instruction is to accomplice testimony since the briefs were filed this court has addressed and we believe resolve the question of the click ability of martine is to tennessee in the case of certain the carpenter  remanded in reliance back to the district court not only as to the application of martini as to these cases but asked the question whether or not the ineffective assistance of counsel determination on the failure to request an instruction was correct but if we determined that either it wasn't deficient or it was an approach to this will those martino's have any any relevance i mean if we go to the merits in that sense do we have to remain because martine with there were other issues as to which the district court found that mr berry was procedurally barred from raising those issues that we believe can be resurrected with him martinez application to those issues and the the difficulty in addressing the merits of the ineffective assistance claim this before the court name is the baffert case the determination and since prejudices mr barry is entitled to have a prejudice analysis that looks at the cumulative effect of the various forms of ineffective assistance of counsel if found if were successful was disobey all the prosecutor who tried the case in terms of her credibility one point in his closing argument he says to the jury that you may discredit some of the things that ms grant says to you in fact i don't believe given that is the government was and it wasn't a case where the government says the accomplices absolutely right and an instruction that says you know view it with caution or that you have to have some corroboration  hundred terms the prejudicial effect not undercut it to some degree and i don't believe it does no so i think that if there if you think is this court heightened a reason to doubt that testimony and the reason that that wasn't sufficient is that what an accomplice instruction would have done would have said to the jury and i'd only do you just what way this is this person's testimony with caution you have to find that cooperation and that's not said that any other witness that's not see it in the in the general instruction credibility but the degree of i mean crook me if i am if i'm wrong about the law or my attitude toward it that that the attitude the question of corroboration is some corroboration yes and the victim says he's  there she does it isn't that some corroboration right there i mean it's not like you you know you say oh he went out in the desert in the middle of the night and what but that he could have been in new york he was there that's corroborating to some degree the idea that he's about state verses bernard that talks about the that and accomplish is to accomplish these testimonies things sufficiently corroborated that evidence that places the defendant at the same of the crime is described as the accomplice because you have you have both christie clinton and latasha dokken placing him at the thing of the crime him again that does not address the fact that there are multiple counts of conviction i don't remember the pretty light she once said so if if bernard c is good enough if you show he was the year doesn't that cover everything that happened at that site and i think hawkins vs state you know help me understand why you qualify when tennessee itself is here is what corroboration is and it is prickly absolutely nominal recall do you recall a particular case that might really make clear that that can't issue i'm looking at hawkins versus state which is a criminal court of appeals in seventy one and then bernard in ninety four so these are older cases or even if you desire to rely on your brain i can go back and check but if something comes to i do you know there's a case that the poor were to see requires may please the court and rahul i'm on behalf of the respondents if i mail address the exhausted claim or issue first we're going to exhaust a claim i think to highlight or pick up from what judge strange said tennessee law it is clear that the corroborating evidence can be is can be very novel it can be slight it can be entirely circumstantial corroboration as to each count so it presents they are would not be appropriate corroboration for all the varied accounts in this case it may though because that the same the same evidence can apply to various counts versus just you don't need  separate evidence as to to corroborate each count you get the same evidence go across cones and probe present certainly is a very substantial portion of the crop aeration in the case law is clear on that i think it states the big b that the evidence must show implicated in that act well the the additional witnesses that we talked about clinton in duncan didn't particularly duncan only have him permission about the invitation extended to other people in the complex to engage in sexual activity with this woman which was not at the location question is that right that is correct your honor that is actually correct however it what the what that testimony along the other testimony shows was that  in concert with the grant his accomplice to undergo the various acts that were taken we have evidence that showed that he was waiting in the apartment for the victim when she arrived we have a the neighbor who testif that she witnessed the arguments that ensued and she heard screams once they got into the apartment we have the victim of course to testify about what happened inside the apartment the victim  the victim testified multiple times that the petitioner told her to get in under arrest in the in the kitchen one time she said she didn't know who who said that but she testified both prior to that and subsequent to that testimony that t stream burns and pain all the evidence there suggest that this was done in concert that he was not an instant bystander it was the phrase that was used just now that he was working in concert with this and he was there and there's no question that  which would have been rape or he provided assistance by blocking her in the kitchen by by burning her by basically breaking her down so that provided assistance for the rape that is the facilitation the jury chose the lesser of the two they chose the facilitation but there is certainly corroboration evidence from the victim if nothing else to see to support a facilitation conviction which is what he was convicted of certainly we have the we gently was retrieved out there was discharge found on it which then it was the petitioner speculation that in kate it is actually transmitted disease and therefore inserted it much more roughly and which caused her to scre in medical expert testified that indicate something very hard was shoved inside her and not indicative of normal intercourse and they found presence of sexually transmitted disease which was  itself but it's enough under tennessee law to corroborate some of the question about these other claims were their position news seems to be that that we should look at any of this because there are a bunch of statute of limitations the measure judge indicated that or put that in their report recommendations in there says all call in effect since claims filed after the initial petition which those claims were  to the the district court judge there was no objection on that basis by the petitioner did not come to an object district court judge put it in the in the order says we accept report recommendation we adopted that recommend that that finding was adopted was accepted with with no objection whatsoever so your view that gets rid of all the other claims that we're re evaluate the pretty procedural default when it's there already dismissed or otherwise otherwise if you're in the additional argument that you have in response to this ingestion that the analysis of prejudice should be brought the no we don't i don't think we dispute that that we can look at prejudice over ineffective assistance you can look at prejudice perhaps cumulatively just and with an ineffective assistance claim  i don't believe we dispute that however in this case it's rather moot issue because there's only one life claim to do an album to analyze the prejudice issue though in order to consider the cumulative still potentially a lot of issues as being tam barred but that's inconsistent with his flat clear ruling that everything in the pro se petition is timely filed and even if we should have objected to they at the end the measure judges founding that some of the issues that are in fact in the pro se petition are not timely filed is clearly erroneous into a petition which is is fairly lengthy in addition to complaining about the issue that's here substantively said that is counsel was ineffective for failing to adequately impeach the victim in the case is counsel was ineffective for admitting to the jury that he had engaged in facilitation to commit right that counsel was ineffective for not having they have all been briefed and be before us now as well but we didn't ask for the we stood with did we ask for the the certificate appealed it is to be expanded to only as to the one issue that's before the court well but that there were there's also procedural to faulty issues as to those claims at least two of those the judge did find this one of the his ruling is kind of convoluted because he also did he addresses there in the context of what his procedurally defaulted and he found that at least his will which would require a remand for a martini a sample cation get them maybe i'm just confused in the sense of there's the question of whether martinez applies that all but these claims were before the court below and so if you didn't get a certificate of appeal ability on them independent of the and did not ask for one i guess maybe i'm wrong  independent of the abstract procedural question about martinez then why should they be considered as before us we took the position that clear statement in the reporting recommendation all the issues found we were not on there but then again tell me if i'm missing a procedural point why shouldn't you have said we relied on that and therefore we want to certificate of appeal ability so we can raise them on the merits before the court of appeals or this judge didn't didn't address the issue in the opinion from which we appeal that's not addressed well but i mean and so does that mean that he adopted merits and either you didn't get or did mask or a certificate of appeal ability why aren't they gone i'm just missing something here i mean it seems to me that if their lawyer merits claims in your view lied in the sense that they were timely filed and not granted by the district court then wouldn't the procedure then to be to appeal to us against their failure to grant them sounds like what you're saying as well they're floating around below it because of martinez we can go back and start over with anything that was floating around below whether we appealed it or asked for a certificate or anything and i just think that