our next case for this morning is anthony barnett against neil release and just another appeal in the indiana of course he would have liked out right released but what baffles me about this case is that you do seem to agree i'm thinking out the question that our court certified you seem to agree that even though it was the day after or the month there or for that matter the date for release that the district court possessed the power to extend the state time to go to the indiana court of appeals and ask that court to consider whether it would give him a new appeal we all understand this wasn't something the attorney general is going to do self and so it has that power so it has that power then it's hard to see why chief judge springman was abusing her discretion by thinking well let's ask the indiana court maybe might decide the evidence is stale maybe it might say you know we've had enough of mr barnett or maybe it would say yes but but she did exercise her discretion to allow the state that one last chance even though maybe it has been sloppy or whatever tha broadly speaking to give the state courts an opportunity to speak to this again understanding that the state courts will make their own decision about it and had the in and a court of appeals for any reason said no you know we don't want to accept the late appeal that he would have been released because that was the nature of the conditional writ but you agreed that the district judge did not exceed the authority that she had between a request that occurs before the river runs or who expires that's just an extension of time this is a rule we think we really think that this is the state request for more time after a look at the floor after the read has the condition of the riches expire but i understand that argument the problem with that argument in a word is gilmore you know in gilmore week said the equitable power of the district court includes the ability to grant state additional time beyond the period in the conditional writ and that's what she did i don't think gilmore said anything about much narrower than the limits before the road has arrived but i mean you could have made that argument there are a lot of things that if you do it any whether it's extending time for an appeal or whether it's other things it's easier to do while you're still inside the period specify the section sixty b that's a sixty b six well it really doesn't matter here anyway does it because one two and three and rule sixty are subject to the one year limitation for filing the motion that this all happened so fast clip and they know no one is anywhere in danger of blowing the one year no and that's actually interesting in the castro case  from the ninth circuit the lawyers actually waited a year after the writ had rung and we filed a motion to enforce the judgment first our work was opened the day the rip became forcible and i'm sure that if we had waited any question there has to be an extraordinary circumstance and this understanding doesn't equal that is that what you're saying we cite the case i don't remember which it is but the provisions of sixty b don't overlap record have been misunderstood we lose we don't we don't think the party should be misled by wrists we just think that on any of three levels from the language of the rid itself from the to give the bus state the opportunity to cure the constitutional violation i'd like to save my district court had discretion to grab the state the additional time to comply with the written this case but you know mr martin looking at this i find the state's position to be preposterous if the state had come in and said we blew it you know we let the one hundred twenty days go by we weren't keeping track of the calendar and so you know now we're throwing ourselves on the mercy of the district court to give us some extra time to go to the indiana court of appeals i would totally respected that that these things happen you have a big caseload the thought that any prisoner on the planet earth would rather go to the indiana court of appeals than be released outright after one hundred twenty days does not compute with me it can't possibly have been the prisoner's responsibility to go to the indiana court of appeals that wasn't the relief he wanted your honor and the mistake was mine in that respect that we did not file but you make this argument you're still making in this court ever thought you know that somebody else was going to do this i don't know whether you thought the tooth fairy was going to do it i mean it just seemed that you know it's just straight forward we blew the deadline that we would have elicited much more district court but in this situation it's not like for example in a capital case where the where the defendant has to be retried and you get a judgment from the district court the district court mr barnett was keeping track of his one hundred twenty days and he promptly goes into court and says apparently the state's not going to ask i would like to be free i think your honor that's if that's the circumstance that had me misunderstanding big because if i may explain it's the context of this case and the claim you know it isn't in this case is exactly like shar this case is exactly like shock came down this court's opinion was clear that the state courts would rule on the state issue of law that was relevant to the ineffective assistance of appellate coun search was denied and that was a long drawn out process as seeking sort usually is and at the end of that we went into court and we filed something very affirmative in that case where we actually because of the passage of time the concern about not complying with the writ we asked the court to actually open an appellate cause number something that really certainly the language of this judgment wouldn't put on the this petition are due he was not the stigma not going to elect to release him we didn't show us exactly the same issue so that's why i thought with him having the same counsel as mr shaw he knows what our position is on the issue and the fact that we would like the or grant him leave to file a new direct appeal so the state has a duty to release or take some action that will give him the new appeal there is no language in that sentence imposing a duty on mr barnett this is the language that's used in the mandate mine when a new trial is being granted not when a new appeal is being granted when when the happiest writ is granted conditionally but the state is given the option of either releasing the defendant or retrying him it is the executive branch of state government that is in the driver's seat they can either release him from custody or they can go back to the state trial court and ask for a new trial date and retry him this language should not be used when the issue is appellate ineffective assistance of counsel because it's not the executive branch of state government that quote unquote grants a new trial or a new appeal it's the judicial branch of government and somebody has to engage the machinery of the state court of appeals and that's how i understand judge spring wins decision in the motion for extension of time that was the ambiguity that she was seizing on it doesn't happen automatically the state court doesn't swing into action by itself somebody has to alert it that the defendant in this case has the right to a problem and henceforth there won't be just these truncated new appeals henceforth they're actually going to be either new trials or nothing and so it may be that we're looking at a very small universe of cases that that followed the pattern of this one but this one had been this problem had been solved before and if the state looked at that and said oh my gosh judge thing and given us an obligation that we the executive branch of the deanna government can't comply with you certainly could have filed a motion for clarification with their i have no reason to think she would've been happy to live fixed it whatever fix meant you're right roger and we don't abdicate our responsibility to make sure that these judgments of indicated we want to be very proactive about that and in this instance and in this is this is my fault personally i believe that mr off work having received the judgment and knowing the land from what happened in the shah case knew that we were not going to elect a retrial are we we're not going to elect to release his client and that we once had a dangerous assumption given the first half of the risk forty by judge spring really rolling the dice well your honor that that is the basis of the misunderstanding that is the basis of the state and we believe that the district court was reasonable an equitable and allowing us to correct it on the day after the one hundred twenty days that had run as the preceding finished by the way i understand it chugging along it's briefed in there there have been no oral arguments requested but it's been fully briefed since january so i would expect i think that it's probably likely that the court will issue the shaw in the barnett opinions simultaneously as they  basically address the same legal questions this on the basis taking yeah ok thanks curious that's if the court has no further questions we believe the district court was within its discretion and  honor i also want to address our fifty nine he motioned springman denial and that is that even when the state filed for the new appeal it failed to serve mr barnett it served me instead i did not represent mr barnett and state court the state never even moved to ask judge spring for more time so they could serve mr barnett personally and therefore he was deprived of his opportunity for instance to raise montgomery in the state courts before the indiana court of appeals issued its order starting a new appeal under the skin court's case and pfeiffer i believe