hear argument next in case sixteen sixty two nineteen davila versus davis mr cruncher mr chief justice and may it please the court the nature and logic of martinez naturally applies to claims of ineffective assistance of  counsel just as it does to claims of an effect to the systems of trial counsel eric darla faces execution despite having been convicted pursuant to erroneous jury instructions that vitiated his only viable defen object and your brief seems to assume but as i read the transcript i can't find where he objected clearly simming he didn't object clearly can you say under any circumstance that appellate counsel was ineffective for choosing the route he did yes even plain there review if there was no objection wasn't the sufficiency of the evidence the best way to approach a forfeited their well as initial matter it must be remembered that plainer is not the standard in texas even if a jury instructional objection is not made all that happens is the standard of review turns to from harm to a grievous harm which is less incisive the petitioners then claim error stand which prevails in federal court but more importantly the trial counsel did object particularly page fifty two of the joint appendix and he objected to the sequence of discussion of the roberts transferred intent all he argued was give the original instruction over again and then give this new one oh no he did not say plan please do give the new one there's no doubt the objection could have been better calibrated and yet the closing of discreet complete sense said we object to giving of the supplemental instruction and mediately there after the state trial judge said overruled the count and it must remember s sixty six and so that raises to my mind the question whether martinez applies here couldn't your client have brought a martinez claim and isn't the martinez rule premised on the idea you get one clear  shot at bringing the issue in and and maybe the absence of one clear shot here would bring you within the rules martinez and that would take care of this case what am i missing there yes absolutely the reason this could not have been couched as a martina's ineffective assistance of trial claim in federal hate b s is even if the objection had not been proper to preserve the issue in the texas state court and then in the court of criminal appeals there's still no way that the do is pared down the issues that are presented on appeal even if they think that some of those issues have merit i mean if you have six issues that you think you can argue credibly before the before the appellate court you may decide it would be much better to focus that court on the two or three strongest issues that adding the others will in fact dilute from the value of that so when you have these i'm not talking about particular case but in general when you have the claim of ineffective assistance of appellate counsel it's sometimes easy in retrospect say well here as an issue you know maybe you may be a public counsel in the exercise of discretion thought it was like number six in the order of strength and you look back in hindsight you say well he should have made more of that and it's at all in the appellate brief i mean i know there's also issues of trial strategy but it seems it's more typical in an appellate case that you have you know you leave things off the table it is going to present a presumably almost all lawyers have to necessarily not raise some claims that's why the backstop for argument is substantiality and there was not one thing to raise a appellate claim that might have you know theoretically gotten you somewhere and yet not like that got reversal in reviewing state court of appeals is very difficult to raise a substantial claim by which we mean in this context one that this is a sort of distinction that federal district judge to make all the time in hades but the question here would be whether or not it was likely that that claim would have test that i'm supposed to apply the the right the practicality of this the consequences the private interests of the prisoners and the public interest and finality and is that what i'm supposed is there some test you want me to apply percent of a b s petitions in capital cases raise the claim of ineffectiveness isn't counsel only thirty one percent allege ineffective assistance of the public eye that's a third of the cases this is a tremendous burden know the test of the standard ask you to apply is the same that was in martina's basically first was there a substantial claim did was that claim to faulted in the initial review collateral proceeding and we say substantial we mean one that was like balances in martina's this court particularly created an equitable rule in the exercise of this court's discretion saying that there would be an exception as it were to cause in the cause and prejudice inquiry because otherwise you would have petitioners who would never have any form in which this in fact assistance claims could be litigated the door has been open to martinez now for over five years there is not then and then one day sion of new petitions in federal court  significant distinction of course is that these claims of appellate assistance in fact of appellate assistance of counsel under the logic can be raised in every state martinez trevino it's only where the state has funneled the decisions to collateral review but claims like this you know obviously can't be brought on appeal in every state and so this would arise in terms of evaluating the statistics if the many many times the numbers of martina's claims that you see and we see and there are now an awful lot of martina's claims anyway in martina's arizona had done so as a stash try matter you cannot raise an ineffective assistance contention in the direct appeal instead  but i understand that but that's going to be true in every state right it's going to be you're going to have the same difficulty of raising ineffectiveness of appellate counsel on direct review in every state every state would be uniform yeah martinez one of the important considerations at least for some in martina's is that it is narrow it's only where the state has funneled the ineffective assistance at trial claims to collateral review would ask the court to look at the vantage point in martina's there was not a mechanism by which the states were punished for removing the claim from one direct appeal to hades it was an equitable exception in favor of the petitioner because if the equitable exception were not they are then petitions would suffer the reality there would be no counsel ever we're not dealing with the  question the question asked has to do with the burden on the courts and both justice kennedy and justice roberts are saying if we recognize this right the courts are going to be inundated with these kinds of claims because in every state ineffective assistance of appellate counsel is not can't be by definition raised in direct review it all has to be channeled to collateral review so in every state every defendant will be able to raise this claim and it will inundate but that the system we don't think so and you happen to articulate it the reason is you don't think so i mean i could start with how many close conviction in affective assistance of appellate counsel cases the thirty one percent th justice kennedy was pointing to in how many of those is really for granted if any a very minute number because it is so do in contests of a small are there are hearings in those cases very necessary for the court to evaluate the cla presumably has to read the filings in the case to decide that the claims not substantial correct yes it was necessary for the court so so the number that are granted really isn't the consideration we're looking to is it's the number that are going to force the courts to review them well i think if one accepts that for now or five years martinez has been the law and a number of these claims have been made at most there might be in a small subset of those a very small number of additional ineffective assistance of appellate counsel claims made because it is so hard for a petitioner to formulate such a claim for a petitioner such as mr avila to have raised a claim like this on his own of course martinez talked a lot about the importance of having an effect of assistance of counsel to vindicate an underlying ineffectiveness contention mr vaile it had been familiar with the jury charge he would have had before the texas law i mean are you saying it would have been hard to formulate are you suggesting that someone facing the sentence that mr de v lou is facing would say my let's not do that let's not raise an ineffective assistance of  because just too hard to formulate that claim those are situations where the defendant is facing capital punishment where they're going to raise every possible claim they can and i don't know why it would be terribly different for defendants facing life in pri further sentences well there's a very difference between raising every possible claim that they could vs lawyers obligation to raise meritorious not raise frivolous claims and there may be at the margin some additional claim that perhaps when it's safe to do is found not to also be successful would argue a substantial claim is one that necessarily when it does exist is going to be one that watched the about which there does need to be a hearing about the underlying ineffectiveness because what concerns me about your position is that it seems to blast an enormous hole in the doctrine of procedural default unlike martinez and unlike trevino which were cabined and it's it seems to me and you'll correct me if i'm wrong that if we agree with your position then anything that that that an attorney in federal habeas can examine the trial record and if that attorney finds anything that seems to be in error it can be raised in federal a b s even if there was no objection at the time of trial it wasn't raised on direct appeal it wasn't raised in the state collateral proceeding that's where this is going and if it's an issue if the underlying error is ineffective assistance of counsel well whatever it is all of that will be evaluated by the federal habeas court outside of ed but that's where this is going so this is an enormous hole and why not it isn't that we're this isn't that what this means because the argument in federal habeas would be there was cause because counsel was ineffective at the collateral state collateral proceeding and this counsel was in effect of at the state collateral proceeding because there was ineffective assistance on direct appeal and counsel on direct appeal was in effect of because there was an error at trial so the federal court has to make all of those determinations and if the court the court which means the court is going to have to look at whether or not there was an error at trial and in doing that it is not going to be asking whether a whether  state court reasonably rejected the claim because it was never presented to the state court so it's going to be de novo review it would be very difficult situation is not simply the task for the federal habeas petition is not to simply aggregate every object reversible error here well they'd have to find something that they can argue in the federal k b s was an error but procedural default would be out the window well yes but again it's not enough to simply say these were the trial errors one would have to say that these were trial some reason why they're reviewing court of appeals would have held differently that's very different right and the federal court is going to have to analyze that which means the federal habeas court is going to have to analyze all of these alleged trial errors that were never previously raised easily discarded by the federal district court would be then to say here's reason why this would create a different outcome that would not be easy to do for downline claims but one gets to claims as important as vital as dreams structural errors those are a type of substantial claim that says so what do you restarted to say this i guess martin is itself one of the concerns was that any mistake the trial that the trial attorney makes and normally by the way you  don't make if assistance counsel claims on direct appeal i don't think it usually the same lawyer you have to make it in state k b s ok the what would happen would be that the defendant with a new lawyer in would go through every mistake that the trial court made to the trial lawyer made and say it was ineffective assistance of counsel and so the judge would have to do just what justice alito said though perhaps a few fewer he started to say this what's the answer it's five years to what extent has the martinez claim proved a burden on federal court is there any empirical information we don't think there have been that may have been additional trevino claims that had been made in federal petitions but not an increase in the number of fish will increase in the number of federal potential what do i ask you really is there any empirical information because of course i think you probably think no but the other side may think yes and so that's what i'd like to know is there any any place i could look to find out whether it has proved to be a burden or not there have been a lot of claims or not yes we do have some studies cited and certainly i will get them to have ready to present in the in the rebuttal but our point would be that again if the rule of martinez is still the rule and if it is not also apply to ineffective assistance of appellate counsel place claims then that we don't think will create an appreciable large martina's concerned ineffective assistance of counsel in a limited number of states and trevino arguably extended it to a few additional states but if we accept your argument it applies everywhere and it's not limited to ineffective assistance of counsel it is it applies to every single every single type of error that could occur at the trial but nobody would disagree certainly  only issue martin is should be no of course we're limited they talked about in effect this is a crock claims as are the claims are presented in this case that was different we don't think that this court necessarily if you rule our favor in this case there has application anywhere beyond ineffective assistance of appellate counsel can't help but be an effective assistance of a poll counsel would be based on any type of error that occurred at trial so here you have a jury instruction error but if we agree with you it would apply to the erroneous introduction of evidence to the two improper statements made in closing to any type of trial error any type of constitutional trial error you can dream of so whatever the statistics are on martina's this goes way way way beyond martinez and trevino who said that again the only if martinez is the rule and those martinez claims are about in effect was the trial counsel now have been made for at least five years that there's not as just as prior said it large number of claims made and we contending ineffective assistance of appellate counsel and that's why it's so important that the martinez doctrine do apply i don't think that i think as i'm gathering dust as leaders point i think this is the trial counsel in fact of assistance of appellate count so it's very hard to see when there would be ineffective assistance when there wasn't also ineffective distance of trial  is such a case i mean i'm just probably missing it but what is a case where where there's ineffective assistance of appellate counsel but not ineffective assistance of trial counsel what is that case yes only that evidence is seen in mr delist case because there is in texas jury instruction there is not for fillable in other words there is not some inlets the trial lawyer object is necessary then why didn't the trial counsel this i can see that this was a very important matter for this particular defendant but then why wasn't the trial coun ineffective well again the trial counsel did formulate maybe not the best calibrated but did formulate an objection the i think the way in which this rose in this case is very unusual in that neither the state the state never requested  transfer of intent instruction the after the jury which had been out for over four hours this points with those confessions sent out that jury no number two asking directly about the theory of mr know what about this saying this suppose we said yes there is it's the those things it's very unlikely that you're going to have ineffective assistance of appellate counsel where there wasn't also the ineffective assistance of trial counsel it's very hard to think of such an instance and just the bringing of an ordinary mistake his  bring in ordinary mistake will unlikely to be qualified to those who wrote that into the opinion or the equivalent what would you think about i think the problem is that the question here is like that but that would be something that would be sorted out in the strickland hearing where the the first prong the tactical reason for doing or not doing something would be pressed out in detail counsel we spend a lot of time talking about martinez but one case we haven't discussed is coleman  and coleman sets out the general rule that ineffective assistance by counsel and collateral review is does not suffice to establish cause for purposes of federal hate b s that's the general rule and martinez carves out a small exception for when there wouldn't be any chance to raise an issue in state court at all and that doesn't apply here because the trial court counsel could've raised this issue we'd all admit that so when we when we overrule a president or part of a president is you think affectively asking us to do with coleman we normally don't just ask about the merits we also ask about the reliance interest the workability whether the question of statutory rather than constitutional and i didn't see you address any of those factors in your brief and i'm wondering what i'm supposed to make of that help me out i guess the coleman rule bars all other attorney mistakes would be imputed to a client martinez is very clear that there was not a storage sizes problem because in coleman the ineffectiveness was missing the deadline for the people from the hearing on the hay vs petition in federal and state court in virginia not an ineffectiveness in the initial collateral proceeding itself called first to review opportunities at that point in time nothing about the relief mr devlin seeking will have any effect on deficient performance by federal habeas counsel that we know a fact if a state petitioner mr limitations period to in federal district court there would be no effect if that state hey b s petition keller thank you mr chief justice may please the court extending martinez to appellate i see claims will have a huge systemic cost by opening up the entire trial and everything that happened a trial to federal habeas review and the assuming because i agree justice prior pointed out and others have the number of cases are going to be tiny and as with all cases there's initial uptick of claims that small uptick at the beginning well and this is why coleman is still the rule and martinez expressly reaffirmed coleman outside of that narrow context of trial i he's a substantial claim a violation a see this is no one is going to be looking at ineffective assistance of appellate counsel claim assuming one is viable unless there's a substantial claim and no one w question is the relevant appellate i c claims to look at here are those where the claim was raised in trial court and the trial court did in fact adjudicate decide the issue and made a record and then both  some of those and that is so so the idea that they're not going to be the at the appellate level if there was not the at the trial level it seems to me justice kennedy and when sheer there's no dispute that trial counsel was effective they have not raised the trial i see claim about the supplemental jury instruction and so each while appellate i see claims are difficult to prevail there it's going to be even more difficult in this situation we're supposed to follow him and decide in this case our view of the systemic consequences and what is what would have the case with or to give this instruction in that regard martinez itself recognized that what it was doing the narrow exception from coleman was that was an equitable judgment and fashioning the rule the court looked at it was trying to maintain a baseline where no court had ever adjudicated the underlying claim trial error and the court recognized the bedrock foundational unique right to trial counsel and putting together those two factors plus the channeling concern those were the three pillars of martinez and none of those three pillars are present so let's go through the three pillars here no one is reviewing whether appellate counsel has been adequate do you although you're not entitled constitutionally to come a counsel  direct appeal i don't know that we happened repeatedly and so has every other court recognized the importance of counsel with the appellate level think virtually every state if not every state because there is there's no right there's no need to have an appellate process but once the state has given an appellate process there is a right to have effective assistance of counsel on appeal so that seems an important right serve they're only they're not asking the question on the trial court with the public counsel here they're asking a different question that's correct but an a trial courts here but even if the court were reviewing this on the plane error though the question is that counsel here in failing to raise something that my ultimate we go to the supreme court has happened the martina's trial i c gateway though that already exist would cover any claim that was not in fact preserved in the trial court so what the court is confronting now is whether to extend martinez quite the precise ruling on the appellate counsel issue that claim in particular would not have been passed upon however that claim is necessarily predicated on an issue of eight alleged trial error that would have been adjudicated and then neither  appellate nor hay vs counsel raised it and in that situation you'd have to have three levels of error there's going to be an infant has some way small number of cases that are meritorious combined with opening up the entire trial every single issue even state law might have objected but didn't in principle could be the subject of martina's i suppose that's quite a few i don't know there are any more any less so what's actually happened is there any information any were about whether any empirical information about whether whether habeas courts federal habeas courts have been deludes you have do you know the answer is yes in our brief we've pointed out cited three thousand eight hundred times in federal cases since it was the sided and i would also point the court to the amica spree for the criminal justice legal foundation page twenty what it did was it looked at the last ten cases in the ninth circuit out of arizona in capital cases arizona was picked because that would have been the longest standing state that has that rule because that was where martinez came from and seven out of the ten cases there raised martinez claims we are how many were granted none we are facing all sorts of collateral litigation in the martinez trial i see paradigm and the court justified that on the basis that that right was unique martinez was just the latest in a long line of cases where this court has treated the right to trial counsel and only that right as unique that would be an exception to procedural bars would apply otherwise is it fair to say several hundred a year come up under martina's out of out of roughly how but titian's out of fifty thousand one hundred thousand forty thousand i do not have those statistics right there are several hundred a year now is there reason to think there would be more i mean after all you know but he didn't just like you point out the trial judge the trial lawyer should have raised but he didn't very very few were granted very few and here i guess very very few would be granted the burden would be to read all those now is it is it more do you think why would it be more i don't see what would be more it might be and that's all i'm asking about well i'm not sure more actual petitions would be filed but the courts will certainly see a massive go through them and consider in briefing this case what the courts in the states will be present with you be arguing about what did appellate counsel raise what did an appellate counsel raise which claims were stronger and then what was the underlying trial  raised it absolute it's going to be raised in fifty states rather than to it would in this goes to the point that martinez recognized that there there was an extra factor there's a deliberate choice by the state to channel claims that's not present here and it will apply in all fifty states well how many votes the number in the other what is that what is the number i mean the norm i thought was that you raise an ineffective assistance of counsel claim in the collateral proceeding so how many states actually does martina's not apply to you know that i doubt that it's you know small number but i bertie certain is in every state do we have any idea here at page thirty three of our brief i don't have the persuasion number but we do cite various cases that show that massachusetts wisconsin ohio oklahoma the martinez rule does not apply because effectively what happens there is the proceedings are stayed so that the trial exception that it did and ask whether those same factors suggest an analogous exception here i think that's the right way to go about thinking about this question so i mean it seems to me that your main thing here is this the most most most important but appellate counsel is pretty important too but just let's think about this you got one shot already i guess i'm just not sure i understand it because it seems to me what martinez said is you wouldn't you wouldn't get a shot to make your trial ineffective assistance of trial counsel claim your eye a t c claim and only if we made the exception that we did would you get a shot to make that trial counsel claim and here similarly only if we do the same thing will you ever get a shot to make a claim that your appellate counsel was deficient and people do have an independent free standing constitutional right to effective appellate coun but martinez focused on the fact that there was a particular trial or in a particular type of trial or there was not being able to be raised in appellate i c claims are going to be based i think what he read martinez martinez basically does not talk at all about the underlying error it talks about the ineffective assistance claim now of course ineffective assistance is important because you know it's not just the lawyers there for show what's its remedy or prevent some underlying claim but the same is true here if martinez was trying to figure out how to ensure the fairness of the trial process this would be trying to figure out how to ensure assistance of appellate counsel claim and is there an underlying thing that we're trying to get at sure in martinez it was ineffective assistance of trial counsel to ensure that the trial process was fair here it's it's it's having some point it could always be that you could then show ineffective assistance of state a v s counsel or federally but it ends i think you're exactly right and i think it ends where the constitution gives out because we have said that although the state does not have to set up an appeals process once it sets up an appeals process you are entitled to a fact of counsel and that and so that's where it ends that's right as a constitutional matter however state procedural bars und martinez still apply in the cost of federalism and commonly particularly in a situation like this where the state trial court will have necessarily already decided the issue and upsetting that is going to be precisely what the court was trying to avoid in coleman and that's why when mark the first sentence of coleman is this is a case about federalism and indeed this case is two yes and then there was martinez and as you said in martinez and intervene you know we really went through the three factors that you talk about in your brief how important is this is this the only shot and you know does the state have something to do with this or something that the third one and you know i'm suggesting it's pretty important and this is your only shot but the difference is it's not your only shot because the claim is going to be about an underlying alleged trial error here opening up the claims for appellate i see but these are going to have not about the underlying trial or this claim is about effective assistance of appellate counsel and and and and that's about ensuring that the appellate process has integrity and fairness attached to it but justice kagan at root here the issue is a supplemental jury instruction which was not preserved which was correct and there would have been no prejudice from in any event and this is the type of case the court should be worried about are going to be these state law objections or something that came up at trial of this is an odd posture because it was not preserved in fact that would be the case the court have to be worrying about and then we're going to be here twice over the case that claim being defaulted arguing about not necessarily whether there was did appellate counsel make this decision or that decision it's going to collapse into an underlying review of what happened to trial and that's going to apply for all layers of trial on federal havey s which is something this court has long avoided to undo the judgments issued by state courts particularly when they're doubly defaulted claims that were in fact considered by at least one court before but generally that assumes that that some court is going to say if there was a trial error that we can see out there then there was ineffective assistance of a counsel but that's not correct for many of the reasons that people on that i mean that everybody has to have ineffective assistance of appellate counsel it's not because you failed to make an argument about equitable calculus against the huge systemic cost of opening up the entire trial on federal habeas review to every little state law objection and evidentiary objection here jury instructions why would be a small thing if you can identify looking back that because that would be what appellate counsel should have been trying to raise in that situation also if i can back out what we're talking about here is not just success on the merits of the claim raising a substantial claim appellate i see that standard is the would reasonable jurists debate standards of the court is familiar with from the strict of appeal ability standard that is not a high threshold to survive and so the number of claims that would flood into courts on federal habeas review would be many  is is a district judges are kept busy with these abs with titian's likes up that's why i read the empirical i'm curious to know just what the situation is impure and they're going to be even busier and it's going to divert their attention from claims that would otherwise be meritorious extending an exception like this to an acknowledged set of claims that have an infinitesimally small chance of merit that is not a good use of judicial resources that's not why the writ of habeas corpus exists an equitable judgment inherent in martinez and various other cases on hevia serve you have noted that that equity must weigh in and we would be inundated with all sorts of claims about even state law tha brought out i mean there is the occasional claim or let's suppose the appellate lawyer just really didn't even bring in appeal it a two page brief from the trial was rife with air and a serious penalty was situations where they're both in attic but or you don't even get into the federal court so the standard for winning which you concede is quite rare is very tough and but i suppose it's that that's that of course what's annoying on the other you saw here is a person in jail forever or worse and the trial filled with there or didn't have decent counsel anywhere what a mess i mean should there be some remedy and there is none and that was just a school erode that there was no way to stop this extension well first of all he wasn't for it for first of all the miscarriage of justice actual innocence exception to overcome procedural default already exists and so that would capture any cases of actual innocence that your honor would be discussing were does it exist it may quicken vs perkins you can overcome a procedural default for a miscarriage of justice wholly separate from martinez and in that situation you could overcome a procedural the fault using it at that actual innocence gateway now as justice kennedy noted though state hey b s would be the place to raise that claim interest in the question for a different day but the question before the court today is whether to extend the narrow exception for trial i see claims when the court has recognized that the trial is the main event appeals are not central to a determination of innocence or guilt there's a significant difference between appeals and trials of the court is noted and ross and the costs of opening up the entire federal trial do not warrant that extension general could i just i guess i got a little bit confused and you were exchange with justice alito because you've been pressing this is just going to be an infinitesimally small infant as some of the small i think that that was your phrase and justice alito said he thought it would happen all the time and then you said yes and then you went back to infinitesimally small so which is a the answer is there's going to be an infinitesimally small number of claims that are actually successful meritorious at the end of the day however the courts in the states are going to be faced with a wide number radiantly i think that his point was different that it was actually not going to be infinitesimally small but let's say that it is going to be pretty rare as you say you know then i think it really is justice briar's question it's like ok it will be rare but the alternative is that those rare good clams where there really has been a defective appellate process and a violation of the constitutional right to a fair appellate process has been violated and there's no way to correct for that in the same way that there was no way to correct for the trial the ineffective trial counsel that we talked about in martinez intervene you know you'd still have the actual innocence exception and also martinez reaffirm the general rule of coleman and what state procedural bars necessarily will do is bar certain claims that otherwise could have been raised but when a trial court is due to cater the case in either appellant or he is counsel of res that the universe of cases that we're talking about here combined with the cost on the other side of opening the entire federal trial up do not warrant that extension it did reaffirm the general rule of common except to the extent that this was your only shot and this is your only shot to raise a claim of ineffective assistance of appellate counsel which is a violation of the constitutional right to raise that particular claim but that particular time we're dealing with what it will be predicated on an underlying trial issue and that's the difference the trial i see claiming martinez that was the trial error that was the particular trial or the court was concerned about and that unique bedrock right here in contrast when the court is recognized repeatedly that appeals are quite different claim itself has not been raised that has to be seen though in the context that the underlying claim has if there are no further questions we ask the court to firm in the fifth circuit thank you counsel mr kratz for three minutes innocence phase error in other words of the road at the guilt innocence phase in other words had the jury been allowed properly instructed was going with mr to be listeria the defense he would not have been able to get the death penalty countess was the critical counsel might have an incentive not to raise it and it might actually be ineffective assistance of state a v s counsel to raise the issue because federal habeas may be more forgiving so what we do about that problem number one and number two do we also create an incentive for states to stop using collateral review to test i c claims they don't have to do that it's generally thought to be favorable to defense that they do do that because it gives defense chance to present evidence and prepare and do things like that some states don't permit it oklahoma mildura stiction it's very hard for defense counsel and then we create incentive to go back to that the bad old days and so by adding more procedural perfecting this we actually wind up hurting the fence interests in this case and the state hey b s attorney who would deliberately fault a claim from said hey vs because they think they can get in good and ultimately more favorable merits review in federal court would necessarily be violent any number of rules of professional conduct as initial matter they would be why why if it's if it's if it's the effective best strategy for your client i would think that's exactly what you do well as an initial matter one would necessarily be perpetrating ineffective assistance on their own by deliberately defaulting strategically trying not to raise a claim here so that in fact that think they can get some more favorable form later on outside the death penalty context has to remember that of course the process goes very slowly and so one m already be free from custody but the point they would have this erred in federal court the number of federal courts actually having merits hearings on claims is incredibly small and considering that haiti is a design federal h is designed to prevent and correct severe malfunctions of the state trial system that's probably a very good thing and yet in cases where the underlying ineffective assistance of appellate counsel claim i the situation the contention has to be raised in a writ the stupid two situations are exactly analogous thank you counsel cases submitted