the next case on the calendar is  justice and in the interests of several state comedy this court should reverse the granta the writ and review the sufficiency the evidence supporting petitioners robbery conviction the magistrate judges report was only erroneous concluding on a cold record that i would miss angela crevasses testimony was not credible the district court compounded this error by abruptly issuing the writ just four days after the deadline for filing objections ruptly i mean did something wrong with that i mean sometimes courts are criticised for taking too long a time for objections had come and gone and so the judge ruled that what's the proper amount of time that the district court should have waited sudden a sudden unconditional writ and then when we moved for an extension the court simply brush this off refused to look at the merits of this erroneous report that we pointed out flagrant errors and and the court basically said you don't have you don't have an appeal we're done you go for an extension of time after the deadline had run and i was i was struck in your submission sciri my request for an extension that neither yours nor your supervisors acknowledged that the notices from november sixteenth of november twenty second explicitly said that the deadline was november notice was a week before the thanksgiving holiday and said explicitly that the deadline was november twenty ninth why was the district court totally entitle to rely on that your honor this was my mistake and the district court could rely on it  we never did you didn't acknowledge in your letters i was disappointed that you did not acknowledge in your letters that the notice first that the notice that you received the notice of november sixteenth and second that that notice said itself explicitly that the due date was november twenty nine you presented an excuse that you had miscalculated the due date but the due date was set forth in the notice itself i think some contacts necessary cut back from thanksgiving holiday just like whoa wait a minute wait a second it was november sixteenth it was a week before thanksgiving right at the notice of november sixteenth was distributed and then the november second twenty second notice but if we just focus on november sixteenth you acknowledge that you received that oh yeah calendar i calendar year and did you notice that it says the debt deadline was november twenty ninth i didn't notice that at the bottom it's a slight thing at the bottom i i based my date on the entry date when that and the day that he didn't read it all notice right the mistake is all mine your honor i think the misunderstanding is that when we sent this first letter when i first got the issue of the writ which was sudden four days after why i mentioned it it's was rather sudden four days after the expiration of the date this isn't how i've never done this before released now that letter could have been obviously drafted were clearly i was just trying to explain how and why i made this stupid mistake i didn't i wasn't trying to deny that i made the mistakes of the fact that i also the court's finding a bad faith is based soley on that letter so this court is that just going to position as as the district court to decide in any event it is i don't think anyone disputes this is these are unusual circumstances and that this court has the authority to excuse the objection waiver in the interest of justice that the key factor yes even assuming that the that the magistrate judge erred in its analysis is it is your argument that because there was an error in the magistrate judge analysis it must be in the interest of justice for us to excuse that waiver because i don't think substantial merit or put another way whether the report is plainly plainly erroneous here we have just a paper leo erroneous report but on top of which we do have a lot of other factors that make this an odd situation so the court doesn't have to make some sort of sweeping declaration or change in the law i mean it's you have the people making the state is making the error the state hardly ever makes these sorts of errors and there's this  the other main point i guess is this comedy which is the case is exceptional because granting the ridge here violates comedy inflicting severe repr cautions  that are totally out of proportion to the stake of a few days i mean in the repercussions include nullifying a proper state jury conviction given petition of the windfall of wrongful conviction claim against the state well i didn't understand that the assertion in our opposition it wasn't rebutted that council has this case for a homeless man because council believes that there could be a wrongful conviction play i'm not saying they're going to win but certainly the state to have to defend against that and it's just like rubbing salt in and talking a multimillion dollar claim he's been in for eight years and he claims he's actually innocent i mean the the worst part of the comedy violation though is that he's being released into the community is a predicate violent felony offender has nineteen prior convictions it without any when he served eight years almost eight years of a ten year sentence he was homeless for a protract period my understanding was that those prior convictions were for minor nonviolent matters that one violent felony referred to involve possession of a firearm that frankly didn't strike me as  particularly he never assaulted anyone with it and so do you are you arguing that he poses a present danger having been released into the community right now well and if so based based on the these david actions right we're second guessing the state here and comedy is rather strong interest and i think you're ignoring also the five years of post really supervision he's been released into the community without any state supervision so that's essentially two years of prison five years of post release these seven years he should have been under state supervision he's got free and anything happened since at least not that i know of but i think counsel who has an interest in keeping clean has gotten a job going to housing but we can't rely on that this is this is it should be state supervision that's the state's job for seven years to supervise this man who has had trouble a lot of trouble over the years and he was released almost an entire year ago he has been working washing dishes at a synagogue it's matter of public record that he has not been arrested or charged with any crime since then and he did that entirely on his own we had nothing to do with it to answer your  that's in the record before us none of that is in the record but just so you know it's good journey and made you made mention of it in your brief and that's what prompted the question just in invoking the interest of justice exception in this case would set a very dangerous precedent because it would signal that this court tolerates the kind of of conduct that the state engaged in here as counsel for the state acknowledged the district court found that the state had acted in bad faith in seeking to overcome the consequences of its default would you address i mean i guess i read the magistrate judge's report and recommendation it was clearly incorrect this was a jackson claim all inferences are to be drawn in favor of the jury's verdict and it seemed like the from the get go the magistrate judge articulated in their own as legal standard and then presume to apply it throughout the report recommendation well the looking at playing area on the first plane or of course has four factors the first two asking whether there was clear or obvious there and when you look at the magistrate's report and  reciting the operative language governing jackson claims he he wrote that special appendix page thirty two that he couldn't overturn this conviction simply because merely because the court would have reached a different conclusion in the first instance he noted that he could only reverse the state court's decision this is that special appendix page twenty seven if that conclusion  the conclusion of that court was objective leon reasonable that is the standard looking asking whether that whether the magistrate committed error that was plain that's not made out here but most and most importantly the plain error which is which is among other factors that this court looks at when deciding to and vote whether or not to exercise its discretion to invoke the exception plain error that error assuming there was an error would be an reversible unless this court also goes on to find that the error seriously affected the fairness integrity public reputation of judicial proceedings the true danger here to the fairness and integrity of judicial proceedings would be again for this court to put its stamp of approval on the conduct of the state here and to to do so to do that would also it would it would violate the purposes of the federal magistrate's act of criminal convictions what's your view about that well as your honor pointed out the there was only one felony on the record and it was from the year two thousand which was eleven years before the underlying conviction in this case it was for simple possession it didn't involve any kind of you know using it against anybody and then there was an attempted assault which was a misdemeanor after that in two thousand and one from two thousand and one until two thousand and ten when mr madera was was arrested for this well for an open container violation actually the eighteen the eighteen prior convictions are all precisely the kind of convictions of offenses that you see on the record unfortunately of so many homeless people in new york city trespassing turnstile jumping marijuana possession so any any talk about the dangers that mr magara poses now is really very speculative and particularly given that he's already been out of a year out of prison for a year and again it's a matter of public record that he that he hasn't been arrested since then so it's yes so i would i would just say that though those dangers are very speculative i just wanted to to to highlight that the unless i heard it wrong i believe counsel for the state indicated that he had calendar the november sixteenth notice and i that i didn't and that was never in the record anywhere before so in light of that i mean the the level of negligence is is  and unfortunately bad faith is the district court found i think is it is particularly agree just here and just make a level of no i just be clear we were talking about a couple of days right so what mr you said in her letter to the court was that the state would not object if a petition mistakenly missed such a due date by a few days and so on a similar extension do you think that that's inaccurate i think it's i think that that's probably an accurate your honor we sides will give you an accurate you said i think state if i understood your question correctly i think you're asking whether whether or not it was accurate the state in most circumstances would grant an extension to a b s petitioner who asked for an extra four days i think that's like inaccurate the this state is typically quite inflexible about taking advantage of bad deadlines and we cite a couple different cases where the state has taken issue two to the supreme court  trying to make you know trying to ensure that prisoners can't take advantage of the mailbox rule in hate in maybe it's cases well but this is discretionary right this is not a situation where there's a statute that a date by which things have to commit but so i'm just asking about whether or not do you think it it's going to be ultimately bad for petitioners if the rule is hell or high water we're in the enforcing deadlines and if you're late man you're outta luck the fact is that this court's precedents the the relatively small list of cases in which the court has exercised its as you say discretion to to excuse due to a court of appeal yet this this court in district courts would routinely say a couple of days no big deal so maybe we should get to the pioneer factors and get to the second argument that the state has here which is that this was an abuse of discretion to deny this opportunity for objections to you know an r and r that is does appear to be problematic nder many circumstances is intolerable the as this court said and i believe it was still advantage the legal system would grown under a regimen of uncertainty in which time limitations were not rigorously enforced i think more importantly that as i as i read the district court's opinion which seems which seems correct to me the the the bad faith the purpose of the bad faith was and this is that special appendix page seventy three to give the false impression that respondent had been notified of the deadline to object a week later than he in fact had i mean it was simply too it was to give it was to give an excuse that i think that hopefully the court would find  plausible but of course given what was on the docket the court found found that it wasn't the what was on the docket was wrong to write it wasn't november twenty ninth that wasn't the due date it was actually november thirtieth so the docket was wrong that's true and that one in that small respect yes ok but there's no dispute that they blew the deadline right no no there's there's lines nobody does it is that he blew the deadline that's correct your honor no dispute as far as your of discretion your question about the abuse of discretion i can't see how this court rules in favor of the state on that because the case law here is crystal clear and i see my time's about to expire but if i can just finish that point this court takes a hard line  applying the pioneer factors that focuses on the third factor because all the other factors usually fall in favor of the movement and inadvertence lack of diligence that those are as a matter of law and not adequate reasons two or those are not sufficient reasons to find excusable neglect the fourth factor in the excusable neglect standard also happens to be good faith or bad faith and again the district court found that that the state had engaged in had it acted with bad faith for those reasons and for the other reasons we set out in our brief this is not the rare case for this court to invoke its interest of justice exception and we respectfully request that the court affirm the district cour judgment thank you thank your own first saying it's inaccurate for the state to say that we generally don't or we don't as a as a rule complain or object if there's send in their objections months late the court still consider them and this is something a matter of comedy with comedy is in the interests he is different you sending a guy to jail or you releasing him so the courts commonly grant extensions on objections we never say anything i have never i've been doing this quite a few years and a clerk i've never seen it now as you pointed out stachel impatiens is different courts do take that default both equitable so yeah there is difference and it's consideration when we make a minor mistake of a few days i think the star stronger argument is certainly under the suspense factor that  this court can excuse as court itself has the discretion to excuse the default because that factor focuses on the merits of the report pioneer not so much it focuses on the error itself  notice until the court asks you right your honor that letter was sent out we drafted it in haste got it out the door as soon as possible of the like within an hour or so of getting the extension getting the writ that petition was going to be released it was a panic letter so no i didn't go through all the explanations of that i got the sixteenth but it was on it was on the docket i'm not so stupid that i think i could fool a district into misreading her own docket i mean i'm not an idiot i may have made a lot of mistakes here but i'm not i should say i'm not crazy my main tent wasn't to fool the court into not seeing what's playing on the docket i was just trying to explain how i made this stupid mistake this negligent mistake i just didn't see the deletion you know the there's two reports one the first one i  how that's proof of bad faith much of the one was a week later i calendared that and it was later but i didn't see that the notice just didn't register the notice that the lead in that second report that was the problem and i  didn't read the notice carefully it said november twenty ninth which is a wrong date anyway