rebuttal the reason we're here is because this is mr trollops only opportunity for any meaningful federal review of a state case which is quite candidly in my experience somewhat extraordinary both in terms of the vigor with which mr trollop has attempted to pursue a number of errors that he perceives in this case and certainly with respect to this record from my perspective entering this case sixteen years after the fact this case is confusing and i would say disfigured in terms of a procedural history but there are a few things that are clear from the record number one mr trollop as always maintained his innocence number two he has aggressively if not obsessive fully attempted to press his issues number three he has attempted to have a court hearing resolve his complaints about his lawyers ineffectiveness about the inappropriate use of an expert witness at his sentencing in about what he perceives as the trial judge is biased with respect him steadfastly for all these years number four and perhaps most important mr trollop has never received an evidentiary hearing with respect to any of the issues that he's raised in the final point i would make with respect to the record although i think it's probably abundantly clear to the s already regardless of whatever sort of procedural default arguments waiver arguments and so forth may be made against mr trollop the record very clearly demonstrates that he never deliberately waived or fail to press any issue and if there was any sure coming on his part it was completely inadvertent let me begin by focusing on the questions that this court raised about two weeks ago concerning a waiver of the procedural default the fence by the state in light of the court's question i went back and reexamined the record a portion of that record i never had because of the point i was appointed in this case  entire district court file had already been transferred to the one circuit so to a large extent i was relying on what my client was able to provide me and some limited documents from the state one of the things i did not have was the state's answer with respect petition this is i don't know if you truly want your twenty minutes which are entitled to i'm not going to take this out of here twenty minutes you were unable to get that when you ask us if you can have a look at the record that had been transferred i asked i did yeah yes i have seen it at this point and i went back and i specifically looked at it with respect to this court's question and i think based on my review in the court's question i think it would be appropriate to expand the certificate of appeal ability to include that issue of waiver because as a practical matter i think it would be very difficult for the state argue that it did not waive that defense the state's answer consist of a number of very clearly delineated sections  in my mind when it comes to affirmative defenses in the civil context those are things that are played with the specificity their plate specifically but i can't take issue with you that there are some ambiguity with respect to that question and i'm not arguing to me it's clear i'm not speaking for my colleagues or well let me let me assume that the state did not technically raise the defense the second question the court asked was could the district court on its own sue us find a raise a certain apply that fits the answer is pretty clearly yes in the ninth circuit's and i base that answer on the vang case which was decided i believe in two thousand and three but assume that the state did not properly raise the procedural default defense what the vang case says and what some of the other case law says is that the defense is waived unless it is a but the district court retains discretion to consider the issue if circumstances warrant now i think it's important to note that the state had about four and a half months in this particular case the petition for a b s was filed in july the answer wasn't filed till december so there was plenty of time to look at the record and if it if it in fact was waived the court must look at a couple of issues number one it must look for the justification as to why the defense was waived in number two it must be answer a question if i read cases like day from the supreme court in granbury from the supreme court the state must show that the administration of justice is better served by dismissing the case on procedural default grounds than by reaching the merits of the petition in this context i think it's again important to remember that mr trollop has never had meaningful federal review of the questions he raises now i want to spend just a couple of minutes talking to you about some aspects of the record that i do not think are clear in the states for context the meaning of the procedural default if in fact there was one and i would suggest to you that it actually would establish there was no procedural the fault that would apply to any of the issues before this court we to go back to the very first set of petitions for post conviction relief that mr trollop filed and we refer to those by the shorthand p c ours the first series of p c ours was filed almost immediately after he deadline the trial court struck mr trollop motion for reconsideration because for a brief period of time he had a court appointed counsel representing him for purposes of post conviction relief court struck that motion for reconsideration on march thirtieth one thousand nine hundred four a court appointed counsel files in amended motion for reconsideration and i will tell the court that this is actually a fairly important document that you have in the record the status applied it at exhibit are attached to its answer in that amended motion for reconsideration court appointed counsel raises at least four issues and he attempts to incorporate by reference the other issues that mr trollop previously raised what is not clear from the record is appears to me to be a error but as a matter is a practical matter all other issues were centrally terminated by that court of appeals finding at that point which leads to a big chunk of our procedural default problem today now if i am correct and the court of appeals was incorrect in for whatever reason limiting the issues to those two when in fact at least four were specifically mentioned and counsel attempted to incorporate others then i don't think there's a procedural default with respect to that first series of events the next series of events i think is even it's more disturbing from a substantive point of view it's not discussed in the in the briefs but it's something that you can see in the record and it's actually something that mr trollop himself raised in his original petition for hay b and for the courts reference i would cite you to that original petition there is a page i can't remember if it's the eleventh or the fourteenth page of the document but it's a page that is labeled three  kentucky what happens with respect to that second appeal which is where the other big chunk of this procedural the fault if there was one occurred is this follows there was a ruling by the trial court on november thirteenth one thousand nine hundred six and i refer you to the trial court docket which is in our excerpts of record at page two nineteen mr trollop as was his custom filed a motion for reconsideration a motion for a rehearing with respect to the denial of his relief that happened i believe on december thirteenth one thousand nine hundred six now under the rules he had thirty days from the time that the court denied his relief substantively or from the time that the court denied his motion for reconsideration rehearing what happens next is i think a serious september seventh of one thousand nine hundred four the trial judge violated arizona law violated the rule which requires that any motion for disqualification be sent out to a neutral objective an involved judge the trial judge ruled on the motion to disqualify himself himself and basically he decided that there was nothing pending before him to be decided so is thinking must have been that the motion to disqualify really doesn't have any substance it doesn't matter well now we are two to two and a half years later in the interim he has decided a number of matters against mr trollop never  revisiting the issue or the basis for his decision not to disqualify himself or the decision not to allow another judge to look at the issues that mr trollop had raised so i started i grasp i think it's important the context the motion f reconsideration of the denial of this last set of p c ours is pending mr trollop is waiting for a decision from the court knowing that he has to appeal as soon as the court denies or not appeal to the court grants but assuming the court's going to deny his motion for reconsideration yes thirty days to appeal well on january second one nine hundred ninety seven the trial judge doesn't deny the motion for reconsideration he strikes strikes it from the record and maybe for good reason maybe not but the effect of that striking of the motion for reconsideration was athlone the whole mr trollop appeal time had already run that of course plays itself out because mr trollop although he filed his appeal within a matter of days of receiving that million entry the court of appeals decides that the appeal is on time and now the interesting thing in the record to me i mean it's all sort of interesting but now just to make sure i'm following the narrative properly the court of appeals decides the appeal is untimely and what precisely is it that he's seeking to appeal at that time when you have so many dr gray and the issues with respect to the ineffective assistance of counsel i think what the district court is focused on with probably all the parties to focus on more than anything with respect to that last s is the new evidence relating to the alibi witness the phone records and the administrative ruling against dr gray which actually sanctioned him for his work in his opinions offered at the sentencing in this only thing that the district court the federal district court held was procedurally barred was the claim with respect to their newly discovered evidence of the phone records and can you give me the timeline in terms of when the state trial court decided that and when the appeal was brought and what relation the family that has to what you call the striking yes or the phone records would have been included in the he couldn't appeal the court of appeals dismissed on the grounds of time with us but the interesting thing is you know the state never raises in its brief in opposition to mr trollope's appeal the timeliness of his appeal and i think that speaks to some extent it's the same ok but the appeal to find the thirty days runs from the time there is a decision on the merits or there is a denial of a motion for reconsideration rehearing and what happens if somebody makes a motion to reconsider is that mean that it's automatically told until you get a decision as best i can tell your honor the rule does not answer the question i must happen a lot well judge i think what doesn't happen a lot is trial judges don't strike motions for reconsideration if they don't view them as meritorious or for whatever reason are going to reject them they deny them and give the defendant the opportunity to take his appeal so you so you're arguing that somehow that the state rule was applied inconsistently this this is this is an irregular procedure that the district judge did him in the state trial judge did well the result certainly is prejudicial and it's unusual in my experience now i don't see this argument made in quite this form that i'm about to make it ordinarily the application of a state appeal timely with a mistake court system the federal court says that's procedural default and there are two ways to get out from under the procedural default one of them is assume that the state rule was appropriately applied invalid and so on and that to have cause and prejudice that excuses your default that the other one is saying that the state procedural grounds relied upon was not independent an adequate and an independent an adequate analysis what you do is one of the things you do is you figure out did the state apply this rule with some sufficient regularity that it can be applied here to forclose federal review now i don't see the argument made in your brief on that the argument is not made and quite frankly i had not focused on this aspect of the procedural default until the court's questions couple of weeks ago but you know of course my my original position is that we clearly have cause of prejudice here because although i'm not going to have time to get into it you'd think in a realistic world that well your stupidity would because i'm prejudiced for the most part is not well in this case judge with not an identical vehicle but another one that was similar enough to mr trollop vehicle that he would support his theory that it was another person who actually perpetrated these crimes but whether that was actually something the court ruled on you november i just i can't answer that question it us as to whether or not there was procedural default by failing to appeal timely after that dismissal but there's an argument that somehow the timely timel requirement was applied oddly or unfairly because a motion to reconsider had been made after the trial court made its decision the trial court then roundly strikes the motion and not that is an error of state law last self doesn't get you anywhere in federal court because you've got to have a federal claim surely but it sometimes turns out the relevant if what you have asserted procedural default in the state court that prevented someone from exhausting and the argument that the state is making is well you didn't exhaust and you defaulted and the rule that the state court applied the same to you in the fall that one of them for example pending from appealing was a regularly applied rule was not surprise plight in any surprising way that's just an established and consistently applied state law you're out of luck well the federal his petitioner can respond well you tell us that that is a consistent and obvious rule that the truth is that is applied with such irregularity that it cannot be used to assert the state trial in court short comments number one with respect to this issue of the trial court striking a motion for reconsideration and therefore making the appeal untimely i don't really think it makes any difference whether the trial court was silent with respect to its reasoning or was arbitrary or caprices try thing else even if the trial court was completely within its right in discretion to strike that motion for reconsideration what the impact is in the due process problem yes is that the pro se point plaintiff in this case the defendant had no notice that that was happening and therefore by the time he could take any corrective action to preserve his appeal rights it was too late now wait a minute i've already read last night and i really read your brief this morning and then i tried to reread a little piece of it right now i'm having trouble tracking the arguments i'm now hearing and putting them back into the brief now let me going to go out a couple of things in sequence one of the arguments that we've been talking about is the possible argument that the state trial judge made a mistake of state law in striking the motion to reconsider and then  somehow ruining the otherwise of vailable calculation as to what was the time limit for appeal and if in fact that was a very surprising rule as it was a very consistent st will is how to handle this and all of a sudden this just comes out of the blue and works to the disadvantage of the of your client well that may be not an arabic an independent take now but i don't see that are going in your brief is it in your can make that argument to the district court i have had no involvement in the short my client is like this is why i pointed out my arguments come up based and in the context of the court's questions from about ten days ago and the reason i gave you the citations to my client's original petition for haiti is because he did make that argument to the district court but it's not something that are going to me which argument the argument about this motion for reconsideration being stricken and therefore his appeal basically being taken away from him is a violation of due process that's the the page three case cite that i gave you it's an issue that he raised all along it's not an issue that i ever saw were focused on until this court raised this question concerning the procedur fault but it is in the record it's something my client himself and let me have an understand then the argument to your now making as to what went wrong there with that timeliness in terms of the what the what the court of appeal held was on time way and what the district court held was a procedural borrow what given as cleanly as you can your argument is what's wrong with that judge my argument is you know i'd be more than happy to supplement this i think it might only be fair to the states reconsideration was pending then my client was denied the benefit of that tolling by having the motion stricken which retroactively took away the tolling that he expected was taking place and did you make that argument in your very no sir because  as well yes your honor my my client has specifically informed me that i'm not and i'm not allowed to waive any of the arguments that he has made in his documents so that is correct ok let me just summarized by saying that  think under the ruling on earth we are not ski we're there's been no evidentiary hearing and particularly with respect to the state sense and seen and dr gray's three or four years later  that can be proved if they can be proven would lead to relief and for that reason i think a remain to the district court is appropriate for the appropriate evidentiary hearings ok thank think both sides for their argument and i have been