story of what happened when he described a drunken parking lot brawl in which several people were fighting with him and the plea agreement in this case or the canvassed by the state court judge been adequate in any respect with regard to either a factual basis for the plea for an explanation of the elements of the crime and had the same description of the events been given our has brought us to an issue which i don't think has been decided by this circuit and that has to do with an added supreme court bryant rule and yet has brought us to the situation in which district court committed prejudicial error in expecting defendants guilty plea in as much as the plea was not knowingly entered thirty or ninety four stains thing knowing the entry of a plea must include evidence of an understanding of the nature of the charge district court commit prejudicial error when accepted that gent it has been his guilty plea and yet we're standing here today arguing to the court that the district court the federal district court below found it that issue was not argument that there had not been sufficient discretion of the elements of the crime is that right well that is correct again as much as you can tell what the issue might be in the fast track statement and that you know that's the problem is you've got a six point of no coincidence because what he's trying to straight to the merits to determine whether or not there is an error to determine whether the exceptions to the bryant rule apply the cases which are cited by the state are you know opposite to that to the to the rule which is present in  which the state now has the burden of proof first the in bryant rule is not a legislative rule the case decided by the state are cases in which there is present in california  arizona in which there is the rule to be to princeton saying arizona in which there is an adoption by the legislature it says we don't want you to appeal this way we do not want you to raise  gone i think it's because of the clarity of the rule in the mandatory nature of the rule and when you've got a judge made rule exactly what happened in nevada is what then leads you into the area that not being uniformly nevada says it says you can't take an appeal from a guilty plea it is only the nevada supreme court which says that on occasion we may say that you cannot have a review of this issue i think again this case is the most important case on this point because the court went straight to the record of the colloquy to determine whether or not it was voluntary so we know that the nevada supreme court will do that and we i think that that's where the district court in this case erred at the supreme court and if you and what the state says and we agree with that is that is that you should you get to that point if you find if we didn't file follow the preferred method and the fisher is barred then you must apply the rules for procedural default things survive we know nothing survives that you can litigate anymore in the state court what more do we need to know the issue procedure to follow was presented to the district court judge the district court judge did not rule on that issue the district court judge think that was raised with the district court judge that there is no question that the application of the bryant rule at this point cannot survive that analysis and that is why the state is what does not want to address that in their answering brief is alive and well you have problems if the if the court says it is not then maybe you maybe it can conclude you fairly presented it but that's garden variety stuff that has nothing to do with  exhaustion we know the one thing we know for sure here is there is no place left for you in the state courts that's corrections now what can be more exhausted present to the district court he could present the claim that's currently on exhaust and i don't like what they are with what think i'm sorry with what think he can present a claim to the nevada supreme with all due respect i think the court might be operating under a misapprehension of our law so long as he can show cause and prejudice for his failure to file this claim in a timely petition the petition can be heard by the state courts so he does have the state court for him he's got a high burden to meet because he didn't present this properly in the direct appeal in violation of the bright rule he failed to present it in his proper is petition which i would point out was filed less than two weeks after remitted or from the direct appeal decision was no problem here with access to the nevada state courts was filed in a matter of days and i think that claim was dealt with on the merits by the state courts if i could go back just for a second we're all operating under a misapprehension that was caused i think when the opening brief was filed in this case i was the attorney for the state who filed the motion to dismiss i never argued and i never have argued for procedural default this claim is not procedurally defaulted i simply fall well the standard motion to dismiss fairly boilerplate stuff that were i argued both claims were exhausted judge hagen found that the second claim although poorly played in the state court in the process petition although clearly pled improper person was in fact close enough we'll call well i think the laws probably have been clarified because that's been kind of an evolving issue with how much the court how much the district court has to advise a proper person and petitioner that this petition was not operating and proper person had an experience j b s attorney from the federal public defender entire effort by the federal public defender's office has been somehow to recast this issue as a default issue the court never ruled that there was a defaulted claim i never claimed it was default when the issue of and you would say the state court had decided that what i'm asking you is are you saying that the federal court can never decide in the first instance that any plane has procedurally defaulted obvious on the record the nevada federal courts do not do that because of the exceptions to our abuse of the statute in our time in statute they prefer to get a ruling from the state courts on whether or not there's an absolute bar right now i can't predict whether or not there is or not there's a bar or not because there is a because of the exception under the under statute well if i get the petitioners  second claim in the petition was actually filed in the post conviction detention in state court well right but anyway the issue that he seeks to get at he claims to have exhausted on direct me yes and you're saying in effect he'll never get a federal court on that because this is the mix of the commission he's got to go back to the state court maybe he can get in there on their cause and prejudice rule and even if he does this approach will statute has run so that is beyond the reach of the federal courts in the posture of this case i think other junk in the walker that's an appropriate analysis yes and he cannot even continue and before the federal court that all of the issues that he seeks to raise in connection with infirmity were presented fairly to the sort of pretty important about it in the first instance he has no forum in which he can say that he had that that's that's what happened below in this case that was the form we had yeah but here and if ago but it did so in the name of saying that the petition was mixed rather than to go to the merits of it that's correct that's correct and he'll never get to the merits court rules that it will not consider the merits of the federal claim because the petitioner failed to properly follow the correct state law procedure in preserving or presenting a claim and the claim is far from the merits review in the state courts that is where we are and i think the state