attacking and prior state convictions in federal court and it accords with the rule that the supreme court announced in cost this pertaining to the armed group criminal act we don't want people using federal court to undermine state fictions in fact section eight fifty one is a little bit more generous and thus this rule because it allows it does allow those attacks so long as the convictions no longer no more than five years old but it does not preclude all attacks the use the fact the application of a prior conviction so i don't see anything in eight fifty one that talks about something it's right to go to state court to raise whatever they problem with the prior conviction don't litigate it in federal court go back to the state and once you have gone back to the state and vacated the prior conviction come back to federal court that's johnson right and that's actually other cases that's johnson and  so i don't that's not a terribly controversial sort of position let me talk a little bit about the the diligence question the diligence question has to do with the timeliness of this petition under twenty facts of the district court repeatedly in at least four pleadings indicating that he was relying on twenty to fifty five f for and the role of johnson and its due diligence requirement the government never responded to that  and instead adopted a litigation strategy of first moving to dismiss for lack of jurisdiction which was denied and then moving responding to the petition on the merits and skin vince the district judge to both deny th petition on the merits and to decline to issue a certificate of availability so your position is that this is if not waiver at least forfeiture yeah and i think it is a close question on waiver there's no expressed statements that were this man in prison for the rest of his life because he didn't file a timely petition but don't mind the fact that we didn't timely file this limitations defense and you know what's what's sauce for the goose is sauce for the gander  that it's at least forfeiture and what the supreme court explained in wood was the appellate court certainly can raise these issues on their own but only in exceptional circumstances and it said that in the context of twenty t fifty four proceeding where most of the rationale the supreme court relied on was the need to you know promote and foster respectful harmonious relationships with state courts we don't want you know if the state  attorney general flops that steps and doesn't raise a procedural bar we were we want to afford them the opportunity to do that because what's under attack in federal court is a is a state judgment here that doesn't apply we've got a federal judgment it's in the same federal sentencing court there's no need to find that this is an exceptional case that would warrant the courts to a sponte exercising its authority to raise this issue on its  own if the court does think that the issue needs to be raised would suggest this is a fact intensive inquiry in needs to go back to the district court it gets back to one of our earlier arguments today with with a lawyer which  to at an evidentiary hearing we would be able to develop more facts and develop you know with with a look at how do how do establish diligence so that so it's your position if i remember your brief correctly that it's possible at such a hearing that even though mr area look at sister starts early said she and she had to go to three different counties in the state that there may have been delays built into the state proceedings over which she had no control right and so the last conviction they got vacated took i think about three or four years and what the supreme court said is you know if there's a delay that's not attributable to the person we take that time court brian rights for the united states plus the steps aside we think that a fifty one bars mr ariel position here i don't agree with you and i think you should start with the timeliness because it is a little unseemly for the government to been all the time as we see regularly against criminal defendants and claim that they've waved and forfeited by the government's favorite arguments and here it certainly seems he's not you didn't say that he was too late we agree i you know our preferred hope was an apology for that we should have said so we said he said it but they did not it's not the end of the world i assume this doesn't happen very often for the government and when the government forfeits an argument i see nothing particularly unusual about this case before if you did an argument it brought in the argument is forfeited with this court in addressing this court did asked of a spontaneous for us to address and we think under supreme court to steal is that fifty eight months where the supreme court johnson said twenty one might but we don't know that he personally is a fifty eight months because suppose the new mexico courts took fifty of those months to move on the application there's really nothing he could have done about it if it's a prompt petition have been filed in the state court sat on it but i'll start with it if that is true and if the court has those concerns perhaps every man for an evidentiary hearing on that to flesh out those facts would be warranted we think that the type of claim that mr area like a c e o made wasn't really susceptible to that because as we pointed out in our brief i'm not really sure the court documents were terribly relevant an affidavit stating that he was unsure about its neck lation tell that to the new mexico court you can't possibly tell me that probably a very busy state court is going to put this at the top of the docket and we don't know right we don't know why they took this long right yet you know we got it but i'm going to take it to the to the merits i don't read eight fifty one easy at all the way you do i see it is telling the federal court first of all you are not the forum for a mini trial about whether there was a flaw with the underlying state conviction and whether there conviction at all and there were some examples of somebody ask you please go into the dining room and tell me if the lamp is on or off and you went into the dining room there's no lamp there i mean you can't come back and say it's odd and you can't compare could say it's off there isn't one it's a different kind of response altogether and i don't see anything i don't even know why the supreme court would have decided johnson the way it did if your theory is right starting at the end of that we think johnson those line cases are really about opportunity not a guaranteed approach guarantee a process so the to enhance somebody's sentence a conviction that never existed you can lie to the court and eight fifty one doesn't permit the person to say that conviction doesn't exist that is something of what occurred in a christian we think in those scenarios it's outrageous we don't disagree with that your honor we think it's a fifty one c does a lot of that work though certainly the government has to carry its burden to prove that the defendant was convicted of a qualifying  we still have the burden to do that but once we do that if the conviction is over five years old a defendant cannot attack it that's not what it says though if the defendant can attack it in the several court in the federal proceeding but johnson says when somebody is serving an enhanced sentence based on a prior conviction vacating the underlying conviction is a fact that starts the one your clock it doesn't say you know within five years or it doesn't say anything else like that right your honor but johnson again is dealing with a different sketch of the johnson and cusses were very careful to say that this is not a constitutional right on any defendant so therefore it was a constitutional right either i was saying that the statute that you're relying on doesn't say what you say it  but i think i was trying to lead to the next point that those cases don't say that congress can't write in a statute of limitation that says that's not political here and here i think congress time it's put the baby and said you can make these attacks at the sentencing hearing unlike aca but in exchange for that you cannot come back after five years and attack them so i think that this is somewhat in between in the cases that deal with aca johnson because i don't directly apply here because  you think that that of somebody at five at six years shows that they were never convicted of something maybe they finally get the evidence to show that it was the wrong guy they have to stay in prison for the rest of their life well that's your if it's within the five years or even if it's outside of five years of sentencing we think that that is wrapped up in a fifty fifty one c in the government's initial burden how do they raise it within the five years in federal court right yes and actually fifty one allow this court has said that five years is plenty of time and if you're worried about state conviction being used and well i i hate to go back to personally experience but i know the problem has always been the difficulty with state records because talks about challenge the village of any prior conviction but d d uses different language other parts of eight fifty one use different language i don't know why the solidity and existence aren't different have validity issues maybe the government failed to comply with its brady obligations maybe there was a baton problem with the jury those things are not where you ever convict you know do you stand convicted it had not quite get out the conviction then that would be a different matter but the state court did just a race to it but there is no conviction and yet you're keeping this guy in prison for the rest of his life even though there are no predicate convictions according to the state of new mexico to get the supreme court has always been clear that something this is one post conviction some defendants will be without recourse to question on post conviction is opportunity the not guarantee process mr area look at steve who had an opportunity at the sentencing say you don't see the difference between the fact of a prior conviction and the validity of a prior conviction no we think those are two ways of saying the same thing and i don't set out at all i don't see that it all seems to me congress uses language it wants to use and it distinguishes even within a fifty one between those two things we think the fifty one includes both that over the next existence if the court doesn't think that then we would rely on the lack of diligence of mr ariel to steal as part and again if the court has concerns that there is a factual dispute that has been pushed out we can wrap that up i suppose on remand but we think that the factual that the supreme court on the merits just what i think you've hit the nail on the head and what you see in the district court's opinion and in the same pru non presidential opinion is you see the word use instead of letting you see while they're challenging the use of this conviction well that's not what the statute says the statutes calls the validity of the conviction it's a collateral attack on whether this conviction is valid that's not implicated by this case mr area has filed a collateral tech on his federal sentence  and it's a cognize will claim under twenty fifty five there is a constitutional dimension to accepting the government's viewpoint which is the old supreme court cases of towns and talker which say violates due process a defendant on the basis of inaccurate criminal history information so that that's where the constitutional implications come in and finally just to clarify would we think the government has waived or if not waive forfeited its limitations defense and so we think the remedy in this case should be to direct the district court to reopen the sands and hold reasons thank you all right thank you thank you very much to the government as well we will take the case