procedural i'm happy to address any of these issues with with records concerned upfront or address them in order whichever is the pleasure of the court well i don't know waiver it's hard to see how the state waived the judge turned it in you know the answer right the magistrate and also said well you know if we get to that you know if if i find that there are other grounds involved i'll let the state state we want you to file an answer we don't want you to file a dispositive motion and in that answer we specifically want you to address the exhaustion of state remedies the court the state ignored that order file adequately showed cause because in the state's motion to dismiss all it said was we want to read statue of limitations and the magistrate correctly found you could raise that in your answer along with the exhaustion of state remedies like we asked you to do at that point after the important recommendation was filed the petitioner pro se filed objections as was his right the state never filed any objections to the report recommendations saying you should not have deemed our motion to dismiss an answer we want to have another opportunity they didn't object you said that the magistrate judge when he said  corrected what you said i did see where you said you don't finally this was a motion just file an answer i have it here in the reply refund page three and it's also accepts  record ten page to respond and still not file a dispositive motion in place of an answer without first showing cause that's why an answer is an adequate the answer shall address the issue of exhaustion of state remedies right i'm sorry i missed what concerns me there is that letter from the clerk of the court of appeals saying that notice of appeal that got filed in the arizona court of appeals in the trial court that's right typically sent to the trial court and so that that particular rule thirty two may not have been consistently and adequately followed sufficient to be a procedural bar to raising the plaintiff or that's right your honor and i don't believe the state has met their burden to show that it was adequately applied consider clear and consistently applied and i have two reasons and judge thompson's question correctly i think i do what he's asking is i think is this ordinarily to raise in the adequacy of titian or must demonstrate and normally it's done by decisions that here they apply to here they didn't  did hear they didn't and at that point the burden shifts to the state this case is a bit unusual in that the petitioners claimed inconsistency or inadequacy is a statement from a clerk of court about their practice during kind of a nebulous period of time is that sufficient yes the burden on the petitioner is quite modest and th court discusses it and then a versus mueller and steps versus andersen even though a petitioner may satisfy the burden by asserting specifical that it was amended to achieve uniformity because petitions for review in other instances like direct appeal go to the next higher court they don't get filed in lower court so apparently because this was happening so often they  the rule now that is also shown by this declaration regarding the clerk of court and said yes but that did happen and this is what we're doing i think that that is more than sufficient evidence that this rule is not adequately adequately followed in arizona and that's why they ended up not in the rule i think it's now the state's burden to prove that it was in the federal system if there's a b s the titian filed by a prisoner from say records i've been unable to find any record of that happening in this case which is exactly what shows that it wasn't consistently applied you have a clerk saying that this is what we usually did but i can't promise that happened in this case and i have this case where please the court my name is cass who i'm assistant attorney general from the state of arizona i represent the respondents in this case the first point that i would like to address is the order that the state received from the district court it did not exclusively require an answer it did say if the state was able to show cause as to an answer was an adequate then the state may be permitted to file dispositive motion and the problem that the state is faced with in this case and all have these cases in arizona is the fact that this court routinely requires answers and never allows the state to file dispositive motion so in this case the state had a good faith basis that the statute of limitations had been violated and filed a motion to dismiss but the higher to getting into the substance of its argument in the motion to dismiss the state attempted to show the district court as to why an answer was inadequate and those reasons are the same reasons that are very specifically laid out in morrison v mahoney which is an answer would require the raising of all affirmative defenses or waiving them whereas a motion to dismiss can be limited to a single farman of defense and it's in the interest of the court and the state to be able to conserve resources and expedite the process of resolving these francis in front of us at once and we can rule on everything and we find that it's more efficient i mean you can say what's good for the court but the court has decided what's good for you have no decided we'd rather have e the nub of this is whether this petition this article thirty two rule thirty two petition was timely filed in superior court which is the requirement at the if it had been filed in superior court the same day it was filed in the court of appeals would it have been timely it would have your honor ok now they'd it's their initial burden to establish  imperfect in force meant if you well of that rule and they came forward with an affidavit or statement from a clerk of court that said during a period of time we would routinely get  these petitions filed in incorrectly in the court of appeals and we'd just send them straight down the street to secure your court that would be the end of it why isn't that enough to tee up the issue when i have several points i'd double hearsay first it's the affidavit from opposing counsel that she received a voice mail from the clerk of the court and in that affidavit he does not say that he personally knows what the practice was he sa i am told that the procedure at the time was went and he wasn't there so he doesn't know what the procedure at the time was any more than i do he simply says that that's what he was told by somebody and we have no idea who he was told that by which is why the state moved to strike this supplemental exception of record which are also never presented to the district court on the procedural follett so hard would it be for the state to find out the answer to this question who told him none of what the practice was at the time was it indeed the practice of the clerk's office of the court of appeals that when these petitions were filed there when they shouldn't have been to send them down the street i personally think it would be extremely difficult for the state because there was a different clerk of the court at the time and there is no evidence that or not there's nothing to indicate that rule thirty two when there's a different clerk of the court at this time is it correct that the rule now is that these petitions are properly filed in the court of appeals and then to the wrong changed in two thousand but do we know why they yes as  i'm not entirely certain now and i think about it but the problem is what happened in two thousand doesn't indicate that the role thirty two point nine c was in any way confusing to the petitioner when he filed a specifically sta been no variation on in the application of rule thirty two point nine another words the rule says you file a petition for review in the lower court it's true all people who make mistakes and send it to the court of appeal get the benefit of the court of appeals for help in sending it down but that doesn't change the role the rule is that it still has to get to the floor court it might well be that if if they petitioned or sent his petition for review to the department of commerce that department might well send it back to the the reason that there is a rule on federal federal hate b s that a status if you will default must be an independent adequate state ground the adequacy component has to do whether the rule is clear consistently applied and appeals when it would have been timely but by the time the court of appeal sent it down to the lower court it became untimely we don't know we don't know that you're right we don't we don't know that nuance for all i know there's one rule that is you have to within a certain number of days to file a petition and superior court if one was filed in that time it's timely if one wasn't filed in that time it's untimely and so far as i know that's there's never been any variation and there's nothing in the record that indicates that there has been very patient and well we do know that that rule was amended the very next year to achieve uniformity right now you hand it in a different place we also know and this is an interesting fact in this case that our pro se petitioner asked the prison officials for the rule of where to file his petition for review they gave him the rule for direct appeals which said file it in the court of appeal he followed the r to dismiss for the sake of judicial economy it seems to me that that's a very piecemeal approach have the court found that this petition was timely after their statute of limitations motionlessness then would they have filed another motion in this that dismissed on