matter and say yeah and everything that my client said that too is that enough to provide it yes but in this case you also get much more than that the various lawyers i should say it much more than simply argument independent of the ineffective assistance of counsel argument because you mr tyson did do that and and i haven't seen and i just might have missed it where any one of the lawyers independent of an ineffective with the counsel claim so in this case trial counsel did not write it down right i understand that but i'm trying to get you to answer my question which is did any lawyer make a due process or claim independent of the ineffective assistance of counsel claim other than a reference to what mr tyson it said in its pro se brief i believe the answer to that is yes various counsel along the way cited cases that bring to mind t assistance of counsel was if there was a due process argument but we've got two claims in front of us on this authorized the peel one is an independent due process claim one is an ineffective assistance claim which depends on the due process gets made to support an ineffective that the council claim in haiti is the case is by the fact that it was talked about therefore fairly before the court and can stand as an independent claim in haiti is proceeding state courts in post conviction and which each speaker and i can say due process claim that's that's before this court right i think we might be talking past each other this matters to me at least than probably to my colleagues or not doesn't it well sure i obviously assumptive claim doesn't require the extra hurdles for impregnation are however as a practical matter in this case whether this court believes that the only thing that was fairly to instructing on the elements continuously referred to the acts of the killer and never talked about what the accomplice and content has to be finally all of this comes home in terms of that he got hit with somebody else's cat so there's a right way that we could make a remedy that will allow the state take the plea to a lesser charge don't think i don't think the court can do that although it wouldn't be a bad outcome from my client's perspective i don't think the court can do that because it is possible that if he were if the correct charge was given the i take it back because i can prejudice for a minute mr weissman boss you mentioned because which is ineffective assistance i want to ask about the prejudice prong of that to see if you do profit claim can you can make it in front of us on that basis and my corrected the prejudice prong is assessed differently in this context then in a strictly context that is that it's a more stringent view of what prejudice understood no not that's front of me but i will be right in front of the whole expanse of prejudice in the strickland world in a reasonable probability of a different outcome right right but prejudiced in this context and i could be wrong about this but i thought in the cause and prejudice world that the prejudice had to be a demonstration of the pervasive actual presidents showing that the president was the did not i fundamental fairness to trial that is not a reasonable probability of different outcome but some discernible actual pervasive thing that would allow you to say that this was a that was a completely flawed i believe th difference in that standard and we're looking at that did in fact the entire process in a way that made it constitutionally unfair right if there is a difference whatever prejudice standard one wants to commission to appeal related to all the on charge fantastic a man i mean this trial was awash in other crimes evidence and to think that the jury would thought ok well this guy's certainly guilty of a prime so how was that how was that proper how i mean does the judge pacifically tell the jury you have to find specific intent to kill with respect to this individual defendant anywhere directly the way i did directly and directly wade should be charged i don't believe that you think when it all taken together attached to now how can we how can mr crackle how could we surmise that the jury understood this when the court the typically kept speaking about the killer and saying if you out a statement that all you need to do is find out that the accomplice committed a crime those are the you know i understand we're supposed to look at this the whole but i'm trying to find some play any place in the instruction and i've read it pretty thoroughly and i've read it repeatedly and i don't you know candidly i'm confused and i think i i mean i know people probably my colleagues on the panel who would say well you're easily confused but i try to be careful about this than i'm having a difficult time seeing what you about half of the commonwealth can point to to say well it's true there with them in art language but look at this passage it's very clear can you take it any place that i meant maybe statement which is on seven hundred and fourteen of the transcript a nine hundred and fifty of you panic you're relying on the language with that in this particular case because there is a charge of an accomplice almost by definition it encompasses the concept of st degree murder by its very definition you think that helped you i believe i'm sorry but how how doesn't that sound a little bit like the thang hey if there's an accomplice by definition it's st degree murder i read that is the joy of having explained the st degree murder is what you need to find the need to find someone guilty of st degree murder including to intent to kill and the judge then relating that back to and that was the question i asked counsellor because your choir sure looks pretty kill the shallow if i can use that expression without pinpointing it to the particular sense like up like he does he generally doesn't open kind of homicide and the jury is written right instructions on st degree if it applies rd degree on and possibly voluntary manslaughter if it applies we kind of get it just  back for a retrial he would want that either so we want we want good clean instruction i mean i realize this one is not the best not the most eloquent i realized that i do think they take everything into consideration the whole thing t the port are saying is the question is is he an accomplice to the killing in the commission of the murder it doesn't seek to define what an accomplice the accomplice definition hardly a clean cut their snaps on the horrible point i wanted to may you going back to judge jordan initial questions about preservation of the due process claim while my opponent was arguing i went back and look at in the instances where counsel talked about ineffectiveness and again there were three of them i think trial level and then on to cherry appeal they were saying how he was ineffective because this was a bad instruction and they  the state courts on questionably on notice from having read the briefs final point is that mr tyson's pro se pleadings do matter in this case there was no finding by the state hard to say because what they say is this instruction was fine so they don't get parsed whether it's a due process violation or it's an ineffectiveness claim or it's both or it's neither they just say this instructions on that's not missed the  arguments we've got the case under advisement we'll invite counsel to drop off the call and we'll go ahead and call our next