eric salerno testified at the hearing that he did not know that his direct appeal was not pending until  received the docket from the district court in response to his it inquiry about the status of his case  real challenge to the failure to take the appeal was one of the claims that he was making in the course of his twenty two fifty five petition and so it did not analyze the timel ss of whether he said should have discovered the absence of the appeal earlier and i think the way position a debt that's the way i read the or came out there there is a problem with that not held otherwise the case is unions against the united states it's in five forty six fed third four fifty we expressly rejected that contention there's a conflict among the circuits where on one side some circuits are on the other your brief relies on the circuits that are on the other side true but in this circuit numerous is the rule and without that foundation is there anything to this petition said in new nears that it might be possible to make arguments based on the limits in the waiver i looked at the waiver and it seems to be completely on conditional it waives everything you can imagine including arguments about ineffective assistance of counsel it's it's the most comprehensive waiver i've seen in my life is there any argument that would be possible under the the failure to file and have an appeal even when requested it  as far as drug quantities so i don't think it came up until the sense you get in terms of if we got into all of the timing issues here that november first letter from mr solano to his lawyer that says among other things i'll be hiring a good lawyer now and that in the report from his father after after efforts to do so produced a response you can't do a thing because of this waiver why wasn't that good enough to put him on notice in about december of two thousand and eleven that gammage was not pursuing an appeal on his part is that nobody was talking about the status of the appeal ad so i understand that that comment from the lawyer who the father consult that you had to do with an analysis of the plea agreement rather than anything about i mean it then that gets back to this question of what's the what's the scope of the waiver in a in a plea or what's the basis for challenging the waiver what would be the basis for challenging the waiver  it would be that there is ineffective assistance of counsel and on what basis would lose the benefit of it as an acceptance of responsibility if he then it if he brought back up the would not be believed were not adequately explained as part of what it meant to say i accept responsibility in the course of the  fireman that he except responsibility and that the risks that he would face obstruction or our loss of acceptance of responsibility  respecting the scope of the just or court's order in terms of the timeliness argument the district court did not erring dismissing the twenty to fifty five motion as untimely and judge hamilton i think your questions get to the heart of the matter it's whether a person acting with reasonable diligence when they would have discovered no appeal is filed the district court found that that was february two thousand and twelve that still left mr stein a two months short of where he needed to be to file a timely motion  he hasn't rebutted that finding he hasn't shown it was clearly erroneous and i think it probably was a generous finding in light of the letter to mr gammage his contact with the other attorneys and the steps he took the the problem for us i got here with this is that you seem to be saying that the district judge was asking the wrong question and made these findings and while  our position that he was asking a different question than this he'll raise this but the analysis was the same the district court considered when a person acting with reasonable diligence would have discovered the appeal was file raised this particular ineffective assistance claim but it also didn't address it the merits of any of the in fact assistance claims because it was in this kind of timeliness issue that's right unless the court has any further questions we would ask you