thank you all may please the course mark murphy i represent behaviorist corpus petitioner in this case it's the rain and the ruler formerly a captain in the united states air force our police is that the district court should not have dismissed the hevia score because petition on the motion of the command today i'll refer to the government as a command and order they should not have dismissed it without a more thorough analysis of the merits not not to cut your time to short but we don't have a lot of time to talk about this your client has conceded that he failed to exhaust his administrative remedies within the military procedures is that correct that's not correct your honor with all due anticipated of course because that was the major focus of at least the command's briefing that this would be an issue before we get to the merits of the way you asked the question is interesting to me your honor because you asked whether or not he had exhausted each of the procedural steps on his way well to the district court with his before he filed his petition for writ of habeas corpus there's no doubt that he did that there's no question that there were no skip steps that it began at the military the court of the military trial court he appealed that as a matter of direct appeal to the air force court of military review and then his petition what would be the equivalent of a petition for certiorari in the military next level appellate court was denied with the complain specifically raised on direct appeal exactly your claims themselves are a cost that so yes he went through the direct appeal process and availed himself of those remedies but he raised these particular claims i will say yes and the command and perhaps you will say well perhaps imperfectly or the command might say not at all there's two ways i believe your honour's in to look at the exhaustion issue particularly in this case but in every case we always look at it from the point of view of the petitioner did he specifically as you asked your honor raise the issue at the court below so that it could become a matter for havey as court was review and in this case the issues were not raised in the manner that present counsel raised them in the petition for mr a rule in the district court however the court on the other hand did rule on the issues if you will the court issued in opinion the military court military court the military court of appeals that's relevant here first of all and there's two ways to look at this exhaustion and i believe that the petitioner can show that he's exhausted sufficiently the issues so that the district cour the ninth circuit should have reviewed them thoroughly first is what the petitioner did at the military court of appeal the petitioner raised the issues that are being that i want to talk about here on the merits the unlawful jointer and the fact that he was convicted under an unconstitutional criminal provision he raised them in three different race he raised them in perfectly and he didn't raise them the way that i have as the cases develop which naturally occurs in  in terms of in terms of i don't want to eat up too much for your time on this issue because we can go back and look at the ways it was was raised the way you brief this talking about fundamental miscarriage of justice i had  an attempt to basically get around exhaustion under a fundamental justice miscarriage of justice theory that that was the way i understood your briefing so i thought if that's the way that this court goes then is there any new exculpatory evidence in the record that you're relying on i'm not relying on the new evidence and actual innocence argument your honor and if i could go back just briefly to the to the exhaustion question petition to raise the issues by claiming these issues through his complaints about ineffective assistance of counsel he complained that the judge in a military court martial didn't sue a sponte addressed these same issues and he complained that he was sentenced in fact the military court martial gave him a harsh a more harsh sentence than the prosecutor even asked for as a result of the unlawful jointer we believe but importantly the military court of appeals issued an opinion in which it discussed the jointer issue and stated clearly and perfectly the before the court martial and the military appeals court to establish those points of course this was this was different counsel this is count i realize and i say you i mean on behalf of the petitioners are yes well you don't get to cause and present as when you review  wanted to hear this case this is where the ninth circuit frankly is is in the same boat as many other circuits with this in comfortable relationship that it has with the military justice system and the manner in which it would review court martials and claims of constitutional significance and i refer specifically to the body of cases that followed subsequent to the callee decision calley came out of the fifth circuit and the fifth circuit following cali  established a four part review of the command makes the point and it's well taken that in the briefing in this court it appears that petitioner has conflated the concepts of exhaustion and the review that's required under cali but as a matter of fact that's a reflection of the some of the confusion in the development of this doctrine again where the federal circuit courts of appeal seem to be confused and certainly aren't unanimous about the manner in which military  action should be reviewed the fourth factor therefore factors in the callee which i'm happy to describe and i may reserve some time to do that when the district court below i took this haiti as corpus matter under review they should have conducted the callee for part review that is also being handled and actually being done in the tenth circuit reference to tenth circuit cases in this particular instance is important your honor for this reason generally speaking persons in your position don't see a lot of military you see m j cases the tenth circuit is where fort leavenworth is as a result they see the majority of the military havey as corpus and other even special appeals out of that out of that circuit calley represents and the circuits that are developed calley represents a step to make the review of military court martials more sophisticated and it looks at them in a more subtle manner historically the federal courts the federal circuit courts going all the way back to the burns united states supreme court case in the fifty's have kept a hands off policy to military cases and that's been a disservice i think over the over the years calley represented an effort by a federal circuit court this when the fifth circuit there's a recognition that going all the way back to the justice douglas's dissent in the original burns case that while there should be a bit of a hands off policy to the u c m j the fact is that these are american citizens and the constitutional law isn't if we just ask you this i this is very interesting but you're using up your time  want to save any any rebuttal time and all he would talk about philosophical things we might talk about in a law school class about military justice and i'm not sure that's a great use of your time is up to you but if this is a philosophical question through the application of the callee case i wanted this court i wanted the ninth circuit to recognize that the principles of exhaustion overlap with the fourth with the fourth factor that expressed in the in cali you have exhausted your remedies in effect well the exhaustion occurred and that's an explanation or an analysis of whether what cali does there is as asked in a different way how in the specific setting  different for the military cases exhaustion has been accomplished because it is a separate situation you use of your time thank you very much for your argument  district court accepts a record page nine specifically stated petitioner does not dispute that he felt so exhaust available remedies that's a factual finding by the district court that can only be reversed cleaver there's been no showing issue was waived and if it and if there's no exhaustive military roomies end of story right if there's no exhaustion then the analysis moves on to whether the appellant met his burden of showing cause and prejudice and even if you can't do that there is a date way to still have the claim be heard if they can show actual innocence or show in new mexico sorry i didn't exactly and none of those things occurred here with the final gateway requires a showing of innocence and counsels indicate if he's not relying on any new evidence so i think that's done for what about counsel's point that he raised it imperfectly and that it was addressed in the military courts so let's break them up into the two different arguments first there's the joinder of charges argument a page sixteen of our brief we point we showed that talent at the at the court martial level the trop which i think is appropriate called the trial court level as well fail to move to sever on any basis so right at step so he missed at the military appellate court level appellant still didn't raise the same issue he brings here what he what they raised in the military appellate courts is that the court didn't s a sever under the rules of court martial they did not make the federal constitutional claim that they're making here to again so i had every level there was a failure to exhaust the claim they bring before this c raise that issue before the court martial court but then failed to appear to raise it under rect appeal to either of the two levels of military courts there's so since there was a failure to exhaust all levels both claims now before brought before this court there's been no showing of cause and prejudice and no and as judge when strikingly brilliant things you would like to say to us in this one minute now your honor i would and you made the point which was well taken of course that an awful lot of our argument was beyond exhaustion argument  almost historical or fill of philosophical in nature and that's true at the core of this and i was a trial counsel at the core of this we have a situation where a military member a citizen of our country during peacetime in the united states in a unit that wasn't designated for departure or deployment to war was tried and convicted and served prison time federal prison time  in a trial that would never have occurred in the civilian courts in the civilian federal courts of the united states and whether issues were raised throughout perfectly or imperfectly i think the record will show that there was exhaustion whether and how it was argued or how it was couched that there does come a time and this circuit as the commands brief has noted has failed to adopt the callee test from the fifth circuit i think that in the petition on behalf of the petitioner that if the district court below had adopted and analyzed this case using the callee analysis that very basic four step analysis which reflects the modern approach to the review of military