didn't act reasonably and its decision was a reasonable application of united states supreme court precedent but that's not what the state court of appeals did that leaves this court with the opportunity to invest to know about the purely the pure question of own legal affairs in any sort of meaningful manner based on his mental illness which as a supreme court case do you contend clearly established recognizes the fanless exception i think daniel's in cost which the companion cases issued on the same day daniels being the federal case what i've argued but i do think that daniels and cost make it clear that there are exceptions beyond just getting in violation that has been confronted in several cases and the courts i think the basis for this come from the court argument then the case becomes final for all purposes and he can't collaterally attack any case in the future i think the supreme court's use of the right was intentional relinquishment is very very supportive in this case because they would have to show that due to some fault within the control of the prisoner he's given up his right to seek a quadrille attack thank you can't be the case here because mr mcgowan didn't intentionally relinquish the right because he couldn't manage his legal affairs and couldn't pursue it on his own and i think w the supreme court has said about a particular issue of course and yeah yeah we have said a few things about this particular issue in some of our cases and they seem to recognize a very narrow exception that's what you have to say about lackawanna county versus cost that i think that is supportive of mr ganns position in that case it was also twenty to fifty four petition filed by state prisoner and he challenged collaterally prior convictions that he ha and it noted things such as i believe by from state impediment also a newly discovered evidence that would automatically track a conviction but immediately after it notes those potential exceptions to the collateral bar rule which it termed only a general rule it's only a general marks not an absolute bar which is what the heart of the argument is it says in such cases or such circumstances it doesn't say in those circumstances or only in those two specific instances collateral a tackle out what it says in such circumstances i think you can infer from the state of the supreme court's note that well you know if there is an impediment to a prisoner being able to attack laterally a conviction that is sufficient to find that the rule which is only general would it really apply to that sort of petition and he should be allowed to pursue the remedy or collateral attack that he seeks i think that's significant i think the language leaves that open daniels also talks about and talks about exceptional circumstance it doesn't go with the detail that costed by any regard to that particular issue i still think passing daniel stand for the proposition that the quadrille bar rules are only a general rule and not an absolute one and i don't think that the mere fact that the united states supreme court hasn't specifically found any facts to address the issue i don't think that that's i think the fact that the supreme court specifically left open this option where this opportunity to add to the general rule of the collateral bar i think that's significant i think in support of in this case it certainly doesn't custody he needs to meet the test of lackawanna county versus cost and he does not meet the only the numerate exception as described by majority in that court lackawanna county which is causes a little bit of a confusing opinion because procedural bar should be discussed before constitutional issues are reached if we reach the merits of the as you under our lackawanna or even the twenty to fifty four demerits then we're looking at constitutional issues before always come first because all the constitutional issues that we really care about are subservient to those issues so that's the reason why we should do it here we should also get to this issue in this particular  hill and saying of this this issue is not part and so i think that goes a long way to say that if we had in fact raise that they would have found it barred on a legal basis that we can discuss here today look on the record and that fits in with the familiar appellate rule just to address a few of the points raised by the state first the procedural marble and this court is right it can overturn another another three judge panel here i don't think there's any reason to overturn the earlier it's now precluded from doing so the government sites do cases i want to bring up one forest and in that case is was maxwell and your daughter was talking about how this corking over rule another court and the government's tried to distinguish this case the but they have to present a developed argument to sustain it and they didn't do that in this case it was a passing statement by the attorney general in their i believe it was their answer to the position but if there was articulate what the new this mean out of even been a new rule and i think this relates back to the earlier argument at the time of the state courts and the state court of appeals denial in one thousand nine hundred ninety nine of the collateral attack issue  and we're basically talking about where you can bring the clothing as opposed to what kind of clean you can bring and custis sense that a federal sentencing hearing isn't the appropriate place to do it never said a federal habeas proceeding wasn't as well so cust mcgowan gave the california state supreme court an opportunity to rule on the merits of this petition and he did so by the available means to him of the state procedure at the time and that's to petition for writ of habeas corpus out in my briefs the state supreme court retains jurisdiction over a case even in the absence of a petition for review for up to ninety days after the court of appeals decision becomes file and implicit in that retention of jurisdiction obviously is the idea that if there is no