barnett like reserve five minutes for rebuttal process that takes more than seventeen years to litigate a case with no opportunity during that time to preserve testimony that doesn't roll back and start over at each change of each step in the state process that perhaps even more importantly the existence of the second edition and then what the state court features a third pursue they asked the state court for the funds to investigate and research them and they were turned down they were they were then subject to the timeliness standards of the california supreme court and federal defender to to pursue these claims bring them back as a as a second petition and subsequently to make some rather smaller amendments that the court treated as the third petition so the very  is that you've got the un exhausted or mixed petition in federal court because that allows you to get federal investigators money and now based upon the federal investigative money you filed second and third petitions that the state court has taken some time to respond to and given the time that they're now taking to respond not just released on your argument time to respond on the third but the aggregate time you're seeking to be excused from exhaustion that's a that's a tough argument to  with the passage of time then shifting the burden to the state to establish any justification for the delay unfortunately inordinate is is not a term of art and  bright line cannot be drawn but now has to be looked at in terms of the of the purpose of the process the purpose of the exhaustion process and the terms of  but it sounds as though the street impediments that we're dealing with given the sequence and given the fact that they've now that the state court has dealt with petitions one and petitions two and the only thing we have not dealt with is the amendments to petition to the petition three the state court impediments that we're not looking at it seems to me flow from the failure of the state to provide investigative money that money that you now only been able it's not it's not a question of of of money alone i i would i will i will agree to that it is it is the process that prolonged prolonged over mr barnett that they were unable to present on on his behalf in the mean time the years the the years cumulating not the three or four years the two over seventeen years since he was initially sentenced and even if the number of sub planes that remain before the california supreme court is very small the the effect is that are that that small piece of the case is holding the entire case hostage essentially from litigation in the federal court and in in the meantime the the loss of witnesses to death and otherwise the loss of of evidence continu there is absolutely unpredictable and you just don't know that is yes it is and the reason is not as important obviously as mandamus is a higher hurdle for you to get over absolutely i understand that on the most important fact for each of the wrongs of the co test for appeal ability is that we're dealing here fundamentally with mr barnett's right to proceed in the federal court now and that is that is that is something that by definition he the court cannot say years after the over that he should indeed have have been allowed to proceed in federal court in two thousand and six in two thousand and eight two thousand and ten no no remedy can can be post a bond in order for the case to be allowed to go forward at all so the the the right to proceed now is a right that that cannot please the court my name is tammy warwick and i represent the appellee respondent the warden of quentin prison the titian are would like this court to aggregate the time in order to determine that over sixteen years is too long well there's no authority to aggregate time to do so you have to look at each individual stage of this and certainly there have been delays in this case as there are in all capital cases but this case is not a case that has fallen into the black hole in the california supreme court california's supreme court has resolved over two hundred claim possibly two hundred claims by counsel and has also resolved approximately two hundred fifty pro se claims that have been filed and certainly if you break down the time frames that have been looked at for the each petition it has not been and in ordinary amount of time for the california supreme court to decide this many issues  the other important point i'd like to make is that the claims are still being investigated for a federal court so although we're looking at five claims that haven't been exhausted and we do not have an indication when california supreme court will reach a review that but they did resolve cost me six months ago sixty seven claims so it hasn't again been tending since april twenty ninth two thousand and four with nothing being done in this case and petitioner has made representations to the district court that there are still claims asking for this court to review the district court's finding that the collateral review process ineffective and certainly that is in meshed with the merits in this case is the determining that there is prejudice i part of the claims that have been presented to the state court and are being presented to the federal court and that certainly if this court were to order the district court were to find that there was prejudice because of the delays remedy could be questions or no question even took a step further beyond what is necessary to do here an aggregated time which a case was pending in two different state courts in the course of finding that that the delay was inordinate and  r barnett is indeed serious about moving forward and  not countenance in further delay and therefore we are under orders from him not to return to the state court with anything new that that was developed he wishes to go forward in the federal court on the claims that have been  presented to date moves out of the question that is what we raised about the consequences of holding on some hypothetical future claims that have never been presented to any course today is inextricably intertwined with the merits of the underlying case it's quite well established for purposes of