court the trial court during this to robinson sentencing proceeding just refused to give him an attorney to represent him at sentencing a critical stage of the proceedings under mental vs ray and base that refusal on the fact that in the standard we apply whether or not whether we apply the lesson deferential a t p a standard which i do not think applies in this case because there was never any merits reviewed by the nevada supreme court but it was and and the only merit review that ever was undertaken was by the post conviction judge judge handles months and by the trial judge and as i said before the trial judge predicated his decision on  during the proceedings in post conviction stipulated on the record that was entered into an order that he would allow mr robinson to present three issues and that the district attorney would not pursue any procedural defenses and that's in the record i had i would just invite the court to and i'm sorry i didn't put this in my excerpts of record i should have i didn't anticipate that this was going to be an issue if you look at exhibit one forty one proceedings with stand by post conviction counsel that the stipulation means the district attorney can file any more motions to dismiss in exchange for mr robinson's agreeing to proceed on just three post conviction hearing the district attorney does a complete pure aware that the disk that judge handles man the post conviction judge basically rejected the district attorney then does a lame thirty four just an oral objection and the reason i call it lame is because four days earlier maybe ten to seven days earlier ten days earlier he had agreed on the record that he wasn't going to do just what he did and judge and  think you know judge hamilton and didn't come out and ask him what exactly he thought he was doing mr robinson did mr robinson basically said i thought we had this all figured out you know that we were going to hear this thing on the merits the district judge page twenty one anomalous procedural aspect of this case is that he couldn't probably done it because there's a direct appeal that still pending when they did the post conviction evidentiary hearing he could have probably done it but he didn't because why because he lied the type of claim that can only be brought collaterally and believe me the parties during the state post convention litigation sure thought it was we had stipulations we had witnesses we had evidence judge adams the sentencing judge testified there was evidence about whether he got a letter i mean that was a whole lot of controverted evidence in fact the district attorney at one point during his closing argument front of post conviction judge says yeah you know this letter is in dispute on judge hagan acknowledged all of that and he said you know i don't want to can apply because i'm deciding this and i'm looking at the record as a whole and i have to look at the post conviction record and  one to three varying does not apply quite frankly and i want to reserve one minute on my nose so i have one minute and thirty seconds here so really i guess that brings us into the other question that this court asked and that was so you know the state court said you never can once you wave you're done don't don't talk to me anymore ok thank fault rule procedural default rule that applies has been consistently applied by the nevada courts and looking at the language from the bang this court has upheld thirty four point one eight zero has a different period of time to test interest was it applied at that time and i'm not just asking you sort of skipping over an issue here assuming that this rule applie do we know can we tell from the record of this case whether it's been consistently applied it was during this period of time answers no i i would agree with your argument that this rule may not make all the since the world but apparently it requires either a district judge or magistrate judge to sit down with every reported decision from the state appellate court's intermediate in advance and it was not on the judge had received it do you think the judge would have the discretion to say no i'm not going to let you change your mind about counsel on that particular set of facts the court's discretion i think would be great received and apparently the judge by the time this came up sometime later didn't have the recollection one way or the other but does not recall receiving it it may well have then that something might have straight but again from the perspective of the defendant if he made a timely request for counsel in advance of the i'm not sure that it's necessarily his fault or should rebound to his detriment if the judge just didn't find out about it and if the hearing on poles he doesn't discover the request until halfway into the hearing i just wanted to make sure that the record is absolutely clear that the stipulation that was entered into by the district attorney during the post conviction proceedings absolutely included this critical stage issue absolutely and was looking at the post conviction proceedings not what it what could it have been and should have been raised on direct appeal and then it had a supreme court itself clarified that now there was one other question i think with regard to