simple this court has reversed this very same district court judge in a virtually identical ruling based on that just records finding that it cannot categorically constitute good cause and or rinds  argues that that's not what happened here that judge jones did not apply a person a rule but actually decided on the merits of the case what's your response to that well it's pretty plain if the court looks at excerpts of record three and four the ruling that the district court makes on the rhine stay is virtually identical to the ruling that this court addressed and flake the baker now this state does make an argument that there's a distinction here because what my client he first filed a pro se petition is in state court which is supplemented by his counsel and counsel was appointed in state court and so all of this is issues in the state can see this in briefing below all of this issues were fairly presented to the state district court the failing oppose commission counsel here was whether it was when on appeal and in a vat of fast track system where you're only allowed fifteen pages by the way that he didn't raise all the think that that's an excellent point on a nuts my second point that aside from the fairly easy issue here of whether blake applies this the more interesting issue is whether or not that my client needed to seek a stay at all and the state is what didn't given what the state said because before they said it was not exhausted which was true and so you asked your client asked for ryan stay if we agree with you we would send it back to the district court presumably for a redo under the correct standard but at this point the state says oh actually you know there wouldn't be any there wouldn't be procedural default because there's no effective remedy so we'd be sort of back in district court under cause and prejudice right that's exactly right so basically if we just say that there was either because of the state's concession or because there was the wrong b one there are three different prongs to centrally the concept exhaustion fair presentation being only one of them the second is whether or not there are any adequate independent remedy adequate or available remedies in state court and what this court held in russell b rahlves and what the supreme court our justice o'connor center concurrence in harris view read is that the district court has a duty independent obligation to determine whether or not there are adequate remedies left in state court and in russell the ross this court clarified that the state has a duty to tell the court whether or not there are adequate independent remedies and here they failed in that duty and i would submit that that failure of  procedurally part in state court and were at the time the petition was filed i would not concede that your honor because we do know where does that leave us well i would argue that i have a state created because this hasn't been briefed yet because it hasn't that's why we're asking i would argue when i go back to just a court i'll argue c created impediment to exhaustion because in this case my client to excuse the defaults because my client tried mightily to present all his claims about supreme court in fact submitted the procedure briefs supreme court he wrote repeated letters which are in my ex or for records right around page six last year thank you might have caused some prejudice yes yes so i have argued that for down the road yes ok right but i but i gather that i mean we were starting with the promise that everyone was conceding that these were procedurally barred and therefore exhausted i question the promise of that if you're going to argue actually that they  federal there are no more available state remedies i but i want to make this point if i may that the state's argument regarding exhaustion which the district court bought part of because there was no real meaningful briefing on behalf of the petitioner are actually wrong and some on the claims that you're talking about that you claim were not that that there was exhaustion did your client in his pro se pleadings concede that they were exhausted because he did on any of the claims do you know it is please to the federal court no did exhaust yes some some i would concede that some were never fairly presented some or they're all technically exhausted because there are no available state court romney's i would like to reserve my remaining minute if i  have please the court i am in about a deputy attorney general dan roche and i represent the respondent have believed in this matter justice exceptions to it state procedural bars mirrored the federal cause and prejudice exceptions they were adopted explicitly so prior to martina's no claims in nevada were ever anticipatory defaulted because  petitioner claimed that he could overcome that default he was returned to state court to try and make those cars and precious arguments to the state courts once martina's was decided it went further than that of a supreme court was willing to go and so now there are and precious exceptions that don't apply in nevada and that is that post conviction initial review collateral counsel was ineffective for failing to raise a claim after martinez if a petitioner in nevada challenging in about a conviction in federal court wants to apply an anticipatory default of his claims he has to concede that he has no cause in prejudice arguments other than martinez and if he doesn't do that he needs to go to state quarter and litigate those and so the argument that we buy later duty of candor by not arguing anticipatory default in the petitioners favor is just incorrect because we would have had to care by misrepresenting the legal history and which these claims arose well i think some you know sometimes when the people say do you have cancer everybody gets gets a little excited about it but really what i'm more interested in is what in your  briefing to the district court you went through very thoroughly and you said to the just record he conceded this was an exhausted he conceded this we think this is on exhaust and so forth did you go take a step further and say  we also think that this claim is procedurally bar and i gather that's that's probably a matter of course you don't usually do that unless they want to argue in their opposition to the motion to dismiss that their claims are anticipatory defaulted we wouldn't raise we wouldn't address that issue at all and you did affirm he didn't do what they did in raaz which was to say he definitely can go back and he has an adequate remedy you know he has no re and that's the real crux of this issue is the idea that in light of blake the baker the district court of uses discretion in this case baker specifically held that it doesn't make sense for cause for a state to be more difficult to obtain than cost to overcome a procedural  and so therefore they they held that if marty has the right and says that the ineffective assistance of initial review collateral counsel is cause to overcome over seizure of the fault it should also provide cause to overcome cause for r now if you want to follow that logic martinez the ryan specifically excluded ineffective assistance of post conviction appellate counsel from what would overcome cause for procedural default and therefore there's no reason for this district court to grant  stay to go back to state court have claims defaulted and then return to federal court where your arguments can't overcome the default so if you wants to argue technical exhaustion in this context and well and i guess we're talking in a sense about best practices and others but would you if you had included a paragraph that said and it doesn't make any difference because all these claims are procedurally barred now exhaustion would be futile that would least put him on notice that maybe he ought to be taking a different tack on a we i guess that's possible the problem is we don't know what the cause and prejudice arguments are he would usually have merit i know but i'm you know you'd have to that's making an assertion that we can't make until we know what his cause and prejudice arguments are well you can i mean you can i call i can do say it's unlikely that if you return to state court his claims will be perceived default but i can never say they for sure will be because i don't know what arguments will be it's a question of notice because we get we seem to get a lot of cases up here where we find ourselves in a circumstance where the pro se well it again doesn't understand that the state is going to take the position that these cl makes no sense because that would simply be dilatory it would just waste time while they go to state court for a few years come back and ultimately their claims are dismissed because they can't satisfy martinez and that's the situation that this particular petitioners in and so for that reason it would make any sense to in the district court initial review collateral counsel presented all these claims to state court and satisfy martinez this is a claim that an initial review appellate counsel failed to exhaust the claims by presenting them to the state supreme court and that's  cause for ryan stay shouldn't be more difficult then cause overcome a default but at the same time it doesn't make sense to make cars for ryan stay easier than cost overcome a default because what you'll end up with is situations where you're going to grant stays for claims state court overcome their default if there's no potential for those claims to go back to state court be defaulted and then come back and overcome the procedural default then all you did was waste time while those claims were all eventually dismissed and you could just dismiss them at the time and not grant a stay at all  which is the situation we're in here i mean that's clearly the way to distinguish like the baker versus this case and for the question thank you counsel thank case they are saying to the district court by the basis that that argument that the claims were not fairly presented and there are no adequate remedies and there are excuse me so there  arguments today of the cases turtle be submitted for decision