please the court my name is jeremy baron and i'm here on behalf of michael bino like to save two minutes for a bottle if i could your honour's the district court originally dismissed mr bio's petition for a procedural reason it's no longer valid in light of this court's current case law now as it turns out that's exactly the sort of situation where a rule sixty six motion may be appropriate in a hideous case but the lower court ruling you sleep denied mr by knows rule sixty six for you to obtain relief under rule sixty b we would have to determine that the minute decision constitutes an extraordinary circumstance yes your honor the meena decision is essentially the impetus for us relief under rule sixty b it's under phelps phelps is a similar decision where there is a procedural change in the law governing havey is petitions and phelps explained that when you have that sort of procedural change in the law that shows that the district court erroneous lee dismissed a petition that that sort of change in law can give rise to extraordinary circumstances and what the decision in phelps instructs courts to do is to look at that change in law and various factors  circumstances in the case and making the ultimate decision whether they're extraordinary circumstances and there are six factors the type of a change in law others and as we've explained in our briefs all six of those factors point in favor client respectfully disagree because the mena decision was which is a published decision says that the court had not yet addressed that question so that portion of mean i think is binding precedent now well there was a rind there was ryan's which allowed  raises the question of whether or not you could stay fooling an exhausted petition that's correct so mean i'm sorry ryan's involved a petition that was mixed so rinds didn't settle the question may district court issue a stay of a fully on exhausted but station and that question remained open in the circuit from ryan's up until nina so the state of the law in the circuit was unsettled  and as a result under phelps what phelps says is if the law is unsettled at the time the district court issues its original judgment and then later on a published decision from the circuit settles the law that is the most one of the more extraordinary types of changes in law that was what was going on in phelps's there was an open question about whether you get an additional thirty days after the california supreme court dismisses a certain type of petition that was unsettled in the circuit at the time mr  s brought his original petition the district court resolved that question against mr phelps and then a few years after that the th circuit resolved that open question and the phelps decision explains that's the sort of change in the law that is the one the more and extraordinary types of changes that should give rise to sixty six dollars relieve usually when the law is unseld we have district courts going in different directions do we have that in this case you know i haven't exhaustively surveyed what all the district this circuit were doing i think a lot of this reports were concluding that they couldn't stay this type of petition but be that as it may i mean that might be true in phelps to the lot of district courts were ruling against petitioners on that same legal question but i think you mean as a published decision meena says the court hasn't yet addressed the question it was open since ryan's so this is a more extraordinary type of change in the if if if my recollection is serious me right i thought there was another supreme court that  good faith belief the state court petition is timely turns out the state court says it's untimely to get the federal court in their time hard and what the supreme court said is well you can file a protective petition in federal rights of white that situation but pasted  purport to explain or hold one is to say available one isn't available now of course mean it relied on pace and reaching its conclusion but pace didn't settle the issue is just  the action that you're seeking to issue that you're seeking to pursue does not have merit essentially is what the certificate denial of the certificate of appeal ability is saying right but under phelps an unpublished order doesn't solve the law and with all due was reasonably debatable back in two thousand and nine because mena said it was opened back then and you know resolved in our favor and i see that i'm at two minutes if i could reserve the remainder of my yes thank you good morning and may it please the court my name is natasha gabriel on behalf of respondents of pelleas your honour's this case turns on the the preservation of finality of judgments and this court should decline to revisit the finality of this judgment for two main reasons st by no i did not bring his motion within a reasonable time under rule sixty c and nd he cannot demonstrate extraordinary so i want to why why why do you say that not that it was untimely honor but that it was brought with him not within a reasonable time and ok then what's the time period we're talking about that you think he should have brought this so reasonable time period does depend on the facts and circumstances of each case as demonstrated in ashford ok ashford we take into consideration finality the reason for delay practical ability of litigant to learn of the grounds relied upon and prejudice to the other parties here we don't deny that there was not a significant delay between when mina came down and when unreasonable delay no your honor our position is that we need to look at when this when this became final when the order became final which order the order denying the state so that happened in two thousand  the this court denied a certificate of a plea but appeal ability in two thousand and eleven and the supreme court tonight cert in two thousand and twelve from two thousand and nine to two thousand and sixteen that's a seven year delay that's that's a final and let me ask you this given this is the state of the law what was he supposed to have done he went to the supreme court yes your honor he went to the supreme court and the the search the search was a night in two thousand and twelve stating that there was no issue to resolve and in fact if this court denied a certificate of appeal ability as well showing that there were no reasonable jurists that would reopen mandate that says you can't do this or you can do this it's ok my question is are you saying it would not have been a futile act for him to file a sixty b in two thousand and eleven it would not have been a futile act i wouldn't be able to speculate as to whether it would be futile or not because that we would come for the very court and very judge who already said you can't you can't do this and he's asking to do the same thing would you call that  futility hard to say but yeah i really it's hard hard for you to say but do you really think that the district court judge would grant a motion under those circumstances that judge murphy has just posed realistically so you know right so just say it right right now you're counsel what's your position as to whether or not the law was settled on the point that mean address your honor i wouldn't say that it was unsettled because i actually mean what petitioner did it fail to recognize is that this court came down with raspberry v garcia now rests very very garcia the way it was interpreted at the time by the district courts was that the they did not have discretion to state a fully an exhausted petition and in fact this district court put the words it is well established in this circuit that we cannot stay fully on exhausted petitions and that at your seven now mean i came down this court clarified and said no that's not really what we said in rez raspberry raspberry turn on the facts and circumstances of that particular case it wasn't an overarching you can't do this  that's what nina clarified however all almost all the district courts in when when there was a fully and exhausted petition in front of them along with a motion to stay interpreted raspberry a raspberry was gay who's the best to interpret what raspberry says the district courts or the th circuit it's absolutely the th circuit but phelps also says your honor that we can look at all of the facts and circumstances surrounding the case and it's not unreasonable for this court to look at how those district courts were interpreting raspberry at that time now after mina came down obviously that that said you know raspberry didn't say that so the district courts had to just absolutely but it is a factor to consider for this court keeping in mind that rule sixty b and the phelps factors aren't rigid the you do look to the discretion of the courts if the court applied the correct law if the court balance the equities which is what the district court did here when it determined that a rule sixty b when it denied the rule sixty b it was settled it was just settled the wrong way as i understand it if you if you were to prevail before this court now then what would happen is it go back to the district court and he's just going to ask the district court whether for us st day end of it right if i  were to prevail on this court now if you're going to get if if the petitioner were to prevail in this court now on his claim and we agree with him that the district court improperly denied the sixty don't we just place him back in the procedure that he would have been in has he gets to ask for a stay in the bay you're correct your honor but he still has to meet the rinds factor i didn't say he was going to get he was going to get it i said he gets to ask for it again yes right ye and the district court would get the plot apply all the factors that he looks one would look to in deciding whether to grant the stay in the bay yes your honor but we do need to take in can see into consideration that petitioner did go back to state court eventually and fail to exhaust these claims once again so he had his chance and well maybe the district if it goes back to the district or maybe in the result the district court is not going to grant him a stay in a bad way but you know who know right who knows your honor and the question i posed is why do we want to waste valuable judicial resources on going back to state court where a petitioner is trying to stay a time and untimely and an exhausted petition yet again when he had the chance to go back to state court he did and he failed to exhaust yet again so when did it ok anything else peter every time oh i see mike i apologize for it for the reasons that we've stated we ask that this court affirm the district court's order ok thank you honors i just like to take a step back for a minute and for size the claims for relief that we're talking about here this is a petitioner who has a severe long documented history of mental health issues that's part of the reason why he  hasn't exhausted his claims at this point because he has the serious mental health issues that's why we're going to argue in favor of tolling a good cause for a stay there are indications that he was seriously mentally ill at the time of the alleged offense he was found incompetent shortly after his arrest he had to be medicated at a psychiatric institution for about eight months before he could be brought back to the level of competency so this is an individual who supreme court held that was unconstitutional and similarly situated defendants ought to have the opportunity to withdraw their pleas go back and pursue a not guilty by reason of insanity defense if that's what they want to do so  these are pretty significant claims for relief it's a pretty extraordinary circumstance here and you know the supreme court's decision and bach focused attention on the claims for relief there we know that there are differences between the claims involved in the claims here but we do think the claims for a levy are pretty serious and pretty stark and the whole point of sixty six is to allow a petition with claims like this whose petition was dismissed for in a rooney is procedural reason to have the opportunity to go back into court well i don't want to take a position on that but there may be problems in showing the reasonable time that reasonable time i have one final question are you familiar with the supreme court's decision  changes would be grounds for rule sixty b relief why doesn't that foreclose your case well because if you look at phelps it talks about the i'm not talking about phelps i'm talking about gonzales versus cost why doesn't that extraordinary and under phelps which is a binding interpretation of gonzales there needs to be a published decision in order to create that language in them solomon says it is hardly extraordinary that subsequently court phelps then looks at the in alice and in sauce and says well if there isn't a published decision from the circuit at the time of the original judgment that is extraordinary here there was no published opinion from the circuit at the time of the original