instruction we've articulated to rule based reasons why the default should not be honored for bar review they are somewhat contradictory but not completely and i hope i've made myself clear in the papers that first position is grounded in the fact that the california supreme court does not review case specific violations of clearly established constitutional rules the federal courts under eight can only grant relief for case specific violations of clearly established constitutional rules therefore it follows that in any case where petitioner might get relief in federal court the california supreme court is not going to take that case now  the fallback position is if the court is uncomfortable with that hard and fast interpretation of supreme court policy then exhaustion is still satisfied because the california supreme court has the power to and does review every court of appeal opinion has the power to grant review on its own merits of federal constitutional issues and grant relief if it if it chooses which i think is the the ultimate fallback rule based reason why the default doesn't courts in one thousand nine hundred seven which is really kind of before paper really got going only granted review in one point nine percent of the criminal cases in front of it i'm sure now with apra the number of potential havey is claims that the court reviews case specific  claims is probably zero and i would like to suggest a possible alternative if the court remains uncomfortable with what the california supreme court does and that is to remand the case to the district court on this issue with the instruction to conduct an evidentiary hearing in that line i was at an appellate seminar where there was a gentleman speaking who had worked for the state supreme court for some time and one of the things that he said was that they had  and processing the work they have the a pile and they have to be pile and they have to see pile in descending order of attention given the court and he kind of implied to see pile got kind of a whiff of passing attention i asked him how the california supreme court handles the new street tax usually the new streamlined exhaustion physician petitions under thirty three point one he said he had left the court before that rule was passed but he would suspect that those would go in the steep aisle or arguably torture on or i did want to reserve two minutes of my time i apologize for not noting that earlier if the court has no questions about that i do want to address  deadline of i believe that the deadline was january fifteenth where they would have lost jurisdiction and i think you thought they received from the before the deadline based on the initial date that was on the let the clerks letter to him which was i turning to the dixon issue i think as i've said the the issue really here is o'sullivan and the supreme court's rule that if you do not invoke discretionary review where it's there to be invoked your default at the dixon issue is really irrelevant in this case if mr haggard's had properly filed a petition for review and then gone to the state supreme court with a hey this petition for good measure he still would have gotten objects and he felt he still would have gotten a well to  about clearing it and additional authority that i've discovered since the briefing is by looking at the rules governing twenty eight fifty four petitions the advisory committee notes to rule four and five both suggest that allegation should be made with particularity and th in which the courts reviewed claims not withstanding the possibility of addiction default responded the attorney general did nothing in response and so there was no default i submit where we don't have ninth circuit or u s supreme court authority on whether or not t properly present your claims to the california supreme court or any state court you have creasy procedurally defaulted those claims and that's what happened in this case the petitioner failed to properly file a petition for review because he filed that petition late and in terms of that the california supreme court determination that it was really the district court here properly held that the  california supreme court ruled that it was untimely under state law and it is not the province of a federal court to reexamine that question because that is the state law determination under our state law question so we must accept the california supreme court's determination that it was a late petition for review and you accept that under osama bin he procedurally defaulted his claims because he failed to file that timely petition for review and there's nothing in this case that  would take it out of the purview of o'sullivan interestingly enough fall of in the core supreme court said that a state could if it did not want to be bothered with the e exhaustion petitions per se could declare in a decision that it did not want to deal with those and that petitioners could just directly bring their claims to federal court the california supreme court or she's in the california and their rules of court expressed lee take the opposite approach they want these claims to come to the california supreme court and you'll find that in the advisory committee comment to rule thirty three point three which is the exhaustion thirty three point one was he actually referring to thirty three point three yes if you are referring to the exhaustion petitions it's thirty three point three and he was right that that wasn't even in the fact at the time that the petitioner was working h way through the state court so the existence of that rule today shouldn't count as an interest an excuse for him to get around the procedural rules existing at the time but clearly even if a  court has discretion to take certain claims on review under all solvent the petitioner still must bring those claims and provide the state with the opportunity to exercise its discretion grant review on the claims when you dixon case and i cited cases basically talking about the history of procedural rules in california there was a time in california were california acknowledged that there their application of these procedur absence of any evidence that the rule is not consistently apply it would be held adequate and it was held adequate in both of those cases and that's the situation we have here the rule was pled as independent and adequate in the district court in the petitioners opposition he was silent he didn't counter that allegation with any sort of allegation that it wasn't consistently apply the district court based on that ruled that this the burden had not shifted respond to sort of getting back to the initial question about the timing of the petition for review petitions counsel mentioned that the court could have ordered a review on its own motion so that the the petition wasn't necessary  important in this case the time for the california supreme court to order really want to go on motion had passed as well as petitioner can bring a petition for review essentially forty days after the decision is made the california supreme court can order a review on its own motion on its own motion sixty days after the decision is made in this case the petition for review was filed beyond the sixty days so that also wasn't an option in this case because of the the delay that the s has to brief the merits of the second issue the voluntary intoxication issue there was not substantial evidence to warrant intoxication instructions in this case and it was reasonable for the court of appeal to conclude that and that's precisely what the district court so what you're saying as to that instruction if we don't find a procedurally barred your position is that under the at the standards it was an unreasonable application exactly and although we have a brief the much thank you undergoing a somewhat were first order if there is if the court agrees that there is no procedural deep well in this case that has to remand the case to the district court for the district court to consider the question of the involuntary manslaughter instruction on the merits the district court considered the intoxication question as part of its cause and prejudiced analysis and i think that is why we had as were ordered to brief these briefs that issue as part of the certificate  the point we made about the court's ability to grant review want its own motion was not to rebut any argument that the position the position had not been filed timely it was to make the point that there is no exhaustion problem and there is no procedural default that this court needs to honor because the purposes of the exhaustion doctor satisfy the california supreme court has the chance to pass on the claim of federal air before it goes to federal court counsel mentioned advisory committee no to rule thirty three point three streamline petition for review i think all of us who work on this side of the table recognize that the exhaustion procedural default they're all kind of targeted at creating traps for the and wary i submit that this rule was  inactive for a reason and it reflects prior practice the practice that was in effect at the time that mr hankins defaulted and that's why i think there's there are questions of fact that arguably need to be answered in light of the clear limitations on federal review and the  suspect advisory committee noting justice souter and justice briar you know sullivan said well just because a case a state occasionally employs a practice to grant review does not mean it has to be a hard and fast rule for purposes of exhaustion procedural default all right your