good morning your honors my name is emory allen i'm here representing the appellant your honor this is the issue raised here is whether there was good cause pursuant to  i believe that the judge did in fact abuse its question and for the following reason this case although it's it's factually not one hundred percent on point policy wise it's on all fours this is a pace the pace case against the hazard of procedural default because if one is going to file c k b s relief in the california state supreme court it behooves one to file a single petition   file a petition in the file the exhaustion petition in the state supreme court keep me posted like it whatever it was every thirty every forty five dollars days and if you're not doing anything then we're going to dismiss the petition the mistake that the district court made here was paste doesn't have anything to do with it because there was no petition there was no state petition file that's simply not the that's not the standard telling me with the standard before we get to the facts is it part of the legitimate consideration by the district judge in deciding whether to grandstand a bands whether or not the habeas petition or in federal court was  if it is a legitimate consideration what bothers me about this case is that while he files to petitions input for post conviction review in the states peer court and he's represented at this point is not pro se he's represented there's no attempt on either of those to file in the california supreme court yet the law is clear as can be that you got ill exhaust on the highest court and wouldn't fairly simple matter i think you probably would have got a postcard denial but that would have satisfied but it didn't happen in the mean time he's he and this this is something that was ignored in the district court he is investigate this is this is been an ongoing investigation at the outset when he's in prison and he's got like a two thousand seven hundred page record to review  legitimately put that in quotes because that for want of a better word he is b will there he is confused he believes that his his appellate attorney at that time has abandoned him which is basically what's happened i mean he's  that if you read that in context there is no way that this guy is setting setting up a record for appellate review i mean this guy is he's just a guy he's he is legitimately confused now what later and also quite angry and i don't think that's completely unreasonable now they're both the district court in the attorney general say well subsequent to that and i think this is getting to the court's point that's the nd point you're about to get to yeah he he he could he could have done this well st of all as we say in our pleadings it's not what he could have done it's whether what he did do was reasonable but but at that point he and and i confess i'm part of this here because he brought me into this case we are trying to get we are investigating various various angles one of those is a possible witness who is who and exonerating witness the codefendant who is who could hopefully give us factual exoneration these events took place mr putin's out of town on business though the witness has has access to his car they're not necessarily boyfriend girlfriend but she has access to his car his house as a crash pad once in a while he comes back from out of town comes comes to find out he's been arrested for arrested for trafficking i mean the mean time if somebody is going to be able to clear him it's going to be code f i would be willing to to litigate that yeah sure but i mean there there it is a i think it's a i think i would without having in front of me at the moment on the merits i think that it's a significant i think it was worth pursuing at the time was better than nothing i guess that's for sure and just in  quagmire of california supreme supreme court practice as i said it behooves a person to file one petition if you can and the problem that i that i have with the district court anything that the person might say because they say oh well that that would be pace and that has nothing to do with it i think that if if he had done what the district court judge judge did in the in the other case in the in the mcnally case of eyesight they said well ok give the guy a shot give it you know give the guy his day in court his bite at the apple keep this track you know keep track with us if what your progress of what's going on but he didn't do that and i think it it to he was basically saying that the district court judge in mcnally was wrong did not have the jurisdiction to do that did not have the power to do that to do what he did which was ok file your petition and let us know what's you know let us know the progress and i think that's just wrong i mean i thought that i think that's incorrect as a matter of law for the district court in our case is to say no that's  there's there's no remedy there and i think that if there if he had acknowledged that there was a remedy then then he goes from there and we see now i can't i can't go outside the record but we're ready to roll ok but do you  more your honors robert easy for the appellee the district court properly exercised its discretion in denying put in requests for ryan state district court looked at one factor which was good cause and of course there are three factors to look at but in good cause one of the justifications was that there was a problem with a or the problem is there's just no sufficient evidence to show what appellate counsel was hired to do was he hired to do the petition for review we don't know and in any case he's not really obligated to do a petition for review  issues so should do to have advised put them of the hey b s deadlines i don't think he was obligated to do that either your honor because he's not hired for c b s purposes there's s post conviction status attorneys and so on that basis and not only that but he himself files the same claims that he's filed in federal court in superior court so given all that didn't really matter what appellate counsel did at that point he had a lot of time and a lot of resources to be able to file exhaustion and exhaustion petition and he didn't do so what what claims could i i confess i couldn't figure it out some claims you lose if you fail to make them on direct appeal some claims are available on collateral attack ineffective assistance of counsel of course being one garza versus idaho have any bearing on that which says that the attorneys holding an attorney ineffective for failing to file a notice of appeal in light of the defendant's clear requests defendant is found guilty and after he sentenced wants to appeal tells his lawyer i want to appeal and the lawyer doesn't think it's a good appellate her good appeal so he refuses to do it in the supreme court says if he even in light of a plea agreement that waves the right to appeal when the defendant says i want to appeal it appeal was prosecuted on behalf of putting it is that the petition for view was never a file we're not clear whether the appellate attorney was hired to do that and there's no constitutional obligation to do that there's certainly no obligation to do that if you to petition to the california supreme court i'm not sure about that because i do think there are exceptions to not bring the claim in state court direct appeal well it's going to be a state law rule in terms of whether or not you can bring something on state habeas that you could have brought under rec review and did not yes yes and i might although this is apparently not been briefed because i didn't see it my instinct would be that having failed to get a decision from the as far as the further investigation justification the ongoing investigation was speculative it talked about the potential declaration again unsigned but we don't really know  of the investigation is taking place which witnesses were going to be pursued and what they were planning to say or what they were hoping to get and what claims they were hoping to help in in reality it appears that is the classic fishing expedition ongoing investigation not really there to protect the current claims but there to expand it and try to get new claims that might be legitimate and that's really not in our in our view that's not what good cause should be about looking for new claims to try to put in the petition that's just acting as a placeholder essentially furthermore this this justification about worried about filing a timely petition or piecemeal petition that seems to be a little bit of an after effect after the fact justification because in the original petition federal habeas petition this these issues aren't raised in terms of the justification for not filing the exhaustion petition and they're they're somewhat speculative as well as far as the pace protective petition goes at counsel suggests this cases like pace but pace is obviously much different in context is this court knows because there was a pending state t v is there is pending sta petitions in that's what's contemplated essentially by the pace protect a petition it's an issue about statutory tolling and proper presentation of position petitions there was no pending petition here toward the end of the limitations period so there's really no concern for timeliness and and if there is a concern that he might be untimely the solution isn't to delay further but to file the petition and then finally as we've talked about the instant claims have no potential murderer we went through that in our brief pretty in a breach pretty detailed manner and we we believe that the declarations as in fact i never in for mr putnam that the girls existence let alone their activities in the period prior to his departure seattle and during his absence this report had not learned the existence of either of the girls until until august one of the earliest so i think it's it it's fairly strong from from the merits but just i want to address the issue of filing a notice of appeal or not unfortunately this had to be that he was supposed to preserve his right that he was supposed to follow through with the appeal to to preserve his remedies in the state supreme court i mean that if rather than say that that attorney says oh no and mr president hangs his head and goes home he wasn't accepting that he this was his belief and this was his he has his very firm belief that this is the way it was and i think that's a very important factor if you're going to evaluate reasonable this because here is a guy who is who this is this is what he thinks now if you if you would have made a mistake i mean there's in cases such as blake the baker that which we cite and others if