district court found that each of the claims were procedurally defaulted for different reasons altogether appellant has addressed those reasons in his opponent's opening brief and reply briefs and has come to the conclusion that only the second claim of the stricken brief has been add it's premature of these are not properly raised here you still have a direct appeal and it should be raised there it's raised anywhere and then he went ahead with his counsel which was the second appointed counsel greg and filed a brief and did not assert all the claims urged by the appellant what she had the right to do as his appointed counsel so appellant did what he believed was the right thing he asserted those claims and petitions for post convention release that he filed pro se now as it turns out that was exactly the right thing to do because a lot of those claims were not either properly preserved in the trial court either because they weren't objected to or there weren't pretrial motions filed or there wasn't adequate record in the trial court to sustain those claims on a direct appeal review for example if your misconduct claims needed further hearings a claim on collateral attack rather than direct appeal because you fail to jack in that trial court or something it seems to me yes you mean you can raise those under ineffective assi trial counsel and that's exactly what the petitioner did in this case your position as i understand it is that this panel should address the merits of the coins including issue was addressed by the district court which went right to the prejudiced part of it not to whether or not there was a default decided is that correct it was discussed and decided on the merits in the state court but not in the district court has so you'd say that claim has been exhausted in the state court it's proper to consider and federal at the excerpts of record volume one of three think these are your excerpts if you have them there it's volume one of three and it's under have six which is the reporting recommendation of the magistra anyway so the district court did not adopt the merits of terminations from the reporting recommendations but instead found that that claim although exhausted was waived for failure to object at trial and so what we're asking the district court to do is now what's not before re counsel was present there were contentions their records were not available they were made available what in the factual record needs to be looked at that would entitle you petitioner to go back to district court what would the district court examine on the merits that hasn't been examined already explained you put in counsel before i came up here and my entire record on this case the excerpts of record and everything was last in my luggage and i didn't get it till late last night even though i had planned on putting together all my binders yesterday i would ask permission of the court to give you an answer to that elaboration the next forty eight hours if it's important to the court's determination ok go ahead did you want to save a little time you hear from the director of corrections of the how or why or where the trial court got it wrong but irrespective of the quantity of claims contained in that first class second consolidated petition for post conviction relief the petitioner elected to raise but five claimed only two claims in the petition for review from that post conviction really phenomenal ineffective assistance of counsel and judicial recusal he argued that the post conviction judge should have been a different judge than the trial court for fourteen years this court ha not a part of federal constitutional law does the court have any questions well i mean you're saying that they enough in the first and second post convention revere here's not appeal that part of a lower court's ruling and push convection it's on it's unclear whether the petitioner argued that but not voluntarily waive counsel now according to ms allen is state courts resolve that you said yes you did and you voluntarily waived counsel that's the interesting claim but it would be kind of odd for someone who requested represent themselves and then later on appeal contended that that waiver of counsel under forever was involuntary ply either islam or king to this particular type of claim to require a trial defendant to say i want to represent myself but by the way if a court later determines was involuntary or not knowing or consensual i want to object if your honor is going to allow me to represent myself that doesn't make any sense does it makes no sense try to talk to him it's the same type of argument where a person can state trial court and the arizona court of appeals bent over backwards to give this particular federal habeas petition now did the state court decide the merits of the claim of the involuntary counsel claim such thompson yeah absolutely they did ok then we get over to the federal court and the defendant search the claim again and we know all of that on appeal or rather we know the district judge said well this claim will not succeed because  are was not prejudiced but has anybody ever said of looked at the claim he did not in voluntarily waive constantly voluntarily waive it and that's that addressing the merits petitioner also agrees with the court that it doesn't make any sense to hold and proper defendant to object to his waiver of counsel breast yes they came late last night so you have them yes we have a library right downstairs if you'd like to go downstairs and take a look at that stuff i can't tell you what the panel's going to do after we confer on this but if you'd like to go down there and use the library facilities you can thank you thank you case just argue thank both counsels for coming in today will be submitted for decision will proceed to the