mr howard could be permanently prejudiced from proving his entitle me to relief in this potentially meritorious capital hideous case in which the jurors actually deliberated for over three weeks before sentencing mr howard to death i'm mindful of th the collateral order doctrine and i think the contested issue is whether this issue is reviewable after final judgment our position is that it's at least debatable and unclear under one circuit law and under the supreme court why your hon because our concern is the at the statute of limitations has already expired and we are concerned that if we are forced to remove these claims will be permanently barred from bringing that back again under the statute of limitations iran's itself was a collateral appeal to the supreme court and there's actually no case law that ultimately holds after final judgment that those claims are timely are not sure that the supreme court's jurisdiction is limited to final judgments for me let me let me ask you i don't understand suppose the judge he doesn't issue is to stay in abeyance he decides the petition which he has and yes he could decide in your favor for let's assume he decides against you you take an appeal and you say not only really that because this is a capital case where we try to be axed extra cautious but there are also practical concerns here that i'd like to briefly address for example one of our claims and effective assistance of counsel at the penalty phase of trial we argue that counsel ineffective for not only failing to develop mitigating evidence but also for failing to rebut aggravating evidence the aggravator portion of the claim is not exhausted so we are going to be forced to remove the entirety of that aspect of the deficient performance claim which is going to affect the  cumulative it analysis of strickland prejudice if i have to then wait till final judgment come to this court ask you to reverse hopefully get the reversal go back to district court brief twenty fifty forty procedural bars evidentiary hearing when's that going to be and we're talking ten to fifteen years down the line and my witnesses on that claim for the delay in this case has been staggering i mean i don't understand how a crime committed in one thousand nine hundred two doesn't get resolved i think by the california supreme court and for what two thousand and eight even even later your honor we didn't get that i mean so and you know let's be realistic in the death penalty case part of the goal and it may have happened here  instances is to is to delay this and who knows what could happen with your honor was respect i understand that is the goal in many capital hideous cases and if that was my goal here i would wait for final judgement and then file my appeal because i think this so clearly erroneous that we're ultimately going to get a reverse whether the court does it now or after final judgment and it's in our best interest to move this case forward now right now the jurisdiction isn't a technicality i mean we claims are effectively not reviewable not whether or not iran's stationed issue it exactly or my concern is that the merits of the claims won't be reviewed that's the standard for to be dismissed right away and so they dare not suffering this period of delay that we will suffer if we just dismiss our own exhaustive claims i think there's also kind of an equitable concern here that if we have to proceed with this  cut tire case and district court only to come back and do the whole thing all over again that can't possibly be in anyone's best interest and i think there's some language in the bit of her decision which speaks specifically to   can i ask you in light of that why did you wait virtually this california supreme court oh denied your petition on the merits and you wait  most recent declaration within just a couple weeks of filing that petition in the course of that your we my office also filed a certain attention on the state if you as a petition to the united states supreme court and we continually investigated it yes we weren't sitting on our hands during that period of time and the supreme court has described the statute of limitations as encouraging diligent prosecution of claims because we were within that statute of limitations i think we would do what you were my corrected in the meantime as this petition after the runs runs because it winds motion was denied and you know i will say one of the things that we were waiting for in that period of time was a federal exhaustion order which we believe is compelled by the california supreme court's decision in reno and it's also contemplated by the central district local rules which specifically require that the parties meet and confer to resolve issues related to exhaustion consideration of the merits with respect i think it's a very cursory analysis of the merits i mean i totally see your point but in the cases where this court has dealt with right and stays on collateral o california supreme court rules on exhaust the claims and i understand why judge person felt that it should have been filed a lot earlier and we shouldn't be in this position right we don't have much of a hope of the california supreme court's going to deny our exhaustion petition before this court rules we literally just finished informal briefing like you know sometimes when you sit on claims you lose some yes your honor and if i could just address that really quickly we didn't file an exhaustion petition while the current petition was pending because we were really concerned about criticizing the pending petition and basically what we were going to have to do was explain why we were filing a new petition why that was timely and our excuse for that was the ineffective assistance of counsel of the existing state habeas lawyer if we were to explain her deficiencies and how mr howard was prejudiced by that we would essentially be telling the california supreme court that the petition pending before them which was the petition to have the best chance of merits review was useless was valueless and that they should instead replace that with our petition and we didn't think that could possibly be in mr howard's best interest that that was really what governed our are thinking then it was also the reno case was pending the california supreme court issued this order to show cause sowing showing quite a lot of aggression towards federal habeas counsel and we were trying to figure out what it was they wanted us to do as soon as that case came out it became very clear that we were supposed to go to federal court first to get a federal exhaustion order and then file the exhaustion petition and that's ultimately what we did i think the problem here wasn't so much our delay i think it was that he had a totally inadequate sta process that we had to then jump in and try and put back together the state he is petition had one thousand exhibits attached to it five of those were generalized exhibits about lethal injection so so the fourteen exhibits that actually applied one was a declaration