may it please the court assistant attorney general in the karen g guess for the respondent this court should reverse the district court's grant of the petition for three main reasons first marshall failed to exhaust his ex p facto claim in state court second the double jeopardy claim if reached was properly rejected by the s j c pursuant to supreme court precedent and finally the ex post facto claim if reached must be dismissed under younger and also on the merits responded we'll address these first two points and leave the third to our brief unless the court has any particular questions  petition is on exhausted and why do you why do you want us to a group do it and find it on exhausted and find it next and then send the whole thing back again on what seems to be a rather weak exhausting claim and then start the whole process to come through an appeal and one that you want to just to get to the merits of if we agree with the reason is because your honor and it seems like petitioner may now at this point from his brief be willing to maybe drop the ex post facto claim it's a little uncertain from my reading of that but that would under law undermine the exhaustion principles so i would say honor not only to think about what that we do for this case but also for the cases that follow so there is no question that the total exhaustion requirement is a political two marshall's petition here and marshall concedes that he never exhausted the ex post facto claim in state court  but there's there's no impediment to this court deciding the issues in front of us if they're going to be decided against the petitioner is there if it's an exhausted now we're about young or does does that change the calculus can we still go ahead and decided if we're going to decided against the petition the unger argument your honor is just directed to the ex post facto claim yes so we argued that you should not even reach the merits our petition geographically for federal court intervention here in this court lacks the authority to resolve this claim because quite frankly the massachusetts courts have not been given the fair opportunity to do to to do so any contention by marshall that the exhaustion requirement should be excused here because there is a double jeopardy or a speedy trial like speed claims there is no exception for ex post facto claims and we've laid that out in our brief and even if this court were to say that such an exception existed in this type of case he has to pursue available pretrial petition outright turning to the double jeopardy claim marshall incorrectly claims that the murder prosecution is barred by double jeopardy because his success rate before  the fact conviction was reversed based on insufficient facts first the s j c made clear in its marshall decision that the conviction was reversed because he was convicted through  fatal judicial process through a flawed process and that process was a flaw in the indictment this finding by the state court binds this court and we've laid that out in our brief pages thirty to thirty six with supreme court precedent that clearly says that second the supreme court has repeated the certain twenty to forty one uses yes i believe so your honor with respect to what you say we are bound precisely under twenty two forty one under the supreme court has made clear in corinne and in ted's that state courts themselves should determine in the right way to understand their pronouncements so the meaning that it touches to in these cases dealt with weight or it what the prior reverso was for a sufficiency whether it's on the ex post facto rationale or some other rationale we we wouldn't we wouldn't be bound is that right i think that's fair your honor second the supreme court has repeatedly held that where reversal is based on a defect in the judicial process re prosecution is not are by double jeopardy so based on this controlling precedent the massachusetts courts were compelled and correct to reject marshall's double jeopardy claim to conclude otherwise here on hay vs would be a total disregard of the state courts findings and a showing that the massachusetts courts were bound by existing supreme court precedent to adopt marshall's contrary view as a matter of federal constitutional law and as we argue in our brief the first is not proper in twenty two forty one point was this court has stated that the novo review of haiti is petitions does not mean that the federal court to review these claims as a matter is an original matter as if the claims were raised and to react appeal and that's that's where we went to fourteen eight as is an example of that for instance one in juneau review under fourteen when the state courts have not there because you'd make a unique good point and they said in rod greasers exactly what you just said but they also said they also go on in other words of it and it reads like it's a mismatch between the indictment in the charge case and in other parts of it particularly towards the end with a note that the jury would actually found him guilty of aiding in commission of the murder well it didn't even that don't we have to they also ignore the insufficient evidence which is the key point what did they decide on in washington well we know that double jeopardy is a one crime one trial it's not a one theory on and then this second issue was very right they said very well just like the mars vs mt case well i'm sorry if your answer is not a magic word that gets rid of double jeopardy it's completely irrelevant wh because of the implicit insufficient evidence we're reversing that's why it's double jeopardy marcia can come up with a parent can say variance all they want marshall said something nothing none of the things that said in marshall they're all non this they meant what they vote but that it seems to me that doesn't necessarily distinguish it from a variance case is typical variance case you would have insufficient evidence of the crime that was