certificate of appeal below the granted in this case because even the federal magistrate felt compelled that there may be some legal solution here the court's probably also aware of the chief justice of the state of north dakota who also the united states supreme court there just aren't still today a lot of cases really delving into this issue of what is a prior factual predicate knowing how it works it seems to be the argument here between myself and mr mahoney representing the state that that prior factual predicate has to directly relate to the individual to the petitioner and i guess i'm trying to submit to this court that any legal issue that does affect him even though it doesn't directly affect him in his own particular case and i knowledge that it still is affecting him because there's been a decision that one of his to the authority that are moving is in effect and i'm sorry judge nothing but a ruling is not a fact that it's what's your response to the language and well what litigation and you know he still was in litigation and there was a significant change the north dakota supreme court found that in three particular cases that we should not have attempted  did commit the reckless version of murder and i think what one thing that's perhaps important to point out here is that he did raise this issue on direct appeal in his brief so the north dakota supreme court never really addressed it and and then later in these cases that we are and also saying reactivated the factual predicate they did talk about it is that is that what's required in order to for you to avoid the statute of limitations on the a b s case is for some way for this to be able to go back and revise well i've thrown out three legal options here for this case and i could find the first one of course predicate that's the one the next one is equitable tolling and the third one is the doctrine of and i can't remember the exact language the doctrine of constitutional doubt so i between the three of those i think there is a way to fix this well he did raise the issue within the one year of two of the three cases that the north dakota supreme court came out with so here in the end so by filing his request once he was made aware of those new cases now you know he raises the issue in his own direct appeal the north dakota supreme court ignores him he then finds out from other cases that he the thing that my counsel argued about actually had merit even though the north dakota supreme court never addressed it so then he files his own post conviction in the state of north dakota so it seems to me that you know all these cases are analyzing what the johnson case from the united states supreme court said and it seems that there is some ambiguity as to what exactly the court meant on a on on your equitable tolling you you've highlighted the new cases as sort of the starting jumping off point for whether he was diligent on the other hand you said his own lawyer raised it on direct  appeal so so should we be looking at is the equitable tolling go back to the first direct appeal he's aware of this issue that the supreme court doesn't take up until ten years later that his lawyer knows of it is that the point where he should have been diligent and filed a post conviction that point but that's a very good question judge kelly i don't exactly know the answer i just i know from reading the case law on  equitable the ark little boy remedy it's a case by case basis in this court seems to have a lot of power under that theory if the court wants to or knowledge it at least that's what i've gathered in reading and it's a it's a very rare amadie but it isn't that the remedy in a just i don't know it seems to me when you've got a chief justice saying that somebody should not be convicted of a crime you got a federal the third option the doctrine of constitutional doubt and i have all be honest i've never heard about it i started doing the research on this case but this court give any really under that theory well again i didn't get a lot of cases on it but but there is actually you know the circuit has addressed it and also the u s supreme court has addressed it and it seems that it requires this court to interpret well i i but i couldn't imagine a worse due process rate than being convicted of a crime that doesn't exist i way that doesn't need due process grounds i don't know what does and even the chief justice of the north dakota supreme court said no statute taking the position of you say that's a state decision and state law it still i would submit violates due process because even if you just look at the record on its face and i respectfully would disagree with the other four justice are viewed this but you've got a situation where you've got the two different kinds of murder the one can be convicted of in the state of north dakota under state law and the jury instruction set forth the attempted murder and on was supposed to give the two different versions of what mr keller could be convicted of and the jury instruction is simply erroneous because it gave both our options yeah but it doesn't even comply with north dakota law so i don't know i mean the chief justice was able to see that and i think that the other thing that the chief justice hung his hat on from what i could read is that there was argued to the jury  closing argument that they could find him guilty of this alternative murder which of course led him to believe that there may well in fact be an illegal conviction here so  i know this is a just an absolute hurdle of procedural limitations here but it just seems to me that there is a way here to fix this i tried my darndest to look up all the case law that i could find to see if there was around with it here because it is you know obviously it doesn't look good for mr keller standing here today before this court there's a lot of hurdles but it does appear that if this court wants to this court can find a way either through the prior predicate factual basis which i would argue does affect him not directly but it does affect him in h litigation it has an effect on him he found out that hey the crimes that i was convicted of may not actually be cardinals booker names the equitable tolling as judge kelly mentions that could also be around here for this court to apply if the court wanted to and again the final remedy of the constitutional doubt gives yet another i just i don't know if it comes from the common law or comes from but it's a didn't well ok so he did raise it i understand judge kelly depends where we apply this equitable tolling to but as i understand it it was raised on direct appeal but nobody listened to him didn't the supreme court of north dakota didn't seem to care about the issue so then i concede it's not raised again until these later cases come out where they acknowledge a new principle but i you know one thing i think maybe is also important is that what i've been  arguing to this court is the state of north dakota did not come up with a new law they just simply recognize what the law should have been and i maybe that's splitting hairs there on the law but i am not saying that they actually came up with new law per se i'm saying they finally told us what the law meant so that extreme indifference could never would never yes so i see i've gone and on my three minute re killer should have filed his petition but november two thousand and six he did not file until november two thousand and fifteen so nine years late they want to keller in the lower court his counsel did argue at the trial stage that one of these crimes was in cognizable he did argue or at least presented the case to the north dakota or supreme court went through an extreme analysis in laying out why the killer was not convicted in cognizable crimes they went through a lot of detail to point out that both of the crimes he was convicted of required element of intent and that the jury could find or their way based on the facts of the law as presented to them it wasn't and if you're going to get into the actual factual merits the jury was not asked to determine whether they were deciding the attempted murder or on the intentional or i think i misspoke or extreme indifference murder and so if they're given the option of  or there's no way of knowing which one they picked well the court would respectfully disagree with you on that north course supreme court day i would propose went through an analysis there was no special verdict form requiring  jury to choose as you just indicated but they indicated that based on the the jury instructions in the charger is no way the jury could have found other than the facts a killer committed to and the arguments presented today are that those three cases somehow brought to the forefront that mr killer has some bar is is the main hurdle for a killer and he hasn't reached that at all around however with the north dakota supreme court not addressing that issue even though it was brought up that would cause a very difficult he was proceeding in my opinion because the federal court would not have anything to look down upon on the state court but but again until the north dakota supreme court brought to the forefront this issue and the subsequent three cases which are now relied upon in th about this myself but but it seems that some of these cases cases talking about the factual predicate they're talking about you know it's a it's something that had to be proven or unproven and i think there's an assumption there it's always to a jury a judge known what the north dakota supreme court was going to say on this the judge would have granted rule twenty one judgment of acquittal prior to this being submitted to a jury no i don't know if that  avenues for this issue of prior factual predicate but to me it is something in his litigation history that is a legal event and i did just ask this court just to reach