i would like to reserve to mint two minutes for rebuttal points thank you in this matter mr bracy should not be required to obtain a certificate of appeal ability because he's not appealing a final order that this matter to the merits panel it and also as the court noted in the believe it was the wilson case we would respectfully argue that a certificate of appeal ability is not required holdings and hardison versus bell and gonzales versus cross and if it starts with looking at why the certificate of appeal ability requirement would ever apply limited the language because that was the specific issue before the court and solace but i would argue to this court if you take the rationale that the good solace court and the harvest  yes yes so so so that says quote the final order in a hay b s corpus proceeding and quote there's more to that means there's a difference between a proceeding and a hey vs corpus petition the way you get the certificate of appeal ability to a rule sixty b motion is by analyzing the rule sixty b motion and determining what it really is and that's where you know  court specifically looked at the issue and said he eighty d p a provisions apply to final orders that dispose of the merits of behaviors petition mary and i  think that was a pretty clear he's pretty clear ruling that her merits is is being used to distinguish it from the collateral issue it d didn't appear to be distinguishing between substance versus i mean why do you think the supreme court just makes that observation their next line talks about the difference in a nd or successive petition one rule sixty six constitutes a nd or successive generation we've got this observation right here by the supreme court that doesn't know usually if they make that observation many courts of appeals are doing and they disapprove of it it would be followed by some head nod or urge to rection that it's all wrong so wh on one why they do that without any within it with any directional sense and and i am describing it instead as possible and active which seems like it's praise rather than a a criticism of the practice there are governments put forward identified substantial evidence from the record that might indicate that the information question with not material the debatable issue is not whether mr bracy would succeed on the merits of his appeal but on the decision that the district court made in the that day i do think it's important to note that the merits of mr brady mr braces brady petition brady allegation have never been heard by anybody in the state's state court the p c r e was dismissed as untimely and hideous was dismissed as on time so so there's never been a factual record developed into the merits of the underlying brady claim so here what we argue is that the the debatable issue is whether or not the district court was correct in its procedural ruling body or in it in that you have to couple with the application of the statute of limitations together with the underlying analysis of mr brace  obligations with respect to his brady claim that gets you to the application of the which the statute of limitations a collateral issue and on the other hand is an issue that is on the merits how do we decide what is on the merits and what is a plateau issue where is that in the in the middle of that continuum how do we switch from want to another looking at the nature of the of the allegation underlying behaviors corpus petition itself almost anything else frankly would be  still you know there was sixty provisions are still political in the courts still you know that what we're talking about in that respect is simply whether or not the eighty d p s certificate of appeal  something else as on th frankly i would just argue that it makes sense if you were looking at a a an issue that disposes of the underlying issues in the case who are on the other hand you know if you're looking if the rule sixty emotions one that is attempting to get around the nd or successive he vs prohibitions by adding another claim were really beginning another matter that's a different issue but if you have a rule sixty motion that challenges something other than no determination of whether grounds exist or don't exist on the merits and you have such as is as they supreme court specifically referred to but they have the entire supreme court's conversation or discussion of this issue curtain if i'm wrong i mean it wasn't all in the context of secular successive position me that the question comes down to one of two evils one view is that brady imposes no diligence obligation on a criminal defendant ever and the nd one is even if brady maybe if brady imposes no diligence obligation ever you can say see we weren't untimely because we didn't have a diligence obligation but your briefing didn't answer that nd scenario and that nd scenario was hey look this might have been there might not have been a diligence obligation for the brady at the original trial but when you want to use brady or any other rationale as a predicate fact for getting a hades petition there's a there's an obligation of due diligence and so doesn't your client still have to satisfy that obligation regardless of whether brady requires i would and i i think you you hit on an important issue what is the the burden on a defendant in uncovering a brady violation and i think if you know if you look at dennis in where a defendant has no diligence obligations at trial we don't impose a diligence obligation on a client a criminal defendant trial to determine the adequacy of their counsel representation for purposes of in adequate and terms of inadequate assistance of counsel claims there's no diligence obligation there but if so if if a criminal defendant wants to bring a separate independent assistance of counsel claim usually through hey b s the diligence argue that they were satisfied so so so by arguing that you're saying that they do apply and now that now the argument becomes were they satisfied i believe you can make an argument that there is a you you can't put a due diligence requirement on mr bracy to uncover the brady violation and frankly there are i i think it's i'm not sure there's a big difference whether it's during the course of the trial versus trial on appeal because all of the reasons enunciated by the court and dennis apply just as equally if if if we assume as as not assume if we accept  been developed to enable this court to do that well what we are asking is that you would vacate the district court's order dismissing the sixty emotion remained back to the district court with instructions to hold our conduct diligence inquiry or analysis as part of the calculation for the statute of limitations was improper and you could just direct the court the district court to proceed to  beforehand and maybe this is in part why our person used the merits language because going salis spent a lot of time focusing on what on the merits meant be in the context of nd or successive petitions and then we have this footnote for that your opposing counsel comes down to which says the term on the merits has multiple usages and then at the end of that footnote it says it doesn't happen or for example i d search for search reasons as a statute of limitations ball so i mean that i think that's the strongest argument you have to beat you off to say the supreme court has construed this statute or at least paraphrase this statute as applying to only other substance component to it the exercise diligence and whether that was required because that some some components now injected into this case this is not this this lurched into and gets us closer to an on the merits the termination would be that there was a rule sixty p motion that was challenging not any component of diligence associated with the statute of limitations but just did a year pass or not and all we need to do is look was an argument just like yours that it was publicly available instead that the requirement nonetheless is on the prosecution under brady to make disclosure it's not a requirement aren't here at least we're here primarily to get to those merits i don't i don't you know that doesn't play prominently in the brief other than maybe for atmosphere effect and so i guess my question is we're here because we're trying evaluate at least is the last question whether or not this was a timely find and it strikes me that your position says no it wasn't because this could have been recently discovered before your adversary says there's no obligation in the brady contacts to do any investigation during trial riposte crime he says you can't expect just like you can expect a defend to scavenge for evidence pretrial in the brady context nothing changes post so don't you have to beat that argument don't you have to say something changes post trial because we've got a bunch of cases that say you know that criminal defendant doesn't have this obligation pretrial you have to show that somehow a diligence obligation is now impose on a totally true government has not been gauging to disclose brady equally all materials jantz materials other materials that's true so let's not talk about the key point that i think you have to do if you want to succeed is to four d one d where it says this is the statue of limitations and if you miss a year you don't have you you have to gauge in due diligence or does it come from somewhere else or does that not do it i mean it's as roger said written e disclosure pretrial regret type of information you agree that that d is likewise post trial i that that is not something that would at this i were in other words i'm thinking a different way to the extent that that was not discovered there would be equitable tolling of that statute of limitations or for that i think i i would argue that the commonwealth has pretty much conceded the point you were making just bill sudeep to your point about trying to distinguish who is sixty motion what whether it is a procedural motion or a as not on the merits and you know it just fits your reason from from the case you know guns also is pretty clear and they'd be specific we specifically say application of a statute of circus yes yes but but i think a recent one based upon what the supreme court has has thrown out there i mean so let's let's just let's just talk about the supreme court's thrown out there because i mean not everything that the supreme court throws out there is binding all some what they say is there so what they say is helpful it's guidance picked and so i think you've got you've got this you've got this really big tension between i don't you know i don't know that this footnote for consolidates is anything other than dick because that case that we've all statue of limitations or failure to exhaust or other things and at the same time can solve this recognizes d what many courts of appeal do seemingly with approval so so so it's really hard to reconcile those d two because if they were doing it wrong in the statue of limitations contacts there wouldn't be a page and a half later talking about you know most of them do it at the same time don't you other circuits still go this way not all of them are recent decisions that go this way some of them are are before these two cases but when they go this way i mean maybe the reason they do is because they don't find these statements as foldings and they don't find this  dramatically wouldn't you expect those other circuits who previously resolved that contrarily to fall like dominoes doesn't challenge an underlying merits determination it doesn't rehash issues that have already been before that were all it challenges counsel have we have had we had that your position without blowing wide still have to show the extraordinary circumstance just finds its relief and all that so and then not all i can say your honour's is i think i would not dismiss the language harbison and gonzales well actually even i know you wouldn't dismiss it but i think what you're actually doing is elevating that language of the statutory tax of twenty to fifty three which doesn't mention on the merits it does not it does not tell you want us to give greater weight statutory caps well what what i'd like you to do is is look at the rationale in the analysis that led the supreme the text means and i mean respectfully i think it's minors who are now whether you agree with me that it applies in circumstances different but but if it applies i mean that's that's