it please the court my name is sheila kenny and with ken rose i represent the petitioner errol moses we are before the court on the denial of petitioners rule sixty b motion for relief from judgment position as rule sixty b motion relates to his claim raised in his hey b s petition the trial counsel were ineffective for their failure to investigate and present mitigation evidence of the sentencing phase of this capital trial as this court is aware this is not the first time petitioner has been before this court calls for the default of his trial counsel ineffectiveness claim was the ineffectiveness assistance of his state post conviction counsel mr moses then filed his rule sixty b motion that's at issue here promptly after this court's decision in fowler v joyner which settled the question of whether north carolina fell within the martinez v ryan trevino v fowler line of cases and elevated the change in the law to an extraordinary circumstance interviewing a sixty motion united states supreme court and gonzales versus crosby said extraordinary circumstances justifying the reopening of a judgment rarely occur in the habeas context but the court did not say never petitioner has demonstrated unique and exceptional circumstances such that what you perceive our standard of review is on the one issue that is the district court and why wouldn't a question of reasonable time be a mouth of the district courts discretion and on the issue of whether or not martinez or martinez trevino and fowler could serve as a basis for rule sixty b the court relied on dower its erroneous view of the two thousand and twelve and counsel waited two and a half years after martinez and fifteen months after failure to make his motion plus the fact you you have a pending six b b motion at the time that martin is came down which could have been easily amended to include the martinez claim and you say well no not really because fowler is the operative case but the case that you're seeking relief under and on which you ground your claim is matter but that puts you on on notice that your claim was not procedurally defaulted and yet there was a two and a half year reverse the district court for abuse of discretion in determining the content of reasonableness here we're coming pretty close to saying as a matter of course you can wait two and a half years and if during that two and a half year period the chinese comes along and arguably lend support to your claim that automatically makes it time and that's that's pretty an abuse of discretion reversal on something as pretty far reaching consequences in terms of martinez and trevino it was not until fowler that it was clear from this circuit that north carolina fell within it and under rule sixty b it's a high bar and it would be an improper use of a rule sixty b to seek an extension or clarification of law and it was not until fowler v joyner that the circuit made clear that the settled law and is that that point sure promptly filed his rule sixty b motion but you're seeking relief under a foul or two and a half years you're seeking relief under martina's two and a half years after martin is came down and asking us to reverse the district court for abuse of discretion in holding that on time the district court and found out on untimely for filing anticipated martinez and as soon as martinez comes down he's got to say aha i knew somebody would support me and at that point amend his sixty six and it's as if he was turning his head to something else at that point i guess that's probably what is if he was candid but the district court said you can only wait so long and i'm going to make a judgment a discretionary judgment that i think that twenty nine months wait is too long and of course the other courts that look this issue have used even shorter times find them reasonable so it would be hard to tell our district court that it was abusive of its discretion when twenty nine months sort of an outlier in the long there are many other cases that are shorter that's about  this sixty motion that moses has it has before the court now is related to sentencing during at in two thousand and eight when mr when mr moses was no longer in hades proceedings because  from the united states priem court that was the end of his hideous proceedings in two thousand and eight there was no avenue at that point related to his ineffectiveness assistance  party and fourth there has to be extraordinary circumstances and so you have a at least for the strickland play my guess as to circumstances of his own which you'd least you have four different hearts you've got two clear one is the timeliness question the second is extraordinary circumstance and as you yourself pointed out quite the crosby the supreme court says extraordinary circumstances occur only rarely in the hay vs context only rarely and the reason is that you can use sixty b if we open up the extraordinary circumstances inquiry to the extent you want us to leave sanction a complete en around direct appeals around at standards for collateral related and it just tears a gaping hole in in the standards which is why the supreme court goes out of its do we deal with that and you've got four or five circuits out that are saying that martin isn't failer are not do not constitute an extraordinary circumstance and that standing alone is not in this case it's the balance of the equities and this that is the tipping point to bring the sixty motion was this this circuit's decision and followed rejoin or which made clear that north carolina fell within the martinez and taylor that is not the only extraordinary circumstance as has been clear mr moses was diligent in raising this issue of the martinez issue throughout his federal habeas proceedings and raise them to the district court the fourth circuit and to the u s supreme court don't you think that i mean it shouldn't because he was creative and and dissipated that issue but it seems to me when this report comes down and yes it is a real issue  you would think you jump on within a day it should not cut against a petitioner who is out of haiti's proceedings at that time for a petitioner who is still in addition at the same time in terms of of respect for comedy mr moses has had and continues to have pending motions for appropriate relief and properly filed in state court on of the north carolina racial justice act thus that there's been no delay and the finality carrying out of the judgment of the finality of the judgment as it could not have been well crime in this case was committed what almost twenty years ago and that's correct but pretty close and as you point out he's procedurally run up every tree he could of at some point the system  barrier after barrier in order to protect the notion of finality at some point some fair and reasonable one and so we what we got here is we have a final judgment that's  d when something is really old and stale we'll look at it again as if there's a real issue innocence and that hasn't been presented in this case now it is not this is always related to the sentencing phase of his capital trial spoke on the prejudice problems but can you understand where we are coming from because if we hold every subsequent change  represents an extraordinary circumstance justifying relief at some belated on the roof sixty six we just we're just opening it we're just opening up that they constitute an extraordinary circumstance how do we fly the use of that decision and reversal of district court under the circumstances or use of discretion at the same time it discretion given that the problem filing after fowler such was settled law at that time and that it tipped the balance such that it was ray that martino's trevino and fowler then made an extraordinary circumstance and then when they got the balancing of the other extraordinary circumstances the diligence the lack of harm to the state in terms of the finality the comedy and the respect for it that mr moses should be allowed to proceed further so  were aware of its impact because this panel is very well aware they have raised this issue before it basically for the district court in an attempt to prevent procedural bar from being applied they raised it before this court they raised it before the united states supreme court so they of all people were aware of its impact in particular on their case their failure to amend their pending sixty b motion which was pending at the time that martinez was decided and was not ruled upon for at least nine months post the martina's decision is fatal to their claim the district court did not abuse its discretion in denying the motion under these particular circumstances and it is very clear that the fact that they had a pending sixty b is fatal to their claim because there are at least two other cases that have used the failure to raise the issue at the first available short because the petitioner in that case did not raise the claim that being the split in the circuit is to how to count time for tolling either before the eleventh circuit or is petition for the other case that talks about this issue is the one that we cited as additional authority that being the shepherd case in shepherd what happened there a three month delay post murkiness was determined to be to too long a period of time because the martinez case was decided while shepherd head one month left the file his petition for writ of certiorari he never bothered raising the issue within that petition and so as a consequence the court determined that when he came in and did file within three months that was on timely because he didn't raise the issue before the court at the first available opportunity so i would submit the court that the first available opportunity that this petitioner ahead was in his pending sixty b motion which could have been amended the petitioner did not have special notice based on having raised it in the past there is no excuse for waiting two years and six months past the decision case law from from this circuit specifically states that the line of demarcation is the opinion from which changed the law if you're going to rely on some change in the law in support of your sixty six motion and there are other circuits that likewise hold that the line two they claim that the law was unsettled and that their in their brief they say that there had been a number of instances when the state had opposed the application of martinez in north carolina the truth of the matter is this is an adversarial system somebody has to raise the issue this petition was clearly aware of the issue and simply because the state takes an adversarial position doesn't give you excuse for not raising the issue before the court in a timely fashion number three i think that this issue has been in some part expressly rejected in fall or in fall or the question was whether or not scuse me martinez provided sufficient basis to appoint martinez counsel under thirty three or thirty five ninety nine and in that particular instance the court determined that martina's was decided well that case was still pending before the district court counsel did nothing at that particular point in time to examine or raise the martina's issue and so now as a consequence once the matter came before this court it was too late to go back and ask for martinez counsel because as this court recognized martinez provided you all the than the knowledge you needed at that point notably district court for abuse of discretion on timing you then go to the extraordinary circumstances under rules sixty b and even if you get past the extraordinary circumstances under rule sixty b you have to ask was counsel in effect of trial in in some way and even if you get past that you have to ask if counsel is ineffective in state post you have four or five different hurdles each one of which is deeply problematic in its own right i wholeheartedly with your honor and we've raised each and every one of those issues in our brief once you get past the question of whether or not this is a timely sixty b motion the next question becomes whether or not there are extraordinary circumstances here and i would submit to you that there are not the only thing that has happened head up pretty clear holdings out of four exceptional circumstances arise in circumstances where the petitioner has been completely and totally faultless the first case that i was able to find that discussed this was the clapper case and in that particular circumstance you had an gave everything over and over again and the no sooner does congress legislate restrictions on that we start chipping away at at not only on the roof but on to these twenty to forty one motions and it's one thing after a novel to try to circumvent what congress has done and rea and it is just it's just an endless cycle that we're experiencing and it's it's it's it's a serious threat in my view to the functioning of the criminal justice and your honor i would agree with you and this is precisely why the supreme court recognized that the extraordinary circumstances requirement of sixty six stands as a ballpark against the finality of a to protect the finality of judgments and that's why the bar is so high and that's why there shouldn't be but in rare cases an extraordinary circumstance and this is clearly not an extraordinary circumstance nothing has changed here but the law and that was specifically what the magistrate judge found and that's specifically what the district court found that nothing has changed in this case but the fact that martinez was decided they've brought out they've brought out new no new evidence  they've just simply recycled the argument that they've used before except now they're hanging a sixty b moniker on  it and again as is your honor has noted the district court found that at the time of the original a v s judgment which would have been approximately two thousand and five coleman was well established law the case was correctly decided at the time nothing had changed but the law and the change in the law was no course to open the judgment long since finalist precisely what the district court  i think we understand your position in that instance thank you for your consideration briefly has been before this court on this issue and while it seems to be taken as a as should be going against him that he recognized that there should be a change  coleman that should not go against him as to the timeliness issue petitioner filed the motion as soon as he believed it was settled law did not want to come when it was unsettled and came when he felt it was appropriate this is a strong this was an underlying strong case of ineffective assistance of counsel and petitioner has never had a court review its merits thank you