articulated by the court and provided a basis for the opinion and i think that the opinion is still directly on point on the question of supplementing and clarifying because in this case both claims were fully factually before the state courts and that's what distinguishes it from holland and from any other cases if i can go straight to the sentencing issue which i think is a very serious one here we have in the sta conviction sharing a presentation of evidence and the evidence that it was clearly alleged in the petition that you should have called this witness the significance of the witness was clearly before the state court with the letter and what did the letter say the letter said that you had two interviews the letter said that he did not fit the usual profile of an antisocial personality this disorder and it's he said in personal history mr smith was quite divulging of his past criminal record on the other side of the point during that same post conviction proceeding they presented the two affidavits from defense counsel at trial in that neither did she say one word one syllable of justification for the disastrous failure to call the defense expert was going to testify that he was not eligible for this huge increase in potential punishments and  didn't have the prison history that is contradicted in the state court by the letter which reflects what he would have testified to so we're looking at the affidavit we see no new facts you simply clarifying and supplementing for example when they says that he would have testified as he said in the letter that he was didn't fit the usual profile that's not new it's clarifying and providing further information as a federal court should do in developing federal constitutional rights and making sure that is fully understood he says here's the objective testing that i conducted well in the letter he says i conducted objective tests is that going beyond the pale shouldn't the court have at least the and most importantly he says i did know the criminal record but he already said that in the letter and that had been submitted which is certainly reasonable for the state court to have had all the facts necessary to grant relief i think the court here under these facts can grant relief regardless of the affidavit but the affidavit certainly is an appropriate way of clarifying and supplementing not doing end run around the evidentiary hearing because in this case the was a violation of rule seven for the judge to conclude that he had no discretion to consider the affidavit and that's our first claim that the the court can simply say if the court determines that there was just pression that was not exercised the court could simply send this case back to judge king and say you did have discretion because it was not doing an end run around the evidentiary hearing that it was supplementing and clarifying appropriately under rule seven ho to this court regarding that were presented below there has been some development with holland and i'll be glad to address that if the  know i believe that rule seven is a fairly broad greenlight to discretion for the federal court to expand to clarify to go beyond what was before the state court opinion and it never mentions rule seven i was curious about that so i went to the briefing and interestingly there's one mention of rule seven and that is in the state's reply brief where they point out that in holland the present brand new evidence that had never been presented in any way before the state court said procedurally we're not going to accept that in holland they said ok if you haven't asked for an evidentiary hearing and that this is something that outside of i think fairly easily and that is that the cases that i've expressed just comfort with using rule seven as a substitute for the note that you're hearing is generally where there is absolutely no development of the case that's not what happened here and that's not how rule seven under vasquez applies it applies in vasquez for example where they said that there was have been allegations about racial discrimination injury panel and they developed under rule seven the specifics of how that worked and they said of course this is all right under rule seven because it's to be expanding and supplementing facts that were already before the state court so there's discretion and we have a were applying this other rule and in any case there was due diligence exercise your even if we went to the holland type of standard there was if you presented it the basic information they needed and as i stated that there is a huge psychological criteria for enhanced fencing i think is choose by itself but this is also in the context of a case where there is no practical reason expressed for doing that where the state's expert is basically saying well he looks like he's got a whole lot of prior convictions and he's otherwise normal so we must have a severe anti personality disorder that's not a psychological type of inquiry so the practice is huge under any circumstances under any standard but we now have the new case of warrant from the from the oregon court of appeals saying that the reasonable doubt standard just watch applies in applying the statute in presents the interesting question of whether it should be under the if there is some area where they're stuck in where for example they say i knew that i had the criminal record in front of me and there's some question being raised about that in federal court in clarify that that's  rule seven reading those two things together that you're allowed to develop the matter that was already raised whether he and you did not think that the michael williams supreme court case develops what it means to fail to develop and it requires  substantial failure of due diligence which did not happen here because the basic facts were presented to the court the same way as and the bill versus lockhart issue where presented all the evidence that he took the stance that i was going to go to trial that this is what i wanted to do there was no statement from the lawyer saying i devised him about this motion so i'm looking at the judge telling me during the colloquy that i'm going to be dying in prison and i exercise discretion i would not be able to make this argument that's why the first point on appeal is asking is think the court should remember that because he said i cannot and that is just plain wrong the federal courts should be empowered where there is not a prohibition to at least consider evidence of a federal constitutional violation that's what it's that's what is so important for the federal courts as providing this safeguard against against convictions and partially elaborated report says the judge the judge says he didn't have access to the prison records he did know that he didn't have a real hearing he's doing increases his maximum sentence from twenty to thirty years based on th wrote was that yes there is a fundamental bedrock issue of why did issue but the reliability part of it was not met because we find that it judges germination under those arizona cases beyond a reasonable doubt provides sufficient assurance that the fact was that the that there was a reliable determination here we don't have any finding beyond a reasonable doubt we have all of the dangers of a preponderance standard danger of dangerous offender sentencing system he could have been sentenced under the indeterminate sentencing scheme to a total of eighty years twenty years for each count because there are three victims four incidents  says a statute trumps the rule i think that's a general principle of statutory construction however and when you turn to the united states supreme court's decision and homeland i think it makes that clear because what hoeing goes on to say the state court hasn't had a chance to rule on that evidence because it's new so some part of appeals have looked at that and said ok that's new there's nothing to defer let's look at that you know so that's the situation that the supreme court's considering and home and history have had a relationship or knew the prosecutor and i believe a police officer in that case only she knew that only the prosecutor knew that only the police officer knew that the petitioner didn't know you know well i think that i think they need to be read together i suppose that's one interpretation of the how but a but the other alternative is to read the rule seven  clear up a factual misunderstanding regarding that letter that was dr cole bax letter and the tissue argues that that letter somehow if i understood it correctly and convictions court in any form that c twenty two forty six and twenty two forty seven which also implement rule seven and that this is somehow a relic instead of a co equal part of the statutory scheme is simply not supported anywhere in any president hollande never mentions rule seven the only supreme court authority on point directly adopts the position that we are asserting here that where the basic information is in front of the district of the state