that sixty b motion is procedural in nature it is not a substantive attack on the merits based determination of the underlying th amendment claim that was  originally raised in the hay vs petition the question that was presented there was whether a denial of representations services under section th down you did you i don't remember your briefing to talk about structural defect it's in here the work structural it is ok they the issue is is whether my estus presented extraordinary circumstances that allowed the reopening of the case and is such to warrant funding of the petitioner that he was denied before i may use distinguish the supreme court's decision in dollars versus crosby on the extraordinary circumstances piece of it well our our position is that the denial of representation of services is comparable to for example the fraud example that they used you can have an underlying merits determination  if that merits determination was obtained by fraud that procedural issue is one that allows the court to set it aside while the courts the supreme court seem to say i thought in a dolphin that that was a   court said a change in the law is not extraordinary circumstances where we're not talking about a change in substantive law we're talking about a change in the procedural posture of the case this issue with respect to to to representation services and that's not just representation services in the sense of providing an attorney but it's also providing an attorney with the necessary ancillary services whether that is the law the only change in the law the procedural posture of of the representation services where we're not talking about some underlying substantive merits determination we've never gotten to the position of the tree merits of the case because we never got funding in order to prove the elements of the point is the only thing that changed i suggest was the standard by which courts judge these motions for attorneys fees right and i don't know what you put in your search petition i wasn't able to find it last night but was there you included or not you could have included that your circuit ition supreme court looked at your we looked at it we said the determination what the district court said is it didn't have jurisdiction and that it had jurisdiction the st table as petition you had you it had jurisdiction over funding in the district court said no we said no the supreme court didn't grant cert because  case and and again we're here on procedure but if we want to move to actually what was happening since you're saying that the court and the district court denied funding the court was requiring us to prove that the case was substantial before it would provide funding for us to go out and get experts and investigators to develop the x to record evidence to prove that the case was substantial so we never got to the situation where we were able to develop the extra record evidence necessary to prove the elements of a wiggins or a strickland climb i hear your argument but to justice great judge grants point the district court need you're not tiled investigator and i'm going to reach the merits so wasn't based on a procedural bar in the district court is that correct yeah i just skipped over everything i mean if it didn't agree but it wasn't denied on the bases  that if you didn't have jurisdiction it needs to just stop and say we don't have to or stiction and dismiss the case it went on to then rule incorrectly on the substantive merits of the claim but it never gave us the necessary funding in order to present the tree merits of the claim because we were never able to provide extra record evidence with a court so essentially we've got a cart before the horse we have to prove a substantial claim to get money to play to prove this if you had the opportunity to raise that in this court you had the opportunity right in supreme court in whatever reason supreme court did not serve well you have to also remember the procedural history at the time when we originally presented that to the district court martina's was head to head a certain grant but more tina's had not yet been decided by the court and then and then what this court did  can overcome procedural default and exhaustion by showing that state hate his counsel is ineffective so you have a determination that was made by the trial court before those t key pieces were were in place or decided by the u s supreme court although we did put the district court on notice that martinez was decided and they just skipped over it and sad but there's no one remaining trevino because the district wanted or need decided the issue on the merits no it did not decide the issue on the tree merits if if we don't have funding to get investigative and expert assistance to develop in presenting extra rev record evidence we don't have the tree near it's being decided because the only thing that is before the court is the record that was already developed at trial back your argument a time at the procedural posture this but what i'm saying to you is the court could not decide the tree merits of the claim because they didn't have all the information at take that's what you are i'm just guessing what the a procedural bar because because it skipped over the or didn't have in front of it fourteen this intervene you know and then later i asked us so it just applied what this circuit precedent was which was which is what i asked is sad was an incorrect standard and so i essentially the court was saying its hands are tied this is what the st circuit says and purported to do a merits review because it was really using the standard that was there there are there if it's if the claim is an and procedurally defaulted then it can't provide funding and then it went on to say and oh by the way you didn't raise a substantial claim which we could not raise because we didn't get the money so so this court in the district court why the wrong standard in ruling on the application i believe we didn't i have not looked at that certain in a while but we one requiring us to prove a substantial claim when in fact we can't prove a substantial claim unless we get the funding and then in some of the cases as here with credit singer martin set the judgment aside i mean that's the fraud case they had in there even though there was a mere its determination in the fraud case what that and i think the other one was diyala and we all  court didn't didn't take us in christ singer but they did take a sciences because we had the same problem in i guess just that there was in crossing a which was this substantial threshold showing understand i i just i get sounds like from what you're saying you agreed this wasn't successive i just want to make sure because in the government's brief it had used the word that we had conceded we have never conceded that this was a successor petition well but but i think we have to look at the bigger picture here and we're looking at representation services and representation services isn't just limited to counsel if i don't get the necessary funding that i need for investigators  experts i don't have the background to represent a client to do the to the multi generational social histories that are required or to do mental health evaluations and so without those tools essentially he's being again and part was a case about conflict conflict free counsel so how does that have his card you can apply mark applause because it stands for the proposition that the  the petitioner was being denied counsel counsel couldn't go forward and represent his client because he was both state and federal pay b s counsel and so it was the broader picture that's not the only way that representation services can be denied mcfarlane also says that without representation including the services of investigators and experts it makes it unlikely that capital defendants will be able to farm successful successful petitions for collateral relief and i'm looking on page pages thirty two dollars thirty three cents of my brief so again without the necessary tools and that's the the ancillary services there's a there is a dyno aisle of representation services because i can't do the job that i need to do to prove the elements of deficient performance and prejudice i don't have the necessary training in order to evaluate the mental health evidence i don't have all of the credentials that a forensic social worker does and which the guard lines are now saying that type of forensic social worker should be used as a mitigation investigator to do the kind of multi generational investigation to pull out the background of the particular defendant so that is a denial of representation services this court to find that a district courts and i really discretionary decision to deny funding is a defect in the integrity of the proceedings but in order to do so this court would have to look at a final decision in a stage in the proceedings and either instance his request is plainly successive and this court should affirm the district court's transfer order before turning to the defect issue in this case i want to briefly address judge owens questions about  circumstance and although the district court did not reach that alternative finding in this case we wholeheartedly agree that gonzalez is essentially indistinguishable from this case and also from this court's cases indias and in adams where we have found and ultimately cannot satisfy the basis of an extraordinary circumstance but turning to what you argue because the argument raise here is a slightly different argument from what was raised in the th circuit in the square and in the denial and which presenter did challenge that denial once again the court considered martina's even though certain had only been granted and so while it had not come out the court certainly did address any impact martina's may have an ultimate only it found that given that it had already extensively discuss the merits of the claim and found it lacking that that plainly meritless nature of the claim means that they had an insubstantial claimant or martinez which again continued to support its decision to deny something on appeal to th  court that determination was made without the benefit of the evidence that quite senior claims could be discovered if he had if he got the funding and had an opportunity to pursue that you're going to that's where i would agree with that your honor however and that the only determination that needed to be made in connection with whether or not to get the funding for that was a determination about whether or not it was reasonably necessary under th back so that the district court can in the st instance make that determination because the district court's decision and this court's affirm and of the district courts and i'll remain correct under a yes does ultimately in the fifty nine eat he found again the plainly marilyn's nature of the what was alternately pleaded there were a new facts there were new exhibits presented in that they were not presented to the state court when they raise a failure to investigate claims the district court considered all of that even though it probably should have been barred under penn holster and as the district plain on the record before the court including the extra record evidence that was presented in federal court that had not been presented in state habeas court the trial counsel's investigation was more than reason he's claiming that at least in part that court we have on the merits affirm that to now that was taken to the u s supreme court the supreme court denied cert we now have quotes here coming back asking the district court to reconsider th entirely i think with me we already had a full review up in day on of the denial of funding on that issue why did you not argue that whether this is excessive or not the issue of whether it's in total funding emotion the bill you know i apologize i misspoke they just declined to review this but this court has thoroughly considered the decision and the district court definitely fairly consider the decision and when it comes to the question of to go to the true integrity of the proceedings and those are things like my opposing counsel pointed out fraud again there may be a marriage issue taishan in my case but there is something brought to light in subsequent proceedings that we no longer trust the process similarly as your honor pointed out with respect to the questions on clarke the statutory right to conflict recounts all the underlying motivation for finding out was that we are not certain that we trust counsel to fulfill his ethical obligations and those situations but apart from those very narrow it's important that we prevent claims of procedural the fact from becoming a talisman that warrants off the limitations against excessive recognition and turning here to the specific defect that's been alleged the denial of funding this court's decisions in the united alvan and re robinson seem dispositive on this issue in particular the primary distinction between here and clark is that right that was a mandatory right to conflict free counsel here we are dealing with a matter of discretion even within three thousand five hundred and ninety nine dollars itself and despite presenters attempts to conflate the mandatory and discretionary nature of the claims the right to appointed counsel is certainly mandatory but the right to funding is an entirely discretionary decision by the district court as affirmed by estens itself where it noted that you can even meet the reasonably necessary standard under the statute and the district court may still retain some discretion to deny that is a dispositive difference between you want the question is in this case and what the question was in clark additionally the very nature of the defect here is like that issue again in united states and in re robinson and those cases they were denials of evidentiary hearings and announce  discovery here we have a denial of funding and all of those at the end of the day simply request a fuller evidentiary development of a claim because of it is clear that as this court held in robinson this request is ultimately i would disagree ultimately in an evidentiary hearing they are still developing evidence often they are bringing in new acts to record things that were not considered in state court and given the particular nature of what we're supposed to be doing a federal hate these proceedings that evidence or development is supposed to be limited what do you do default so in that instance it is also going to probably at the end of the day not might be most often tied to a procedural determination unlike here in to judge against question earlier yes ultimately because they are seeking to develop evidence in federal court i would say they are similar at the end of the day they are wrapped up with a claim they're wrapped with an ability to bring a claim you get the language about it it has to vote for a marriage determination th i can't locate at the moment without reading a little bit more carefully but i think the idea there is the things that they say to you as examples of in fact the facts are things that preclude a marriage of you including self there was not an alternative merits a termination i don't think it's in there but will it's certainly in this court's opinions which what you mean and it's certainly in some of this court's opinions the idea of occluding merits review failure to exhaust denials of procedural defaults the question there again is what happened in the district court and was there ultimately merits adjudication and it is clear here that there was he received in fact the most favorable standard a review he could whether allowing this as a sixty proceeding what ultimately be inconsistent with congress intent and narrowing the number of shots of federal petitioner gets the intent is clear you get one shot and he had back here he had that in federal extraordinary circumstances section where they ultimately found as judge allen pointed out earlier that that cannot be an extraordinary circumstance but that was not the reasoning underline it it's also the case i think pointed out that even changes in substantive law just as a practical matter we sent it it would even have to be here i don't believe so i guess i'm trying to figure out what what the big deal leigh is if it goes back they're going to take a week of bunch of witnesses and all of that it goes back and now you tell i'm looking at the right thing and understood your question and also there i asked is and it's citation impressing or i'm looking at dyess just versus davis one thirty eight dollars supreme court and it's on page one and three dollars and it shows that there is substantial needy issue was brought to the attention of the united states supreme court the court writes quote the difference between reasonable ness is reasonably necessary and substantially substantially needed may be small but the th circuit exacerbated the problem by invoking precedent to the effect that it is petitioner seeking funding must present a viable constitutional claim that is not procedurally bore and then it cites to allen and it says quoting ratzinger describing quote our rule that a petitioner cannot show a substantial need for funds when the claim is pretty is procedurally barred from review so certainly the united states supreme court had before it this issue to the threshold standard that's what we were arguing and whether or not it was the same as i asked as we got your petition we can decide because with respect to gonzales and i'm not sure if this answers because i was having a hard time hearing some of what was going back there it said in gonzales the supreme court held that rule sixty b motion can be said to bring a claim enhance be and thirty two dollars it goes on to talk about the court observed that the term on the merits has multiple uses and it clarified that it was specifically referring to a tax on quote a not getting to the substance of the claim we're getting to the procedure which is the antecedent before you can even follow petition we need the funding i'd like to address the issue about dr goodnesses report dr is we need to further investigate and so this isn't a review on extra record evidence that was brought in and we're just submitting to the court the kinds of things that we saw when we had the only thing that we could which is trial counsel's record direct appeal record that sort of thing and we review that as part of our due diligence in before we go to the court to request funding saying parties are returned back into the original litigation and so if the court were to provide funding for us we would develop that extra record evidence as though we were at that that would not set aside the judgment you would still have to go in and