under california law can bring the subjection to the prosecutor's discriminatory exercise appropriate challenging let me ask you at the time you mention the word is it the time of the district court determination the court of appeals that's the first place there are some cases that kaplan was a tool in one case so for focusing upon october of ninety seven by the supreme court determination there was a consistent contemporaneous contemporaneous objection rule as of october ninety seven but was not by to one young woman tells us that in more recent court cases number one that were that had looked after that where a federal crime had been raised and it had not been raised in state court certainly the contemporaneous objection rule was well established and one thousand nine hundred seven there's no question about that absolutely have to coin auroras for a certain absent as your challenge the court was saying that in any of the previous cases the lawn in california where the application of the law in california has always been inconsistent and in fact that when you make a will or objection you get a better objection but the issue here was not that is whether contemporaneous a veteran rule was applied and under the supreme court they said the i just want you to focus on this language the people saying regardless of whether you treat babson or not we're here talking about a different issue that's waiver and in this they said the people of california prosecutor was right until two or one and  i don't i don't know how we get around that language for your case again your honor and this is the have i was actually disagree in that we are talking about the wheeler versus babson and whether or not objection i know we certainly there's no dispute that that that that rule of law has been around for some time but with respect to what the court is addressing in yawning and what is directly at issue in this case is whether or not under the contemporaneous objectional the california courts had been applying the or have been routinely say or are consistently dismissing federal claims where should be applied routinely and this court has said that court has made it clear that what we're talking about here is whether or not the district court in dismissing the petition with prejudice here on the procedural bar basis whether or not that was the sound of the station and the question that's all you always says you you agree though that this has to be inconsistent as of october ninety seven that's our target date we put ourselves in the position of where we are not to over nine hundred ninety seven and say is middle or another well written ca cases that were decided in california prior to one nine hundred ninety nine or two one which are when you choose right and that's the job of counsel i would think do you do you conclude that you briefs are insufficient to tell us whether or not the contemporaneous objection rule was consistently applied prior to the date that whichever consistently applied the supreme court nominees then feel it needed to make this law really clear in two thousand and three i think because the court started changing in two thousand and one i think that for that date it was very consistently applied but in two thousand