trying to assert any relationship to that claim for at all and i think your question should be wanting me to address the relation back yes i'd just like to know with any if you're because my understand is you're not trying to link the am persuaded by your argument myself we don't confer before him and so i speak only for myself i'm persuaded by your argument that the judge should have sustain the objection to the testimony about rumors that had been heard  mean by the material first but this is your chance to address what's on my mind ok looking to the point of the jury's deliberations they had to credit the three accusers in order to convict but no physical evidence no admissions there was no that is not true man down there virtually all of the testimony is set forth in the state's read brief it's also set forth at eight twelve eight fourteen of the of the record it's only two pages that are the prosecutors questioning the actually i don't remember exactly that the questions deal remember then the prosecutor goes on she asks what did you hear a rumor yes i did where did you hear it i heard it around the neighborhood who else might have heard it other kids adult accusations to the time of the trial it is true that on redirect the defense attorney then asked did you hear about it prior to the arrest that was my point but i don't believe that diminishes the harm from the  prosecutor's questioning and the due process violation and i think you can really see that being heightened by mr dykes his application to the court to reopen before the case ever goes to the jury in order to call this witness to bring out th supposedly involved with mr dykes a rumor that was conceded to be faults but it is not tied in the testimony or evidence from next testimony that it was the same rumor and that is why your other point because i'm thinking about trying to keep my question in mind let me move move on relation back and corral start with the hubbard case in that opinion for trial judge reinhardt writes an opinion which there's a long paragraph that deal makes that specific point that there was nothing to a man because the case was dismissed you have to revive the case first thing that is a first and a critical distinction and second critical point about it is that paragraph in very clear this arises because in ninety six we have a d p a and a one year statute of limitations is inserted into the federal hate us but when hunger is an act that limitations period they maintained twenty two forty two which state rule of just easterbrook from the seventh circuit in the as the opinion which i've also cited which is if the petition is properly filed and then amendment back relates regardless of what the new claim is because it is the same occurrence or transaction the controlling both because it's a case about revising rather than really amending because it totally turns over this court's opinion martel and all of the other cases in the civil context and what that seems to be amendment means but a front end when you're looking at whether that amendment should be allowed that is not the way civil practitioners but i've spoken to say the civil practice works and it should be the same rule i would point out something very interesting the judge ea urged by the state to be applied here and i don't mean as intended by judge reinhart is completely inconsistent with the circuits president in march telling the other cases that i've cited in my reply brief on amendment under the civil rules in terms of harmonizing for hubbard with what it is the court did the district court here its rule which as i noted laid out at twelve ninety three states that you can amend they will relate back if the issue was fairly presented on the state court record that's already in front of the court looking at the opinion and i know with certainty that it is there i'm just not i don't really want to consume the balance of my time addressing that bring it up on revival i shall do that i wan i mean hearken back to what i think is the core injustice and just kind of you know to me it's simply wrong to have room or be a part of a criminal trial in particular here it's all the worse because it's a rumor that is false but the record does not link that to what the jury knew to be false and it's devastating in a case where the credibility of the accusers is the issue for the jury to determine where multiple witnesses from the commu less a community witch hunt that there's a press release issued by the portland police trying to get information about kids who had contact dozens if not more children who have had lots of contact come forward and numerous of them are witnesses trial so you've got various witnesses who say there's going to it's like facts apartment in there wasn't any sex going on and including witnesses who are both interviewed and testify that they were there overnight sleeping in the same small room when these events would have occurred and they didn't notice or know anything very good testimony the jury didn't hear that testimony but they also heard the rumor that out in the community in england before any of these accusations arose there deliberations because they had their job let's look at the credibility mean that's really what they had to do to decide the case the credibility was impeached in the numerous ways beyond the impeachment evidence there was you know their demeanor the jury saw and and that and the possibility of it which is undercut by the fact that it should have been observed by other people who were in the room and there's this piece of but wait there's this rumor out there and he heard that before these accusations surfaced it must you know that that can be a corroboration and there isn't a lot of other collaboration there there's no physical evidence there's no admissions so i believe there is great doubt in the circumstances and i think it's really with respect to the due process claim it is important to understand the nature of abraham next testimony that's at issue it is true the defense called abraham neck as a witness and he it's true and it is exactly but poor thing that the hearsay rule and the confrontation clause were designed to prevent instead of instead of the man being fried on the basis of the testimony the accusers that he can face he's tried on the basis of everybody knows it is well known there are rumors everybody knows i couldn't believe it was a prosecutor doing putting that in and how can it possibly be anything other than ever if you just decide if it's pervasive i as your honor i'm i'm sure is aware i did not attempt to argue in the red brief that the testimony was on there wasn't any sex one of the boys plainly has little little force as the witness because you're losing it so it looks like a case that could go either way all the defense needs is reasonable dou as to deny due process or put it another way why shouldn't we have a grave doubt about the conviction in light of the nature of the evidence and the nature of the   he had spread a rumor that he saw two of the victims not in the cave and sean cranston tied together naked at petitioner's apartment he already in the record that there was a rumor circulating and that the rumor was circulating before the allegations were made why does that help it seems to me that the jury could titioner did not of to the defense did not object the defense theory was that these children were spreading rumors about petitioner because they were mad at him and they were making up lies so to a large extent testimony that rumors were spreading around was completely consistent with petitioners defense theory in this case it was only the details that the rumor was spread but for the victims went to the school counselors and to the police and disclosed that petitioner claims makes this prejudicial because if it's fiction or were correct and these victims had lied one would expect rumors to be flying everywhere and that is completely consistent with his theory of what happened along that line with respect to the only signal on yes if the charges were correct if the defendant is guilty then you would expect the rumors to be flying everywhere and that's exactly what happened so the rumors are used to prove the truth of the charges i'm sorry petitioner i'm i think we're crossing  corroboration for the charges in the jury's mind it looks like petitioner tried to argue that rumors i don't recall the exact nature of petitioners closing argument with respect to the rumors but  theory was that these children were making up lies rumors that circulate after they have disclosed to counsellors and to the police don't really tend to support the prosecution theory any more than the defense theory if it's teachers theory was these children were out to get him one would expect them to circulate rumors as strongly as possible they did it because i didn't like can i get the chronology then you say the defen she said well didn't you ask to tell the detective that or something along those lines and he didn't remember so then she asked a more general question did you hear a rumor and he said yes and he said he didn't remember who he heard it from and as the district court found in this case it's clear from the context when you read all that together that the jury would have inferred that that was the same room or i don't see it it looks to me as though first of all it is not mind that he picked this up from bruce saying he heard around the neighborhood second when i look at it through it really isn't the way the prosecutor relisted at the testimony he really didn't give the defendant something to object  that he made it up and that it was a lie and that it was before the charges had occurred and then the prosecutor confirms that he made it up and then the prosecutor leaves it so that's now dropped in there and nothing objectionable it was just them a pebble tossed in the pond to be used later then with mick what the prosecutor has brought out here is that there's a rumor around the neighborhood and it isn't just me that it did this to ever get not pervade the crown and now you're saying it did i think there was another witness to testify to the run around and it was i want to make sure that i am candid with the court about the evidence that is on the record on another child d and again that that helps explain why abraham might have characterized this as being around the neighborhood she always testimony that was that he and abraham and perhaps other children were also there when bobby told them this story again another point i need to make about this whole issue of the testimony i firmly believe the only way this could be prejudicial is if the rumor spread before the children made these allegations be to because after they made the allegations everyone started talking about everything fine excuse me that's going to be pretty fine style so i would direct the court to those arguments also i would point out that not only did the testimony from abraham nicholas affecting the timing of the rumor come out only time period on that whether it was previous to be my being picked up or afterward and given that petitioners argument is that the prejudice in this case resulted primarily from the timing of the rumor that it was spread before he was arrested and before all these allegations became public around the neighborhood the fact that he himself asked his lawyer to at directed his lawyer to ask that question deprives them of any ability to say that the state has complaint may just alleged negligence and then the amended completely allege altogether different very strict liability of all kinds of other stuff that's quite distinct from negligence it all relates back claimant couldn't in a later complaint allege that at the same time he was in the store he made a purchase and there was some breach of contract or there was a warranty claim some products liability claim had made in the store at the same time even though with one word to use the word transaction or occurrence as in its broadest possible sense you could argue that well it all happened at the same time and i think that's what's going on here should have objected to let's go with claim for that was their counsel failed to jack to the introduction of prejudicing evidence certainly in an amended petition that claim could be fleshed out we could learn which relationship between the due process claim regarding abraham mix testimony and any of the claims that was alleged in the original petition there was only one due process claim in the original petition it related to the alleged alteration of trial transcripts and there were three inadequate assistance claims but of course and those were not developed they never put the state on notice with regard to any comes up with these somewhat silly theories or why the trial is constitutionally defective and then subsequently his lawyer we finds them but it's the same case the same trial that he's claiming constitutionally defective why isn't that like why isn't the trial the slip and fall because that would undermine the purpose of a one year statute of limitations on allow i know i'm not sure that it was the purpose of a statute of limitations haiti as cases are permitted always to amend their petitions to add claims that have no relationship to those in their initial press a petition beyond arising out of the same  thank you thank you counsel thank you that present those other issues for the very first time are first filed in the state trial courts on september twenty ninth of ninety seven and october twenty fourth and ninety seven that is why those claims were find the answer to my question well i can't yes and there's two sections the opinion that need to be read in addition to putting out nine of the opinion and the later portion of i believe it's four d where he addresses relation back the california proceedings in which the second class of claims are presented for the very first time because in the fourth opinion there was really and three classes of claims those that are exhausted