the dismissal water led mr miller or any reasonable litigant frankly into thinking that he was ok in federal court he had to do something in state court and he very very diligently did that followed meticulously the judge's directions mr turner let me look at the chase as far as my take on this case is involved it seems that procedural default is written all over this thing it may be true the the judge made a mistake in taking a look at this is i'm exhausted but if you look under the covers it seems to be that this seems to be a case of procedural default you look at back in to the state to see what happens i mean every turn they said you're too late you're too late you're procedurally to fold i believe that your honor sort of that's a critical part of this case you're absolutely right how do you get around procedural d in this case and we would argue that it's cause maybe other forms of cause here also but that's a clear formal process that's the core of what you're saying is that he was denied the right his lawyer didn't give him proper advice he didn't know he could appeal he didn't know he had appeal right and if we're but you're right that if there was an adverse ruling on it if if there's a default obviously we'd also try to argue potentially at least adequate and independent state grounds and other i don't know that we have such an argument we certainly wouldn't frivolously argued but like any any lawyer i'd want to look over all the possibilities but i think the cause and prejudice argument would be the core of what we want to do i am i going to tell you what my problem is and maybe i see it as an exhaustion case that gets to the same result and that is this record the first time around was seemed to me to be correct that he had not exhausted with respect to his state he if he'd gone on direct review and he had procedural default on that but because there is this wishy but the legal basis for the equitable tolling which ends in back in the same place it seems to me as to where the treated as a procedural default in which there could be no question president what we're really fighting was an opportunity to to defend to make the argument told seven months remaining on his day d p a one year statute he did not go back to state court like mr miller did he stayed around he litigated it for a while and eventually went back when it was too late that's mr pailful mr miller did something been no federal ruling on procedural the phone and that's correct but i believe that i ask you again why shouldn't we send it back to have somebody rule on procedural before so that the other side is given an opportunity to demonstrate cause or practice because we still have to get  the first time he was in federal court and to do that is to basically reward his own ignorance of the law in not starting with and that is why the judge ruled it was an exhausted without even a hearing there was no nobody was given an opportunity to explain  there's a second round that this court certified i said hey if he's entitled ak will call and while he's in federal court we're not even going to argue the statutory we can see that that issue the only issue is whether by going into federal court it did seem that he had something to exhaust because he had proceeded with the state of the institution correct that's correct and he and then they had a court might have said we're going to give you a past on the one year because because  and there was no cards and prejudice so they really ruled on both of those correct that's correct so i guess my question is if if we were to get federal tolling and let him bring how many overcome the bargain's hideous review i muster when they look in an independent and adequate state ground you know apart from the courts and prejudice so in other words would we as a matter of law w that if they petition or files in the wrong court with a completely on exhausted petition as mr miller good then his ignorance of the law by going to the wrong cork does is not an extraordinary circumstance beyond his control and as soon as the tables are clear we'll move on to the next case which is