since become come to be known as the stay and they process and the court declined the motion so the issue on appeal seems to me is whether that was probably within the court's discretion to decline his request for  stay in a bay because this court subsequently and kelly in fourth and brambles has affirmed that stay in of a procedure and my colleagues argument as i understand it is that quote had discretion exercised would constitute era and that that discretion is more a form a matter of form than it is of substance so there is really no basis to distinguish this case from kelli a court of brambles bed only round that all that is arguably distinguishable is that i think kelly and the other ones the time had already expired the one year statue limitations are already expired so by going back to the state court by then you're already out of time to come back after it's staining the base and the question is if the time had not yet expired but it was likely to expire that the same will apply in the case that seem to say that just either impossible to go back to court state court and return or i'm likely and the timeline in this case is such that by the time the district court denied him the stay in the basic process attorney general's position is it turns out it's right but when you have i'm not sure that that's the last word of opposing counsel in effect tells you that it's a mixed petition you're outta luck that maybe it is maybe it isn't so really the operative time advice or it's been established that there are one hundred three days especially funny time that the rule that's emerged is thirty days to go back to state court in thirty days after the state court decided to come back to federal court i think kelly that was the believes that the expiration date was september the fourteenth so if the court agrees that the attorney general giving you their opinion as mixed didn't the trigger date what we have is that the court finally on september the fourteenth of two thousand and one issued its opinion saying there is no exception of circumstances i'm exercising my discretion i'm defining displaying the base procedure that was right at the time that mr all very happy to think and that's  page one fifty nine of new york so he at least was under the impression that time was running out the court didn't tell anything other then there may be timeliness problems if you take the second choice and go back to state co doesn't give him any guidance so again maybe he had some time but what he did rather than take the court's advice and go back he wanted to challenge that decision and that's why we're here today so he filed a subsequent objections and so he filed in a timely fashion has proceeded within the district court and then to this court that the decision that the district court was wrong in that decision and by that time it's clear by any calculation the time has expired if you had filed with r thirtieth date so that would have folded again so obviously the best thing for him to do is go back to stay quiet while there's still some time that he's pro se proceeding without advice of counsel this is very complicated stuff and taken miss couplers advice back in march and gone back to state court there was plenty of time it was about sixty minute fourteenth he did have approximately forty six days remaining and he filed in state court at that point he would have told the statute of limitations and then he would have been able to come back  you claims at that time and then he would have not been in the situation he is now as early as his appellate counsel writing him the letter saying that california supreme court has been rejecting these claims so i'm sorry but we're not going to also it is also i believe would be appropriate to consider the likelihood of his exhausted claim which was the ineffective assistance of counsel because a quick reading of the record will show that he's not been denied a chance to have a m minutes left in your argument assuming that october thirtieth is the correct date for the expiration of the statue of limitations on may the thirtieth petition to file the traverse and which he essentially moved to dismiss and there was no response to that and the case just late as dead were appointed out from then until september when the petitioner renewed it by filing specific motions to stay in the bay so they were ninety days of their time is running have that happened it would if he would have plenty of time and there is something to the i e c claim in this case and that's this his state court appellate lawyer simply wrote him a letter and said i'm not going to file a petition for review forget about the position for the hearing in this in the state supreme court that's different than the procedure that's required and manders in which you either have to file it if we quest to all withdraw so there's a procedure in federal court that prevents that happening what happened here which is the petitioner wasa petition for review and counsel sensibly just abandoned him so the question becomes as a matter of sixth amendment law considering the implications for a petitioner if you don't exhaust by filing a petition for review should a similar like proceed and interest procedure be imposed on state courts complicated issues that from court decided that haven't they if there are counsel abandon them and they don't have a good exhaustion and then the last point is simply asking pro se partitions to do this without assistance of counsel i think creates so many problems and we don't have procedures in effect yet which case to deserve it and cohesive subsequently back to the supreme court and reads i don't believe that he has ever exhausted the three strikes issue which may now been obviated by lockyear and i drive a federal question there now perhaps