and if we particularly if we have any questions i think you will ask it so you may take the podium in any way call the case and we are going to hear the case and will recognize counsel has declined  argument considerably and i'm going to mention three things i believe this court would like me to analyze the effect of maples versus stiegel in the facts of this case i would like to remind the court and i will not argue it but i did proposition but i think your honor is mentioning is that a mere proffer of an excuse it is not enough and i'm not familiar with the facts of henderson but in this case the  proffer of an excuse that maybe it was somebody in the prison that interfered with the mail is not sufficient and we don't we have facts to support it not a proposition that happened no you don't that's exactly the point appellate relies upon a so called infamous reputation in the prison but who knows what happened this is the this pleading if it even exists was filed just before thanksgiving with the did anything to interfere with this mail the postal service could have just been just as likely to have somehow delayed the mail at this time of year as anything else and the apparent wait had one hundred eighty days to file this pleading he waits until apparently so he says the last few days to do so and relying on the mail is not the proffer of an excuse that this court should should recognize i'm a little i'm struggling with that a little bit we look back at foster's my goings in the case in general and revealing the date stamps on those documents the shortest time between his submission to the prison and filing at the court appears to have been fixed it's the shortest time for all his money his mailings apparently were two motions that were recognized in the docket of the state court as being found on december seventh that's all that evidence indicates is that he mailed two items whatever they were and it's just as possible that he mailed most as anything else there were others and i might add to that if i mean you're right but there's no time stamped or date stamped in case which henderson gave his filings to the prison officials five days before the deadline had arrived one day like this is the i think two thousand this is a six circuit case but unlike in michael's henderson did not allege any specific conduct by the prison officials and that they demonstrated that they had done something incorrect or you know said call me back into diet and i'll give you the price of my lung nothing was that and what the court what we saw was that once the papers are given to the prison it's added the prisoners control and it's that's the distinction it's not like the other case where the attorney had his papers and were fused to drive them over because the postal people promptly didn't have to use the shorter case that yes it is i mean doesn't that undercut your argument i mean isn't that what we have a up isn't that what this case is isn't it exactly henderson i argue that it should not be my argument your honor is that we don't know is the mere proffer of an excuse i don't mean to repeat the argument over again but this comes up in a different factual pattern considering the time that it was mailed considering the the the proposition that he had one hundred eighty days and i've made that argument already i'm not going to repeat it in this case  we don't know what happened to the male it would be a mistake if i may address your iraq you know a little bit more directly i think it to be a mistake to manufacture a sort of judicial presumption that if it's mailed within or if it's delivered to prison authorities within a specific number of days then this court would set aside the rule in ohio or in michigan which is it the filing is the filing i think there's a danger in going there if that were  the direction the court were going i don't think that would be a good thing to do here is going to on the other side any time a prisoner give peace my you know counting on it like clay the prisoner gave it three weeks from the thing and it didn't show up procedural default that's in my brief i have to tell you in candor the courts that in my seventy page brief in the district court i did not argue that procedural default but you may consider it here and there is a white  assistance of counsel here at all because anything that the witness robert perry should testify to would have to do with the lives and to bill drug factory and i call it that in my brief and i go in all these facts i'm not going to repeat those facts here so that the transaction here that matters is what happened at the howard johnson's hotel and the sting operation there so anything that parrish would testify about would not help the appellant in any way because it has to do with what is and to feel drug factory and that's something that the defense wanted to stay away from as far as they could see nothing that mr parrish could possibly say about that was that those and to go apartment as i described in my brief would have helped mr foster because he eviden y was not well there are the primary evidence of guilt was observed and taped in the hotel yes and more than that the apartment was found with two hundred fifty grams of heroin under his arm which is sufficient position and trafficking and he made some admissions there after that i recited in the state state courts decision that indicate both trafficking and possession were made out conduct was deficient it was not prejudicial it doesn't satisfy the second problem under the second prong stricken i would argue doesn't even meet the first prong because he said we don't want mr parrish here and he said that somewhere in the record he was absolutely right any further question