protective petition in one thousand in two thousand but mr rasberry timely filed first federal i don't get what you're arguing my impression my understanding is that there have been quite a few changes in the law as you say but every single one of them has made the petitioners position worse it has except for the creation by the supreme court in pace of this notion of a protective petition that when a petition or has good cost for being uncertain whether he's exhaustion petition that he would pursue while he still has time is going to be doing timely filed then that can be grounds for seeking protective petition in this context mr rasper if you can what filing a petition protect petition in federal court in this case mr rasberry believe well he filed a federal petition he believed to contain both exhausted and on exhausted clients although it's clear from his original opposition to the motion just missed that he didn't totally understand what the exhaustion requirement do you have any exhausted claims right he did in that the pitches petition for review on direct review by his appellate attorney included constitutional challenges to his two three strikes senses there was a challenge both to the consecutive nature is a violation of due process and there was an eighth amendment challenge to the duration being cruel and unusual punishment so there were exhausted claims he believed that he had included them in his federal petition  retrospective i realize that but in light of bonders application of these and timeliness rules as a recognition that a state court decision may not be considered something that statu automatically from reading that whether that is a merits decision that stops this that with the proviso statutory tolling or whether it is so there's an added complication that provides good cause for him exhausted that's true so therefore the district court should stay the clain that is not exhausted what in order for him to exhaust that claim because it should be treated as if it was mixed underwrites that's part of my argument i think because that goes to mr rasper his good faith efforts you know the standard under pace and our pace rather recognized that there are circumstances where a particular process litigant is going to be barred from federal court even though he's doing everything in the what he understands to be timely manner and with chavez vs evidence and bon putting in greater play when a california denial will statutorily top or not that it makes more sense for someone in mr masters position where he's got the federal court within three hundred sixty five days there's no dispute about that do i don't think this is fruitless but my my question is necessarily but my question is doesn't that mean that you may say well from the standpoint of my client he was acting in faith he was trying to get something to the district court within the year right but doesn't this put a burden on the district court no absolutely not sensible that's just the less it is not sensible i don't think it's not sensible i think and it's not something that mr masters creation i think the protective petition mechanism the supreme court has created certainly puts a burden on just the courts i'm sure that they are not delighted with that functional but you have to begin are putting imposing and burden on the district courts where it's not a mix filed a wholly on exhausted petition and district court under rosie one day it had to be dismissed end of story there are exceptions to the law of the case but i can't see where you've articulated your argument within the category of the very limited exceptions to a lot of the cases you've just told us that in light of subsequent cases there ought to be a different procedure it's not refined enough i think i don't exactly what the different procedure would be he comes back to federal court years later and says don't treat this as a new filing even though it is instead reopen my old case that was protective petition in federal court and asking the federal court to stay in a bay the federal habeas petitions proceedings excuse me until state remedies are exhausted yet if your client wasn't litigating this is state court you didn't ask for a protective petition and he didn't ask name of it but there was a just just right hard decision from i think it was last in two thousand and five where it seems to allow this kind of thing it's not it's not a retroactive context but it recognizes that exhausting petition under all case law of this court and from the united states supreme court that petition had to be improperly was dismissed there is nothing therefore to relate back to and nothing that the district court could have assisted this petitioner in doing even assuming that the district court had an inclination to provide such assistance which which our position is that the district court did not of course because at that point the district court would have been taking on the position of being an advocate for the petitioner the there were there were no exhausted claims in the original to petition and and petitioner at that point and frankly i don't understand the arguments to the contrary i'd be happy to address any questions the court may have if there is none i submit it in the district properly