commit another crime until one thousand nine hundred six he had a five year period where he didn't engage in any criminal activity in contrast in mr this case he has been in and out of cases keep coming to the supreme court from state court that condition can go on for fifty years in other words the supreme court can just keep saying well as unsettled well your honor i believe it would be the rule at the times that the state co california the u s supreme court did specify that a three strikes sentence of twenty five years to life sentence under the california three strikes law did not wasn't did not cost you cronin usual punishment so we do this we're not the appellant we're the apple e and my reading of the statute is that i think it's an unusual circumstance in which the petitioner wins follow and perhaps the whole structure of the system has a built in assumption that it's going to be the petitioner who's lost and the petitioner who's going to be appealing but the language of the statute in order to take an appeal you need a seeking broader relief than what that like the just recorder bilel we have an argument under the sixth amendment as you know that could lead to a new trial if we're successful the argument that there was a defective jury instruction that so tainted the trial that the remedy would be a new trial is that it is it is supposed to discourage frivolous appeals the students supposed to discourage the courts from having to consider a field that they shouldn't have to consider in this case it's the government that initiated the appeal if you read the amendment claim either your honor if you if you read the statute literally they should have sought a certificate of appeal ability in order to proceed with this case at all and my point is that the way statute if it wasn't considered in context might lead you to that conclusion and there's nothing in the statute that says that a prisoner enough to defend his judgment on appeal needs to seek a certificate of a few ability he's not me a it by the state and i'm not familiar with that side on that it's three sixteen s third one ninety eight back to the cross appeal your honor i hope i made clear that the purpose of the cross appeal was the same as any cross appeal which was to preserve the rights to argue for relief that was broader than what the district court argued below now the arguments presented to support of that overlap substantially with the arguments in our brief but we submit that there is no ninth circuit precedent which we are aware that would present this prisoner defending his principle as the principle that should be applied now obviously those two cases made my argument under the eighth amendment more of an uphill battle but we do believe that well being criminal history of mr rios is not quite as limited as mr ramirez it is more limited than it is somewhere between mr ramirez and ewing and on dr and that the rule of ramirez should apply but this sentence is just proportionate for this crime of petty theft in the us in case there was a violent history read residential burglary at knife point and on drugs there was an escape from federal prison in our case well there have been a series of crimes there really are drug related crimes and in connection with this particular prisoner's drug addiction honor and accomplice used a knife the state did not charge my client with the use of the knife the accomplice pulled out the knife in the middle of the crime and it is not state's highest court nor were they presented to the district court and second of all with respect to the argument about about the violence or lack thereof in mr rios this prior convictions i believe that the supreme court the state violated mr amendment right to jury determination of the three strikes sentence that was presented to the district court but the remainder of the issues were never presented to the district court and that includes all of them ineffective