curious how you would respond because i don't see a conflict of interest although i'm you know i was the could have missed it i don't see it being raised as a conflict of interest claim and i think the whole theory of your opponent's argument in oral argument here is that there's a different standard that applies if it's a conflict of interest claim then if it's straight i see claim yes you are right i get first address that question by saying i i believe it did that these paragraphs and it's the the ones on the lower right hand corner page one twenty getting a look at it that those are been those do constitute a conflict of interest claim it doesn't say doesn't say conflict of interest right it does not but if there is hand i think it's hard to construed as being anything else where they say the effect of his effectiveness in the presentation and representation petition was contingent upon additional fees that that that  a conflict of interest and without actually using the magic words conflict of interest and the the state post conviction trial court were certainly reasonably looked at that and said that is a conflict of interest claim and which is exactly what it did is it looked at this claim it looked at the facts and the line that claim and adjudicated it based on a base and looking at it as a conflict of interest claim though my understanding of your opponent's argument was that he was saying that it was not adjudicated under the standards for a conflict of interest claim but that he was saying it was adjudicated under regular strickland's so is there something that you would point to in the post conviction trial court's opinion that shows that the trial court understood it as a conflict of interest claim if the the trial court actually i think in the heading of that part of its decision called conflict of interest so the at the trial court certainly considered it a conflict of interest claim which i would disagree with with opposing counsel to say that is a completely different claim to say ineffective assistance and in fact assistance by a conflict of interest are two completely separate claims i would disagree with  think i think that in effect assistance with a conflict of interest is simply a subset of the strickland ineffective assistance tanner so you don't think different standards would apply in terms of evaluating a straight i see claim where the claim is that counsel failed to investigate failed to make inquiries of the siblings for instance of the defendant as opposed to there being a reason why this is not done which is that the parents have told the council not to do that investigation i believe the the the test changes only once or has been a finding that there was a conflict of interest and then they just need to be sued the scene shown that there's some sort of adverse effect and and then the prejudice problem changes so did the council for the defended west here argue for a different standard for this failure of the trial counsel based on the conflict of interest due to the parents arguable statement don't investigate i do not recall from the transcript of the post conviction hearing whether his counsel in raising the ineffective assistance via conflict of interest claimed argued about a different standard if he did hear or if he did not say he did not then that then he is not raising the wrong claim that would be it then that argument is that he raised the claim badly which falls outside of the scope of martinez that once the fourteen is about not raising the claim at all  it's not about whether post commission comes to raise the claim before a initial review collateral proceeding but then did so but could have done so better and it appears that is really sort of what the what the  holds that failure of post conviction trial counsel to raise something has to be high but a failure to raise the claim at all is what martinez is all about it's not whether the once the claim has been raised whether they did a poor job of it and then abandon it on appeal which appears to be the new argument on that in it's being raised right now an or is that he could have done a better job at it and so they need the bend on appeal therefore it's therefore we should get the benefit of martinez counsel in looking at the say what to call fifty three fifty does it it doesn't within that discuss any standards one way or the other it says here's what they claim here's what we had testimony of the trial counsel testified about asking for the money and never threatened not to do anything and he communicated and therefore the court concludes petitioner has failed to meet his burden of proof with respect to this allegation is this really a finding that there's there's not sufficient proof of a conflict and therefore you don't have to worry about what the standard is actually your own cause is that exact the area where somebody actually got to listen to somebody say and i guess if i go to the transcript maybe be cross examined i don't know do you know anything about that transcript backing of that testimony i don't recall from the particular pages of the testimony but you're absolutely right obviously he did testify the court is stating what he said that's correct and that the coun the testimony against that that the petitioner put on was that he had threatened them and said i'm going to going to leave not going to represent you i represent you badly perhaps counsel provided that and said no not at all i agree that i wanted more money i agree that i felt like i was being underpaid but no i absolutely never threatened that was that was there actually any testimony on the other side or is the court just putting the allegations against the trial counsel's in other words did petitioner testify about what he found out or did the mother testify or anything of that sort about about whether he threatened the writer about the money and so on i for i do not recall specifically what testimony was put on or whatever that we can look we can look it up but go ahead you've given either case it was clear that the post conviction court heard evidence about this concluded that factually the petitioner had not met his burden of showing that there was a conflict of interest in this regard so that they saw the testimony they looked at it said we do not see a conflict of interest based on the testimony before us so the factual predicate for that aspect of the of of of the conflict of interest claim certainly was presented to the post conviction truck or as a conflict of interest claim as a result this this falls under wallace that their contract competent is claim was raised it was adjudicated in the initial review collateral proceeding it is still not unless defaulted because they did not continue to raise that claim before the tennessee court of criminal appeals and that's where he would properly exhausted but as wallace demonstrated as very good support for that martinez was that failing to raise it appellate court does not give you the benefit of martinez and that you know that is what we have here that the petitioner is really in a difficult spot because in essence all the facts that he is presenting here have been already adjudicated either in state court or in federal court or both and and in both cases in the his both theories of why he says this with  there was there is a conflict of interest have been heard and have been rejected and that is that his counsel threatened to to leave because of budgetary problems or those counsel  her that there was some sort of abuse and then reject him refuse to follow up on it because of the source of his payments from the family that too was heard in state court and there is conflicting testimony one from the sister but also from counsel both counsel including c that the attorney informed petitioner that any and all decisions pertaining to his case would be made by his family members would certainly sounds like an atrocious conflict of interest was the testimony on that portion as opposed to the monetary portion of believe i believe that may have been part of the sister's testimony that she said that according to her counsel had said no no no there i believe they're directing this and i'm not if we looked at the sister's testimony in the state post conviction and presumably was cross examined on that point i believe so your honor i mean it would it was countered by testimony by both by both counsel both his coat the lead counsel and co counsel also in cross examination with the sister of the the it was brought up that she was asked under oath at the sentencing hearing has there been any problems between the petitioner and his family and she responded  no at the sentencing hearing and then did she say something different that post conviction that's correct or are imposed convictions she says oh no there was there was there were definite problems here because they had committed child abuse on him for four years  but that wasn't her testimony at trial at the sentencing hearing at trial her testimony was there were nope there had been no problems between petitioner and his family there's the post conviction trial court address that conflict in terms of her testimony at the two different events yes your honor i believe they they reference it at least in the fax section i forget whether they did so in the in the analysis section but that they certainly addressed that it's only referenced in the amount issue as opposed to the question about not wanting to put on any evidence of abuse which seems to be concerning area the the it's been presented from the state court and certainly ever since and as a single claimant there was a conflict of interest with the by the nature of the of the arrangement with the family he has sort of two theories about why that constituted conflict of interest but he always rais as a single claim and it's true that before the post conviction core what was presented to them was only one of the theories which was that he wasn't being paid enough and was trying to withdraw that was the only issue that was presented to the in the trial court that it was presented that they that they were controlling the litigation but specifically as to the child abuse aspect i did not see that in the in the petition or amended p petition specifically or that that was addressed to simply in that section the p c court's opinion and yet it's still it's still the same claim it's just a different theory about how we get to a conflict of interest that although it spends more  words on the five thousand it begins by saying petitioner alleges the trial counsel informed him that all decisions through made by the family that's correct in the day but the night is part of that section analysis the post conviction court did go on to say well there were there has been a claim that the that the that they did not pursue the child abuse claims and they did the facts underlying facts with it  are are certainly were certainly to case in the facts were rejected in essence so there is conflicting testimony about whether the council was told about this abuse and what they did result and he said he hasn't met his burden of showing that this actually happen in this court in his two thousand and eight opinion affirmed that in saying that his counsel denied being told of the abuse his counsel had they known about it they could have done something perhaps something different and then there's a prejudice in elsa's but the this two thousand a to pinion certainly goes into an end under the understanding that his counsel was never actually told about this and that is a fact that i mean is that is a an adjudication that was in of innocence and decided by the post conviction court and cited by this court and in order for there to have been a conflict of interest under this particular theory the child abuse would have had to been communicated to the council because it's only from them understanding that this was an issue and then refusing to to follow up on it because of the financial conflict of interest would there be a kind of conflict of interest if there's no communication there's no conflict there's no conflict there's no claim it's so there's it's it's hard at the very least for the other side to say this is an extraordinary claim that mandates relief and this is what he must then he must show that under under the rule sixty six standard and he must show that the district court abused its discretion in doing the multi factor test meeting given the fact that the that the claim as a general matter was raised before the post conviction court but even that was affirmed even here on appeal that would make it certainly minute not make it in in extraordinary circumstance and martinez itself this court found it martinez excuse me in mcguire said that martinez unto itself does not constitute an extraordinary circumstance so it is difficult to fathom how we have an extraordinary circumstance here and given that and given  mcguire allowed for that this case has been pending for a long time has received thorough review it has been thoroughly litigated many times there is not a single factor under mcquire that mcguire looked at that would in denying the rule be sixty six motion the remaining time thank you roger first i want to i find it very interesting that the counsel for respondent says that this claim was globally presented to post conviction and that's kind of good enough because in the hey b s proceedings the initial hades proceedings that was our argument that it wasn't a fault we tried to say that it was kind of there and it ought to be addressed the district court at first what the state told said it wasn't addressed that general language isn't enough and the district court found that it wasn't so they are kind of reversing their strategy in order to say there is no default after they already said there was a default so and for change we're saying there is a default so it's kind of a strange district court found a fault thank you also judge bugs in particular you were pointing to the language of the post conviction trial court in which it kind of addressed the facts of the conflict of interest i want to point out that this court in its two thousand and eight opinion found that opinion to be contrary to clearly established supreme court law so that that opinion is there but it makes no explicit findings of fact and just prior to talking about conflict of interest in the little section labeled conflict of interest it talks about the strickland standard and this applies it and that this court recognized that and that's the only federal standard that it considers so not only did it not apply the color of the sullivan standard it misapplied the strickland standard and there are no findings of fact there's a kind of us vague statement that he failed in his burden but there is nothing talking about debbie west testimony in no place does the post conviction court recognize that stephen west made these allegations in the original trial wrote a letter to judge asbury saying that his parents were making were directing the decisions and judge has refused to act on and that was kind of these allegations have not just been around since post conviction there's been talk of it since the very trial of a piece of evidence that this court as well as the district court found to be defaulted because it wasn't presented in state court the petitioners father presented an affidavit saying that indeed they directed in particular his wife directed counsel's actions so there's lots of evidence that points to that fact that raises the conflict of interest and certainly the state court did not make explicit findings of fact and certainly no explicit negative findings of fact that's one of the reasons why we believe this would be the proper case for a full evidentiary hearing in the district court to resolve that issue so this was presented the facts were hovering all around the post conviction but post conviction counsel was ineffective for not using their skill and knowledge and training to present the proper standard that's what the state said in his proceedings below not that they were ineffective but that they never presented the claim and that's because they didn't what you just said about they didn't use their skill knowledge and training to present the proper stand right to recognizing they recognize the meaning pilar as opposed to scotland they recognized facts that would give rise to a conflict of interest that was because the mother was telling no no i'm talking about in post conviction they certainly saw the facts that would have supported a conflict of interest claim but never argued it as a conflict of interest or your opponent or use that that is not  martinez violation i disagree i believe that that is because that's what caused the default and when it wasn't properly presented martina's says that ineffective assistance of post conviction counsel if it's failing to properly present or raise and ineffective assistance of counsel claim that is martinez and that's what martinez intervene oh say it is should be adjudicated in federal court if the  should have argued better because i think it's a distinct claim just as in hey biggest district court below where you say you disagree that this is about should have argued better exactly yes yeah i disagree that it's about should have are better i believe it's about they should have recognized what the real claim was that the real claim was a conflict of interest instead a real difference or is that just an articulation well i'll say that one gets you there and one does the well no but the district court below in the original