for the claims were defaulted by the district court below were indeed adequate and independent no other words whether the claims were refused to be heard by the nevada supreme court on adequate and independent grounds adequate see the first prong of the federal inquiry begins with a determination as to whether or not the applicable state rule is clear and consistently applied and applied without and with without discretion certainly without  unfettered discretion what is your evidence that the rule was not applied inconsistently consistently by evidence i assume you're talking you're showing what are you relying on to establish applicable trigger dates are the date in which the order dismissing the appeal was entered which was february of one nine hundred ninety four through including the order dismissing the postcondition petition appeal which was in may of ninety eight the attorney general's office and their motion to dismiss me in their reply to our opposition to the motion to dismiss and i cite the court to the excerpts of record at page forty five talked about consistent and then again the court cited to the nevada supreme court's commendable policy of reaching out and going grabbing issues that were not raised on appeal in death cases but saying did not and i and i tried to make this point i in which was a two thousand and one decision and in petrocelli in march of two thousand and one this court said under nevada's razor wave it bar we're going to follow the line of authority from we do not treat capital cases any different than non capital cases we don't we don't exercise any more discretion or any less discretion in our non capital cases what the inference there would be then then  is in a non capital setting and i forgot i wanted to try to reserve about thirty seconds but i moving to what i think to be a very compelling reason for reversal because unprejudiced the did did any better job than any other lawyer could have done given the nature of this case and it's easy for us to second guess at this point in time but i think really where where she really where she dropped the ball was on direct appeal she raised one issue carrier to overcome the the procedural bar for those eight claims that were defaulted by the state court and additionally the one point the judge taking made below was there never was any fact finding there never was any kind of credibility determination with regard to the testimony that mr anderson proffered in his sworn havey as petition and his justice affidavit there was a conflict there of fact and the state court conducted no hearing whatsoever and i just think review from the spain position as the district court obviously the court is not conducting a dyno of a review if it is not in the same position as the federal court and that would not be in the same position if this court were considering arguments that were not made to the federal district court or considering evidence that was not offered in support of the inadequacy of this purported inadequacy of a state procedural bar or if this court were considering items outside the record on appeal the certificate of appeal ability in this particular case is applying the question is whether or not the federal district court erred that necessarily limits consideration to what is before the court what was before the federal district court and what i what as i understand your argument and tell me if i'm wrong it's this whatever was in the mix at that point in time it wasn't any surprise with respect to there were issues about who had the burden that was well known amongst haiti as counsel granted doesn't change that it doesn't well it changes it well first of all with all due respect to this the ninth circuit your honor i think bennett errors from the standpoint that it does not it says it does not presume the adequacy of any state there's nothing we can do why don't we assuming for the sake of this argument in any event that we have to follow bennett i honestly do i understand that the thing about bennett is that what it does is it requires  going forward requirements of it right if he said to the to the trial court to the district court this case is a and this one says the i don't think that's necessarily sufficient because why the reason being is that you have to demonstrate the burden of showing in adequacy your honor and showing that the procedural bar is not followed in the vast majority of cases and establish the inadequacy of the state procedural bar so it's not enough to say one case went one way and another when the i wouldn't i wouldn't think that would be enough your honor and it certainly was and whether or not that is enough in the grand scheme of things that was not what happened in this particular case anyway the issue was in fact brought up the is not a fact the petitioner himself made a naked claim of inadequacy but did not back it up in fact the only two cases that were cited care versus events and the stocks case i believe didn't have anything to do with an arrest thirty four point one zero was decided long after to the extent that it has any apply in this particular case was decided after the state procedural bar was applied in this particular case the other point that i would make is that with respect to thirty four point one zero prejudice the burden is upon him and i know mr lamb brose in his in his grave says that he was not given the opportunity to make such a slowing in state court i respectfully disagree with that if you x the claim that he never had any opportunity to rebut the assertion of the state procedural bar i submit to the court is simply incorrect he didn't take the opportunity or maybe didn't but he's not entitled to effective assistance of post conviction counsel and that's really what mr lamb brose is trying to argue and ask for this court to do is say that mr anderson was and obviously in vail area is really of no moment as a matter of fact i would suggest that mr allen ambrose is treading on some thin ice here that's what he is really arguing is that the nevada supreme court a finding of fact that is binding on this court under twenty eight u s c twenty two fifty four even want now if that's the case and he has the burden of rebutting that factual finding cases wrong now we've been saying that as respondents with all due respect to this court for some time but they can't have it both ways well one of our presidents must be worth something well due respect to the court we we believe that there was an incorrect analysis in those cases but i understand that they are in fact binding on this court unless this court has any other questions that's all i have to say thank you for your time thank you coun case just argued will be submitted for