in the rule sixty motion the remaining penalty phase in effect in this claim and of time allows counsel choice course i'm happy to answer any questions that can only have mr akbar was sentenced to death after his own lawyer his own psychologists and the prosecutor each told his all white jury that he was thirty times more likely to be a psychopath and dangerous because he was black more specifically because he was black he was thirty times more likely to violate the rights of others to run a high risk of injury to them to be contemptuous of other people's suffering and just play a reckless disregard for their safety his court appointed advocates told the jury that his dangerous was chronic and untreatable that it would get more severe with time in the best thing to do would be to walk him up and throw away the key they made this argument even though mr akbar was only twenty one years old and even though the jury could find him eligible for parole after twenty five years or after thirty years the prosecutor stood up in closing in didn't even need to talk about his own evidence the adversarial process truly had broken down because the defense had done his work for him extraordinary injustice that sixty p was designed to correct in other words the hardest part of this court's analysis is done for it but the district court here did not even entertain the risk of injustice mr x or it's not even discuss the merits instead it again wrongly decided but the claims hopelessly defaulted is there a problem is there a problem the jurisdiction of the appeals court or sixty the decision here that the appeal is untimely no this court made the right decision in its ruling granting the c away in this case as the court's order noted there was an existing c away already issued jurisdiction was always with this court and remain with the who are the notice of appeal only serves to transfer jurisdiction which was ink which was not necessary in this case i know the wording took this position but it cites a single unpublished opinion co that wasn't in the sixty hurst posture and we know from post the bradshaw that this court can review what i would do the granting of her sixty in the normal course the warden's rule would have the effect of when the petition loses they have to appeal but when the warden doesn't the appeal goes on a normal course the judgment at all times remain the same as noted in our supplemental brief mr akbar has many arguments to support the showing of cause but the cleanest for this court is to assess the ineffective assistance of an appellate counsel a claim that was preserved in a timely application to reopen before the ohio supreme court the district court like the district court initially when it denied the st k b s opinion excuse me the st gave us petition fail to recognize how tw said that the federal court has to ascertain for itself whether the rule was indeed not complied with in addition to the adequacy in this case the district court's analysis really just lifted the post conviction analysis and substituted out for what a federal court should be doing and that's you know far from sufficient under mob in a federal court has to assess the federal interest in reaching a federal constitutional cla does not dilute the poisonous effect it has in a capital sentencing the essential feature of anti social personality disorder is this pervasive pattern of disregarding the rights of others and causing injury to them the court in back was unequivocal it had nothing to do with an aggravating circumstance they said no competent attorney would ever introduce evidence this client is more likely to be dangerous on account of his race the symp as described by dr eisenberg and trumpeted by trial counsel reached the inescapable conclusion that they were fronting that mr akbar was chronically dangerous and they did this even though there was two parole options on the table we know from united states supreme precedent supreme court precedent in symonds and skipper down the line even if you look at garden be rain ready it up hello it counsel strategy that was designed to avoid opening the door to the state calling his client a sociopathic personality here the state didn't need to do that because trial counsel's own expert called him a sociopath at the time of the  life imprisonment thirty to life about life imprisonment life without parole and then d the prejudice here is also immense compared to the prejudice in buffy davis there it was an errant comment by psychologist who ultimately upon the client was not a future danger an important distinction distinction in the case  in favor of dangerousness because of the way our system is here there is no apology they embraced that urban african americans and i'll you know i don't need to explain to this panel that i you know have this disorder at astounding rates you know one percent of the rest of america has it but urban black males have it at you know up to thirty percent in inclosing trial counsel looked at these twelve white jurors and he said is that even surprising think about the power of that statement the prejudice in back it was you know some toxins are deadly in small doses here it was  dominated eisenberg's testimony the prosecutor introduced it which is a fact that is you know glaringly absent from the warden supplemental brief but counsel embraced that statistic and kept bringing it up over and over again because he was in this perverse corner of his own making where he wanted his client to be more dangerous it really highlights the problems with a s p d but i want to underscore that this court does not need to reach any kind of categorical bar on whether that could ever be mitigating even if double edged it's enough here that it was unconstitutionally tied to mr akbar's race im existing in the briefing is an extension of this injustice but it's different because it doesn't require you know the racist evidence to reach the conclusion that the ohio supreme court application of wiggins was unreasonable v has been called by other circuits you know a basket of cobra's on its best day and we saw that play out in this penalty phase it was abysmal the prejudicial effect this evidence had but stepping back and assessing council's performance under wigan's it's clear that antisocial personality disorder wasn't just prejudicial and harmful as a strategy if it could be such it was actually inaccurate mr akbar was taken from the hospital as a baby to his mother's foster home he's been a ward of the state of ohio for all but three years of his life in counsel didn't think look at his only parents medical records or mental health records even though that mother had killed herself mr akbar was thirteen in post conviction counsels affidavit was affidavit trial counsel said you know i might medication specialists tried to get the records but couldn't but i just decided that we didn't need them then once penalty phase unfolded the state of ohio walked across to the defense table and handed him a binder full of the mom's medical records and so he throws it into the jury room in raw form you know medical jargon doctor's notes you know part of my job is to look at these notes i could tell you it is difficult let alone in a capital jury deliberation setting and expected the jury to do his job and to mind those records for usable mitigation the diagnoses in those records not to mention the horrific tales of trauma that she endured you know she had multiple serious substance abuse addictions were to diction didn't even appear in front of the jury he called the foster grandmother and said you  said she smoked reefer this woman had been institutionalized six weeks before her suicide mr akbar visited her she was suffering from manic depressive disorder hallucinations you don't have to be a  doctor to understand these things just more you pointed this out in fact and barry that you can't just hand the keys of your medication presentation to the expert and walk away i'm not a psychologist but i read this kind of the phase and immediately i knew that there was some scientific problems with these s p d diagnoses dr eisenberg made them simply by looking and seeing that the woman had dockets and that's highly problematic he the jury that mr akbar was anti social because of the st degree biological risk from his equally antisocial mother let's set aside you know the racial implications of that statement he didn't even look at anything that happened to her before she became an adult s p d on its face you know open the d s m differential diagnoses of axis one disorders and to make that lay terms you know p bipolar manic depressive schizo phrenic episodes substance abuse even which is access to preclude that diagnosis so his diagnosis was faulty counsel didn't make a strategic decision not to just to get those records he actually admitted that his team tried but he didn't follow up with the subpoena and then his conduct in throwing them into the jury room that's not a subtle tactical choice as according to the state court that was trio because he realized i missed a lot of stuff in here but if you take a step back and look at the evidence that was in those files it's clear under wigan's and williams view taylor taylor that he did not have the information at his disposal to make an informed strategy about what medication should be you listen to this doctor so the doctor hinges this anti social back no says for mr akbar and his mother who has never examined you never looked at her medical records until the night before he testified in what his report is recommendations and his diagnoses percent and the prosecutor even brought that out on cross he said bill when you came over to my office last week and i interviewed you you didn't say anything about looking at any other documents and you said well you know it doesn't change my opinion it should have on the face of the d s m itself he committed the same error of science with m akbar he told the jury that mr akbar had conduct disorder before fifteen and it's clear from mr akbar's record that the necessary at that instant such a diagnosis is not present he told the jury convicted of theft and criminal trespass i just want to give the court a little insight into what that th was eighteen months after his mother killed herself and his foster mother was working three to eleven shift you know the story never even heard who fed this kid dinner growing up he was accused of pocketing a sports mouthguard at a hills department store it cost a one dollar twenty eight cents this was in august before he entered high school when football starts that's the th now dr eisenberg said supported a diagnosis of conduct disorder that was the only time he got in trouble with the lobby trip before he turned fifteen which is pretty remarkable considering his circumstances and the trauma that he went through the criminal trespass was not even valid to support the stag gnosis because it occurred after his th birthday that was when he had a classmate went to visit a white classmate of theirs in their class in the girl's mother was upset called the cops those are the two incidences that led dr eisenberg to tell this jury that this twenty one year old boy was hopelessly in corrigible that he lacked empathy that he his personality was disordered instead of counting it in terms of trauma and what he deserved and that penalty phase in post conviction yes your honor i know your time is very limited and i don't wonder interrupt that but i do hope that you will get your fair cross section issue and whether that is in fact preserved so that we can address that certainly you can finish what you're even though i don't think that's an obstacle to relief that in post conviction other witnesses amassed you know mr i parsed father his paternal grandmother his peers his cousin another foster child who w him and you know this was explained away as you know subtle tactical choices to put forth law abiding citizens and you know courts often do with strickland claims they you know invent a reasonable strategy and that's that's the end of it but here if you look at the affidavit that counsel put forth in support of the state's brief he tell from the face of that that he doesn't understand his obligations under wigan's he said well i don't remember any of these names being given to me so i didn't interview them or you know i wrote this guy a letter and the tab responded we never heard from him again it fundamentally misap denial of the sixty be fun exciting because of the way the court really engaging in some judicial gymnastics to get away from the martinez obligation to reach the merits of the claim is presented it's a little complicated as everything in this case can be but under rect appeal this claim was raised and it is all couched in a change of motion venue that counsel was ineffective that the court erred in th also the counsel was ineffective for showing that the change of motion was necessary to protect mr akbar's right to be tried by a fair cross section of his community so there was a claim breda brought under direct appeal and th brought in post conviction with very little evidence attached it was some printouts in the census bureau it's you know far from what is required under the three prong test of durned versus mississippi  violation after the martinez remain and you know significant statistical analysis with the help of his just exact word was put forward to the district court in deciding the claim if i can use the word decide in the district court judge said well you know how this claim then adjudicated the finding of default the finding of race judicata under the state rule would have been set aside because of the seven pages out you know that's enough evidence to coors the record so i'm setting aside the default under the state court rules and therefore the claim is no longer defaulted and therefore do not have to reach the  that i had found to be defaulted and the district court did not acknowledge that the setting aside of the procedural rule in separate cars grounds would in the normal course lead to a parent's analysis it just did not decide the merits in either  massachusetts and that has held that structural errors brought in post conviction you know the the petitioner prejudice and this is to guard against a sandbagging of sorts by the courts you know you see it closure you're going to save it for appeal  i've never seen happen but in any event we recognize that change the law that the spirit of martinez the chief concern of martinez interview no to bring you know the merits ruling to unheard claims a trial error this you know arguably would be an extension of that but we're trying to counsel had no knowledge of this closure the post conviction counsel did and fail to raise it that this is a substantial claim of ineffectiveness particularly if trial counsel should have known of the closure and failed to raise it and prejudice under martinez needs to be established anyway so we do not think that there's any tension between weaver and that extension but you know there is no law that we can find or the situation is replicated but then again there is you know no i don't think real danger of this occurring the seems to be a very rare unique violation but considering the composition of the been i or you know the always jury that was chosen the racial dynamics at play here this also you know runs into the council of choice issue and i think that merits review on the racist evidence claim is appropriate now because it strengthens the legitimacy of mr akbar's position when he asked the trial court for counsel because he didn't trust trial counts he asked for that you know and in the heat of jury stand from his utter breakdown in communication with dr eisenberg was the only expert he had met at that time we know from trial counsel's affidavit in support of the sixty be that you know akbar made this request right after trial counsel told him life without parole is what i'm praying for and it's your only hope that really angered him and he you know the trial court erred by calling that you know not a complete breakdown in communication that is an unreasonable application of power we take the position that power controls this case you have supreme court applied weeds but even under you know an application of  even under an application of wheat it just reinforces the presumption of counsel of choice particularly where one of these lawyers has a conflict or a potential for conflict mr opp are told the trial court listen i don't trust this guy my objective for this trial is different than his my family has scrimped a one thousand dollars i have someone ready to go he just needs a few months in this trial went you know went to trial lightning fast five months after he met his lawyer warden your honour's one may say that in this case there really are three basic issues the st being with respect to the claims that were adjudicated by the state courts and which were certified for appeal the issue is whether the state courts adjudication of those claims was objectively reasonable under the standard set forth by the anti terrorism in effect of death count yack the nd issue is with respect to claims and arguments that were in vance after the district court rendered a final judgment in this case that those arguments in claims present the question of whether at st the district court had jurisdiction or authority to review those claims and secondly whether this court has the jurisdiction or so already to review the claims and thirdly your honor with respect to claims that the district court considered particularly with respect to the ru sixty b motion to the extent that the district court concluded that those claims were properly adjudicated under sixteen b because they did not constitute a claim or a ground that rather constituted an effort to to reverse a previous procedural ruling and then the question becomes did the district court abuse its discretion in concluding that those claims were not a sufficient basis for relief from judgment know what it is important here your honour's i would submit is there is an important distinction between reviewing the merits of a claim that's presented properly  vs corpus petition versus reviewing a claim that is presented be a rule sixty b motion because in that sense then the only issue that's presented to the court is whether the claim it satisfies a reason to for relief from the court's judgment here the district court with respect to the claim concerning counsel's presentation of expert testimony the district court found that that claim was not subject to the nd petition rules because it was a  found that it was a proper attempt to overturn the previous holding of the court that the claim that counsel was ineffective in the way he presented the the expert testimony was defaulted so here your honor what come in comes down to this the district court said it was not because the petitioner had not shown any extraordinary circumstances as to why  case but also mentally whether counsel was ineffective for it in his hand of the expert testimony your honor quite frankly the case primarily relied upon by appellant the case involving racialized evidence is not helpful because it doesn't constitute an extraordinary circumstance because the extraordinary circumstances that existed in that case which the supreme court found in de justified setting aside a default are not present here in this case in the texas case the state and even five other cases indicated that it would not oppose the the the the prisoners claims well also in texas future dangerous isn't actually an aggravating circumstance which warrants it with a warrant a capital crime here of course a future dangerous is not an aggravating circumstance in ohio and i think that very much differentiates the case but again i want to emphasize that what we're talking about here is not the underlying merits of the claim what we're talking about is whether there's some reason to set aside the previous procedural d because actually it does not have the earmarks argue or nor did the defense attorney did not argue somehow that race should be a factor in the court's determination on the contrary what the gist of the  doctor the doctor's testimony essentially was this personality disorder is a recognized mental disorder and in this case it was appropriately mitigating because person people with this type of disorder if it isn't byron know in nature in the doctor's opinion it's caused by a deprived environment it also in essence reduces culpability because i believe the doctor testify that that that mr jones was he was actually acting with with the mentality of a very juvenile person that's part of the analysis part of diagnosis but most importantly your honor what dr eisenhower what was brought out in cross examination was simply this yes there are studies which which seek to learn what is what are how our diagnosis of personality disorders and other mental illnesses correlate with the overall population in terms of race sex national eccentric in other words what was done here was it was a reflection that yes there are statistics which is attempted to know how a diagnosis occurs over various people there's be commit violence to your honor as the prosecutor in this case was attempting to attack the diagnosis wasn't of him point was claim it was ineffective assistance of the defense was that due to this personality disorder a recognised illness that mr jones was was was less responsible he was less culpable as a matter of fact dr i said testified that just because of the statistics doesn't mean that mr jones was more prone to commit murder or violent behavior he made the opposite point in may he made the opposite point that's simply not the case  rather it's just at his mitigation was that because personality disorders like this are caused by a deprived background essentially that's why it's mitigating that's why it should be considered and that's my point that's why the prosecutor attacked the diagnosis because he could see just as the jury i'm sure could see that this was presented as a mitigating factor this was presented as something which the jury should take into account and in a way would militate against a capital sentence now with respect to the jurisdictional question here again i want to emphasize that at issue here is whether the district court abused its discretion and denying relief from judgment well that isn't that the appeal  denial of a rule sixty of the motion brick matalan matter for appeal it must be appealed because the sixty b does not bring into question blind judgment what it brings into the question is whether the court in denying the motion was correct in finding that there was no basis to vacate previously issued judgment so in essence what you have here is you have pallant who is asking this court to hold that the district court abused its discretion in not granting it a relief from judgment based on these arguments when in fact you have talent did not appeal that decision it to be found did not appeal that that judgment denying rule sixty big in terms of understand your opponent purposes of allowing jones to present additional arguments under the trivino case with respect to claims in the petition which were held to be procedurally defaulted that was not a mandate or that was not a mandate to present new claims and for good reason it is very it's is clear we know we know that that under the skirt court's current  pleadings to present those claims here the ineffective assistance of counsel claim for the failure to handle correctly the expert testimony that was a claim which was found to be procedurally defaulted therefore the district court said that so in so far as he's only attempting to overturn that default holding then he can do it under sixty v but in no way could the district court  as a matter of fact i think that district court found correctly that in seeking to remain with this court the appellant argued explicitly that it would be up to the district court in the st instance siddur these arguments in other words it's up to the district court in the st instance to determine whether a claim was properly before it and trevino case would apply now interestingly enough many claims have been created a recognized or expanded in that case only to one type of claim a claim of an effect of assistance of trial counsel that could not affected lea the present id until post conviction now let's take a look at the claim that counsel was ineffective for not handling the expert testimony properly so a matter of record your honor as a matter of record claim that claim can be presented on direct appeal it's not a claim that that needs to have any development outside the record as as a matter of fact one could say that if it is an attorney  tempted you know iowa tempted to raise that claim and post conviction also mentally a very high chance that it would be held to be raised to kata unless the attorney came up with compelling evidence to orange the record now here the of the united states it under the circumstances presented in that case there is very very great reason for the court to decide there was extraordinary circumstances but the decision of the supreme court is not an outside the record and how this claim really was presented in state court well that really got defeats the that the appellant too because the only way that this claim could be brought within a sixty  is that if it had not been properly adjudicated due to a procedural error by the district court in other words it can only be brought in sixty big if the can show that the district court erred as procedural default determination and as this court has also pointed out it's a very rare circumstance in which a intervening court decision will constitute the kind of extraordinary circumstances that are required to to justify relief under rule sixty b with respect to the other claims of an effect of assistance there are two claims that were properly presented to the state courts the st claim was on at the iowa supreme court that the trial counsel was ineffective not for failing to produce mitigating evidence but rather counsel was ineffective because he mishandled the evidence that he had he didn't make the right arguments in other words the argument was counsel should have used these have it he should have pointed out more and mitigating things in the evidence that he presented to to the court and to the jury rightly so that claim can be presented on direct appeal and reasonably be on how supreme court said look this isn't this is a matter of pure strategy i mean there was there was no indication here that part that persists claim that was raised and on direct appeal was totally dependent on the record evidence i mean it could be at the council the claim there was not that council dropped the ball and could have gotten more evidence the claim on direct appeal rightly so was the evidence that council did present he did not effectively utilized now under go under ohio and you know how supreme court reasonably found that at that that evidence to emphasize and not him and you know here of course there's no indication the council didn't argue on direct appeal as and when there is a decision best a geisha counsel basically said look he got this conviction counsel argued that there was indeed additional evidence that could have been discovered and presented the state courts held essentially that that additional evidence was cumulative of evidence that was already presented this court has held that where an issue is raised as to whether counsel should have presented more evidence in mitigation it must be shown st that the evidence that additional evidence is different in kind in nature and strength than the evidence that was actually presented here it just the state courts recently found that that was not the case this evidence was it was consistent with compelling that it warranted actually raising as a proposition of law that it be the sentence the aggravating circumstances where it did not outweigh the mitigating evidence or factors that were presented in terms of a few other other issues raised by appellant in terms of the whole idea of appellate ineffectiveness and seeking a reopening it's well established that that doesn't raise any underlying claim i mean what it does is that the only claim that's raised by a request to reopen an application to reopen a direct appeal on the basis of appellate ineffectiveness is appellate ineffectiveness it doesn't present any of the the merits of any underlying claims that has asserted should have been raised by a count and again also what's key here is that this claim has to be defaulted if it's if it's not default it then there's no basis for raising it in a real sixty be after final judgment is issued because again as the supreme court has made clear a rule sixty b becomes a nd edition when it's a search grounds but attack the underlying judgment and and that's it's claiming he presented enough evidence outside the record but what's the most important thing here is all that is was this clear who it was this claim of ineffective assistance of counsel for not adequately supporting the fair cross section motion was at present it in the st and the petition originally if it was not presented in the st petition originally  it doesn't make any difference because it cannot be presented for the st time and a rule sixty b motion because the only again the only thing an issue to rule sixty b is that the district co initially in the st instance judgment find the claim to be defaulted and was that could that be overturned under sixty it's not the merits of the claim that get to be revisited now in terms of also just how different i mean again this is an issue that's really in the nature of it's in the nature of an on the record claim you know i know it's very difficult to overcome race judicata for those types of claims with evidence doors the record and it's extremely unlikely it doesn't it doesn't seem to be likely that no matter how dense that somebody might have come up with it not only but also not only do you have to do that you have to show th counsel trial counsel i was unreasonable and didn't do a sufficient vesta gauging to support this motion and could have discovered this additional evidence within the time constraints constraints of litigation case and so there again many many hurdles here involved as far as the public trial issue here again there's absolutely no evidence presented that the court room was ever shut down that anybody was ever the court excluded any body from attending and that but there's no evidence also that council had a reason to think tribal council had information or reason to think that might be an issue again we're talking about ineffectiveness that's the basic question and to do that one must say well is there any evidence here that you can say i've got counsel is substantial substantially should have anticipated this and made such an argument that the district court did not think so and we would submit that that finding is fully supported by the record here if it's a court have any questions in terms isaac testimony and if we are able to get to the merits of the issue just not a problem of jurisdiction there's not a you know another sixty b issue we were to argument then that when your own lawyer presents expert testimony that went to the so called a psychopath the of urban african american males and likelihood of committing crimes at thirty times the rate of the general population and then reiterates that and closing argument on the merits how's that anything other than prejudicial deficient performance the question here that the racial statistics came up with respect to what would watch the incidence of this diagnosis among the various groups that's how he came up t sure there's nothing for the jury to indicate that oh yes and then there's what they're arguing here is mr jones due to his race yes we counseled by saying yes we conceived that he's dangerous because of his race and what they were arguing is that due to his his deprived background he had a personality disorder that was aries you have you have the council saying that which is expert on the stance is what causes this your honor what can or what causes this doctor what causes this type of personality disorder and the doctor says well st cause is when you have an environment and you have an environment that deprives people of the kind of emotional support that this this man has not had when you have an environment where you have no big father figure or you have nobody involved in your life where you have people who are continually basically nonny not caring at all about you this contributes now the prosecutor gets up says wait a nd just because you know he's had a deprived background doesn't mean he really had this personality disorder i mean a lot of people get this right isn't the fact that three percent of the population have been diagnosed with this yes isn't it a fact that  you know certain amount number of african american urban males are diagnosed with this yes but the doctor went on to say what i'm saying here is this man had this to asist personality disorder is significantly mitigating because it explains why he would do this type of crime i mean in essence it is a controversial subject i would say yes because many people under real recognize th personality disorder is basically defined as people's criminal behavior i mean that's in the lay person's terms right so that's why it's a it's controversial but in this case it defense presented in a way that it was mitigating and it fit the other mitigating evidence that was presented i would submit your honour's that there was absolutely no hint whatsoever to the jury here that they should consider mr jones race and determining whether he should be sentenced to death on the contrary they were asked to consider whether he had a personality disorder which weighed against sensing him to death and that was the gist of the argument  a personality disorder and one to three percent of the population it doesn't make any you know accusation is that because of environment this is a racial appeal it could not be more clear twenty five percent to thirty percent of urban black boys lack empathy when only one percent of the rest of us do there's no getting around that what counsel describing is the justification for pursuing d in ohio that has been circulating for for decades if not addressing the racial aspect there's no study that was cited this is a false and racist equivocation of being in prison being born bad that's the heart of the claim but the warden doesn't seem to grasp the question but didn't say no competent counsel will argue that his client is a future danger on account of his race when it's necessary for aggravating circumstance period but on account of this race period i've mentioned skipper i've mentioned siddons i've mentioned darden the way in writing i've florida this is it said the psychological evidence as presented by dr eisenberg actually cut against mitigating factors of his troubled upbringing and his youth so the trial court who we trust to set aside you know pandering to prejudices and you know otherwise inadmissible evidence found at this hurts there's no studies the statistic is false on redirect you know that the wording suggests that because on cross examination dr eisenberg said you know they don't all go on to commit murder that somehow dangerousness is mitigated but he forgets what happened on redirect trial counsel got up in trying to rebuild th theory said well yeah that isn't the reason a lot of these guys are committing murder but for their incarceration murder and dangerousness there's many ways to be dangerous that don't involve murder the court and but didn't say well you know i'm going to kill again so you can't be dangerous again there's plenty of things in prison that skipper simmons recognize or reasons that juries gravitate to death when this kind of evidence is presented the prosecutor did not attack his diagnosis he fully embraced it you just have to read his closing oh terry jones is the sociopath dr eisenberg says he is he over and over again he doesn't even mention his own expert sixty we got a little muddled there this is what is what is clear the district court found that this claim properly relates back to a claim in the petition  found to be procedurally defaulted in our supplemental brief i presented ways to establish cause for the default it's clear and the wording is wrong on the law that where an ineffective  the procedure before analysis and where the district court in gauging the same short circuited analysis this time misapplied the wa the court abused its discretion i just want to read underscore that this is what sixty because for just last month this who are granted a six to be petitioned on a case you know that was final one hundred and twenty five years ago because of a racial violation the systemic breakdown in this my perspective is a complicated case procedurally with lots of moving parts but we'll take the case under submission and have a decision for you and in due course but we thank you for