floating standard i'll be honest with you i don't know what's reasonable california supreme court is inconsistent about what is and is not reasonable in this respondent says it's reasonable according to  clarke according to footnote five that a writ of habeas corpus the filed concurrently or almost concurrently or somewhere along that line with the filing of the opening brief in state cases well ok that's reasonable under those circumstances but is reasonable fact driven is the fact that the or is it our priority is it is it driven by a a set's sound being heard in the forest whether or not someone is there to hear it is it driven by equitable tol what my clients have too many of them less than eighth grade educations their cook incarcerated their schizophrenia their psychotic in other ways  reasonable and you know what is reasonable who determines what is reasonable supreme court has said this court determines what is reasonable almost on a case by case basis at least that's the way i read chavis now the california supreme court has a stably some standards for the without substantial delay in capital cases right whether that's appropriate or not running they have said ninety days unless some exceptions apply i'm not certain your honor but there are standards yes i'm not a i think such a thing as happened in that regard with respect to non capital cases i believe that to be the case that nothing has happened in that regard with respect to nine capital cases and in this case to understand correctly that the you who or whoever have the case below state stated squarely to the district court in non capital cases like this one that rule is not being consistently applied and that's why i'm saying that that rule that's why you're saying you don't know with we need to get ortiz or bennett that it was laid out for the district court well it was laid out for the district court but yes and i was well i was actually third warrior but i was the one who argued to the district court and i did argue i believe i argued that too to the district court but i don't think that we need to get to bennett because the supreme court has not has it seems to be obviated what is and is not reasonable and what or who makes that determination  now and whether it's consistently applied or not and i've argued until i'm blue in the face that it is not consistently applied and i tried to show that by my survey of cases from a finite period of time in january i think thousand or two thousand and three to july two thousand and three something something to that effect i would have gone further except lexus won't permit it they won't bring up any more than three thousand cases and given what we all know to be prove or should all know to be true about california scheme of handling direct appeals and hey b s we all know that they are issue attention he just issue they may go back to the project and say i want to funding and the project says no we're not authorized to give you additional funding except in certain crimes cases and that's not true in capital p gets filed it works its way through the court system through that petition for review that may take three months six months nine months whatever it comes back a letter goes to the client and he says i'm really go and we say that's reasonable we look at something like three hundred cases in a six month period of time that cited in required or in remodels out of almost three thousand cases we know that those three thousand cases we know that those three thousand cases hideous was not filed commensurate with the filing of the a o big which is what counsel would suggest is reasonable if i don't know what's reasonable and reasonably finally and this court doesn't know what's reasonably timely and the supreme court d first reasonable timeliness back to this court then it seems to me that as a matter of course it is inconsistently the the procedural bar is inconsistently applied and if it's not then following the tenets of bennett it seems that it should be respondents obligation to prove that it's not commissioner shaw to prove that this w just prove that it's commissioner shot would go absolutely nuts as a c g a appointed counsel if i submitted my voucher to him reflecting that i had reviewed three thousand havey as cases out of the state court that he thurmond which were and which were not similar in fact to mine i don't have the kind of database i don't have that the council does the attorney general's office does back to the matter if they can't from a sense tells us they can't i guess where i'm here i'm strong yes petitions counsel is that i i simply do not know what the triggering point years i simply do not know what is reasonable and if i don't know what's reasonable then i don't think anybody honour's todd marshall for respond it hubbard i disagree with those in council i believe that bennett is the rule and i think that it tells us clearly what to do and if you take then it in conjunction with woods and powell and fields i think what we need to do in cases like this with the cordons doing things like this is fairly clear then it tells us first that we need to look at the difference between capital and one capital case because there are specific you wait before you filed this court set and then it hasn't decided exactly how long but certainly six years is in this case we are on the order of five years past and i love the direct appeal fairly at the language of the california supreme florida opinions on a postcard and i'll tell you nothing it doesn't tell you where they offered in justifications it doesn't tell you whether they applied for any miscarriage of justice exceptions it doesn't tell you anything about the circumstances of the case but rather a reasoned published or unpublished decision would tell you what that's happened when the default occurred and so as a result i would posit that the survey was faulty because it didn't provide us with the details necessary to find any number of cases that were inconsistent pallas suggest that several cases would be enough to shift the burden to me other case inconsistency proffered by the petitioner the petitioner doesn't provide any thing showing inconsistency i have no place to begin i have no where to know where to start i can't look at the postcard denials and tell the court anything about them unless i violate the don't go behind and look at the pleadings rule and so the postcard denials don't help us any and that in that circumstance no question if you file after that time he would need to look at why did you file after that time and you need to tell us why like when did you learn of the claim if you learned of the claim the day before you filed then you're going to be timely under that analysis do do as the california supreme court said in writing that in the on capital cases the ninety day rule applies no i don't believe the ninety day rule applies to non capital cases it's a capital case cases unless you can fall into one of these exceptions or one of these exceptional circumstances apply correct miscarriage of justice exceptions ok have they said that on the other side of the equation yes i believe that end they consistently told me on capital state a b s petitioners that if you're over ninety days you have to fall in the sixth actions i believe that the rule different than recognizing that a fundamental to be an exception to what could could not doing filing with him within one reasonable time after you knew or should have known of the claim and the reasonable time is always applied the same way i believe that's correct that substantial delay is six years and then it is was was clearly too long apply at all to the timeframe of default which we know necessarily occurred prior to the court's decision and and closer in time to the time when positioner knew or should have known of his claims and since all of this claims stem from the trial he should have known or knew about his claims but then if we were to send this back to district court is the state capable as your opponent you have to go back to each individual case where there was a postcard a mile and look at how much he was involved and the pleadings to determine whether justification was proffered or whether an exception was applied for or discussed yes i think that would be postcards is one or more cases the length of time and that's again what would we make what you don't know though is whether the petitioner said i learned of this claim yesterday and i was unaware of this witness who has now come forward until just the day before which would be a justification of the delay and that's what the post cards are now doesn't tell you all it tells you is simply not that's that's correct unfortunately with the thing we have no idea whether it's being consistently applied i would say as long as the rule that you're not looking at the pleadings is in place then you then you can't get there you either have to accept that you're going to go with reason to decisions only or i think the rule would have to be changed if you're going to talk about postcard now so that you would then look at the pleadings and the actual interaction of the parties and what they were arguing below which case that tells us that we should look only to reasons i believe powell supports that decision and i believe it described talking and looking at language of the decision and i think the postcard now doesn't have the language of decision however the court went on to say even if we were to consider his saying it's not enough that would be an inadequate showing to shift the burden powell also directs us to discuss to look at that the position needs to cite several cases in order to shift the burden burden back to the state important thing i think to note about california's timeliness standards is that it's much like the a t p s standards in terms of it talks about having a line that moves based on what is reasonable and i think that's much more fair than drawing a line in the sand and saying if claim and i think that's the triggering point for i think for both of the standards and i think that is a reasonable way to do things i think it's reasonable to say if you knew of this claim six years ago that's that's not reasonable to wait if you learned of the claim last month then it then it's not reasonable for us to bar you from coming in just guessing that claim that would be so i would posit that that would be unfair and so i would posit that a moving timeframe is discretionary aspect of the time bar does not invalidate the time bar not a legitimate source of legal authority and moreover a clerk's letter is not putting a particular court's letter that's potentially unconsulted by the court is not evidence of the court actions and therefore i think those would be inadequate shift the burden back i agree with the court that deer versus calderon is not an appropriate way to look at this i don't think looking at the pleadings underneath is the proper way i think looking at re sounds like something out of returned that would be up to the courts if one seriously varied saying that the rule that's to be applied consistently and he certainly can't really look at ninety percent of the cases to determine that we can only see if and six part one which would be the personal presence claim and the appellate counsel ineffectiveness claim for failure to raise district attorney inconsistent arguments in the trial court we were able to successfully c and i think took a minority view which brought and the relation back question to being the whole trial then were asked to brief below what impact on the district court i had to acknowledge that the district court was bound by this court's decision even though i argued that i thought this discourse this season was wrong in that instance moreover at the oral argument i posited that it might be prudent for the district court judge to delay a decision since the matter was before the united makes it clear that the the two claims discussed do not relate back because they did not come from the same set of core facts and that they were different in time and in type mr martin didn't mention anything in his original timely filed pleading about his personal presence at the playback o the jury tape there was no reference either as a direct claim or as an ineffectiveness claim at all and moreover the original timely petition only described a very few limited number of t and i don't have it right here i mean easily but i think i believe that if you do go through and i laid out in my brief i believe that if you go through the various filings the original filings you will see that it in his original pleadings his proceed please mr martin did in fact raise the issue of ineffective that it's there i might be wrong but i don't think i am and maybe the court made reference to this and i just simply didn't hear and i apologize but in the dialogue that bars reasonable or not or the failure to file in or timely manner is reasonable which imposes ice with suspected tremendous burden on this court but i think you know that's almost the re and it wasn't really just sort of that we don't get bogged down too much in the original petition was filed and the chronologies and the reason i don't need to reiterate it but there was an awful lot of litigation going on with respect to what had been exhausted what had been exhausted felix came into play and then the final to the final petition was  which i was a reiteration a cleaned up version of what had been previously submitted counsel says that it had been previously raised and we disagree on that but even so given all that preceded in the litigation that had preceded it is reasonable under the circumstances in the burden shifts and i think all of the arguments i'm going to sit down and i'd like to