the motion did not have been a fight any defect in the integrity of the earlier federal hevia sprit savings nevertheless the district court granted the motion the district court order should be reversed it was i will you have to address that it is somewhat unclear health twelve ninety two two two five for federal habeas rule five and twenty two use me appellate procedure five and twenty two in hate usual twelve all i have to work together especially in a hate use case where the rule sixty motion on a space is a clearly successful petition and where in addition to the district court this court also court rejecting an argument of functional equivalent of compliance the responded asked that if this court does fine that twelve ninety two be a pause in this procedural posture that due to the be making because the government is usually asserting to us that the petitioner is on timely and did not go properly and that if you want to make an exception for you here it's to and we are usually receptive to that and and i wonder if you've looked down the road seen what a ruling here adopting the rationale that you're talking about how that would go well defendants criminal defendants their parties they're not going to come again they're not going to get the benefit of this rule one way or the other but you will and it's a rule that is very i would think would be contrary to your interests a and but i take your point that if you follow a substantial compliance with the rule sixty b sees me with an appeal the others would argue that as well how is there substantial compliance even in this case of europe but argue that if i may the sequence of events for four seventeen in that notice of appeal it was not followed with this court and that's correct in that notice of appeal it did state what the procedural posture was and it was being appealed and it was our and  stated that it was a walk tory appeal at the time it was followed you know but did to bring this appeal we've got rules and the rules are there for a reason and they're there to accomplish various purposes and you know and then to come up to come up and fair the person who didn't use of appeal was me and i so unlike many cases where i'm explaining someone else i can explain that i did not think i did not think of following an application that went off the rails earlier than th the district court stated in its order that it was going to stay the order for the government to appeal do you regard that as a certification i understand the court's position that's not a certification the action will stay the respondent attempted to the issue is overturning of a b s order where there was no jurisdiction in the district court for the order to be  make that qualified on it as a collateral order but but that well i don't know and how would that be so you mean of the collateral or doctrine correct yes well if the third the third factor is finality the the the first two parts of that i think are met and since that is a final order on the sixty motion itself but the interest  the state has in finality it's not overturning the state conviction but it is overturning a judgment i don't know how to be honest i don't know exactly how it fits in and this procedural posture where this court has entered an order on this issue as the end of the unpublished opinion of argument we made and along with substantial compliance under twelve ninety   two years after this court's opinion won stock stated a rule very similar to the the analysis this court use and once taught that a proper rule sixty b motion tax not the substance of the underlying of the of the merits of terminations by the federal court but it didn't follow some defect in the integrity of the federal habeas proceedings the sixty motion in this case not identified a defect in the integrity of the previous found as a defect the failure to order a hearing in a case where he was barred from holding a hearing about it mak motion was to sixty motion and then in its or the district court ordered evidence you're hearing well i thought that the whole gist of what they were saying no was the relief he gave true was perhaps different what they what they asked for were there were their reasons for getting that relief with remained the same and so in response to them if you say look he's already got a hearing on these very issues in state court i mean i unless i had that completely and reviewed well what about both versus state us supreme court's decision in february of last year where they recognize sixty is an option yes i do think how do you terminations on the claims based on that doctor who testified that race was a factor in future dangerousness ohm it was procedur one distinction yes your honor and another distinction that i think is very important is that in the bud case from texas texas confessed error in five or six cases where this individual testified as he saldana and this was the only case where the state did not confessor so it confessed error in every other case but did not confess error in this case and i think that is much more of an extraordinary may have pleased the court my name is ken rose and along with stanley hammer we represent mr timothy richardson the appellee petitioner in this case why don't you explain to the district court why you should get another isn't really tracked the rationale you know there's another reason why an evidentiary hearing aids is required in this case and i'd like to get to that another reason the state the federal district court misconstrued state law in the first first go around the federal district courts that there was a strict cutoff of seventy or below in order to prove intellectual disability and this court said that was state law and north carolina law as it turns out we found in the subsequent round of state court proceedings that was not state law in fact the state court said that if that applied with paul hall versus florida all along that it never applied a strict cut off suddenly or below that it allowed for the downward adjustment of the i q scores and so the district court had been proceeding on a misconstruction of state but what difference does that make if the first m a r hearing in two thousand and five was in fact in every denture hearing and the order reflects that the court made specific findings regarding  doesn't it appear from this record that the defendant got what he was entitled to know your honor because there was no data on recently applied the law to the facts in this case in the two thousand and five to sedition and how was that done and what was unreasonable about the proceedings in june two thousand by your honor and in that case can in just a second place the the state court found that the adaptive behavior standards were met relying on unscientific test called the s s s q the state street the court found that the defendant performed fairly well and with the within the average range as compared to the average population the problem with that is this test was never normed on an average population of the population this test was not scientific it was not a proper test it analyze only five of the ten yr it's adaptive behavior but it was it was the principal the principal evidence that s well since state law has a strict cutoff of seventy or below we don't have to reach whether or not the way that the state court appl functioning but you're saying that the court relied on some of the wrong evidence or relied on evidence that was that no no no reasonable court would have relied on and even though that's not our this conclusion is pretty much the same as exactly the same methods but it's conclusions baseless and that's why we want to hear him to show that but even at the first hearing there was no reasonable support for the fact by me and by the spirit court judge the state has had met its criteria for adaptive behavior so when the state court in two thousand and fifteen made specific and it's  applied the standard area measure error of measurement to riches and scores another way tom makes no difference in the state's court's mind because it had already done but requires to recognize state law would deserve the common interest and shrine in aid by ignoring the state courts view of its own law a federal court respect for another state's law was not an issue tennessee if and as we saw this is a proper a true sixty six motion and not a success but it's also an extraordinary circumstance and there were other justify and sixty six another one is that the opposing party party in this case told the district court initially told this court that in north carolina law position after home versus florida and said well we've never had a strict cutoff of seven and then wrote the proposed order and the spirit court signed the proposed order and it said that that happened june of two thousand and fifteen so that was a key time when we were then on notice that district court had misconstrued state law really different right this should have been a certification this should have been permission granted by us none of that was done technically in compliance with the rule you know what they argue will substantively we have accommodated the rule because we did this and then my question is pursued because they didn't use of the right or siege or arguably what prejudices resulted  to begin with the rules allow the opposing party to respond to an application we didn't have an opportunity to respond where we're into this litigation on appeal months and months later and had the state  i'm looking at age sixteen sixteen which was part of judge bowles order and i found it a little bit confusing and i wonder if you would help me with it what issue do you believe judge behavior deficit's he didn't reach the entirety of the issue of intellectual disability in his original order in denying the relief on the intellectual disability claim but then he says but you didn't plead that exist in the integrity of the federal habeas petition whatever that means so he does give a reason why he just then goes on to say but you didn't plead this your pleading relates to the merits of the of the state court so when this court looks at whether the sixty six motion was filed within a reasonable time we contend that the key date it's not obvious is florida the key date is when the state court enter misconstrue construed that would district court had misconstrued state court law and at that point we then exhausted but we are state court remedies and we followed the district court motion for relief from judgment within three weeks of the state of the state supreme court to n judge bowl on the sixty motion hearing regarding the two thousand competent you're hearing first in response to richardson's argument does the state did that interpreted the statute the way the florida supreme court did in hall the hall is not at issue here but it is the underlying claim and it's coming down is argued extraordinary in hall this u s supreme court held that requiring a bright line of seventy or less before allowing further exploration of intellectual disability created too rigid a rule that created a risk of executing an intellectually disabled defend function in this case there was evidence of standard error of measurement in flint effect the the state court order in two thousand and five did not address those directly and the state did argue there was a straight cut off but at that evidentiary hearing the assistant district attorney moved to the richardson not be allowed to put on evidence of a to function because he didn't meet the i q requirement that was the argument the state may and the superior court judge denied that and allow richardson to put on any evidence he wished without restriction so this isn't like the case of with the b kelly where there was a foregoing of an opportunity to develop a more complete record that the evidentiary hearing was open to any evidence that of defendant wish to put on and in that order judge sautner did not find merely that he had not met the intelligence for an intellectual functioning score he also found that defendant had not shown significantly sub average of the functioning so neither part of the two part test was met  distinct from sixty be so but if i just might be sure you understand the premise of my question the premise is not that we're finding this is a proper sixty motion but what we're doing is finding th hypothetical is that you have no right to appeal right so we haven't made the finding that the property sixty motion so what do we do with the motion to am at this point but that his arguments a little different and i guess i'm piggybacking on what judgements are saying because he's his arguments different he's saying it doesn't matter if i was able to present evidence of that definit was allowed to present all evidence that he wished shows that the there is no evidence you're hearing us allow either back in two thousand and eleven by the dischord or currently by the district court on this issue as held that it was a reasonable application of the law and all the florida's not restaurant and the air and hall did not occur here and that if it was able to present evidence unlike in hall