counsel but began by stating your appearance for the record good morning your honor my name is paul turner i'm with the federal public defender office for the disc of the baton i'm here this morning representing michael anderson good morning i'd like to thank you i'd like to reserve a couple of minutes for a vote with unlike plays but there are a couple of uncertified issues in this case they haven't been briefed by the state and i assume the court does not want to address them this morning if if if that's not correct i'd be happy to do so but option for the case that is providing some sort of protection at least possible protection for the litigant so that if they go back to state court and allow a dismissal without prejudice of their petition that they won't be this court you don't know whether or not whether it's some kind of school with requests to ground you on or based on what i've looked at i don't believe it was requested again as you point out not being council there it's always you're always sure about that if you weren't there abuse that as well so i think it would and it would be appropriate for me to address that the merits of the un exhausted claims because if they're if they're utterly without merit then it would be an abuse rhymester ruling now i understand this court can could make its own run its ruling and then that would be fine with me obviously if that's the pleasure of the court but our basic request just send it back to the district court there are there are  exhausted claims which was claimed ten in the original federal petition deals with a self defense jury instruction which suggests in his language that there's a duty to retreat into that that's not the case there is no duty to retreat in that and self defense was the really the sole defense of both mr anderson as i'm sure your honour's are well aware that this is one of these unfortunate barrooms situations this transom was a bartender at one point during the evening and regrettably this matter of went outside so to speak and ended up in the death of somebody who's fandor since position all along has been that he was provoked that he was attacked that he was hit that he was pushed that he was shoved and that he was justified in shooting that the gentleman obviously the jury did not agree with that but the judge every instruction had some language in it which suggested the duty to retreat that's a critical instruction in this case and that would be one of the issues that we would very much like to see in the strands to have a chance to take back to state court another couple of issues that were brought up in the context of prosecutorial misconduct deal with proximate cause of death we have a direct line which is one of our own certified issues there ali i think it might be worthwhile to because obviously if there you know we can deal with if we expand the record and we find that there's no merit to that we can deal with that on the other hand i and my understanding is that the alleged victim was shot and then died eight days later and that you're claiming that that that he could have died as that that the attorney was deficient in his investigation not examining that he wondered about a lot of this gentleman lived for eight days he had life support he was still alive the decision was made by as family sued to eliminate that unfortunately they didn't follow out a law in doing that there are two ways to eliminate life support in nevada one is to have a court of a living will a declaration that that you want it done it's as if circumstances get there the other one has to have a written request to your doctor by certain family members there's no written request here and there's no got to ration that this been having a hard time seeing how he would have a defense that the reason i guess what you're saying is this defense them would be that the family employed him and that's how he died not by the gunshot wound to the chest that was the superseding  support did supersede and the fact that there was a legitimate legal issue there that should have been raised in our govt and never was to never was addressed the medical records were never brought forward the prosecutor never presented the medical records we would argue that that there's a brady underlying brady issue even here related to that because of those medical records there number of issues in that area that were just ignored totally and i don't think they should have and we don't think they should but that issue is i think very important the instruction is critical of the circuit and going back to the taylor case i know your honor was on that panel and i believe that's been the wall of the circuit since then and if there's no indication that the court ever even consider to stay in fact as an indication of a reason why didn't in the body of that order the court a mistake and tells mr anderson that if he that if he went back to the state court that his time in federal court would be would be told to that stuff there's a sentence in there which very much indicates that that was a hope people on my side of the ledger were certainly hoping that was the wall regrettably it turned out from our point of view not to be the law the judge in my judgment misstated that and that that maybe that's the reason he didn't mention the state i think he genuinely believed that all the time is stranger some was in federal court he would have been say that this wasn't true now mr anderson elected to go the other way he abandoned based on what he was being presented and he went that way if he had gone back of course he would have been he would have been less unaided immediately as we know within a few days i don't think the judge i don't think the judge just thinking then was on the stand i think he was thinking that this man would be ok ballots once again looking at the timing and then you can combining that along with that this court were to start looking at some of the three factors could cause the merits of the issue or that from judge reads the subsequent order dismissing the petition based upon the surviving grounds and he denied it on the merits if you were to look at that order i think he could honestly argue that there is introduces a new role and that it's procedural and so that it would be retroactive so i don't know how you know i guess in terms of how i'm analyzing it i think i either we have to that you're saying that there's another that you just want us to look at it and say well he made a choice and that's what the law was then so we don't need to consider whether about the stay and i'm looking at the can all if you kill he's walking out of t john i don't think i've got a whole lot at this point i think i don't want to he did not argue but you have a hard time finding merit in any of the reasons you think this case should have been should have been a state should have been granted don't you