sexual assault expert from the obvious reason that he could not establish that it would have made any difference to his defense if his lawyer did consult a sexual assault expert now in the in regular had applied for funding for a sexual assault expert for mr king's ineffective assistance of counsel claim but that request was denied he submitted declarations a declaration from the state appointed robins the california supreme court in that case noted that the petitioner had filed his petition approximately two months after he had acquired the facts approximately two months after he obtained the expert opinion supporting the prejudice aspect of his and effective assistance of counsel claim it was based upon the failure of his trial lawyer to consult with sexual assault had failed to establish that a state procedural rule that is the nevada statute of limitations had been in consistently applied because he did not present evidence citation to any cases that were similar to his where the rule was not apply and so it's necessary for the federal court to look at the circumstances of the different cases to determine in consistent application and whether of all i would submit that then it trumps fourteen then it was decided after ortiz and bennett says nothing about this type of bilateral program that they're going to apply on defense or on the state it sets forth a very clear three pronged approach in shifting analysis that applies here considering procedural default and i would submit that that it is what controls that artie's does not in addition to that another reason why i would say this type may or may not apply in those cases artie's is the death penalty case and it was decided before bennett that it is what we need to look at here and determine whether the burdens in your bonnet were properly met mark in the case per case law is the argument order was why shouldn't that be a two way street if this court determines that a rule is inadequate why  it's the same time frame as my case and it's a non death case like my case pointing to a ninth circuit case that is determine the social then yes the burden would then check back to respondent to say we have the ultimate bird and they've put  issue and we have to show that in fact it has become consistently applied so i didn't hear your answer any reasons all of this for you why this court pointed out there's no presumption that california doesn't apply its rules consistently in fact presumption should be the opposite indeed that one of the one of the foundations of federal habeas law is that state court ok then well that would be one thing and the presumption and then the second thing would be that that that the burden shifting analysis and then it requires some step made by the petitioner before the ultimate burden goes back to the respondent in these cases and what are the steps well the first step is that we have to play the affirmative defense and then it in the second step is that that the  challenging consistent application the property remedy would be to remand this to the district court for determination as to whether or not the time when the spicing consistently applied this wasn't even a sort of fight issue i haven't a around i definitely plan to do that ok thank you thank you by showing that exceptions to that rule were work that had been applied in other cases were not applied in his case and so he met his burden the state did nothing to re the state argued did the same thing that the district court said which was that there is no presumption that states don't apply their procedural rules consistently i think that is based upon a misconception that you can't