happened the government did not immediately file an answer because rule twelve lets you file a motion first they filed a motion to dismiss on statute of limitations they thought they had a lock on the statute of limitations because of what my circuit law has been but it changed in the last starting that it came back and then they filed a motion on the procedural  that correct yes sure and now i don't understand why that would be a waiver because the time that you wait things under rule twelve in an ordinary civil case is when you file your answer and you don't put it in that's an affirmative defense as long as you're still filing motions and the judge didn't say you have to put all your motions together in one motion to dismiss the way i remember civil practice in the district court it was fine so what's the or i'm sorry the lower court issuing this so what we're not talking about him waving something we're talking about whether the state with something i understand that you aren't but i guess the analysis is that the express waiver in the paper that was filed when the case came back down expressed waiver by the state after the statue of limitations defense had been resolved by this court the case was remanded the government of the state of montana filed a paper that said we would just as soon have this case proceed through the federal courts we're not going to deal with any equitable tolling issues that's the nature of the waiver that language is expressly set forth in the blue brief and we contend that it was an express waiver and  raised the issue that you're trying to do after earlier before the answer and without giving up their right to challenge your top mean you know what we did you know how could they have done what you what you would require them to do and not  you not making the claim that you're making now well i think there's a difference between requiring what i want them to do let's concede for sake of discussion that we're wrong and the rules allow this judge kleinfeld says up later on hassoun that what i'm saying is that under the terms of the express waiver in the language that was filed coast resolution of the statute the state therefore no longer wishes to pursue its opposition based on twenty two or twenty two forty four d one and want seven days to file an answer rather appropriate response because it doesn't limit itself to the statute of limitations aspect and it says expressly that it that the government wants the state of montana wants the matter to move through the federal courts that indicate we be able to answer that question from institutional knowledge of the state court system but i can tell you that unlike our federal sentencing guidelines they have extreme relationship with his counsel was ruled on exhausted and procedurally defaulted and we've brought that forward as a non certified claim i had filed a motion for broader certification i think at the time that's what the rule require think categorically it's true that the record indicates here that other than send the complaint letter that was written by mr marson to the defense counsel that's all that was done you know i'm not sure it got the  do except send the letter to the lawyer and he can hold his clients and wonder well i guess your honor there i would respectfully disagree i think that he had a fairly specific complain that he registered with the trial court judge and i think those that have complained of my we're going to the right thing you are you are and he i think it was beyond just sending the letter there should have been something more especially given the fact that there was disagreement was that it was just typically raised in direct appeal and that state versus arbor covered the point it's cited united states versus allen and brown versus craven a decision from this court that dealt specifically with problems  seems like he's been faulted for not having a record but he was given the opportunity to make one i'll leave it there thank you thank you counsel the first time after we man no i cannot find i cannot find any cases that address that at all dealt with once they reach the circuit court of appeals and then they raised it  you would have to look at the petition so that's where that would be most efficient to address those motions prior to the response of pleading and just in the merits whether you've agreed on a division you believe we wind up using up all the time on the first floor and if you like i'll ask the clerk to set the clock for ten minutes each for whatever you want