not reversible councils is not when they petition for review also argued the infective assistance of counsel claims which was substantial mr after the california supreme court denied answer was filed to the petition approximately give or take five months after the petition was filed he stopped the assistance of mr waters to help him in a traverse was filed and at that time in effect of assistance of counsel was brought to the attention of all parties when that was done so it was clear that mr brethren was seeking to avail himself of some procedure to get that in front of the court because he discussed whether or not other claims could be dismissed that perversion was pending for approximately nine months at the time of that traverse was and the magistrate responded to that request  the dynamics of twenty two fifty four proceedings had changed dramatically across the country because it had been generally assumed that the twenty to fifty four petition may stay the one year statute of limitations where everyone found out that that assumption was an incorrect assumption and adapt point in time it was too late time wise to dismiss the petition and attempt to file something quickly in the california  exhaust and immediately file again in the district court should have said one of several fun an amended petition or file a statement of supplemental issues because of that point in time when the magistrate judge did respond it was then too late to do anything other than those procedures instead the magistrate judge said hey you can't file something in a perverse and actually it would appear that a close reading of the cases would seem to indicate that maybe that's not correct  options to file either amended petitions or to file supplemental statements and the end of the detention never been there instead he just proceeded with the traverse so he had he had options didn't have the opportunity to avail himself self of the stay in abeyance procedure i submit that the california that the united states supreme court decision in rheims versus weber actually compels the conclusion that he was entitled to the stay under these protect particular circumstances first first first i believe that there was  agree that there could have been in a perfect world instead of filing this objection in the traverse he could have instead of filed the traverse and also filed another document intitled amended petition you could do this other thing that would be enough well interestingly enough ultimately petitioner saat to be able to do what was enough and he still was not allowed to do so because what happened  after the magistrate issued his order an average was then clear that the time limit had run at that point in time the petitioner sought the stay he sought a stay of this proceeding so we could filed his petition in the california supreme court as chance would have it the petition in the california supreme court was decided and then in a matter of days the district court judge just signed off on the magistrate judge i believe later on it may have been articulated by the magistrate judge and interestingly the district court judge never ever expressed really signed off on the fact that there should stay an abatement procedure he signed off by signing a general order but at no time did he mention that specific procedure and that he himself would not allow  i agree with that statement isn't the case but i also agree that the procedural i also suggest that the procedural history of that case is sufficiently different that while that may be a binding such a binding statement and those facts least six the other options in a district court and he is not given the ability to seek that other option i then say that that's a completely different situation and that he should have self wasn't aware of the issue his appointed counsel didn't raise and the california supreme court he filed the petition himself basically men making what was filed in the california supreme court and once he became aware of that question he started the procedure instruction which decided on the merits the court found there was no merit for the claim correct and so if you're entitled to anything on derives it's only to have a hearing on the ineffective assistance but the thing that cries out so much in this case is the an exhausted issue is clearly a very solid issue particularly when you look at the opinion of the court of appeal and such thing so this isn't a guy that's just you know trying to slow down the court system and burden the court system this is a guy who's got a valid complaint of these right he's going to be released he's not trying to put off an execution  well i believe that it does but because the law has sort of switched there hasn't been a decision on that by the district court so i would submit that difficult to reach on a handiest question whereas under ineffective assistance of counsel it's absolutely clear that it can be reached and it seems under these facts given the fact if that's the only d never decided to question the california supreme court remanded it to the district court or the court a california court of appeals to resolve the california court of appeals decided that issue two to one when that went back to the california supreme court particular statement is not included in the final report recommendation but the order of the district court does state that he reviewed all the files and orders and reported recommendation  that were presented i think it's important to remember in looking at the merits that the petitioner received every instruction at his trial that he requested he was due constructions on second degree murder complete instruction on delay in the in the actual order issued by the district court the district court judge basically signed the standard that you see in every twenty two fifty four that i've read considered and that's what i'm going to do i would distinguish this from completely from hal where they first talk about the district court judge has discretion to consider things raised in the objections or not and that case the court  judge never explicitly addressed the question i suppose you can argue that general the question is as general language implicitly addressed the question and i think that amended report that was filed because the magistrate judge actually filed a report and then in response to an objection filed an amended report and there was a footnote in the amended report