cases my problem mr miller's problem is there are a number of procedural issues for the before the court can even get to that and i want to start off by saying that in response to the twenty eight j letter that the government submitted back in august citing the develop the davis case in which the supreme court i would concede took away my martina's view ryan issue in other words my supplemental claim of ineffective assistance of counsel based on the p c r council's failure to raise that in the in the state proceeding it's pretty clear that  that that issue is is no longer available to me or that means of overcoming procedural default is no longer available to me so because of that i am having to revert to the claim that i made before that which just to show you how long this case has been pending in the supreme court martine is the riaa and i mean before the federal court martn is the ryan was issued after i  and so here we are today what i started off with before the martinez b ryan issue was the claim that claim eight a day which is the claim of trial court error in the  failure to sever the two murder core murder counts for purposes of trial was itself a due process violation now the state claims that's procedur defaulted and the district court agreed because it was it was barred in the state p c r action because it was not raised in the direct appeal and this is just a recurring issue of classic  procedural default that comes up a lot in these types of cases the what's unique about this case is the state of the law in oregon at the very moment in time that the state claims that this that the dispersant rule default happened by that i mean when the direct appeal of the conviction was filed at that point in time the court of appeals had issue this decision in palmer one the organ court of appeals which threw into question the state of the law as it existed previously to the extent it had been clear it threw into confusion the  instead could be raised for the first time in a state p c r action and what palmer one rested on and of course it was changed later it was overturned by the organ organ supreme court and as  the state here has pointed out what palmer one rested on was the fact that the the the defendant in that case had not preserved the issue for a direct appeal and for that reason the court's reading of the statute he was free to pursue it for the first time in a p c r matter so now what what this what the state has done i its appellate brief here is to say that one way around the palmer one issue is to say that the defendant did preserve this issue in the trial court he did raise a federal due process challenge to in that he file and the reason for my twenty one j letter yesterday was to point out that that's not necessarily all that clear and also to point out the fact that earlier in this litigation in the federal court the state took the opposite position and said that he did not preserve federal due process issue you know i'm i'm very sympathetic with your having to go through all this and it's not at all your fault that there is such a tangled law of procedural default both on the federal side and on the returns out on the state side to for purposes of argument i'd like to assume for the moment that there's no procedural default balance of evidence between the two men on the in the two murder case and why is that not merely possible violation of or which doesn't matter much to us but a violation of federal to process well and now what those cases talk about of course is both the danger of cross admissibility if you have a situation where evidence of each crime is going to be admissible against the other one then there's less prejudice in that situation but and i've argued that point but for a purpose as of today's that the evidence really should not have been cross admissible but let's let's say i'm wrong about that because i addressed this in my brief and there is a strong argument that you know evidence of the other disappearance disappeared wife would have been admissible in the other in the other trial but what these cases taught the way these cases present the issue and i'm talking about the sand of all case that i say in the beam case i believe severed for for trial and the reason that for that is that even if there might be some cross of miss miss ability of evidence that has some prejudicial impact it's really the weight of the evidence on one murder count affecting the lesser evidence on the other murder count that has this overall prejudicial impact especially on that weaker case white why why did we assume there was a weaker case here just because suspected very rigorously he was questioned he gave some marginally inconsistent accounts to various people that seemed a little weird but but there was there was nothing as compared to the samir disappearance that really gave rise to a whole lot of suspicion that he actually committed this crime sure that she was even death if they were committed in reverse order he would have said the same thing about the other one he would have been suspected necessarily when it happens once but when it happens twice people start looking at the full picture and if you can have cross admissibility of the evidence they're going to get at least some of the flavor of the  two disappearances and so you're right back it isn't that there is intrinsic weakness in one of the cases you're saying a person who's killed two of his wives should have a chance to go solo each time to get the full presumption of innocence and that's maybe a good argument about why the admissibility of murder should not be allowed but it was allowed by the oregon courts and it was a upheld in the oregon appell court so we're not in a position to second guess that are we well again under the law i think you can and only if it's a constitutional due process violation i understand ok and so again looking at those cases that i've cited those those really court cases from from the ninth circuit there does seem to be a concern expressed there when you have that imbalance so it's not just that they were not so suspicious the first time as compared to the second time it's that because of that lesser degree of suspicion they're just simply wasn't the investigation that occurred with the second wife and therefore there wasn't the facts to bell upped of that were presented ultimately at the trial with regard to the second wife that showed not only is this woman dead the first wife but he killed her and so it was really in the force of of having to the jury having to hear all of the evidence with respect to the second wife that created that prejudicial impact as to the first way the second wife involved all sorts of strange statements that he made and as well as you know the woman he was seeing on the side witnesses saw him coming from where the state came to believe he had disposed of the body they actually saw him he had a red face as if he had burned the body perhaps that was th they had soil samples from his truck which is another issue raised but the point is there was physical evidence there were not of the body or anything from a friends of nature but there was there was i witness accounts of his behavior of his more recent behavior as opposed to behavior seven years before which was the timing of the prior the murder case so so that's that's the gist of it your honor and  mean the facts are incredibly incredibly this is a two month trial i could go on and on but really it's just that in balance of evidence which was the precise situation that was  dealt with in the bean case i mean that was that's precisely the issue that is before this court so and so that's that's that's where i stand not the other one that does raise an issue also about his his right to testify and not to testify so that was addressed by the court and that's before this court as well as well as another additional reason for why there was prejudice from the from the failure to sever so and i appreciate the court wanted to kind of get to the merits here i just want to touch on the the the procedural issue basically again it's we're in a very unique time period when this palmer one case with came out and that's that was the state of the law when defendant filed his opening brief and the state of the law at that point in time was not clear because of the palmer one decision and the state takes the position that one was different because the air in the air had not been preserved what i want to say is perhaps the air was not preserved and that's all the more reason why  one under palmer one he could not have filed a direct appeal of that issue now i realize i've been inconsistent on that issue as well because at one point i was arguing th negligent in failing to pursue a preserved issue and now i'm having to say well maybe the issue wasn't preserved after all which falls right into the scenario of palmer one why don't we hear from the other side and then we can give you a please the court susan york on behalf of the state i'd like to start first with the merits and just quickly respond to the contention that being governs this case being is actually distinguishable from this case in two very critical ways the first way that being is distinguishable is that in being the evidence of the two murders was not cross admissible that evidence of the two murders here is cross admissible or was cross admissible and this court in davis noted that the ninth circuit focus focuses particularly on the cross admissibility of evidence and the danger of spillover from one case to another especially when one charge is weaker than the other so that's the second way that this case is distinguishable from being in being the evidence of one murder was extremely flimsy it consisted essential of a single fingerprint that was hotly disputed there were three defense experts that testified that that fingerprint was not valid and some other extremely minimal circumstantial evidence by contrast the other murder in being that evidence was extremely strong there was very strong physical evidence linking the defendant to the murder and there was also a defendant's admissions here the evidence of the two murders is relatively comparable in the first murder the wife did so many of a lot of the evidence is very similar the disappeared  never heard from again petitioner then carried on affairs after those disappearances he made a variety of inconsistent statements and really importantly petitioner admitted to mr bray that he potentially she asked him whether one of his split personalities might have killed both of his wives and he said yes that was a possibility she also confronted him saying that he thought he had killed his two wives and in response to that he nodded and hung his head and she also asked him if he could clear his name by taking a polygraph and he said that he would probably funk it so those statements relate to both wives and you can find them at transcript thirty three sixty six thirty three eighty five and thirty three eighty nine and those are very strong admissions that relate to both wives so given that evidence there was no great disparity between the strength of these two cases certainly not on the level of that being so for both of those reasons there was no due process violation as a result of the jointer i'd like to turn back to the issue of procedural default just for a moment so a state procedural bar is adequate if it was firmly established and regularly followed at the time of default and this court's decision in morrow focuses on the state of the law at the time of the default and it identifies the time of the default as the time of trial because that is the time when defendant attorney had to make a decision if palmer one arguably suggested that failing to object at trial would allow the claim to be raised for the first time on post conviction that's the time when they had to make a decision whether to object or not and that's the time of default so here at the time of petitioners trial palmer one had not yet been decided at the time of possibility because what palmer one says is that the failure to raise an issue at trial allows it to be raised for the first time on post conviction but what's the before that issue here the default is his failure to raise it at trial and not the food to try to pursue a dream that is the way that he sort of essentially defaulted in his direct appeal in that first line of review it's not the way he defaulted on post conviction the reason he couldn't raise it on post conviction was that he failed to pursue it at trial and palmer one i mean certainly the state's position is that palmer one is actually limited to claims challenging the constitutionality of a sentence of conviction but even if we set that aside for a moment palmer one only suggested a limited exception where the claim was not raised at trial and so in morrow this court looked at the time of trial and said well at the time of the petitioners trial and morrow palmer one was actually good law and because of that trial counsel may have opted not to raise the issue at trial so he could raise it for the first time on direct on post conviction here we don't have that problem at the time of trial the law was north and in fact the law is always been north that is in oregon supreme court case palmer one couldn't affect that and north dealt directly with these types of claims and it focuses again on the nest necessity of an objection at trial that's the issue and that was the time of default here at the time of default trial the law was clearly established affirmed thank you so much just briefly my position is the ledge default is the failure to file the appeal or to file the issue to put the issue in the appeal right so thank you ok i think both sides for the arguments