good morning my name is john lambert as i'm here on behalf of the petitioner appellant mr read and i would like to reserve about a minute if that would please the court the question presented in this case is is somewhat unique because now we have a situation or at least we hopefully we have a situation in which the petitioner gets to hold the state to a procedural deficiency essentially what has happened or what happened in the court below was a violation of the circuits law under beginning really i guess in the post tress cases with boyd and merkel and then continuing all the way through to the recent cases that i sent the twenty eight j letters to the court on morrison versus mahoney in shaker versus krog fleeting that followed that should be characterized as the state's next response or pleading and if that far i mean they filed a motion to dismiss but they were right that they were directed to file an answer and even though they called it a motion to dismiss it  essentially an answer because in that motion to dismiss they asserted all of their procedural defenses unfortunately not right well the they asserted the procedural defenses they wanted to assert they did not assert the coleman versus state has to push forward at the earliest opportunity i think that franklin speaks to that because it in particularly and i don't usually do this but i think that judge joe scanlon in his dissent pretty much sets forth what happened in franklin because he was he was concerned that the that the majority to reach the wrong decision but in it was the correct decision and and what judge of scanlan pointed out was that there are two types of procedural defaults one is the one thing garden variety where the state court the highest state court said you know we're not going to reach your constitutional claim because of addict because you didn't comply with the state procedural rule the other one is the petitioner gets to federal court within an  and can't go back to state court because there is no available state process under subsection i twenty to fifty four b one b i that's the anticipatory to fall and franklin says yes you can waive that litigated in state court and it was denied by the california supreme court then it was litigated in just record on the merits no procedural defense asserted until on appeal and on appeal the state for the first time said well wait a second this component of back to that issue said no this is not victory because even though we could have decided this claim and denied it on the merits under twenty two fifty four b three i believe this is an exhaustion case this is a default case this is about procedural default and i got to tell you i think franklin and certainly morrison and shaker and vang those other waiver cases those are the cases that say if the state had a chance and didn't present the default tough case closed we hear it on the merits and those k that line of cases control this is this isn't one of those cases like boy versus thompson where the district court without an appearance by the state an opportunity to do must have notice of the default and an opportunity to respond to the adequacy independence of the default and if there is cause and prejudice to overcome the fall now to me that's and that's the that's my fall back argument i think that the holding in this case should be they waived the default by not asserting how can that be squared with coleman i'm sorry notion that there's been there's a permanent waiver by the state are going to be squared with coleman well i the supreme court reaffirmed a long line of authority that they characterize as procedural default as a as an affirmative defense that can be waived and trust this post is post coleman and what instructs that is that they did not change that dynamic in other words procedural default is still a defense that can be waived notwithstanding the fact that exhaustion must be waived by expressed statement of counsel so procedural default so it was fine to the question the trust left open was when and under what circumstances can a federal court do that so quite frankly it's an open question with regard to the u s supreme court as to whether or not a federal court answer i think the court may have used the word response from not positive but it's generally the custom in practice and in civil proceedings and this is what morrison versus mahoney held is that you can file a motion to dismiss before you file your answer and the court held that a motion to dismiss is not a response of pleading and the state is not required to raise its procedural defenses until it files a response of pleading the state the state still has that was one of the requirements of why versus thompson basically there's three different things that the court has to consider one was the procedural default easily identifiable second the state implied state found them motion to dismiss based on the fact that they hadn't been an exhausted claim three had been exhausted so they filed a procedural default defense and that takes me into the third i guess i'll just touch first on the procedur procedural default or had not yet raised procedural default as to the to an exhausted claims but did raise procedural default to the exhausted claim the court heard that argument the same argument would be argued to ca be raised before the district court because that argument was raised there it's the same argument it doesn't make any sense to have it go back to the district court he's already had the argument that requirement of void is satisfied because he did have an n resources to go back to state court under coleman versus thompson and you can anticipate that that is going to happen and that's what he did he had already heard the procedure will be fall argument and raise that on his own just just in my minute and thirty seconds i want to take just a few seconds and at the risk of sounding a bit model on this was a sixteen year old boy who went to prison in one thousand nine hundred four and still has been in prison after having played guilty to first degree murder and our position was that was the one counseled get guilty plea in a bad guilty plea he's been in prison that long and he's had no review of these federal claims at all state or federal review now just to clarify a few things i can read and it was my oversight i should have put the clerk's record twenty five in the record i can represent to this court that when judge hagan entered the interim order denying the twenty to forty four d one motion he ordered and forty six a motion to dismiss and i quote is not a pleading unless a court has ordered otherwise separate motions to dismiss may be filed may file this may be filed asserting different affirmative defenses i believe this is one of those situations where a court has ordered ball of wax well it's not because one thing that one thing that was the the only thing that was argued with respect to ground three which was a review versus a florist or take a claim that my lawyer didn't file a notice of appeal was cost and prejudice one thing that we would argue with regard to the adequacy of the default for grounds one and two is that that the imposition of that default under these circumstances under nevada law was a new rule this was not a rule that was that was that had been imposed until it was imposed on m court with that pardon me the district court and state court both dealt with the argument that dismissal with prejudice somehow but not in the context not in the context and again this is here we are not in the context of adequacy it was in the context of whether or not mr reid had any fair stay processed available to him under subsection i i i this is an adequate the argument that i would be making but in any event i should win this thing because they waive the default ok thank you you counsel both of you that are just argued and will be submitted