in two thousand and eight but this court granted him permission to file a nd his petition based on the supreme court's decision a new chance in the united states he is currently serving a sentence of thirty one years to life of which twenty five years to life is mandated by the jur true finding on the aggravated kidnapping and has been at issue in this appeal so i'm going to start briefly with the limitations issue that respondent raises for the st time on appeal respondent has waived the statute of limitations defen e when mr vegas st requested permission to file an s o s petition based on johnson respondent father response in this court knowledge and johnson announced a new concept constitutional rule that was retroactive on collateral review and conceded that petition he filed a motion for reconsideration contending that grounds four dollars and six dollars run timely but again specifically stating that quote respondent does not dispute the respondent should respond to ground five and that docket number twenty two below now put it in front of us is there any exception that your opposition can suggest that would be an exception to this doctrine you put before us well i mean i look at the waiver  exceptions of seems to me there is one so i'm trying to get you to think about it well i guess i wouldn't but i mean the honest truth is why is this not a question collateral review and says right in there that the motion was then barred by the statute of limitations we've got that on our books seems to be a question of law so while i looked very carefully at your waiver question i said to myself why is it that that is not something i can do on appeal even if not presented to the district court and if it's a question of law they waive because they don't say anything about it if in fact the new law i mean come to the nd point is blackstone coming out of our court which now asked to decide what johnson is going to do and we necessarily suggest that we are doing it the way the supreme court would do it is that a new way to look then at johnson and whether it really does do what you're now suggesting it does or what the look at it and look at it hard ok i will i read it seems obvious i mean i'm one who if you're not going to say something about this to the district court why are you saying it to me but then there a if you will exceptions and the big exceptions that i have is one it is a question of law and two when we came down with jack blackstone and the supreme court has never said anything different about johnson i mean nobody is suggesting that johnson gives a new right and so therefore the government was whistling dixie below there isn't any new right out of johnson victim is kidnapped and of the movement substantially increase the risk of harm to the victim over and above that level of arrest necessary hair and the underlying offense so in order to figure out how you know whether the movement of the victim actually resulted in a substantial increase in the risk of harm over the risk in the underlying sexual assault the jury necessarily has to estimate the amount of risk posed by a standstill or hypothetical crime that never took place not a hypothetical crime it's not doesn't suffer seems to me the analysis occurred was you know by a tree so they're talking about compare that against the wrist of a sexual assault that occurred at some point before the kidnapping movement and in vegas a specific case he wasn't convicted of kidnapping to with the intent to commit rape so he was convicted of a lesser included of simple kidnapping and then they're great so then the question is where where does that that hypothetical crime that having before the movement when did that actually happen that happened at the bus stop when it was just the two girls was risky hear them where they are you know where she ended up and i think because he wasn't convicted of kidnapping with the intent to commit rape it's difficult to figure out exactly when the movement that that the jurors must be looking at where be the kidnapping movement started is that she went into the car voluntarily so it would have been at some point during the car ride so arguably if she had been raped inside the car with no one to hear her or see her that was more risky than what actually ended up happening but during the car right she asked to be taken home she want to go with me more she saw that they had before also what they said as applied to him and it's not even if we assume as petitioner argues in a reply brief that the movement began at the bus stop it was not an isolated bus stop as petitioner asserts the reply brief on page nine hundred and forty three dollars of the trial transcript a police officer testified that it's a major intersection in los angeles county where the bus stop so we go from a major intersection they drive the victim and her friend past the police car at the traffic light where they could have gotten help and prevent other rape they go past that and even though they're saying take us home we don't want to go up they take there even petitioner testified although he said it was consensual he said the sexual activity occurred behind a tree in that neighborhood he told them that the one man they saw outside was his friend we don't know that it's whether that's true but we know we told them which would cause them to be fearful of seeking help from him it is true that eventually after the friend got stuck on the facts and called for help and said for that the victim was being assaulted at that point a man who didn't know about this before responded to the yelling of the victim's friend and helped but this is precisely the kind of conduct that the california supreme court talked about in domain and before that daniel's and said if it's more difficult for the victim to escape if it helps the defendant commit the crime it's a substantial increase in the risk of harm to the victim and this is no more vague than the term particularly serious felony that different facts of the case can i just ask you about yesterday the court of appeals decision and jones yes your honor so it seems inconsistent with what came later but it's still there do we just say that it doesn't accurately accurately reflect what california law aggravated kidnapping rather than simple kidnapping would be responsible for looking at daniels as well as the statute the state supreme court opinion now as to what joan said it was talking about error analysis i wasn't talking about the substance of the law and although it did use the her term hypothetical it was calling it a hypothetical stand still a robbery or rape which is similar to let the language of the statute it's not really although it doesn't say how pathetically the statute i don't think fundamentally the problem is that it's a hypothetical it's a vague hypothetical in johnson because the court says how what are we to make of this what was two things a vague hypothetical not tied to a readable fact here we have the facts of the case itself not abstract facts imaginary facts we also have something that's not vague it's not difficult to understand what it means when you don't move the victim you compare because the jury found him not guilty of them i'm going to get things mixed up but there's kind of the kidnapping with intent to rape offense were i mean and i just don't know when yeah when when she st got in the so there's no basis for taking that and calling the statute for me the question is really a matter of vagueness not substantial evidence i mean as this court said in standard is not clear that's the vagueness claim so whether a jury thinks there was enough evidence for something doesn't impact the vagueness  use oh i'm sorry it in jones the court specifically compares the risk on the one hand to the risk inherent in a standstill robbery or standstill sexual offense and it's specifically it's we are not speaking of some particular robbery or sexual offense but rather of a hypothetical typical robbery or sexual offense and so they would you think that's true of rape but what i think that's what people  jones was speaking to in with respect to the comparison between a interfering out whether there was a substantial increase in risk of comparing it to the a rape where there was no movement and then the rape with that where the movement caused contributed to a substantial increase of risk so what's i think the vagueness would be the baseline that you're coming from