cases one which is the way it's done in federal court with second or successive petitions is if you've succeeded let's suppose you show that you had ineffective assistance of appellate counsel on your direct appeal well the remedy is to give you a new untainted appeal and if you then were to file a twenty two fifty five motion that would be considered not a second motion but you considered a first motion even though numerically second but the first one kind of washes away with with the relief that's granted the language of the indiana statute is pretty broad and as i understand it the indiana courts haven't been one hundred percent consistent about that but in many instances they regard second much more literally than what i just described and so they expect mechanisms as judge pratt was suggesting such as this davis procedure are such as trying to just bring the ineffectiveness in the direct appeal because they don't want to be dealing with all of these success of the test and you know it's not up to us to outline been israel was denied the right pursue a post conviction petition either as of right under post conviction rule won in marion county that was dismissed or it was a success a petition by the indiana court of appeal there's no reason to think that the davis petition from the direct appeal would have been treated any different with respect to raising this ineffective assistance claim and the direct appeal if lisa johnson mr bennett israel's to direct appeal had raised in effect that assistance of counsel there would have completed the repetition of the mistakes and mr of been israel's trial and original direct appeal the indiana supreme court found that mr ben israel's first public here had been ineffective for for not raising in post conviction proceedings ms johnson had no idea what the post conviction what other in effect of distance post conviction claims might be out there and and after seeing the news re to that's the post conviction decision from the in the end of course i can't imagine what lawyer would have raised an effective assistance claim and in the direct appeal i mean besides which you have judged crap found that it was not per se an effective to file a one member one page memorandum sentencing memorandum and  said before and we just think about the merits you did not focus on mitigating evidence to this omitted you were talking about the fact that it was just this two page memorandum the and the issue about the d n a retesting which of course goes off the rails way and turns out the evidence is destroyed but that's not before us anymore but you keep talking about this two page memorandum but now suddenly we get a full blown discussion about her not going full but we get a discussion about mitigating evidence and it's actually not full blown because i'm not sure what mitigating evidence that would have been cumulative you think should have come in so i have a couple of complained about the two page memorandum now a day i believe it is of the rules governing twenty to fifty four and twenty to fifty five cases so this is the judge has to look at the petition the answer the transfer of basically of the state court record the only reason a two page memorandum is actually only one page of the prayer and certificate of service or on the second the only reason that can be insufficient is against the background of what could have been done and in this case what could have been the mitigation evidence that had been developed in the post conviction proceedings was completely available and completely in the record the judge pratt would have seen but under bob and against release you've got to present these things fairly state courts and i don't know when the state courts were ever told you know the that the real ineffectiveness problem was the failure to pursue this mitigation  courts state courts have already found a judge m p s post conviction trial judge has already found the trial lawyer in effect of the first time for leaving out this mitigation i that it's very hard to see how in light of this entire history of this case and the record that is before the state courts the state courts could not have been aware that the claim of the one page memorandum or two page memorandum being insufficient does not appear against the background of this litigation of which you address the i did not mention brown in the briefing because rehearing is still pending in the case i'm sorry i said i did not mention brown myself in the briefing because rehearing is still ongoing  from the only thing brown really does in this case is that it says there's no meaningful opportunity in indiana to raise ineffective assistance trial ineffective assistance on direct appeal and i think that supports  may please the court that is realize wait the one claim he raises in this appeal that trial counsel at the resent sink didn't present sufficient mitigating evidence because he never presented this claim to the district court  so he raises for the first time in this appeal and so is waived and that's the only claim that he raises at this time so this court has no basis to review review the claim that the district  recognized this in the ruling on the fifty nine emotion in which the state doesn't even believe his rule fifty nine motion actually breaks the claim but the district court went the extra step and said even if it does raise this extra claim it's weight because it's where race for the first time in the motion in the fifty nine motion recollections that she thought that the rule fifty nine motion was an effort to revive the things that have been in the reply brief that she has rejected that of course it's obviously too late to raise funds for the first time in a reply brief also correct and if you look at the two documents they are very very similar so there was attempt just a quick note about a little bit more about the procedural history is that this failure to raise further mitigation evidence was never presented to the state courts and presented reapers at the evidence live rather than just rely on the evidence that was presented in the post conviction here and now in the post conviction my fuzzy on when exactly this happened because this case it's had so many correct correct i don't resent it saying you know the core peals looked at that and even looked at the proposed mitigators that apparently from what state can tell and israel is saying should be mitigators and being the mental health and food indiana appeal said because there was no nexus between any of his mental health and the cry it wasn't a mitigator of significant weight and so they found the sense to be appropriate given the strength of the mitigat baffled was sufficient to create an ineffective assistance of finding an effective assistance the first time around the death penalty cases affectively a life without parole case ms from the original  from the post conviction proceedings included would have almost certainly made a difference thank you are ok thank you very much thanks and stay just well we'll take the case under advi