john lambert is on behalf of mr high council this case is a case that got to the court when when emotions panel certified the following question off paraphrased where the district court the court below one seventy seven three one five is since been repealed one thousand nine hundred one was thirteen years ago with those things in mind i think that once we once we impose the applicable federal rules on this particular certified question i think that the court will see that yes indeed during the applicable period of time one nine hundred ninety one three one five three the timeliness rule and without getting into why we had so that's a fact and obviously we can see that the federal rules with regards adequacy because that's what that's what consistent application is all about it's  because and i'll read one step in the seven three one five because it's a little different from what we were talking about earlier seven four seven two six unless there is a good showing for the lack of proceeding under this statute  and and that the state would always be constrained to file some kind of responsive pleading challenging or asserting that it should be that efficient should be dismissed  petitioner in this case mr hyde was pressed say an opportunity to meet the state on the field of battle to try to convince the judge that he had good cause that didn't happen in this case because within weeks of mr high filing is untimely petition the please prepare an order the the order was like a paragraph long no findings of fact no conclusions of law no mr high he was not given any notice and he was not given an opportunity to respond to any kind of particular ex parte soulas ponce proceeding he was in his prison cell he first found out about this when he got a i believe the letter notice of entry of order that oh by the way that petition you filed we took care of that the stalin asked proceeding in front of the district court the state district court where mr high was in his prison cell and the district attorney and the judge got together and rule is clear whether the rule was even in effect if so whether the rule this consistently applied now then it was a consistent application case but it was also an adequacy case and what i'm saying is we put it in play like by ok under chapter one seventy seven all the petitioner had to show was good cause ok and under any glider was the one seventy seven case as was burgess now the court and again i don't mean to be critical to this court court really by citing the lawn or was citing something by analogy lawyer was not a thirty four case and that to me is a key distinction we're talking about again the focus is what the focus of what the court told me to focus on in and i only have twenty seconds but i'd like to reserve it represents from this particular case with respect to the bennett case the bennett case adopted the procedure outlined in hopes the ward in the tenth circuit or direct this court's attention to them versus mueller that to ninety six after seven fifty two at seven sixty two where in this court said we prefer the approach outlined by the tenth circuit and the tenth circuit said this in the course this is all in the been an opinion once the state pleads the affirmative defense of an independent adequate state procedural bar the burden to place that defense an issue shifts to the petitioner this must be done at a minimum by specific allegations by the petitioner as to the adequacy of the state procedure and this is the important part from our perspective apart from the fact that the petitioner in this instance failed to do that the scope of the state's burden of proof and thereafter will be measured by the specific claims of inadequacy put forth by the petitioner now what mr mandela says suggested in this court is that this court has all and if one examines what the petitioner appellant presented to the federal district court in this particular case he falls woefully short of placing anything and the issue with respect to the adequacy of the state see jobar in this particular case all he made were conclusion allegations it's not adequate it's not adequate nevertheless and on top of that he has not cited one case below nor one case in this court which stands for the proposition that what happens in the state court the procedure adopted by the state court somehow or another violates due process either under the nevada constitution or the federal constitution indeed if we look at what happened the former provided that mr high used in this case provided an opportunity for him to explain why so so much time to file this and he an explanation that explanation was made under penalty of perjury he did that the court reviewed the explanation and as a matter of loss that that's not good und that explanation is not sufficient to explain why you took mr lambert as representative was for five years in fact it was much closer to six years for him to file this post conviction action said you had your opportunity there isn't anything right i suggest what mr lambert is saying is that there has to be you know some sort of hearing every instance on that and the courts can't do that there that's not required to due process but whether or not it was consistently applied first of all the it is our position number one that it was not the consistent application of the statute was never  they don't do anything if you look at verges in glamour they don't say that it's consistent not that it's indicative of inconsistent application of one seventy seven three one five anyway this court has already decided that  soon as you possibly can and that is had a statute on the records for many many many years long before mr high and the late in bringing his thing his action saying you've got to do it within one questions here we're not arguing with you yeah well i would direct this court's i'm trying to think of one seventy seven three one five cases and i'm aware of consistently your your argument perhaps could have been one meant that that was the question to you i'm sorry your honor that was the question to you i would say that it is consistently applied i would say the supreme court case consistencies that weren't brought to the attention of the district court because the issue of the questions where the issue was is race i understand your position on that but that's was we're direct our attention to because in other cases we have looked at those cases so this is your opportunity to persuade u that point to the cases you'd like us to look at even if petitioner who has not done this sort of inconsistent application on one or two occasions or perhaps even more underdog or that doesn't show inconsistent application of