before the magistrate judge again and then you have a chance to take it to the district court so why won't you read what the magistrate judge told told the petitioner he laid it out why did why when they answer just to follow what the there are denied as i'm finally or five years have elapsed however we reach the merits that is almost never in the instance of the california think more closed door short answer to my question about why it was raised civil procedure provide that a district court will review to no vote any objections to the findings recommendations and also the judge has the authority to recommit the matter to the magistrate judge with further instruction but the magistrate judge put them on notice that he thought that the state supreme court order was adequate sufficient he thought it was time bar and he and he instructed the tradition or they had some burden to put forth some proceeding under what we thought the law was and there was a different issue we were focused on the magistrate judge then looks to the tenth circuit and we're supposed to come up with these specific instances of inconsistency and to do so is incredibly difficult because the california supreme court on its face on these orders doesn't give you much to go on what's what's the response there why shouldn't this go back to the district court now to give them a chance to proceeding not at the front end and what counsel is just told us here today and i don't know whether you disputed or not that's to push that come up with that kind of information at that stage of the proceeding would have been difficult because it takes you california the state of how you prove inconsistency or how you'd be able to prove an inconsistency in california i suppose it is there are a few methods to show inconsistency one is a state court opinion that d it so i'm just thinking is a pregnant practical matter here talking about counsel come into a case and then in the midst of the case find out that they've got a burden to come up with some information that is difficult to get so  should we be doing with that here should we kick it back to the district court or let the district court evaluate the circumstances or just decide as a matter of gee you know you look too bad you got notice midway t was represented by counsel that counsel should have known that they had to provide some evidence and that the magistrate judge merely put that put the fine points on that and told them what the verge shifting responsibilities would be after they had provided some evidence they never they never attempted to even do so what was the timeline in this case between the the f n r v the line for objections to the that the fisher had not presented sufficient evidence that the procedural rule was inconsistent to apply and in addition to that case i would also direct this court to its opinion and boy versus thompson which is  if your opponent correct that in your request for an extension before the magistrate judge that you did not include a request do not support that request with fact indicating you needed to do research on this element of what the you got spreadsheets along what are you telling us you do one does in your position under this regime now where you have to show clearly that's assuming it was never clearly ok now you're saying you've told us it's impossible you've told us it was difficult you told us you got something i'm trying to understand having been in the position what do you look to to find out whether comparable cases have been treated in some way what's your america on the issue of tolling during gaps in the state the question is not the same i'm not sure how much of their data even applies in my context and i would have to go to the california supreme court and pull the original application is she correct is what she is so my question and her veracity maybe you know some other methodology i think she's correct but with with the with the caveat that this court has said i think it was invented not in the opinions you're out a lot i think you probably would have to just look at the circumstances that said it was denied actors so many years from this just got to the procedural grounds versus on the merits but i don't think you can look to see whether