the next case is dennis santa versus stephen kind of way appeal number twenty dash one thousand four hundred and seventy one attorney private please introduce yourself for the record and proceed with your argument good morning their owners elizabeth private for petition dennis the issue of i'm sorry i'd like to reserve one for removal as the may have it the issue in this case is whether mr sena is able to demonstrate good cause filed the motion in state court as of the end of two thousand nine hundred that it hadn't been filed yes they state court filings have been filed them you have to include all of your issues in a and initial or amended filing and anything that came subsequent to that would have to be reviewed under very high  the statutory scheme under which mr santa filed his federal petition as balancing the aims of comedy and finality the statute encourages state prisoners to exhaust their claims in state court st before bringing them to federal court nevertheless runnings found that the statute allows district courts to grant stays to permit exhaustion after filing in federal court rights commented that the that the interest of state petitioner heard state prisoners and in getting federal review of their claims can be outweighed by the interests in finality and speedy resolution of a federal petitions rands developed standards for these stays including whether the petitioner had good cause for finding st in federal court rights commented that the court developed these standards for granting stays so that they would be done in limited circumstances in order not to disincentive eyes go to going to state court st and one of the unique combination of facts and mr senator's case good conscience should be found he had good reason to file in federal misleading information under the circumstances of his case a good cause determination would not work to disincentive by state prisoners from going to state court st are coun say and in the case of good cause that that is a determinative threshold question that implicates abstract questions of reasonableness but it's  indicating that that reasonable objective reasonableness is implicated and i would suggest that even though it's a very fact facts sif it determination that doesn't court the question is that but i think that as you look at the all of the circumstances here you would have to say that there was good reason to believe good reason to seek counsel in this case many courts have said that appointing post conviction counsel in cases where they were potentially meritorious claims actually furthers the  p c as and he been asserted exactly that claim to the board to bar a person here he then went on to say i don't think i need to reach the issue of whether in fact there is any merit but i assure am doubtful that there is any merit your whole argument seems to turn on his no you are to reach the  ground if he had said i disagree with the magistrate judge that there is any likelihood of merit to all of this which is plainly what he was thinking then you would concede that this has to be abuse of discretion and rip you are correct i don't see how that changes the abuse of discretion  decisions it does seem that they reached out and after saying that the issue of timeliness had not been raised on appeal they then said and even if it had been who is a loser what did we do with  the relevance ground was certainly not addressed whatsoever and there were serious issues about the timeliness the claims about timeliness there were a factual disputes about it the moreover there was an issue about in massachusetts law there has to be a balancing of the interests between the defendant's right to put on the defense and  state law is standard on both the abuse of discretion and even if the timeliness issue had been explicitly ray and we have a statement from counsel i raise the arguments that i thought were most likely to prevail which certainly suggests to me that it was a tactical choice perhaps an unfortunate one but given that motion and doesn't that go directly to the issue of delay when you balance delay why now id against prejudice it would seem to me that there is a very good argument here that allowing this to proceed just causes more and more delay if i mean answer your yes  please the question that this court is facing is the issue of good cause and as to the timing me what the court house to look at is whether or not there was good cause for filing the federal petition for the petitioner to have filed a federal petition at the time he did yeah and i didn't judge court and say he could have filed it earlier yes and that wasn't subject to the filed earlier also doesn't go to the good cause analysis and risk case because a good cause should not be an ally so stringently as to require that the petitioner could not have done otherwise it was reasonable for the petitioner to await state counsel in the circumstances in which he was  sorry i interrupted do you have more i am sorry yes i mean i think that the good cause standard cannot be analyzed as stringently as for example equitable he said very little unfortunately but i would i would say he he basically was applying a very stringent circumstance the standard in the circumstances where mr sam was vigorously attempting to exhaust in state court st and not act and not looking at the reasonable mess of expecting the decision on counsel to be made on grounds that didn't include misrepresentation and then asking for reconsideration i'm sorry you keep calling it a very busy mass appeal court and get them to address it on the merits i don't know but that certainly does not sound like the kind of strategic reason that anyone could  and introduce yourself on the record to proceed sir good morning gabriel thornton for the respondent superintendent stephen kent away the petitioner did not demonstrate good cause for his failure to exhaust the yes your honor two days after yeah and how do we know know what input if any post conviction counsel may have handed in that violent based on the record before the court the court would not know and as to that we know he is a habitual offender but we don't know if he's ever been and federal court we don't know if he knows anything about hate sprat so judge court could be correct about this state court but it's a different question as to whether that translates into the gosh you should have while your hate b is earlier and asked for a stay so you could pursue the state court action that you obviously knew you were going to pursue ok so is there anything at all in the record on that point the point i was whether or not the petitioner could have what supports the notion that even if he knew about his ability to have pursued without counsel in state court to rule authority  supports the notion that therefore he also knew he needed to move more quickly and federal court and file a motion to stay to permit him to pursue this state court action that he obviously knew he had to add me read strine to pursue oh for starters the petitioner knew that he had no right to counsel and the state collateral proceeding argued cogently in both of those filings both the bases for his eight different claims for federal a v s relief and his argument for why he needed a stay in abeyance to state post conviction counsel hamp include those filings if there was something in the record that indicated definitively just petition on his own will read up those filings and filed them i would be more comfortable with the judge cortin's decision but there isn't any but what they really is is a temporal coincidence that the ins filings and moore shortly after state post conviction counsel is appointed and the inference that i think has to be negated at some point is that counsel who was appointed to represent him in the state court and could represent  lawyer who knows that she how i think it's a she can only represent him and state court is giving him advice that she is not supposed to gather on federal hate b s proceedings  the court should not draw such and french your honor and the district court judge gorton had before him the petitioners hey b s filings and a number of documents that he submitted in support of those filings including the documentation of the back and forth in the petitioner and c p c s and also the petitioners parker point regarding appellate counsel the court that the district court could assume and this court can go along filing in state court sooner and we should be concerned about i would have to speculate there your honor but i assume that he did not filed sooner in state court that's he was waiting to see if he could get as to incentives he was seeking a new trial correct that's the purpose of all of this and that turns on a state evidence ruling that is for abuse of discretion but let's assume hypothetically he gets a new trial when and where they advance and question now why did that lead to the conviction i don't recall off the top of my head your honor but i think somewhere around two thousand and twelve or you know somewhere on the order of ten years ago that's right and witness memories are gone on  understand it this there were two convictions on one of them hey god a ten year sentence that's what he's serving on the other he got a fifteen year saddens and that's what he's attacking series said he even if he was successful on the fifteen year sentence it doesn't get him out from under the ten year if the court has no further questions i would ask it to affirm the judgment of the district court thank you thank you thank you attorney from thornton if you could please  your device at this time attorney private you have a one minute r where the magistrate found and the district court adopted the finding that there was no dilatory conduct in this case and exactly is that person's level of ability i think that there should be a level of care and that especially when something we're not in the position to know how much he might have been helped by jailhouse lawyers who come in and out of the system we don't know whether or not post conviction state post conviction counsel even though she even though she's not permitted to practice in federal court may have told him that he needed to go to federal court and file a stay in abeyance what what does it mean to say that he wasn't deli and then to deny his request on the grounds that he waited too long well i believe that what judge gorton was doing was  fact he was looking for something like a but for cause counsel i had put the final question i think there were eight different grounds for that petition i only one the argument in this case attorney private attorney thought you should just connect from the hearing at this time