was already at that point exhausted since that decision by the judge which i think by itself was an error we have the supreme court case of rinds and the ninth circuit case evaluate whether the that the petition if you timely is going to the case that after exhausting here he's already exhausted let me ask you this council one of the unresolved issues i guess in the jur is what the obligation would be on the district judge to in essence give legal advice as to the consequences of various choices that are available and in this case as i understand the record judge white did ask your client to make a choice as to whether he wanted the case dismissed or whether he wanted to simply dismiss those claims that were not exhausted and proceed with the the evidence is that would convince me that he exercised due diligence entitling him to equitable tolling on these facts by you and i'm pretty and if you could i'm particularly concerned about the reason for the long my question really is what was he doing during that four year period before it filed and your honor i want to answer your question i wasn't below i have talked to him but it's off the record and it's not the genuine the record so there's nothing in the record that shows what he was doing because i  get to the u s district court within the one year statute of limitations the district court ruled i don't think there's any i guess the concern i have is he did he clearly filed before april whatever that it was in hundred seventy seven and i guess he got it the advantage of the mailbox rule to get it in right under the wire but he's now needs equitable tolling in order to just save his claim from this missile or add and so i think we do have to look back at to what he was doing before he filed don't we here in order to determine whether he was exercising due diligence well if the federal court does that i would ask  hearing on that because it's just not in the record here and i can tell you i've talked to him he said he was working on his claims that he had trouble with it doesn't want to make a preliminary showing i mean i can understand why he would want to make the record but doesn't he at this stage at least have to present an affidavit or something to the district court to to justify the remained for the hearing you know you're i don't think so because the critical period i don't think is that for you period it's the one year period he's under there's no deadline and how long he has to take to exhaust his state appellate issues he only deadline is the one year between the final thing in the supreme court of california and the filing of argument does it because you're after you're basically pleading extraordinary circumstances here and part and parcel of extraordinary circumstances is to explain why he waited so long to see federal and you going to run on this record i simply can't actually the question and i again i don't think that that's actually the question of equable tony because the issue here is whether he's entitled to equable tolling to bring the second statute back to the said what do you want me to do do you want me to dismiss your own exhausted claims or you want to just dismiss the whole case and your client didn't do anything by the thirty day deadline i think it's wrong for two reasons one i think he was wrong to rely on the fifth circuit two very different questions to the first question i don't really have really if that's the way the court used that question if the court thinks that it's obvious that that was what was intended and then i could have an equity of courts of interpret it that way i don't really have a strong argument why that one of the other oddities of this case is that by the time the district court made its decision and of course we all know you know in hindsight it's without the benefit of the future supreme court rulings he didn't actually rule on the motion to which judge graver refers which is kind of instead he jumps forward and says well i can't really count your post exhaustion because the law requires me to look at it as of the time the filing and you could say maybe he denied the first motion a motion to dismiss by the pro se it's a sure you might say he denied it by implication that he actually didn't rule on asking for all forty one dismissal what he's asking is something in addition and that is really he wants this to be determined so he actually has to leave to exhaust it seems to me it's not a normal civil eight as is two rounds of state direct appeals that ended he waited a year and a half after that to file his first they have us petition then after his first say his position in superior court he waited eleven more months before he filed his first they have used addition in the court of appeal for up to two and a half because his state fave used to titian the state supreme court t v s petition was filed by an appointed professional experienced appellate lawyer who chose those two claims he's never claimed that he didn't know that those claims needed to be exhausted those plans were chosen by his  victor continues his dilatory behavior after we filed our motion to dismiss for lack of exhaustion he took five more months before he went back to the state supreme court all these delays and the possibility of the of the mix petition delaying things to two thousand claims so graphic we're talking about equitable and we certainly are talking about equitable tolling here because we're not here on the first petition if you look at the number of the case we're here on the on the two thousand petition but you heard after the first because he was dismissed because once again petitioner aft was given thirty days to respond and did nothing for three months and the court dismissed the case and now we're winding on and on after he could have appealed from that position he did not rather he filed a new client so everything he's done all along the way he had he that appointed attorneys in the state he's never taken thirty days he takes years and years months and months to do all of these turnarounds and for this court to grant equitable tolling because perhaps judge white didn't grant him a stay in abeyance based on good cause  agree that equitable tolling applies in order to save the second petition right because you don't dispute that if he doesn't get equitable tolly his second petition is way out of time i agree we need a couple telling it under ryan's he's limitations under which he did once the federal government imposed national limitations he left us here for i think the question the question that we're wrestling with this what if he do in this interim of years