issue said straight out that he was not going to allow mr marshall to represent himself because he didn't have the training and skills of a lawyer so that's why it was denied i top of that he said that this is there something that that to your knowledge that they could not do that in this case i believe they could not do that in this case yes you know what case and what case do you have that  but there is a legally admissible reason and we're going to affirm what my for all is here is i don't think the court of appeal could do what it did here which is say first we're going to ignore the fact that the trial judge who heard the motion have a specific case your honor but i do have the supreme court cases and what i'd like to say that on the face surfaces has identified this problem in hamilton and specifically held that it's appropriate for a state court of appeals to affirm on a different reason do you have a specific case that on this specific issue that would be different from hamilton i think i do i think i do your honor i think every single ninth circuit case that discusses the bright line rule  just that you're going to the merits now rather than where whether the court of appeal can affirm on a different basis so let's go to that the timeliness issue is what the court of appeals decided and your position is that our bright line rule should apply but this is a this is a post a e d p a case and why would the why would the state be bound in its ever meant to do that i wonder why in mccaskill when he made his friend in motion one day before the second trial which is very similar to here why they didn't bring that up they seem to assume that that was fine and go dina's go dina's made his reading motion on the day he pled so i think it's contrary to supreme court law but even if it's not contrary to supreme court law i think  his supreme court and i just little issues ok that's fair and that's why i think we move to circuit law which is under williams versus taylor we have to look to our own circuit about how to apply the test and  opinion and i hope in the court's opinion is an unreasonable application of the test because there is absolutely no reason for its finding of untimely n'est or purposeful the lake here he  continuance if you bring in a new lawyer the lawyer is going to ask for a continuance and i think the judge is right when he talks about that but the second one doesn't require a continuance and the judge doesn't even ask about it if you want interpretation of california law so if you're asking for a continuance you're not going to get it but if you're ready to go forward now i guess i'm going to give it to you and that is what is often done and it wasn't done here and it wasn't done because it isn't clear to me  the judge even understood from rather some of the things that he says suggests that the trial judge who sees the defendant knows the factors doesn't even understand think you mentioned the vandalism case and look at it again there the reason that that petitioner prevailed in this court was that the state court did not decide the case on the basis of timeli yes they were looking at the trial court and did not mention a court of appeal here we have a court of appeal specifically resting a decision on time and so does van limb help you at all on arguing that we can't look at the  appeal decision you know there isn't now what i'm saying is when the ninth circuit was asked to step in and find new reasons that have nothing to do with what happened in state court and i circuit was reluctant to do that when i said we review state court decisions and viewers here we have a state court decision that says timeliness specifically says timeliness and you were mentioning vanderlyn as a way to walk around that state court decision i'm suggesting damelin doesn't do it ok if you if you don't like them and if the court doesn't like appellate panel stepping in and writing an opinion that doesn't reflect what actually happened in the court doesn't address what actually happened in the trial court and bringing up a new issue that the petitioner had absolutely no chance to address representation must be listed within a reasonably timely manner is not a contrary to nor an unreasonable application this court in more has recognized the timeliness requirement for russia and in that case stated that the timeline is definitely a component of the ruling bill are you asking if you asked us to look at our president we also require a finding that it was made for purposes of delay and that wasn't found made weeks before trial absolutely your honor so it doesn't really approach the day of trial analysis correct the denture hearing he places his date of dissatisfaction around december fifteenth he makes several appearances before the court he's in the court on january twel january twenty sixth on january twenty seventh it appears that there were two separate appearances in two different courts january twenty eighth the cases transferred to the trial and his attorney is ready to go  trial judge said i don't blame you for that injury so he didn't think mr marshall was faking he was in the hospital sick bait house will confirm that with scares me most though is how fred emotions work they always come really you know as a public defender i feel i feel every time a client makes a threat a motion but it always comes late because all of the important decisions are made as trial approaches so many times late for that reason because that's when the lawyer