hearing for a talent that has accounted for over four years ago codefendant renee sanchez with released from federal prison after the government stipulated that in a illiterate immigrant who worked as a truck driver has been trying to navigate his way through the courts mostly without the benefit of attorney until the appellate stage incarcerated just trying to get a court to hear inmate petition just because he cited the wrong procedural rule i'm going to make explicit what is often implicit moral argument i have a very brief presentation and mostly i'm here to answer questions as to why motion ok what is the exact what's the decision that's properly before us than that we could look out and it's not the failure to treat the rule thirty three motion as a twenty two fifty five because the time to appeal the denial that is long long since passed right so that's out so what is the decision that's properly before us if we deny your motion for limited remount so i don't even think the court needs to address the motion for a limited remit the motion for limited rema only in case the court feels that it cannot give isaac however on the full relief that he's requesting which is what wants to give me the first out of the box what is it you want us to to really look at and what is it that you want to do t fit the same obligation with the rule sixty motion which of course he didn't even when you call it a rule sixty the motion to a man to treat it as a rule sixty motion he didn't even realize the quartet issued an order and that's what brings us to the unlimited remain in motion simply to make sure that the avenue for appeal is protected so i think this court can reverse out right saying the trial judge just as under the injure case failed to construe the motion yet but what ok that's what i'm saying so which decision of the district court is before us you know what that you say the district court failed to treat that as something else i think both both orders are  are before the court both the original september two thousand and twelve order and the final order denying the motion for reconsideration both of those are before the court the rules i remember three motions a rule thirty three motion in time to appeal that passed can't can't review that directly and rule sixty d motion i'm not sure if that's properly before us and then a rule sixty b motion how and if i remember the time the notice of appeal was timely only as to the trial the rule sixty b motion or that's what i'm trying to figure out what your honor i think it's quite important to note that i think al gore never learned about the site like created a something so i think the judge the court can look at the final the judge's final order and say why didn't you treat this as a twenty to fifty five and that order certainly before us further before the court there's no reason and that's at the novo question just like all of the other orders would be i do believe that the rule thirty three is before the court because he should have treated it as a defacto notice of appeal or inquired as to whether he wanted to extend the first specific reference in the record to treating his petition to the time to fifty five was one that received by the district court in wasn't converted to a twenty fifty five are you saying that the failure to have considered that reply as a twenty two fifty five was  if the court wanted to go that way i think it could i'm not asking you where i can go my question is is that arrogant to not have at that point and june have considered the reply brief  let me suggest you that it's one hundred fifty five might be appropriate here's the consequences of doing that now is the time to have objected to that whatever you say she should have done in june expired in its order of september fourth twenty thirteen and in that it's a little bit confusing because the sixty d motion that preceded it the district court denied that twice first before received the late filed reply and then after it received a reply and the sixty motion it should warn order addressing all of those concerns and so it did again deny the rule sixty d motion and as to the sixty be which petitioner requested that the court consider the arguments in the reply which the court did and that's where the the twenty to fifty five we characterise ation request w incorrectly caption and here if you look at the totality of what the district court stated when it denied the real sixty be it basically told the patient that it was concerned i'm sorry oh and so in my view it what the court was sort of giving a reverse castro warning to the petitioner and saying before i return tries this you need to look at the issues that need to be raised in your one and irrelevant i don't think it's irrelevant but again these particular facts you know might be relevant another case of these particular facts on the defendant sanchez was situated entirely differently in terms of his defense and the confidential informants testimony would you not know that you had a hearing i mean that seems like that's an argument you might make but that's what tw four is for someone to take the opposite position and say i was you know deeply prejudiced by this without a hearing no one even knows that i am not sure i can conclude that without having you know a record in front of me and a bunch of witnesses that if there was a the testimony it would seem like if you were looking at a record and you realize you can reverse twice by the circuit for not having done something that ultimately resulted in the person  a new trial and then was resolution that when the same issues raised in funny you by a codefendant on the same testimony that it would inform your discretion as to whether you had something to do the record the record is very brief as to that but i think i think one thing that gets lost here is that procedure does matter in these cases and here for seizure was not properly followed and just as your opponent put it so how am i misreading that case i don't read it in your that really i think in that particular case it was a matter of law but i don't think even your stance for the prison proposition that the court always has a duty  about discretion in a way of this or that it just said the court was presented with someone who didn't know what they were doing they cited the wrong role the court erred by not treating it as something else where he could get relief why isn't that the beginning in the end of this case it will thirty five context yes  i think what difference does it make what rule that was i think it does make a difference what it was that relevant point here was that even your requested relief which was not available to him under rule thirty five that's why the court said the court had a duty and obligation to construe it as a twenty to fifty five because that's the only way he might be able to get relief so why isn't the exact same situation pertaining there because it's not so clear in this case that he could obtain relief under twenty five so he could you can see that he could not get relief under the rule that he did say right right ok so that's just another there's no ifs ands or buts about that he's out there is a possibility that he could get relief under twenty to fifty five if his petition were timely and we don't i mean you argue that it sometimes i don't think we're in a position to make a judgment about that but there's at least a potential avenue available to him under twenty to fifty five there's just a brick wall available to him under rule thirty three so i don't understand what discretion did the court have to say no i'm not going to characterize it because again i think the court was was sort of trying to give its castro sort of warning and say you can still file a twenty to fifty five but i'm not going to characterize it now because i'm not so sure you've taken into account the possible i mean the quote matching the power of prayer he asked the court in the reply brief that the court eventually considered please if this is the way i can get relief please we characterize my filings as a twenty to thirty five so he asked the court to do that it wasn't something that the court was going to impose upon him involuntarily that's the situation where castro kicks in the play of course of course but again what i don't i guess i'm just at a loss to understand how you're going to argue that the court had some discretion to tell him no the only available route for you to get relief here i'm not going to  request for me to consider under that that rule well i think again if you look at the history of this particular defendant and he filed the rule thirty three the rule sixty dimensioning of the rules the rule sixty b i think it wasn't clear that he knew what government want to keep somebody in prison when it has admitted that the time when she was convicted ok government witness committed perjury i'm just surprised talking to talk somebody out of something i mean i was thinking the same thing myself but i did have a couple of questions or a couple of comments that is that if the government does not confess error this court does have to issue point out that this court in the taliban's original appeal said that the arrow directly implicated calderon in it is part of the prosecution's case of guilt and the government's arguments information it's not cumulative we had a drug deal an individual i don't think there's any chance we're going to reach the merits so i don't even know why you're bringing the merits up ok i mean yeah i  do know the arguments that the competing arguments on both sides the government wanted us to just deny the petition on the merits we're not going to do that we don't mean this record would have to have a hearing before anyone could issue a ruling on the merits so i don't think you going to gain any traction by arguing the