it please the court good morning now brown from the federal defender's office on behalf of petitioner kirk williams i intend i would like to save two minutes for report all and i intend to focus on the claim that appellate counsel was diagnosed the victim is suffering from sexual abuse based solely on that victim's reported primarily on the victim's report in the absence of any physical findings to corroborate that as the court is away or the oregon rejected uniformly by the main reason being that the oregon supreme court had been very clear that this was an issue that was meritorious dating back to the milk bread case which was more than a decade earlier the oregon supreme court  overruling the oregon court of appeals on a very similar issue that case involved a psychotherapist who had interviewed two victims of abuse about their accusations and concluded that they were not being deceptive the oregon sup the language is no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state the assessment of credibility is for the trial trier of fact and not for psychotherapists and in that case the oregon that sometimes the justices of the oregon supreme court recuse themselves because they have prior conflicts from their previous lives usually at the attorney general's office the southard chase which obviously post dates the trial in attorneys in oregon did not recognize as fired off the record reflects the appellate attorney in this case who submitted an affidavit in the federal proceeding has conceded that he overlooked this issue and to proceed with this claim it was viewed as filed all it was something that was expected to be rejected in the court of but then eventually what this what the affidavit say is we expected when the oregon supreme court took this up we would  landed relative to when south of mission was was filed and granted right around the same time i can't i mean within months of his case i think clued in the oregon supreme court his same supreme court yes within the same justices would make up of the court not of an indifferent as far as i know yes he could have been south and that's our position in terms of but in this is same issue only that the default should be excused under martnez for two requires a showing first that the state post conviction counsel was ineffective under strickland for failing to raise the claim of effective assistance of a public coun review had been allowed which of course they didn't know then then it might be something you know to raise the issue this is perhaps an issue that they are in supreme court is interested in however when you're looking at whether post conviction counsel was ineffective you have to look at what  conviction counsel would have been required to show and post conviction counsel is required to show not only that appellate counsel acted on reasonably in failing to raise this claim that of course you know there was no indication at that time that the about that but you lay them on prejudice you know that's where you learn it now you want to shift the grounds on me i was engaging you on the point you were making if you want to give up on that point you can go back talk about other is the answer that is all reasonable post conviction lawyers would not have requested a delay for over a year in the post conviction trial simply to raise this issue which again i think is meritless for other reasons  so you have to say not only could that was not an option but that all reasonable post conviction counsel would have thought that this issue was so filed all they would have  is not ineffective assistance of counsel so i think it was reasonable for post conviction counsel to either not notice this claim or to decide for tactical reasons to focus on other claims that actually appeared to have merit d claim before it under basically just the timelines of this case it would not be an effective assistance of counsel and in the oregon court of appeals because this state of the law was such a force out there before review was allowed in southard that the court of appeals had routinely tonight these claims had held at least three times in written opinions that diagnosis evidence was admissible and therefore it was not that the claim is valid but all reasonable post conviction counsel would have raised this claim rather than raising the other claims that post conviction counsel felt were merit had merit and also the post conviction counsel could do with the fact  decision to not raise the ineffective claim and that i think is the first hurdle the petitioner just simply can't overcome but second moving to the actual ineffective assistance of appellate counsel we know under harrington and that the decision of whether her counsel performed on reasonably is an objective standard not based on common practice or best practice but based on reasonableness and counsel have to give counsel a put basically you know there's no us i was ineffective and we accepted but the fact that he explains this was a mistake on my part that he well first there's the issue of whether post conviction counsel is adequate and i think there's no record the petitioner could make that could overcome that hurdle but second it's really a legal issue we know that the oregon court appeals had decided this issue three times and it hasn't i'm berger was dealing with a failure of trial counsel to raise the issue in this case trial counsel the trial but now you've got that trial court record i have knowledge as what i meant when what i said we know that the court of appeals has decided this three times was what i was talking about was at the time of petitioners appeal the court of appeals had decided the diagnosis issue three times and held that this evidence was admissible but to answer your question it is different in that it's a claim of appellate counsel versus trial counsel however  are made clear that this was an issue that was surprising to practitioners in oregon this was a new issue this this case really did change the law in oregon and change the including perhaps the council and something actually did i wouldn't say it was so subtle that no one would raise it obviously people raise claims that have been settled but it was so settled that it was not such that all reasonable forty page brief that he thought had merit and failing to raise a claim that at that time would have completely lacked merit in the court of appeals was not unreasonable and i see that i'm out of time so unless the court has further questions minute thank you your honor judge fisher has it just right in terms of the way to distinguish a murder it is a failure of trial counsel here this issue was preserved it wasn't just preserved but it was i think the strongest claim preserved during the trial so there'd be plenty of reason for post conviction with hindsight is certainly with hindsight but i think so at the time as well counsel took great effort to preserve his claim putting on expert testimony in arguing it citing all these prior cases from the oregon supreme court and really develop this claim so it wasn't a claim you wouldn't notice if you review the record in this case  continues to fail to recognize the affidavits that are in the record in this case about what the standard of care in oregon was and that standard of care would have applied to the post conviction far as well as the criminal defen trial bar and those attorneys to were well aware that southard or some case like it could have been williams was going to come down the pike when it was decided by the oregon supreme court they hoped and expected it would be decided in their favor they certainly