excessive that is it that it is excessive in order to be successive he must of course filed in additional federal hate his petition of first petition and not just any petition one that meets the requirements of twenty two forty four a which is it a petition that challenges that legality of his state court to tension or of the judgment the government's argument in fact their answering brief concedes that if on page sixteen that  there which ones that it was consumer behavior petition that was that was not an inherent part of the ruling iran or in fact the district court's order which is about in the excerpts a record of the first volume if you look at this the two thousand and thirteen order it begins on page thirty eight that order specifically states that he that mr anderson is not challenging the legality of his judgment of conviction and that was the court's ruling at that time mr anderson tried to appeal from the court denied a certificate of appeal villany but what's important about the two thousand and thirteen litigation what's interesting about this case is probably the most important document of the two thousand and thirteen litigation is the actual docket and that is found in volume four of my exercise record began on page four hundred one and it's important i would ask the court to look at that as we address some of this the argument that are put forth in answering brief because if there's one thing that i would like to establish here today is that the government is simply wrong with it states that this two thousand and thirteen filing by mr anderson met the requirements for a b s petition first of all if you look at the docket you'll notice you will not see an entry for a i have a procedural question another procedural question to ask you in the opening brief you refer to the two thousand and thirteen filing as a federal hate b s petition and it seems to me that it's only in the reply brief for the first time that you're making this argument am i misreading your opening brief and if not what does that do to our usual rule that we require an argument to be made in which is found at beginning on pages four and five the excerpts of record the court specifically says that he addressed the legality of that petition that these two thousand and thirteen order did address the legality of the state court judgment and therefore it's excessive and meet that requirement and what i did not notice until the reply brief is that in this two thousand and thirteen order he said exactly the opposite if you get page thirty eight once again he says he admits it anderson is not attacking a answer to repeat just thirteen through sixteen the government makes a number of representations about this petition and i was wrong i made in the opening brief a call the petition because i just well you may wasn't what i was but what what are we supposed to do about we normally have a rule that if an issue is not squarely raised and argued in the opening if that's we don't reach it so why should we reach it here because your honor i did make the argument i opening brief it's fair to say that the but the court that would say we re characterize the and then we quote the title as a b s petition and did whatever we do with it was there any language like that here that you rely on  no there wasn't and that's what it really confused me is the district courts seem to just assume that this was a petition and it wasn't until you dig into the weeds of what actually was filed do you realize that he was wrong about that and why do i say that if he ever say that he was recount arising it is a no he did not explicitly know it implicitly characterization but my core argument is that the operative document was the motion for pre sentence credits and why do i say that  court other than a petition it's a good question it's somewhat akin to twenty to forty one litigation i'm thinking if if none of us federal judges sentenced the guy we're totally out of the process of correcting the sentence all we can do is say he's entitled and this is whether we care i'm sorry and all we can do is say he should be released because the sins properly done would be such and such and he'd be entitled to release now so what could it be except a hideous petition that's that's exactly where we get into the re characterization issue it's probably a rogue document your honor it but the court and what castle the u s supreme court case says and a lot of other circuit cases especially when the circuits say is that went to court it tends to engage in this very character is asian process or does it has to it has a duty to not prejudice the pro se litigant by doing brief that he filed this on the official federal form that we have it's not it's just incorrect if you look at it it's in response six of the records it begins and for all six volume three this first two pages are from our federal standard form but the rest of it is just an amalgamation of state court documents and why is that important because the district court and the state relies heavily on burton the supreme court case which talks about what constitutes a success of petition and then burton the supreme court specifically noted that that original petition was filed on the standard form which incidentally is required under the federal this rules three d and that that form had this advisement to the depression or you better put all your claims and who else you forever way that way them that my state this thing that my client filed as an attachment does not have those advisement that's not on the standard form so the government is wrong about that and correct the governor is also wrong when they say that it was verified to do how do you how do you still have castro in the game here because there's a the there are two documents here that could potentially be the operative document the most stroke the overwhelming weight of the evidence is that the argument is that my client made explicit choice but there's no evidence of that in this record and that's another way it differs from burton because in burton there was evidence in that record that the client had noticed that he had to bring his claims or lose them and yet he made a conscious they're wrong and then quickly address try to quickly address what i think are the key failings of the main arguments he made in his opening brief your honour's that order works for you on page six of his reply brief he does are you for the very first time that this isn't a federal hate this petition that is a motion for pre sentence credits a couple is that what it was intitled to that there was entitle motion for pre sentence credits wasn't well the actual this was going to get to the actual document that the district court ruled on here was title on the very first page of that four zero seven it says the title of that is actually from the federal what he did is it looks like he took the first two pages from the federal habeas form so he got that from somewhere and the title of that as pre fill habeas corpus pursuant to twenty eight u s c twenty two fifty four and then importantly as as as as mr anderson's counsel noted this morning he actually took another former looks like he took a state some sort of form that repeatedly says he's challenging the validity of his conviction he doesn't really explain why that issue had not been exhausted well i think if you take your honour's point you one of the questions you asked earlier about was whether or not you can raise that in this proceeding because as i understand it i'm just asking it seems that that was not handled correctly in two thousand and thirteen i don't know that we can do anything about it but well i do because i think that to your question you asked earlier in the end what you're getting at now i think are related as to if you want to now challenge that all this is a mixed petition so you should've should've done anything i think that would have to be raised there's no authority at all that you can somehow raise that in a later proceeding as to your original question i would we've talked about this in our office  i would not prefer that this court decide the decide in the state's favor on the basis that he should have raised it in the first petition and here's why if you look at the castro case that judge who also brought up the cat which is the case was well you need to use this law of the case at this point he showed a race that in the first proceeding so somewhat what you were getting at judge graver and he and the supreme court rejected that now i think that this is a very different circumstance because there's no re but i i think that there's a lot clearer reason that the state wins here other than i in other words i don't know it's maybe a little less clear whether you can reach back into an earlier proceeding because of the castro case but this case is nothing like the petitioners tried to do what andersen is trying to do in this case in a try to shoehorn themself and they split the argued well castro governs our case in the supreme court in both of those cases rejected that argument and it said no no no castro's a different kind of cases where essentially the district court judge the petitioner files something in a district court judge says well i'm going to characterize it as something different than what you want to have this petition and then you prejudice the petitioner for having filed something that he didn't actually and the court quickly ruled on it and if you look at his briefing in towards the end of his briefing the only thing that anderson can point to is what he characterizes as an act of commission that's how he says that castro as something that would push this in a casual an unilateral action is that the court ruled abruptly in other words the court was diligent the court acted quickly and that somehow it is makes this into a castro type situation obviously that's not correct if that's correct and district court judges that are diligent are violating castro all the time your honor so i don't i don't think there's any way to shoehorn us in the castro i don't think is new arguments that this is somehow a a not a federal habeas petition fit the actual record and then lastly i guess  i go back to the one i'm still noodling over this if we were to conclude that in twenty thirteen the petition should have been dismissed without prejudice because it was a mixed petition needed to raise that in the appeal of that that in two twenty thirteen he would have needed to raise that in that case in other words the castro case to castro so if you think it's too late for us to consider it even if the court was wrong in twenty thirteen i think it's too late for this court to go back and say well that was a mixed petition and therefore it doesn't count as a petition because i should have been raised in that in that proceeding your honor and so i don't so i don't see and i also don't well i guess  i i don't agree that it's a mix i understand you know but i think it's too late to raise it to the last the last issue i'll try to address in the last minute or so is the pace but he you know he argues his main argument in his opening brief was that this was a pace protective petition but in order to file a piece protective petition you actually have to have some reasonable confusion as to whether or not the state petition that you're trying to protect you know protect against uncertainty about was actually  or properly filed and he doesn't have any reasonable uncertainty here there is no reason what he tries to the only thing he tries to point to as any reasonable confusion is reasonable confusion as to whether or not he would have actually won on the merits of the arguments he was making to the state courts and his post eviction proceedings in state court but of course if that constitutes reason of confusion you always have resubmit confusion because i mean unless unless they he's absolutely certain he's going to win and stay in a state court post perfect conviction proceeding so he's confusing or conflating reasonable confusion about whether he's got a procedural problem or a time in this problem with his state state post conviction which that is or that is a reason to follow pace protected petition and it's confusing that with any kind of reasonable confusion or uncertainty about whether he's going to win on the merits of the arguments he's making he can't point to uncertainty about whether he's going to went on the merits of those arguments and then try to say that counts as reasonable confusion under pace your honour's that's not how pace works so if the co questions i doubt the case just argued and submitted and we appreciate very much the arguments of both counsel your time had expired you used more than your allotted time