plainly clearly certainly apply the question is whether the supreme court precedent at the time california court of appeals made its decision in your case that the court had not previously spoken decisively on this matter when the right after that statement to sort of them on the one hand on the other hand conflicting within the meaning of the four categories that you are just a trace describing seventy nine here and so i agree with you that they make the statement that we're making a rule now so to speak but everything else about the don't even know where it came from and what the basis of it was so i had already thought and that would be my response to that part of it there's also another case th am i wrong yes or ok how how i'm thinking about thinking about some language i recently read in a case that just came down to it because it's his opinion and baka and that seems to suggest to me at least some of the judges of our court believe that on an issue like this it really isn't up to the california appellate courts to tell us what federal law is the question is whether or not their determination  contrary to federal law but that we as a federal court determined in the first in instance what federal law whether to sponsor the first reason i'm making an argument is the attorney general has argued from the district court on  tell stock market him along that clearly declare that that's what the law is but nonetheless we can still make that determination even though soccer had not yet been decided when the state and federal district courts ruled if that was whichever or had addressed the issue that the law had not yet been clearly decided but that subsequently there was definitive federal rulings and the question was whether or not at the time the state courts decided to question their decision at that point in time was a and not contrary to federal law how do you respond to that i realize you may not be familiar with that case but you know i mean it well actually came out the other way it doesn't help you because the the fourth circuit in that case said that even though the law was later clarified if you will that nonetheless under ad put the decision was not an unreasonable more fundamental question if you take the four factors that justice chase talks about which of those factors do you contend is most analogous to the situation i'm having a hard time plugging them in to the very basic question of what do you do under the ex post facto analysis with a cause of action that was dad at the time the january one thousand nine hundred ninety seven amendment to the case then going back to the what i thought was a simple question but apparently it isn't i'm january one thousand nine hundred seven when the state urges that the new law somehow revived this more of the criminal cause of action which of the four factors should i be looking at under justice chases well this argument to come all over the board on that if you got my direct bra with amber thirty first there's the first part of my argument when you look at so that the complaint was filed which was on september fourteenth one thousand nine hundred five there is support under california law that once the prosecution filed that complaint under the very first version of it is ricci the statute of limitations was indefinitely told that was that yes or ever yes so that you could wait twenty two where the legislative history or in the statute itself we can you point me so that i can clearly determine that that was the intent of the legislature well unfortunately i don't have any legislative intent but in limitations is frozen in time for all days or months that the complaint is pending adjudication in some court in california and i understand the argument but beyond the statu i'm not sure how that plays into the statute of limitations if i could how can you continue that to hold the statute of limitations well it would be my argument that on june fourteenth that appeal was abandoned the statute of limitations stop stalling so it's my argument that from september fourteenth one thousand nine hundred five until june fourteenth hundred ninety seven before the second complaint was filed you can which you can see if in fact the court believes that the statute of limitations had expired and  t this defendant was free of any legal ramifications from his conduct for a period of time that in fact to reach back and grab him would be a violation of isn't there a fundamental difference between tolling the right to challenge under federal hate vs corpus a conviction and told him for purposes of deciding whether  difference that matters in the fact that we are here dealing with a challenge to the power of the state to bring a criminal charge for past criminal behavior arguments that we should apply the principles of statutory or equitable foaling that we wrestle with these cases when we're talking about whether and even me can still challenge facts of the dismissal wouldn't that have made himself free from criminal prosecution and my arguments are that is no when the people fail to file their briefs in that court the court dismissed the appeal and they issued a remember there that was not a by getting the dates of the crimes that were committed correctly later on and that's why the statute of limitations has never expired by the time you abandoned your feel that the case was over because it was now way more than six or seven years from the time of the alleged criminal behavior well first the dismissal does not constitute a final judgment absolutely clearly established at the time you had a five to four california supreme court decision you had the district court also finding that there was no expose facto violation yet the state  e court looking at this as well west all these courts examining this case and saying and i'm looking at these four categories i just don't think that this fits and with any of them to me potential criminal defendant that they they don't they don't have the protection of the fifth amendment anymore because they don't need it absolutely but it's and isn't that a fairly clear message is that what the supreme court's thinking is about expos that yes the statute of limitations had expired stock near cannot be overcome and that the criminal conviction should be overturned if this court finds that the statute of limitations expired that scholars and had the absolute support to come to the same conclusion and where under the language it's clearly established federal law and reason to believe does not equate to clearly establ the only problem i have with your argument is that this is a pretty fundamental constitutional principle if it goes to the very for the senate really this is the very power of the court to haleigh descended into court for an old crime and why isn't judge layton correct when he says that we should read that language and stocking are essentially acknowledging that everybody knows that the ex post facto clause forbids the legislature forces of that court disagreed so that was a very close decision all of these cases have been very very close and based on that and the numerous times the courts have look at this particular case it seems that the statute was referring to a calendar year from the time that a victim came forward there was a basically a calendar year in which you could file charges with they did file charges but that we have we have a habit sometimes and stale cases of of statistically staying them and they simply go off calendar i'm wondering what the world would look like if you could simply file a charge and then take no action because you didn't have evidence or whatever and into the fullness of time keep somebody on the hook for an old crime a criminal prosecution then that period would be told until such time as a final mandate and i'm not sure what california calls it but until a final mandated issues from the la and they came in that would be the end of the case they can come back twenty two years later and say we're going to makes no sense if it doesn't include a provision for appeal well i would respectfully disagree