the proceedings both be low to preclude review of the what i've characterized as the a claim the claim that precluded read the request by mr downing to get an expert to help  rules of preclusion under nevada state law i'm confused about something on that if i recall correctly there are a lot of cases i may not recall correctly but if i recall correctly and down and did not actually make a motion to permit him to have a d n a expert he made a motion about something else and on page four five of the motion he's dead and if i don't win on that side like my have my own expert right and so we never made a separate motion on it that was three years before trial at in all the trials i've ever done as a lawyer or as the  before the crowd starts at the final pretrial the trial judge always this is there anything else and if the person doesn't say yes your honor have ruled on this and need to have a ruling then it's gone it's wait it seems really elementary what am i another attorney and then at some point for about a three month period mr downing exercised his rights under florida and was pro se for about three months and in recent direct response to to your question when he was pr the las vegas state court practice could explain this but mr williams his lawyer who had been conflict it out three years ago appeared with him but mr downing on the record was pressed say and he said just exactly there was a colloquy between the supplementing that well then in june of ninety seven another yet another attorney got on board mr christie anson and mr christie answered never stop lamented the motion the motion never got ruled i can sure see why a judge would leave it alone if the attorney didn't say anything the problem with getting the d n a expert is he can sink your case well you can sink your case but it can also make your case and if he sinks your case you just don't use him but there's no excuse not to at least get the expert legal you know i'm sorry then the other side subpoenas them well the other sites pianism but that doesn't necessarily mean that the other side is entitle to use that experts you know inculpatory evidence that was found during the defense's investigation i certainly would protest against that i think you can get over the whatever hurdle right what in the record would show us what impact the appointment of this expert would have on the ultimate trial well  that's that would be the that would be a decision for for the merits court to review but as you know i think i can really can't answer that question because no expert was ever retained to evaluate the the presentation of the state a if the analysis of the d n a expert that the state put together was flawed in some way and again i wish i could answer that judge hawkins because i thought i can't because you know we knew we never have retained an expert to evaluate that evidence because we've been you know up against this procedural hurdle and haven't haven't really had it you know the ability to extend those recent little bit like there isn't like a motion for a new trial when you make a motion for a new trial in the civil setting and i think also in the criminal setting you're supposed to demonstrate what it is that would happen if you were given the relief you asked for right but is there no burden on the petitioner at all to demonstrate to him to a trial court  what impact this expert might have on the or might have had on the outcome of the trial i don't think that there's any you know when you think about the issue that's before this court today that was briefed by the parties below the only question is to that and and observed by this court in corner vs everyone all those other cases said was nevada supreme court says even if it was weighed we can review it if we want to but that doesn't mean it's not way yeah but if the best bit if the if the rule is predicated soley on the discretion of the highest state court then it's not an adequate rule under this court's decision and morale is worse is calderon so if you know if the rule is just one that that is predicated on the whim or caprice of the highest state court it's not adequate it can't treat it cannot preclude me cannot preclude federal review of a federal claim i mean otherwise you would restrict the risk and that's what coleman versus thompson you know tr well first of all it must apply and my first argument is it doesn't apply this old ass tech versus brown doesn't apply to a case of a criminal case where contra constitutional errors asserted on appeal and and  doesn't apply and that if it does apply then it's not certainly wasn't well established under under this court's decision to call your versus bearer it could have been well established that old aspic or not you're asking us to provide relief based construed as a waiver because we're talking about a constitutional right that was never waived on the record in a knowing involuntary way by mr downing and i think boykin stands for the fact that you cannot conceive you can't find a waiver on a silent record and that's the court my name is joseph long i represent the state of nevada in the office of the attorney general of responded in this case i'm the youngest guy up here i think i'm having trouble hearing you could you speak up a little bit i'm sorry ana i will do my b t i would like to start maybe it's better we don't hear court and when that court makes a decision or a determination this court should give deference and when we're talking about procedural bars that are imposed by the state courts below it's necessary that if we're going to compare cases and seeking inconsistent application we need to we need to compare cases that are comparing similar similar bars apples to apples as it were now in this case  is sufficient information in the record to show that and i'd like to enlarge upon that but i'd also like to point out that mr lamb ross has discussed a number of cases that have to do with the contemporaneous objection rule or waiver factual recitation mr lambert i'd like to enlarge a bit on that as this court has observed in your questioning the this motion to exclude d n a evidence was follow on may fifth o williams mr williams wasn't representing downing's he was in a crowded courtroom the judge there jeffrey soul was familiar with mr williams least and he referred to him in the context of the colloquy between himself and mr downey regarding the issue at hand and mr williams gave a response but two years later after several attempts filings by mr downing to represent him self and proper person under florida he ultimately decided to do so with the court and when during that hearing he let the court know that the reason that he wanted to do that and that is set forth in exhibit eighteen to these these proceedings mr downey said i will better facilitate in bringing forth the issues that i desire the court to hear and to rule upon that deals with jurisdictional as well as other issues under the statutes which i believe were in appropriately filed subsequent to that mr downing filed a motion in proper person for expert piece he did not delineate or getting all the type of expert that he wanted in court to say to pose that in court at the hearing the judge asked mr downey specifically what type of expert do you want and mr downey said i'd like an eye witness expert and the court said well i don't know if you're entitled to that now there are others that you'd be entitled to but i don't think you're entitled to that but he asked him to clarify and ultimately the court denied that motion now there was subsequent stressful situation under time constraints and the the bar here as i said and the outset in my remarks the bar here has to do with finding that mr gannon abandon his claim he didn't this motion which was the motion to exclude did come up at a later point and the court the discussion went this fall is that because this motion had lain fallow for sorry i don't i can certainly go for you not my notes the mr downey stated that i was thinking of filing a separate motion away from that motion there and he was put on notice yet again during that hearing on may fifteenth one thousand nine hundred seven that d n a expert hadn't been addressed if he wanted to or needed to be addressed and it was not addressed it's never been addressed by mr downey in this case the court has no further questions