i'd like to focus on two aspects of the briefs in the ten minutes that i have with the court the first one as to whether or not they just fall rule that was employed to preclude the review of over twenty of mr collins as claim fact in place and applied to mr collins the state post conviction action specifically on r s thirty four seven two six one no that is timeliness rule that rule did not take effect until january first hundred three mr collins the state post conviction action was pending prior to that time under nevada law and i think the nevada supreme court made and made an effort to try to clarify what was going on with regard and talked about the fact that that statute was in place until january first one thousand nine hundred three so that statute was definitely in place when mr collins filed his motion for extension of time in which to file the state post conviction really faction that was action attacking the validity of the judgment and sentence in state court is a continuation of the same or original criminal case so when mr collins as lawyer has  data state law which then of aspirin court pointed out to her there was a lot of there was a lot of animosity between mr collins as he and his appellate attorney she certainly to her credit the one thing that she did do i think that that help appeal from conviction and within the one year period she moved well within the one year period obviously since the clock doesn't start until the day of the direct appeal is final she filed a motion with the trial judge saying i want out of this case and he needs a lawyer because he has a lot of the issues that need collateral development now it medically nevada law does not does not mandate the automatic appointment of counsel in post conviction but it is discretionary and there has to be some exercised her discretion on one occasion his appellate attorney ms mcmahon who made representations on the record that she had in fact delivered the liver his file that in fact were his file i submit that there is a good chance that representation was untrue and more importantly it was the new it was a violation of nevada law for the nevada state trial judge to hear evidence without mr collins being present and this was the most critical evidence that i'm talking about the hearing that occurred  mr collins no doubt would have rebut of that by by submitting contrary evidence and then we would have had a genuine question of fact mr lambert was one of the problems i'm having with following your argument is that it seems that the trial court have been clearly in place at the time and we've sold in the area so it was not in it was not in place at the time that that his state post convict what do we do with the statement by the nevada supreme court that thirty four seven hundred six controls the case you're telling us that was a mistake yes it's no different cook case i'm talking about is ninety six to thirty eleven twenty six at eleven thirty where were the california supreme court interposed a default that was that the in require california supreme court case that was not in place at the time th petitioner if you look at the excerpts of record pages two eighty nine and two ninety the state argued in response or mr collins is pro se briefing that he was completely wrong one seventy seven didn't apply thirty four applies and thirty fourth much more onerous standard applies to if you look at it and believe me i lived through this as i was on this haiti as committee in the early ninety's in a vat of that tried to streamline this one if there's one thing in my humble opinion that everybody assumed and that was any court didn't get a chance and i don't think it's the best cream courts fault completely in this thing because nobody really gave this wasn't very well litigated not just quite frankly with all respect to the court i think they just rubber stamped it the controlling how do we know that they didn't rule against you on that point because it was never litigated because this recall is never got it then that's another part that's another aspect of my argument mr collins never got a chance that he was entitled to under state law and federal due process considerations he was entitled to make a good cause showing he never got a chance because when he went when he finally filed a state petition there was an opposition filed and he never got a chance to do a reply and if you have a chance to do that reply i would have if i had been representing him i would have made the state court do two things allow him to litigate good cause and decide which statute applied and resolve the motion for extension of time that he filed remember he's court he's sitting in a prison cell and easily and this is all happening here in lost in downtown las vegas four hundred miles away it's just not there and now you know that's the grab a minimum of my argument with regard to whether thirty four if it applied was even applied properly he didn't violate thirty four even if it did apply let me ask you two questions did anybody ever go back to the nevada supreme court and the equivalent of a writ of erik or impose this or something something like that of the state court and say look you you you people made a mistake you know we have not really is there any reason why you did not well i didn't because i was appointed by this court to do the briefing here and i have and quite frankly i think i can win in front of this court obviously hike can't then that may be a remedy that may or or eleven twenty six predicated on ford versus georgia who was on that panel you know i have the case you want to check that judge what does wells versus mass hold well cited twice and you don't really explain it you say thirty four point seven rule is if the rule is not in place if the default rule doesn't apply then you haven't broken it and that wells and being come from ford versus georgia ford versus georgia was a case out of georgia where the georgia supreme court consistently applied and if this court is not inclined to find in my favor with regard to my ford versus george argument i think at the very least the court should remain this back down for you know first and first more development with regard to the legal implications of what happened in this case and the facts whether or not whether or not the rule was consistently applied and give me a chance to make that showing and and and give the state of  nevada the state of nevada what is their burden and their burden is to show that the rule is consistently applied and underhill they never did that in fact our court imposed the wrong rule the lower court thought it was mr collins as burton and with all due respect to the it said to ninety eight feds third seven ninety six seven ninety nine it was remained it back down the hill case was remanded back down for a full and complete hearing on whether or not the disk rule that was employed was consistently appl so i just read that memo again and i saw no reference to that issue at all the judge reads decisions right curious as to lindsey she was raised judge read usually answers nice like that if if one of the lead arguments going to statute doesn't apply just think you didn't i think if you look at his response responding points from the thirty's his opposition to the motion to dismiss the pages to twenty two forty seven in my answer and his reply points and authorities and pages t a point that seven thirty four seven two six one does not even apply to his petition again i'm hoping that's correct but i have a note to myself in my outline that that that's where he makes the are you don't have that though in the excerpts  anything i was thinking from a flower into an orchard and a garden but i'll take but flower i don't make that argument and and quite frankly i don't have to make that respond to that you didn't even respond to the argument that it doesn't apply what you've got if you just tell me you didn't raise that argument you're opening brief because i don't because i don't i didn't in my opinion your honor and again i apologize if i should have and and quite frankly i would certainly raise it now it's not necessary to make that argument under under this going to the united states supreme court precedent starting in coleman and certainly becoming more clear in florida versus georgia this is really no different than being mr bean didn't have to get down into the weeds to talk about why the two rules are different what he said and what he was able to prevail upon and what this court what i hope should be bound by is the rule was not  an opportunity to respond thank you very much seven hundred seven ten sack this is the petition that thirty four seven twenty six was applied to by the state courts that's got a file stamp date of september it looks like september twenty ninth of one nine hundred ninety fo federal courts the cause and prejudice that was argued both in the state court at station and in the federal courts was that my attorney would not turn over the file elizabeth mcmahon was slow in turning it was never explained why you needed the records secondly was never explained why the petitioner didn't go to an outside source like the county clerk or the court or the district attorney or anybody else who would have had copies of these records and you know where here because my understanding from the record is that it never existed and this petitioner never filed a motion to the trial court for the court's or provide him a copy of his records or for the court clerk to do so i have had to public expense never district court he promised the court he would file his petition within sixty days of getting a record and instead of following through on his own promise which would have been sixty days after march  court petition so he certainly had the record to file something in federal court he should have filed that petition in state court he knew about the statute of limitations because he was filing these motions to continue he knew that he had to anything about what was available to the petitioner think up back there we didn't make any promises as i recollect i don't have what documents from what did you say my recollection of the record as we told him he had to go back and raise his claims in the courts if you represent the claims would be addressed on the merits i am not aware that we did know if we did that would have been a mistake on our most you seem awfully well prepared and all the sudden you don't seem to remember anything is there some reason for your all the sudden failure of recollection a reason for my failure of recollection your honor is that's not a representation i have been doing hades for about ten years i have never made that recommendation my recollection have that in front of me right at the moment i did not review it last night the argument that we generally raise is you have under rosebery law on the you have to go back i feel like this is sort of a moving target here i mean i feel like we're talking that a different case not had a lawyer since then he's asked for a lawyer but he's been turned down every time until this court appointed me that's just not fair and it would have been a lot cleaner if we'd been able to litigate this below a little better but with regard to the judicial  on that because even though they talk about anticipatory default peripherally the a g did in collins once they wanted a dismissal without prejudice because they took the position that he had remedies in state court that he you know th tends to honeywell versus san francisco housing authority