strange good morning may it please the court i'm peter hundreds and they represent the adams this is a procedural appeal there's a sort of interesting categorical issue but it really is about the because it's the government's burden to prove which is which subsection of a an overly broad statute the defendant was actually convicted of and so if there had been a challenge the government would have what the government have produced the second amended information because if it happened then there could be no reliance on a charging document that didn't form the basis of the actual section now the government says it would have produced that and that's a question of fact that the district court never resolved but all along throughout this in for this litigation they've maintained you know the felony complaint is the appropriate sheppard document that's where you look to see what he was convicted of and that's that's an error so there's there's a requirement that the government actually prove through sheppard documents which portion of this overbroad statute the defendant was actually convicted of and producing if the only an offer to sell does not involve that overt act that's been offered to sell a solicitation it's not attempt and they've they've made it very clear that there's a difference between the i don't they require intent as well it yes they require inten what the what the sixth circuit doesn't in athens is basically do what your honor just suggested which is to say well you know we can assume that an attempted shirt involves the intent it involves an overt act and  we're satisfied that you know ohio that this type of activity would always involve an overt act but when you have state law that specifically satisfy no overt act is required i think the federal court should take that into consideration because that's the state's saying look we have a lower bar for what constitutes an offer to sell there doesn't have to be any sort of substantial staff or overt act  i'm sorry which case more chance if so martinez lopez of the ninth circuit if that's the case here referring to that has to do with whether this california statute is divisible or not in the ninth circuit said it did it was but as to that particular the reason why it was an issue is because the ninth circuit identified that the statute overbroad because it includes offers to sell the implication being that sure saleen is a controlled substance premise of martina slope as the reason they came up was because it was overly broad because it involved offers well if it weren't overly broad there's no need to get into whether it's visible you know every certainly true and so there are several layers to this appeal you know obviously we have to establish ineffective assistance of counsel that that is our first focus and whether or not jack objection should have been lodged that's right so maybe it's helpful to sort of go over that the equities in this case and the procedural history to show why this rule sixty b motion as a procedural matter should have been granted and court on the grounds that it was six successive twenty to fifty five and that's that's not true now whether the sixty be motion should have been granted or not i want to sort of separate out the procedure as a procedural matter and in the first proceeding because the ineffective assistance occurred within that proceeding as opposed to in this case where the sixty motion looks like an attempt to circumvent at that because he couldn't raise the abandonment claim and the first twenty to fifty five because it happened in the direct appeal between thirty five so there are a lot of issues there is no abandonment claim i want to make sure that that's clear the of the fact that he was abandoned after his second appeal which is when this court in dicta said besides this is attempted distribution meant that he could not correct that error that that's not a claim that he's entitled to twenty to fifty five or it is an activity though show that he's he's been diligent or he can't be faulted for a lack of diligence and pursuing his remedies so when he gets to the twenty to fifty five his claim is i had ineffective assistance of trial counsel for failing to object to this it led to the whole the rest of the procedure where it was weight issues waived it could never be brought up again and so in the twenty to fifty five then when he presents this to the court the court i agree that a very technical reading of the court's opinion is fifty five was that his counsel at that point abandoned him but he was represented by counsel throughout the twenty two fifty five and what the supreme court has said in martinez and trevino is that when you receive ineffective assistance of counsel on a twenty two fifty five on your initial collateral attack or you are pro se then the court in the context of this you know it should excuse procedural default because when the issue goes back to ineffective assistance of counsel the first opportunity to raise this in federal court is on a twenty two fifty five and we're not going to hold pro se prisoners to the heightened standard that we would hold because it wasn't effective to me not raised right right and we think that is a loss on a procedural issue we call that law think case if the court disagrees with that and says that's the merits then i think probably is rule sixty motion shouldn't be you know should be denied that's not to say it's not a proper rule sixty b motion it is asserting look you denied my motion on a procedural defect that infected the proceedings but the court could say no i didn't denied not appeal he's proceeding pro se you know the the merits of the claim may be different because they weren't squarely presented to this court all of those equitable considerations would go into that the district court here didn't engage in any of those went in that wayne in terms of the equitable consideration so that's why our suggested remedy is that we return this to the court reverse the denial of the rule sixty b motion and return to the district court for the proceedings and authorized successor dish second because even if the district court had jurisdiction over mr adams rule sixty b motion in this case mr adams has still today failed to make the required feeling of extraordinary circumstances under the rule sixty starting with the threshold barrier to mr adams argument in this case he brought a motion in the district court below under federal rule of civil procedure sixty but that notion was an actuality and an authorized successor k b s petition at the district court had no jurisdiction to decide this conclusion is based on a simple application of the supreme court's holding and it's always going to cross me that court held the rule sixty emotions like the motion filed in this case are actually an authorized when they attack a district courts denial behaviors claim on the merits and the key increase here in this case on this issue according to the supreme court's decision of five hundred page five hundred thirty two is whether mr adams motion in this case attacks the unaware of that language that may have been the defect in the proceedings that the supreme court spoke about and gets also gives crosby that may very well have been the case but that certainly was not the case in this case there as the court mentioned and as the the supreme court make clear that if the haters petitioner like mr adams wants to extract how a district court decided the merits and that's what appeals are for it's not the proper use of rule sixty the motion and the rule sixty three motion in this case is the exact circumstance but that's not at all what happened here even if mr adams allegations of attorney abandonment were true which there is no evidence to support other than an unsworn allegation but even if they were he still had the opportunity to pursue  claim in this case he brought that claim and received a message from a nation albeit an adverse one but a marriage determination on the west on that claim therefore there are no extraordinary circumstances in this case and this court could affirm for that reason alone as well sell narcotics are controlled substances qualifying as attempted distribution under section forty one point two when they were acquired an intent to sell narcotics those sorts of found that it tempted distribution under section four b one point t requires two hours one an intent to distribute narcotics into a substantial step in the distribution of those are contacts those courts also found that the relevant state crimes preventing offers to sell narcotics also require crime requires those same two elements and intent to distribute and an offer to sell those narcotics because they match the federal definition of an attempted distribution this crime is a controlled substance offense and that is true regardless  sentencing guidelines the categorical approach in this case and in every case requires a strict comparison between the state statutory elements on one hand in this case california's offer to sell narcotics and on the other hand the federal definition in th you i think the government's just sort of made my point and really the the threshold issue in this case which is about jurisdiction and whether the district court's order the judgment that's under review was erroneous and it was the district court had jurisdiction to hearing complaints about the defect in a proceeding and so as my friends said if if th were about you know the difference between two complaints or that the can you know the government didn't provide the right charging document is different than the district court would have jurisdiction jurisdiction can't depend upon whether the alleged error is is actually an error or not the allegation itself you know its truth does not create jurisdiction the question is whether mr adams initiated an attack on the thief and a defect in the integrity of the state is proceeding and that's what his motion sat so the district court should have considered the motion that you know the second two issues that the government talks about we've only discussed them on appeal the district court never got to  to make the equitable findings and to look at these issues in the first instance thank you thank you anderson thanks to both counsel and the case will be taken under advisement and moved to the search this morning