good morning your honour's my name is certainly from the federal defender's office in sacramento on behalf of mr johnson and mr johnson is in custody right now your honor i'd like to focus my arguments today on the second or successive issues since that issue that we were appointed to brief and that issue is whether mr johnson's instant motion should be deemed second or successive because he had filed the previous motion which was filed to recover his direct appeal right going but it didn't address the issue that was on everybody's mind but but actually your honor it's really a different issue because the first lady's petition was really addressing the definition performance of mr johnson's trial attorney his name exist at the time every sentence and was never mentioned at the time re sentencing and now we're acting like well this is an attorney made exactly the same mistake so we can act like it's the first one of the he couldn't make the same mistake because he knew of the issue at that time when a conscious decision not to mention it which means it's not really the same issue that was placed the first time the counsel's performance isn't quite the same as the counsel's performance the first time the argument is the first time we just dropped the ball didn't know didn't raise it the second time the person the attorney plainly knew about it and made the election not to say anything about it so was that really the same are we really focusing on the resentencing aren't we really trying to talk about the screw up of the first attorney which the second attorney thought he or she was not in a position to correct at the time re sent i'm not really sure why mr johnson second attorney mr brennan did not raise the i c claims that's now before the court but as it is a matter of as a technical matter it's just impossible for but i mean how many times do we have to go through this i think this is this would be the last time your honor i i mean i i think we're getting more toward the merits of mr johnson's claim now successive petition and i guess you're not going argue the merits that i know you came in for a limited purpose but it was his appeal on that well i could i could argue the merits of it also and i think we have i mean we have a situation where the appeal showing that he was entitled to relief and in this case we know that mr johnson did file a direct appeal and he did point out in his direct appeal and also we pointed out in our briefing in this case that the were numerous other cases that occurred before mr johnson was sentenced where attorneys were raising this objection about that got in the government's failure to prove that the methamphetamine in question was what the  have to in the context of this case consider the role of counsel as well as the nature of the preceeding is reinstating the right to appeal which i sure wish we go against all the other circuits so i mean we have to take that into consideration and consciously deciding to split with the other circuits that's something we don't do particularly lightly so why should why should we go against the grain of this already of other circuits on this point now i know you're not  represented by counsel he was not pro se and he didn't simply reinstatement of his rights for direct appeal he raised all these other claims and i think that's remarkably different and i think that as i was thinking i think you have to twenty to thirty five motion and is now proceeding to reach that thing the counsel who is representing him shouldn't that counsel be providing full counsel as contemplated by this that amendment rather than the can this case is different think either the minority or the majority because the defendant had counsel and all these other issues were raised so he had full and fair opportunity he  so those are the only point i like to make for the next case hamilton