certify the issue you admit that that's basically myth that's well i don't i don't think it's completely moot in light of the fact that when when we were when when the merits panel we manned it back down in light of ryan's i think a component ten years he was a free man i notified the court the ninth circuit of this development in an amended they'll notice several months later the case was set for oral argument and i was surprised by that quite frankly because i thought well you know the kelly issue is kind of gone away now so when they said when the panel set the case for oral argument i thought maybe the parent of the panel was thinking about discussing the uncertified claims and then that oral argument was vacated and we got this ryan's re d and the only thing i could read into the writings remain and in light of again the fact that i had advised the panel the court the grounds that claim three was mooted that the only issues before the court were the only issues really that needed to be resolved in federal corpus were issues dealing with mr bailey's conviction not his sentence so when i was reading tea leaves here i thought maybe what this merits panel is doing because they're retaining jurisdiction and i got to tell you in the twenty seven years i practiced in front of this court i where we would have been in march of two thousand and three of anthony bailey had been represented by counsel that knew something about hades corpus and if we had been able to do that as i you know i'm just restating my brief now that in summary if we had been able to do that if i understand your position i think the critical part of your brief now it is now found in pages one thirty five thirty four yes and that you have two arguments and one is that it was a judge reader with the judge hagen who initially just missed all these  that the state incomes are is a dinner and he's all right yeah they in court they slipped into their answer procedural default request again and mr bailey never got a wrist an opportunity to respond to that ok so i think you have i think you have sort of two points in your argument at  the pages thirty to thirty fourth the first is that you never got an opportunity to answer the default argument and the government order was issued without mr bailey ever even getting an answer to respond and i gather that you think you may have an answer to that know again in all candor he's never had a meaningful opportunity because i know the state's going to stand up here and say oh he got a chance to file an opposition to the motion to dismiss but you know mr bailey didn't know what he was doing and i can tell you right now you know i have a great i have a great argument that  at least three two grounds are exhausted on the merits and federalized so you think that you think that you got that you can get around that you can get around that the states argument of default yes ok now then the second part of your argument i think has to be that not clarify that a little bit these are mr bailey's twelve if i get a chance to go back and replay the minute i replayed a minute and amended petition my claims are going to be a little bit different but there i can i can assure this court that they're going to be exhausted and several of them are going to be exhausted without any procedural impediment for example the sufficiency of the evidence with regard to the conviction and possession of stolen property the only conviction that remains that is a clean exhausted federalized claim also there's a there's appellate counsel claim with the seven subparts at and then the reason for the reason why all of this is not moot right now is because you don't you think that you got enough tend to over time the commission completely yes ok now why usually what's available to somebody who is surf a prison term is no longer in jail oh gotcha and typically we don't typically we don't move a case on hate is just because somebody has been out but just in light of the fact that you want to add additional claims here and in light of the complexity of this case i wonder what the cor vehicle for you might be a little cleaner vehicle bill that we don't have to argue about what we argued about it would just be a cleans tartan you want you in and that it could start all over again shaking hands and start all over again i think the opposite that sounds great to me so long as this cour instructs the district court that that's what we're going to do so i don't have to you know so i don't have to go through the rigmarole of filing a koran no this read having this or we'll and challenge it on seventeen thousand procedural grounds and then we're back up here talking about this again i mean law would be imported into this in other words i would have to show exhaust i would have to have exhaustion i would have to have claims free of procedural default impediments that kind of thing and i'm confident i can do that i really am small there was an order that came out for you know once ryans came into being after that the petitioner through counsel filed a petition for reconsideration that was untimely and then the petitioner brought this appeal for which no certificate of appeal ability has been granted with respect to any of the issues subsequent to that about a week go this court directed the dishware to submit a letter brief trying to explain why this is not moot the petitioner submitted a letter brief basically saying well it's not moot because you know we filed the petition while he was in custody all that does is get him get his toe in the door it doesn't have anything to do with respect to ground three grounds three was a claim that the court ferritin sentencing as a bailey was not given an opportunity to respond to the state's default argument so as you know to be not the case that's not the case no it is not the case he had the opportunity to respond and indeed as i recall the court noted that he had not responded that was in our motion to dismiss you are right i'm one of the things that we did file an answer in which we asserted that the claims were procedurally defied and once you're there you're telling me the docket number forty eight is bailey's response to your to your claim that ok claiming what those on that motion buy could direct your attention to something slightly different it seems like everyone agrees that count three is basically mooted at this point so i'd like to focus on the un certified  rules only get to those if a constitutional right that has been asserted has been denied it and that's the usual approach in this particular case  according to my notes the young certify claim that he was improperly deny counsel during that period for seedings really doesn't succeed because he doesn't have a constitutional right to such representation what w barred because he had not alleged the consulship the constitutional violation and he had an opportunity to respond the argument is opposition to the state's motion to dismiss the tape is petition i'm sorry i'm not sure i understand what what i'm what i'm trying to explore here is whether or not mr bailey was denied an opportunity to respond to the two issues whether or not he tell us whether there was a constitutional  only thing that had anything to do with the kelly vs small issue which is court granted he's already had three weeks this court back when decided not to grant a certificate of appeal ability on any other issue no certificate of appeal ability has been granted with respect to any issue that could conceivably even be before this court today and i say really my question to you is whether there is any other basis for any of the uncertified  throughout this proceeding it's not what mr lamb gross is asking for this court to do is he's saying oh i could have made better arguments back when i could have made better arguments back when it's an on over these years without ever getting to let out or getting to those arguments three is clearly mote free probably moot i disagree with your assessment that he didn't have the opportunity in the first place the judge could have said i want to response from you mr bailey but the but in just didn't and i think part of the argument is this is a violation is due process right as to whether the judge has given everybody sort of a full and fair hearing well let's say even if even if even if you accept that premise there wasn't any certificate of appeal ability sought on that issue no certificate of appeal ability was granted on that a certificate of appeal ability with respect to the issue you just described the court chose not to and he didn't ask for whelan let me try to answer some of the questions that were presented but it was never over and i do want to answer those questions were you were you already appointed counsel but in two thousand and three no i wasn't appointed until this court appointed appointed our office after the kelly judge what happened was mr bailey files an amended petition pro se mr whelan files a motion to dismiss arguing three asserted defenses the first one was that was a timely under twenty two forty was in favor of mr wheeling with regard to stop you for just one second yes the motion was filed in the ordinary course as a mr bennett would have received a copy of the state's yes pleadings right and the motion is that excerpts of record three twenty one through receiving and you didn't receive anything from mr bailey received when and when mr whelan filed the motion mr bailey filed a press a opposition can be found at three fifty nine three three seventy four so that's still in college for lack of a better word all right now judge by the asked a very good question the question was what were the rules but ten well the rules back then work as i was litigating this stuff if the state filed an answer was filed on december second two thousand and two and then three months later so december second ok still december two thousand two but if the states motion renewed motion in two thousand and three yes to which he does not get an opportunity to re another which that should be relying on the criminal justice act and i brief that in my life in my first and sort of my questions and mr bailey asked for counsel several times he's kept saying you know i need some help on this and is he entitled constitutionally to happen uncertified question the default now obviously my first start with one of my arguments and is that is that due process i never got a chance to respond the really the better argument is several of these claims are not defaulted because they were raised not yet before any court that's a good point it isn't and when you know when and again if i have just had it because really when it when i got appointed this case as appellate counsel the first thing i do because i have the right to bring on certified issues under twenty two one is get the whole record i want to make sure nothing was missed and thank goodness you know mr bailey didn't and he did thirteen years in prison on a case where he should have only did seven before he got to the parole board and i kept telling mr whelan that that wasn't getting any help from him i had to go into the district attorney in the if you dish will district and you know in spite of the fact that mr whelan kept ignoring me the the district attorney's office didn't even oppose it and the next thing i knew mr bailey was out of prison he should have been out of prison while this hideous case was pending and that's why he's fighting this thing so bad and so hard he just you know he really would like what are the collateral consequences to this well the collateral consequences are that if you commit another crime then he's got a habitual criminal yeah you know  if he's if he's not in a c c a and you know and he's looking at the nevada habitual criminal act which could get him anywhere from twenty years to life without in prison so you know they're not just these fake consequences