my name is suzanne we elliott and i represent mr powell and this appeal from a denial of his twenty to fifty four for tyshan in the district court unlike the previous case this appeal involves i think a relatively straightforward two mr powell obviously in some issues had exceeded the washington state time bar in raising a collateral attack under the watch and state personal restraint petition procedure and six there were various opinions out there about the application of washington mixed additional as we decide in our brief in some cases the washington state supreme court except a preview of a personal issues mr powell having lost filed a motion for discretionary review in the washington state supreme court there was no answer by the pierce county prosecutor and at that time and silis punted fashion's the washington state supreme court decision but it couldn't be stated with the kind of authority that the attorney general now states in the next petition rule in addition i mean i went back and looked at the commissioner's ruling again last night that i heard right here so the statute cannot i think what he's trying to say is cannot be disregarded it on on the time part issues but he's fudging a little bit on the newly discovered i think the question would be which are the court systems ok at any rate my point here is that the that at the time that the that mr powell filed his petition them and they said well we're going to consider those claims that are not time barred and in fact it's a very draconian rule it doesn't really make much sense because in our state now if you have time barred time barred your entire position a petition is out of court unlike the federal courts through much more she remains in this regard you get no notice that you may strike those times our claims from your petition and go forward on the ones that are not time bar here mr stabb meyer in fact had his entire petition thrown out of court now he did go back and refile the non time barred coins which went up and resulted in yet another washington supreme court  established applied until well after nine hundred ninety six i would point out that in this case the commissioner also did not honor the magistrate and the district court judge also denied our claim on that basis by finding that mr that was decided between the time of the filing of my opening brief i mean between the time of the decision by the magistrate and the time of the phone of my opening brief so that forms a basis independent  they would all be considered by the court under a mix petition role i'm certain that my able counsel on the other side well this will argue that well you only get to talk about the non time barred claims now even under your analysis of the mixed additional a good cause exception would allow mr pal to argue all of the issues now so i will save whatever remaining time i have heard about  may please the court my name is john sampson assistant attorney general representing the respondent the district court in this case properly denied relief because mr pelz claims are barred based on an adequate state law the question of whether  lives is adequate to bar relief is whether it's clear consistently applied and well established rules that are found not to be adequate fall within two neural categories the first and those that are selectively applied to bar  certain litigants in the second that it's so unsubtle due to him big us or changing state authority and applying him to the bar this litigants claim would be unfair in this case the time bar is clearly on waivers as pain cited in the state's brief that the time bar is inadequate state bar and that ruling is binding on this panel in addition to the state time bar and its exceptions are clearly established because they set forth in a statute in the statute says that for a petition filed outside of the one year time limit to be considered by the cour in must apply to claims that are based soley on one more of the following grounds what we do know if the statute read by itself that seem clear but state court seems not to be implying th it did ok but only in two cases i'm going to do that now that's right your honor chen way versus pain this court said that the show rules inadequate you have to show that this court does not apply it in the vast majority of cases and isolated case or two is not sufficient how many cases will there be in a year how many petitions to the supremes i would say these are just hundreds if not thousands john you're dealing the district court clearly didn't apply that burden shifting analysis and for me at least it would make more sense to let the district court who has some knowledge i mean i guess we have knowledge of from from this eliot and refine a decision before we take it on that is not in your honor i don't believe it's necessary because i believe that even under the burden shifting rule the state has shown and they did not cite contrary cases there are no contrary cases published cases that say that a mixed with decision rule does not apply let me let me ask you this if what you were talking about facts rather than published means to the math and you lose a lot but if it's to the five thousand you know pretty well all i can say your honor is that on the state's brief page eighteen there are eleven published cases where the court has applied the time bar my own personal just because the statue means something else if the washington street corners behaving differently that's what's happening and so if the defendant comes in and the petitioner comes in and says listen i've got two cases the show that's how they read it and you come in with  they carry their burden well no your honor because i come in with washington supreme court published decision that says this is what the statute said so you come in with these decisions later it doesn't matter why just because  you know i would read the supreme court's case and saying this is what the statute is and this is what the law it is was always was that's the fiction of you know judicial decisions they usually are saying this is  in the second page first it talks about the court of appeals here in finding that the petition was not time barred based on a good cause you know that's the first sentence in the second paragraph i'm interested in the time and th all that that does go to the time bar and then in this in the second page on the second or in the first full paragraph court then talks about how certain claims are exempt and if they fall within the statute right but they have to decisions to the contrary if the state if the court wishes to remain and i can provide the district court the citations to cases where the court had applied in part unpublished decisions  he chose not to that's my understanding and i believe that petitioners counsel has indicated the same that he is now now now i believe he would be both time bardi and possibly bartender latches argument and there's another rule of law that applies to its success a petition in that that does have a good cause and that does have other exceptions that are in the time before but the looking of the time are long he could have filed a new petition that promptly yes your honor has to be due diligence and they have to pay it they have to pursue that they can't wait ten years and say well i discovered the day after trials discussed was a court has questions we would ask the court last three quick points first of this not just children published cases on page fourteen of my opening brief i find out that the washington state supreme court had rejected time barred claims and reached the merits of timely claims in rape then one thirty four watched second a sixty eight which was a death penalty case in state versus killing one thirty watch second five seventeen which was a multiple counts of rape case now i agree they didn't say boy there's a time bar out there and we're ignoring that what they did was they simply refused to consider those claims that were arguably time barred and went on to consider those that weren't so in practice whether it is the macro that is the time bar itself which i agree there are a number of published cases in washington about or the application of the mixed petition rule and up i did go through an annotate those cases on page eighteen of the governor of the states brief and i would submit that there was no washington state supreme court applying case applying the mix petition interpretation of the sixty first of all it's past the time that mr powell filed his petition and we know from wells that it has to be the rule in place at the time he filed this petition and then not of the expedition case and i could not find any case prior to nine strong as to then take any kind of interlock atory appeal instead they went back to the trial court and i threw this three week evidentiary hearing came back fully briefed the case again went on to the washington state supreme court after mr powell me that at the point in time that was important to this repel and exposition rule was not firmly established in regularly applied and literally no one viewed it that way would ask the court to reverse the district