are important to this case we did make a couple of misstatements in our opening brief on page four the superior court instruct the district court to well stay and a day i guess to have the state court go back to the beginning from the time that mr simmons filed his notice of his conviction relief how this day and a break come into the number one he moved for reconsideration on it because of the briefing issue and that's never been ruled on is that correct you know petition number one was completely ignored weeks later on february twenty sixth the court granted the motion to withdraw at which point and thirty two point four c you just you know well you're not answering my question because i'm sorry it's confusing here i thought that he's got could bring these claims in which he did file actually was never definitively ruled on it's just sitting there in the court still today is that correct it was completely ignored and at one the it's fairly it it's apparent that the reason that all of this stuff that everything mr simmons filed was ignored was because he was pro per  in the best of all possible worlds we would like to see it through the just record get back to state court at the time of the notice and give mr simmons a chance this time to have counsel if he wants because you know excessive conviction relief petition was supported by a correct application of arizona law what appears to have happened from this record in this convoluted record of the petitioner did file a pro se petition then the court dismissed that first action know they dismissed the first one on march twentieth two thousand and two defendants having failed to file a supplemental pro per petition correct and then he filed a motion for reconsideration yes never been doesn't have a final resolution because for whatever reason the court never ruled on it so my question is only if there's no evidence in this record if that's the case why wouldn't we just let it go back to and what was the titian number one which he did file timely and you know maybe he'll lose again i don't know but why wouldn't he just well i don't back on that i don't think it it matters in this case because he fi petition which the court found time barred then he filed a motion excuse me for consideration off of that work he pointed out this first year the trial court denied that that went properly up to the court of appeals and to the arizona supreme court so we do have a resolution on this these matters are our time barred that that argument has been resolved was resolved in the in the second well it state trial court had denied relief on the merits in the first proceeding the petitioners second petition would still be time barred time bar came about because the petitioner chose to file a second  se who was initially a point counsel in this matter and he chose to proceed on his own he made a procedural mistake but it was his mistake to make it doesn't it doesn't excuse it didn't cause the procedural bar on the on the second one argue that he did in fact file a petition in the in the first matter so the trial court did consider that if you know it did it did then i came relief based on the time bar but that was in front of the trial court and then that went up is supposed to as it's supposed to happen in arizona that went up to the court of appeals and the supreme court those are those were a summary of denials but but the matter was before the trial court you know in  the trial court certainly had that in front of them in this in the second term proceedings and it rule on the merits not sufficiently because it relied on the time bar which was the second that's that's that's right but it certainly had all these arguments in front of it the state didn't follow its own procedure ruling on the motion for reconsideration there's no true well the adequate what i'm relying on is the time bar and that's that's that's what's  t i certainly can't address that with any arizona case law but but i think when you're dealing with the same trial court and those facts are raised before the trial court yeah i would i would say ye so you would say that because in his second petition he told the trial court i still have the first one that it's somehow ruled on the first one yes he raised that issue was about prejudice in theory at least cover up the problems that went on in state court that doesn't in effect say yeah things went wrong but there is no prejudice federal court on the merits because of the prejudice issue well he shouldn't the state court should have the first opportunity under again under the function of the district court in such a