morning your honour's john think office of the federal defender for mr ross i'd like to reserve two minutes for a bottle and i'll keep an eye on my time mr ross should have been allowed to relate back to the state court opinion attached to his petition under ru a written instrument attached as an exhibit to a pleading is a part of the pleading for all purposes counsel for purposes of the rules the term written instrument is of course a term of art how does that fit in exactly where i am sympathetic to your argument i really am as a pro se defendant but how do we deal with this concept of a written instrument that really fit here well the state court opinion is a formal legally binding order th analyzes all of ross's constitutional claims it is practically indistinguishable from the documents that this court found to fall under will ten see in the hartman case in the hartman case was a prisoner's civil rights case and this court specifically said that the decisions on the administrative appeal were a part of the petition for all purposes and under the hevia statutes and they gave these rules i think it's clear that a state court opinion is most opinion well we think that this particular state court opinion gives why this well this one gave clear notice of the constitutional claims at the state court adjudicated on the merits i think it would be a different situation if there is more of a summary opinion but that is why  when we focus more specifically on relation back concepts that the state court opinion here clearly applies i think we know he wanted to raise those claims he apparently attached the affidavit for a different purpose just to substantiate the attached or for a purpose in this case but the eight and that's not what the prisoner intends to bring well i think there's actually a significant amount of evidence of his intent here in the way he says he didn't he didn't  catch it for that purpose i mean well that claims what the purpose is that he at that well that's true but there is the intent can be seen in the petition itself where he identifies claims it was sir we just the list but they match up nearly one for one with the claims that appear in that state court opinion don't match up one hundred percent so so if we have another case where the opinion has eighty or attached opinion with eighty or ninety claims as we we sometimes see the court supposed to go through and see if they can match up what's in the hay vs petition with what may or may not be in the like the opinion well i think there's two separate considerations here versus pleading intent and relation back so in a typical situation if a court has any has any problems trying to decipher a poorly played petition under rule for the court has lots of options it can and there really construe a petition that isn't quite clear and say ok all of the claims that are that are set forth in the attached state court opinion are the ones that the state needs to answer or th trying to plead here and the state has to answer all of them or the court can say i want the petitioner to amend the petition to give more certainty is the claims that he wants to proceed upon and in that certain type of situation i think the relation back clearly would apply because the court opinion provides clear notice of the claims of the petitioner timely put those claims on the docket and under rule ten c we know that as long as it's a written instrument then it's a part of the how would you do the government's concerned were we to approve this particular approach petition or could simply attach the entire trial record to a one age  petition and say this is my claim it's all in there well i think both the written instrument provision and relation back principles provide the necessary limitations here  got to check it out but it's all in there well if that's what it also be true about transcript well it can be but in a situation such as this with the state court opinion it's absolutely clear what the actual claims are so when it comes to relation back to state court opinion i don't think there's a question that it satisfies both the statue of limitations requirements and the notice requirements of relation back if a  petition or attach is a portion of the transcript will then it's getting closer to the notice retirement looked at the hague is corpus rule two and then the committee notes it appears that the the requirement that the petitioner put in the summer a fax or put in the facts supporting the claim into the petition was developed for exactly this purpose which is to prevent a petitioner from attaching i think they use the term proli documents that the court then has to sort through and so the the form so there was an amendment to the form requiring a fax and therefore miss written for a pro se petitioner i mean it's written in plain english  very simple and struction so it would seem like saying well you can attach whatever you want and then the court has to discern from at what the facts are is contrary what the amendment to rule  discretion in those situations if there is a poorly played petition if a petitioner has not completed a petition and just attached in order to firmaments then the court can say well i'm going to grant you leave to amend to more fully comply with rule two with rule two and that's what rule for is all about rule for says that a court at that stage can review both the petition and any attached exhibits and the advisory committee not specifically identify state court opinions when they're attached as exhibits as those types of documents that a court should be looking at to determine whether petitioners entitled to relief so in those situations i think the attached a court opinion does provide some evidence of intent of morning morning your honour's may please the court lawrence and i come to half of the state respondents i want to start by saying i think read properly rule ten see does not actually conflict with rule to see but i think read the way that ross is asking this this court to read rule ten c i think it does so i'd like to start by explaining what i think happens if you read rule ten c that way how it creates that conflict in the  do that i want to be sure i understand correctly the government's position i took it that the government agreed that had ross said   of the decision that i am pointing to to provide the supporting facts that he's required to provide under under both rule to see a behavior schools and a six page decision what if he's just said see the holes decision well the problem if you actually go and look at the decision if you actually look at the end of aspirin court's decision is that for about half of the claims there are there's a reason that the nevada supreme court rejected the claim is because it says you've only provided a bare claim or you haven't provided any factual allegations if the court goes and looks at that you'll see that at the beginning of the excerpts of record that's important because the rules still with that reference it still would provide the notice that the whole set up as intended to ensure is given precise year on i think i think and that's why ross would like to sort of decouple relation back from his obligation to provide this court with supporting facts and if you decouple them if you just say all we're trying to do is provide notice of the claims then maybe ross could prevail and you create that conflict that i'm talking about but it's important to note that the supreme court in the male case did rejected precisely that impulse of the couple in the supreme court in a male case red if you look at the reasoning in the male case it's relying on what judge  judge pointed to in the in the the advisory notes precisely that concern about undercutting there is a slightly different issue in the male case but it but in interpret relation back in the male cases so we're going to look at the specific pleading requirement and we're worried that this will undercut the specific repinning peter carmen so with the proceeds petition is it really your position that the failure to say see the order of firm in that section that calls for facts just a failure to say see the order firm and leads to a different result no and that's why i guess i'll complete what i was saying to judge smith and that is i think close what he has said but not exactly the reason i actually personally i thought about this and i don't think that actually just attaching and saying c would be enough and here's why because you still don't know if a petition is not just required to provide facts if a petition was just required to provide facts because there's usually some facts in a state court is what exactly or substantially would mr ross have had to do with respect to the nevada supreme court opinion that would have satisfied the government in this case and here i think what he could have done is he could have said see page three of that decision here's the facts that i want to incorporate as my supporting facts i'm obligated to require to to provide support facts even though i'm a pro se and you know we have to rule sort of in i think as your honor sore point we have two rules that are arguably in conflict the idea that you read pro se pleadings liberally but also the fact that a b s has a clear specific pleading requirement so they have to and so how do you put those things and how do you make them not conflict look at as was pointed out  the specifics but here you have a pro se person and this approach cut them some slack we should all how much yet we should cut them some slack your honor but we should still require them as it says right here on the r twenty four on the on the it's not just in the rules  tells matic requirement it's not a formalistic requirement it's a very real practical requirement in the court in order to do the analysis that process counsel acknowledges that courts need to do under rule for they need to be able to compare they can look at the whole threw all the stuff that they'd filed and you tried to figure out what facts in there actually supported them and what grounds they are actually claiming and you tried to see if they had any merit the rule as the mill case makes clear citing to the to the advisory notes that was all we're not changing the fact of a deliberate pleading standard but what we are doing is we're saying you have to tell us what facts you think support and if you look at ross's petition if you he doesn't provide a single any evidence whatsoever because if you go of what it what he thinks of supporting facts because if you go back and look at the nevada supreme court decision you'll find that for about half of the claims they actually rejected because of a lack of facts and for the other half of the claims the only facts they provide in like a sentence for each point i mean if you go look it's not that long of a decision your argument is that even the state court petition its decision always has to be attached the form that he provided says you always have to touch a state court decision so it is your argument that that still isn't enough that doesn't tell you it doesn't it's merely attaching that decision a decision that you have to touch does not tell the court anything about what facts the petitioner actually thinks supports i think it would be in a different case you could imagine a court saying well you attach that decision and so therefore if the decision was a four page decision that only dealt with one claim and set forth the fact some facts on each of the four pages i think is a good enough just to refer to the decision i don't think so and this is key because you still cannot know it's not just that he has to provide facts your honor he has to provide supporting facts the rules are clear and so if you were to read rule to see so law now i don't think there should be a conflict but if we read it that way your honor when we win we win because because the hay vs rules would be in conflict if you read it that broadly and i just want to emphasize it's unfair to the petitioner because if a court would could you imagine a court saying you have severe attach the state court decision that you're required to attach by the rules and so we're going to take the grounds and the for and the adverse facts in that decision against you then you can imagine a petitioner saying that's unfair i had  decision and now you're reading that you know the rules require me to do that and now you're now you're pretending like i've adopted those facts as my own facts i want to i want to emphasize some facts at the core didn't happen his decision but you've adopted those facts as your quote supporting facts it's just not it's actually an absurd reading of the rule that's why i don't think the ten see should should be read to say he's trying to you know if you look at page two of his reply he specifically says that it should be incorporated into his original position for all purposes that the state court decision he doesn't really mean that your honour's if that was the case then he just lost because he did not that all of the legal argue all of the legal conclusions of the best record he doesn't really think that so if i'm going to you're saying if we were to   it will revert us as judge it could have pointed out it will it will basically eviscerate to specifically to require because keep in mind they always have to tax that's a court decision and so now the specific leader requirement that rule to see brought in is gone because every state you know every  fixed that's what happened here there was nothing to fishing about the men to petition the question is whether the claims they meant to petition relate back to the original pleading and the order ferment that was attached that pleading gives clear notice of the claims that were adjudicated in state court so what it boils down to is that there is no prejudice to the state there's no there's no problems for the district court in applying relation back here the state had prior knows these claims they litigated them in state court all that's a let me ask you this if we were to agree with you and it related back would mr ross need to manned the petition to better plead his case well we already have here there already was an amended petition filed and that's what we're trying to get petition was filed after the episode edge of limitations had run that's really what's at issue here that is so so if he well but we were raising the claims that were raised in state court i mean we were just trying to present the claims that already been adjudicated in state courts that's really what he had not expressly raised them each to read his statement of his legal claims together with whatever facts we can find the state opinion to say they were raised before the statute had run well yes that i mean that's what he that clearly was his intent is that he drafted this petition obviously very quickly in order to get it in on time i mean that's what he said in his affidavit and i think that that actually present some intent here of what he was trying to do i mean yes the form says to attach all the state court opinions but that's not what happened here and it's generally not what happens in most cases he only attached the state court opinion that matched up with or at least in jest generally matched up with the claims that he that he has in there he didn't present these sacred opinion from direct appeal so i think that's even further evidence of what mr ross was attempting to do here and when we once again relation back is simply about notice in the state it was attached order from it's clearly put everybody on knows that these are the claims that are due to get it on the merits these are yes the claims that the federal court's going to have to defer to so you know incorporating the supreme court's decision does have the bad language but it's generally that is ross's his obligation is to overcome that state court opinion he has to establish that the contents are unreasonable so it's clearly a part of part and parcel of this case and it provides notice to everyone as to what those claims that need to be judy catered in the federal view are all about the thank you note or question my colleague thank you very much the case just argued just admitted the court will stand in recess for five minutes