and listening to their the previous argument which involves a similar issue that we're back to discuss i was trying to imagine talking to any of my former colleagues and  yvonne as he goes by or god forbid his mom and try to explain how is conviction in eighty nine which they thought was a racist from the face of the earth  was actually not a racist and can now be the basis of a avenue conviction and you penalty that can put him away for twenty years instead of ten years taken away from his family and his kids and so forth but with respect to  like no one's listening to me along the way i don't know why they're going to listen to me now he would look at the order that the judge and you can judge put her away or get in court i'm sorry i want to know what he did when a fear before the state court was on the first charge i believe and based on his account judge that he was told that this would represent a second chance to him that it would go away altogether and i fully believe if you plead guilty you will get you some treatment will get you back your family i has not yet expunged his mind and conviction i understand that is a different question that the court's being asked to consider but that would be correct and i'm just trying to get the sequence of what happened was his we was a lawyer at trial and at the trial in this case yeah ok so what you did was realizing the significance of that prior conviction you did what a good lawyer would do you went down to the montana state court  in the interim i had up to this order from the montana state court and it was no longer as far as montana was concerned and existing prior convictions because i got this order that says it's gone that's correct just like finding a lottery ticket on his floor and winning a lottery ticket it was there he was entitled to it he just hadn't gone and got it which class whether he waited too late to present it to cash or that's that's really what i'm wrestling with and i'm and i'm hearing the question i just i keep coming back to the idea that in view and in else and elsewhere they need to be able to have a safe harbor from federal law if there's if montana is not able to provide some sort of a second chance or respect to montana we can't have a different rule in montana than we do in washington but judge dickerson was about licensing for firearms and this is a felon going to jail for an additional ten years and with respect to bradner that's a child different and it's not i mean it gets to be less clear then the judges are saying they want the law to be you know on this point that dickerson has been overruled by congress doing that fat lottery ticket been cashed on time that is before the can conviction and in this case would that have made a difference as far as or that and the montana supreme court wipes this off the face of the earth and both of those phrases strike you because this power flows montana supreme court is in montana course can't provide a safe harbor from federal law as no sta entirely then there's a montana purpose in doing so in the supreme court simply effectuating that but that is the montana supreme court so what happens is that under federal law under your argument taking it out of taking dickerson that once the conviction is entered regardless of whatever conditional sentence i he has a prior conviction and it doesn't make a whit of difference whether or not he lives up to and earns a second chance under state law i would have made that just a little bit by saying once the appeal time has doesn't do any and doesn't do him any good as far as first so he just has remedy is not to refashion his remedy is not to respond and i would respectfully disagree in terms of what happens in montana state court because i think the  key point there is the fact is he really did commit the crime and his remedy there if he really didn't commit the crime is to challenge the accusation against him and not plead guilty no i did stand the remedy but nonetheless the point is that there's an incentive obviously to plead even if you may think you have you could go to trial you might win right but then so you say the government you say the state in that case you know i'm not selling you know what better than i what the everybody but the federal government says if you do that you have a prior right right and in terms of second chances i'd say you do get a second chance what you don't get is a try at first chances because if it really is wiped off the face of the earth then you should have another first shot at it and the fact is it's not wiped off the face of the earth is three months i'm broke for montana purposes it is that's right but i think the federal federal statute and the dickerson case are essentially saying we're not going to ignore the fact that it is not wiped off the face of the city and my final thought on the whole thing is that i under mr jools theory or mr rose theory that there's no finale burden on the part of the defendant to come back into court after he successfully completes the period of deferral to move for relief right whereas i think there are some states that actually provide for an automatic expungement at the end of the period if there's no showing which would presumably be a petition by the prosecutor that he violated the terms of the deferral and he ended up back i think that's right some states to do that montana does not  there was also an issue with respect to sufficiency of the evidence unless the court palace questions i will just leave that one on the briefs ok thank you all right thank you very much expressly based on looking at the state law and in those cases it was bolstering as you know it's a federal question that is bolstering the conclusion that look we don't need to worry because in new mexico even in new mexico the that the conviction in that case warranted a life the mandatory life and hence it bordered on frivolous i think that's part of why it hasn't come up as much as before this court and why the court hasn't had an opportunity to analyze it fully itself they're not shying away from looking at what the underlying state is doing or wants to accomplish some of thirds and you know if it's if it's relevant to look at the state law in those circuits it would be appropriate for the ninth circuit also at least consider what montana wants to accomplish not only by its expungement statute but by its the order in this case which was crafted in the strongest you know