ar time period this is a matter of statutory interpretation twenty two twenty forty forty one focuses the judgment under attack in the petition and the supreme court has repeatedly interpreted term judgement in the statutes a the as the judgment that currently authorizes the petitioners detention once that judgment becomes final the one year time period begins to run here the judgment authorizing mr smith's current of mag would these are subsections between two forty four b in mag would in twenty forty four d here in this particular case that are part of the same statutory scheme and focus on the same judgement it is only logical that a new judgment under mag would restart the one year time period this is a judgment based approach approach as we just heard from the prior argument that's exactly what the supreme court has focused on in cases like burton mag would and this court's focus that's the direction score is going and the petition is timely then obviously actual innocence is in support with respect to this appeal however the underlying constitutional violation is the actual innocence agni obviously is based on the fact that there was a change in the dropped in a footnote that if this court you know agrees with me on the timing issue that this is something i would like the court to just because the district court's analysis on the underlying constitutional claim was completely wrong and i'm worried about if this case gets remanded the separate underlying constitutional violation sharma that basically says that it says in elements of the crime in order to be found found guilty of aiding and abetting is that you act with the specific intent to commit the underlying crime so that's the change in law and that's the element that the prosecution needs to prove so if there is it impossible for your client to have had the requisite state of mind well i don't think we have to prove that's impossible i think we have to prove you may not a claim like this no matter what which test we're trying to use state at all the opportunity to present whatever evidence they you know we've we put the standard out there we said this that you can consider all the evidence in the case they didn't present any did come down to establishing that somebody was legally innocent not legally impossible it wasn't legally impossible for him to commit committed the crime council in this argument are you  on an interpretation of the instruction that was given as being inconsistent with the sharma case is that what you're saying when it comes to the underlying sharma violation that that's correct i mean we are still hasn't the nevada supreme court already answered that and found that the instruction that was given was sufficient even under the sharma case in that type of situation this court is not required to defer to the vast cream courts that statement on that issue because this is a separate independent constitutional violation whether or not a jury instruction or leave the state of proving all the elements of the crime so even if the investment court says no this this instruction did not do that this court still has the independent obligation to determine whether or not that's correct so the schama is the one that defines what the elements of the crime were and then the next step is you look at the instruction and determine whether or not it did and it's true that th in this case said that this instruction didn't violate sharma but that is contrary to to its other decisions we provided that the mitchell instruction we provided to sharm specially the instruction and sharma those were essentially the  instructions that were given here but the court found that those relieve the state of the of its burden of proof of that element to specific intent so even though the nevada supreme court may have said in this particular case the instruction was find that's not the end of the matter this is an independent constitutional claim that this court needs to address and i original judgment of conviction and about a supreme court never overturned his conviction his conviction was always legal all the original judgement no no one with the judgment pursuant to which he is now serving a sentence when was that judgment and i would argue your honor that that judgment was not  entered when the second second amendment conviction was answered because the reinstatement of the original judgment of convention nothing changed or doesn't matter whether a change i'm asking you which judgment he is serving a sentence pursuant to now he's now serving a sentence pursuant to a judgment and when was that judgment entered by the court that would that would be the second amanda judgment conviction when i was entered if you don't so if court why wouldn't this three just say the case is moot or the case is not all right because you don't have a valid judgment conviction if you're not serving a  judge conviction so what are we doing in federal court now so he's just like some guy who still waiting for trial or waiting for sentence after a while that's what you'd be saying wouldn't you i don't i don't think i you or your colleague being district court saying no this has to be dismissed because there's no valid judgment in force in this training him and without a valid judgment in force this are accepting your analysis of it yes i'm just asking a question tell me why coming when the answer is i want you to say it because you know it's true well i wouldn't say that court doesn't have jurisdiction you didn't think about that would be made your argument i want to say i think you need to give up on this argument and move on to the next one ok i would just ask the court to follow was complied sharma the other argument i'd i'd like to make is that is that the due process argument that he's making is basically his first claim in the federal petition  that's not the standard he's claiming that because it was not the specific intent that he could not have been convicted but he can't show that he's actually innocent that's the law made it such that he could not have committed the charge crime ok thank you counsel judge if i could just mention one thing to clear up a little thing about mitchell that was mentioned  mitchell and footnotes are three of the first mitchell case approves a jury instruction that was used there in mitchell to the jury and the nevada court found that he was actually innocent because the prosecutor in closing argument conceded that he had did not have specific intent to kill so it's that it's a good decision it's not a bad you just one quick point is that yes the underlying constitutional issue that we've raised in the petition with respect to sharma was procedurally defaulted in state court but actual innocence isn't the only argument they were using to overcome that default we've made we made multiple arguments down below that the investment course decision perceived the faults it was not adequate it was an independent so actual innocence was one of the grounds and the court just used that the district court addressed was they were it certainly was just like recent supreme court decisions like foster versus chaplin and really where the cause determination by the state court was incorporated or at least was brought in the federal the federal issue and that's what happened here but it was an adequate as well because the desperate court use a procedural default out of thin air or something it had never used before when it said that  record is that the nevada supreme court cited to a case that had nothing to do with with the procedural default that it imposed i mean we i couldn't find a single decision in which they used the exact same procedural rule to say that smith was entitle to raise this claim at that point so i'm bringing this up because we're only granted a c away and timeliness and actual innocence to overcome an untimely petition so with respect to the procedural to fall decision that's not necessarily before this court however we bring i brought it up because if we're able to overcome the default on the other grounds that we've raised then we think that we should be able to because i don't think this was an adequate or independent procedural default when when the lower court addressed the actual innocence claim they went into the merits of the sharma claim and when they went into the merits the sharma claimed the district court and gives analysis that was completely wrong so i would just ask that the mandate be broad enough where we can at least get a chance to to litigate the underlying sharma claim and allow the district court to  address are the other grounds that we have to overcome