chief judge thomas and may it please the court my name is thomas failing on behalf of peter little in our brief time together i'd like to discuss four and maybe five matters before you get into that which  briefly the standard of review because it's somewhat fluid from the cases arguably it's an abuse of discretion for this court to examine district court said disposition of a sixty b sixty be factors to its own satisfaction and that was actually done in the lopez case where judge mcnamee in phoenix had done a sixty b six factor analysis and the panel so if we do that i want to start with a lie a district court has there six years between martinez and the motion right three years after he discovered martinez right is there any case that even comes close to count and counting countenancing that kind of well i approach it from a slightly different angle and that is the question was is there a case that says that kind of delay is ok no no there deference diligence that is simply not supported by phelps or any of the other cases which say that there is no particular way to be given to any of the factors and the reason i papered the court with  tome of yars is because i wanted to show that although mr little was late in coming to the district court he was anything  in diligence his diligence reminds me of someone trying to scrub a floor with a tooth brush he papered the state courts with but counsel in those filings post two thousand and fifteen and then one eventually in august of two thousand and fifteen and in the st two in april two thousand and twelve and in may two thousand and fifteen there is no mention of mightiness and then he eventually mentions martina's in august two thousand fifteen so how was he trying to bring a martinez claim right what he claims and i believe it's possible he did not learn of martin until two thousand and fifteen so but he also said in state court that he learned of it in november two thousand and fourteen i see that but i don't see where that is in the record in any case mr little it's either late two thousand and fourteen or is two thousand and fifteen in any case he brought to the state court the martinez case going to reasonable time of when he learned it because he believed that he had a duty to exhaust and ineffect assistance a post conviction relief counsel claim because that's how he lost his st baby yes that was the sting in that he was trying to undo so if that were the case why did he delay another three years and eighty when he claims that his two thousand and twelve p c r he never received a ruling and he complains bitterly to the court that i never received a ruling and he said he files another one in two thousand and fifteen thinking nobody's paying any attention to me that i did was because it's proper and i think that the response motions to strike is is not well taken pro per petitioners are exempt from filing yars so he had no duty this typically it's respondants  duty to provide it to the court it's necessary for the court to make a resolution because central to the disposition is a conclusion that he was not diligent and for what they're worth his state court pleadings show  fanatic diligence but the district court conducted an analysis of all the factors and to philip's they did and he did and assigned weight and reached a conclusion so how is that in a piece of discretion if you just simply disagree with how the court considered those factors i think there is too abuses of discretion working hand in hand one the court didn't provide itself or order that the state court record be brought before it and i rely on particularly when it's relevant to the decision to review the record and if the court had it would have seen this diligence manifested by eight thousand and ninety pages of handwritten pleading  nd because respondents position i think is a straightforward denial of holding in gonzales this this was a dismissal based on a procedural default so facto  it's not a nd or successive petition the it did seem to raise to at least two new theories wouldn't you agree well the theory itself the theory in toto right but there are two components of the theory that are there maybe i don't know what you're thinking of judge so forgive me but the claim was ineffective assistance at trial and p c r counsel in all its manifestations no matter what factual basis mr little was going to bring to the claim in all its manifestations was procedurally defaulted so we don't have to we don't have to get into that hair splitting of whether the motion for reconsideration view is there's absolutely no legal support for the disproportionate weight given to delay and diligence in this case particularly if one is guided by the very moving rhetoric  used to do justice whenever such application is appropriate to accomplish justice my view is this record and concerned as it should be with that it would have taken the time to at least order up the state court record for review and seeing that although misguided this guy was not sitting on his hands he was doing the best under the circumstances and he blew it and it's not  good morning may it please the court linley wilson assistant attorney general represent scenting respondents in this matter the district court did not abuse that's discretion when it tonight little's motion to reopen under sixty b six with respect to the two in effect ineffective assistance of counsel claims that he did raise in his initial petition as the other five claims of an effective assistance of counsel presented in his motion to reopen this court should deem that as a nd or successive petition and hold the district court lecture futile attempts to raise a claim like this martino's claim in state courts where martino says very explicitly that the question in that case is whether a federal habeas court makes skewes a procedural default o c claim when the claim was not presented in state court and so by the terms of martino's itself it put mr little on notice that if you sought to reopen his judgment you should go to immediately to federal court and so by any measure of  diligence or delay in this case it was not diligent and this is an extremely long time period when we are looking at a delay as well which is measured from the time of finality of behavior judgment to the time that he sought to reopen that which is a little over nine years here well not in yours from the efforts in state court took because they can if we look at phelps for example that was a case where this court recognized extreme diligence on the part of the petitioner and one of the most notable things that the petitioner did was that he pressed all possible avenues of relief and so he was filing his claims in a procedurally appropriate manner as well so here that is in stark contrast to attempts to raise a martino's type claim in state court when it was following what he thinks is the ordinary pass and he's being diligent about it why does think that some credit for that in terms of assessing diligence i think when we're looking at rule sixty b it should st of all be used in rare circumstances in the hay vs context and so we start with that principle and then when we look at the phelps factors again even going back to the the diligence that was exhibited in phelps it's an objective standard and so i think it would be dangerous to now start viewing diligence as a subjective measure of what the defendant believed and that he should do it but i'm objectively he was being diligent this is this is not a case where he's not doing anything i mean i can that's that's where we usually come down on diligence is that there's a long period of time in which the petitioners not doing anything but here he's just he's pursuing a futile rommany and in fact of course when you exhaust claims and then go to federal court means you've lost them in state court on the merits so arguably everything as they would would be pursuing a futile claim so why do you think that some credit for that in framework and even under under pace pro se prisoners who might be unsure not sure what to do about their whether their state court filings are going to be deemed timely or untimely the supreme court said a pig prisoner might prob avoid this predicament by filing a protective petition in federal court and so nothing stopped him from pursuing his remedies all avenues of relief under state and federal court and so i think looking at it in terms of what the under these circumstances which he says he's well aware because he had a temper he was procedurally defaulted in federal court then the plain language of martinez itself says you should go back to federal court because they're your procedural default might be excused for an effective assistance of counsel well when we're considering the petitioner's diligence is it fair to consider what resources were available to him any cl guidance that might have been available in the prison library about martinez claims i think so and that's why we've we've this we've argued that whether you look at the conduct since martinez was decided or since the time he learned of it and still even according to his own his own filings see he was aware of martino's as early as i believe early two thousand and fifteen and then his motion to reopen was not filed until twenty january twenty eight thousand so it's still a three year delay and so even measured by that by that time frame that's not that's not diligent thank you for the kindness your honor state had her response had conceded that it remained for expansion of the record is not objectionable to that which is contrary to the last statement made by  learned counsel i want to get back to the this notion of parsing out the claim he raised in one forum and comparing it to a claim in another form as i say that's a red herring dismissed on procedural grounds that's the only thing one need to be concerned about and judge thomas or maybe it was judge hawkins pardon me this state as far as i'm concerned as i remember never alerted mr little in state court that he was bringing his martina's claim in the wrong forum that would have been helpful to him he may have been able to get to federal court quicker that's all i have thank you very much thank you thank you both for your arguments cases starting to be submitted for decision