incident to a judgment or sentence that occurred within a couple of months of the entry of the amended judgment conviction in may of ninety seven that action was then pending until the nevada supreme court demotion yes not the merits of the underlying appeal there was not an appeal there was not a timely appeal taken from that from underlying judgment of conviction petition for post conviction relief within one year of the issuance of the remitted or challenging sentence the motion to correct we argued below in the district court that that was not a violation of nevada law because quite frankly there was no clearly there was no clear unambiguous nevada rule either statutory or case law made that prevented that plan of attack if you will with that prevented that particular course of action  occurred after the change of the law the maximum exposure he would have had was two to fifteen years instead he was looking at tantalized and what mr call your did improper person was to try to seek some kind of relief from that change in statute by just correcting  so he filed the motion to correct waiting until that was resolved if and ultimately when that was resolved against mr collier he then pursued his only other remedy which was state post conviction so really appeal on my behalf and there was indeed an actual conflict of interest because of that as this court is where from the briefing on the nevada supreme court mr guard was present from the time that he was sentenced until the this court's decision in bennett versus miller discusses adequacy can be challenged in many ways the adequacy in this case was challenged based on the fact that there was no clear rule there was no clear rule unambiguous rule that said that mr collier could not pursue his stay post conviction and stay post sentencing remedies in the way in which he he pursued does and judge read the court below acknowledge that  fact when he granted the certificate of appeal ability and we excerpted that particular order in our excerpts of record for the court's edification that's at page four sixty two where judge reid did say you know to paraphrase start your clock over again and have and if the end and at the time you say you file your appeal four years too late and we say no it's untimely and remitted or issues on that decision we're not going to construe that untimely talking about today and that is essentially for lack of a better way of putting it the way we characterize it in the court below in the way we characterize it in this corps that the motion to correct essentially stops the clock stops the seven to six clock because it is the motion to correct the illegal illegal sentence issue on the merits they essentially acknowledge the amanda judgment of conviction as being the last judgment of conviction in time ok i'm now mr call your did right he complied with nevada law for the first time and again it was a technical compliance but believe me after twenty years of federal maybe this litigation technicalities are not a stranger to our practice it was a technical compliance because he had put into the judgment of conviction i for no fewer than four reasons the first reason that it fails it's assuming a fact that has not been presented or proved in evidence and that fact is that mr collier somehow or another was relying on th of ambiguity that has been discovered by the federal public defender's office that fails because the statute in question dealing with nevada's procedural bar makes no mention of a motion for a correction of it legal sense the statute is very clear on its face what we're talking about an appeal from it would be kind of like well let's see if i didn't if i can create some sort of an ambiguity does that somehow or another illegal stanton's is kind of the final judgment no it is not right under under nevada law the final judgment is the judgment of conviction there is an order there would be in order to naing a motion to correct  sentence which is separately appealed more from a judgment of conviction that's what's provided for under nevada law that was the point that i was just making the fourth actually i just made the fourth point why are just mentioned the fourth p what apart from the failure of proof the factual assumption that underlies this whole thing is that mr collier somehow was actually in fact in his mind saying i can do it this way and see whether or not the procedural bars consistently apply but this court does not have the power nor the authority to go and say well the nevada supreme court messed up in its application and therefore we're entitled to some sort of ended up with the benefit of a major bargain in this case he had to trafficking cases lined up against them and a possession case the possession case was  was part of the negotiations dismissed as part of the negotiations as was the third level the other third level trafficking he got the benefit of his negotiations now it just amazes me that somebody would say well i've got my client i got you know he's pleading guilty to one case but there is another case where you know there is potential huge enhanced penalties there's a third case where he's got potential be expect a lawyer to appeal that doesn't change the fact that mr collier's conduct is governed by the statute that was in existence at the time he committed this crime whether or not whether or not they subsequently lassen the penalties for it is absolutely irrelevant to any consideration in this case found so that only be true and your analysis may be correct but we didn't know that until one appeals and finds out and he did it by moving to correct the sentence the sentence is still facially valid i am not aware of any authority anywhere your honor that says that a subsequent change in the criminal law somehow or another has retroactive to raise that particular feelable issue but that's not even alleged in this instance that's not even a wedge here well i think it's gets back to your comment that there was no basis on which no reason for appeal that's where we started this discourse ok well there's certainly no basis undergrad a law i may be i said i am not aware of any law i've been don't pretend to be an expert on the federal sentencing guidelines wouldn't advise you to even try to be that i all criminal counsel to tell your client you got a right to appeal i advise you not to for x x and y reasons and here's the timeline and you know i mean that's i think that's pretty a couple of points from my main conclusion if i respectfully disagree that you always have to advise your client when i get it well that's relevant but the point yes is what nexus does that have to his failure to comply with an arrest thirty four seven twenty six quick points in answer to judge fletcher's first question regarding the amended judgment i take issue with mr whelan's position i think once an amended judgment of that is entered that's the final decision in that particular case the amended judgments of the excerpts of page one eighty one with regard to the cause and prejudiced which i never got a chance to get into and i'm glad that mr wieland talked about a little bit one thing i'd like this court remember is that the lawyer that was advising mr not advising mr collier with regard to  after mr mcconnell had been sentenced some i think nine months before mr collier was charged by information that was  term of probation that mr mcconnell would continue to cooperate and give information otherwise the probation would be revoked and he would be put back and put in prison  during that time is through a professional obligation and as of now to rules of national conduct for public defenders to continue to assist people who are on probation well first of all and i don't know the exact  it sentencing and not say one word other than we agreed the forty five years now what nature mr mitchell should have done was he should have withdrawn he should have watched it all because he was at that point he was trying to serve t representation of someone with knowledge of the crime of the person who you're representing them that regardless whether there's contemporaneous representation but you understand that rightly but if there's been prior representation you want to put your i certainly are bound to represent a current clients zealously you're also honor bound to disclose as to a current client or a former client any representation that may affect their case and once you get that close to the fire and believe me mr mitchell was you needed you needed a heat reading a heat seeking missile suit to just to stay away from this one you have to withdraw you have to withdraw the conflict out and not say anything about either case to anybody else that