david porter and i represent the petitioner arthur robbins the third there are two portions of the record that make this an easy case i'd like to point out the first part of the court and the excerpts of record this these are the and then and once twenty two to twenty three she says and the court must dismiss a hades petition that contains any on exhausted claim well that's wrong and it's wrong as of the day it was written that was written on july fourteenth two thousand and five and two and a half months earlier on march thirtieth two thousand and five as this court knows the supreme court decided whether versus  which unanimously held the district court does not have to dismiss the next petition was issued and tab three of our excerpts of record at page four the respondents counsel told the court this court is required out because of the flux of the change of law now with the changes statute we have all of these cases that have come down and one of the arguments is whether kelly is still good law and now where where we are now and brambles three at least could be read for the asserted position that kelly is no longer the law of the circuit so this is a very important issue to us and i'd talks about it and so we have to decide whether or not we've already determined whether subsequent supreme court cases have overturned the our prior cases most said that it was not the responsibility of the district court to advise a pro se petitioner about the statute of limitations we are not making that argument we are not saying that the district court was required to advise the prostate petitioner about the statute of limitations but in you're not required to throw a lifesaver into the water but once you do you can't just throw the rope in after it and that's what happened in this case if you look at documentation is where the instructions were affirmatively misleading according to  three yes and if you look at document four which is the that is not in the excerpts of record but it is a fine it is a order of the magistrate judge filed on november twenty ninth two thousand and four include the dates of filing and disposition so as to determine whether petitioner has exhausted his state remedies and is in compliance with the limitations period prescribed by twenty eight u s c twenty two forty four d one so she's directed him to file a complete petition so that she can make the determination that the statute of limitations has been met in november included in the amended petition and therefore from the face of the petition a court can determine that the statute of limitations by the time she issued her final findings and recommendation had expired five months counsel i know you have a very limited time and we prepare our best we can to to hear your comments and usually if there's a very key order it's put in the excerpt so we can have it that's what we get we get the just saying you had a great disadvantage trying to convince us that a particular order is the key point when we don't get a chance to read the order until somewhat time later when we can get it out of the main file if you're in san francisco go ahead ok your honor on page seventeen of our opening brief at footnote ten i have quoted the language that i just told the court cited to it to determine she she wants mr find to submit an amended petition quote to determine whether petitioner has exhausted his state remedies and is in compliance with the limitations period prescribed in twenty two forty forty one that i believe of me but what i would like to do is to highlight the main points that will show why assume respond to a rule in this case would be bad law in create negative consequences with you also in your discussion completely fill out the forms that's the most that i know about the order so i'm not so much of a loss to look at since i haven't read it to be able to make of an argument as to what the court because i read brambles to say that there is no sui sponte role it meant only that the facts raised in that case were somewhat different in that the question became whether or not was misled in any way on the statute of limitations want to understand advance procedures now it's counsel's making a serious argument in regard i would have assumed this would have been raised and put in that argument in his opening brief and that we would have seen some evidence below in the record to show that this petitioner was misled there's nothing of that kind so i would submit that i highly doubt that this order was misleading or firmly affirmatively misleading the district court was correct but those are still good law it would have to be dismissed there was no burden here presented by the petitioner that standard bank should be applied or that any of the factors could be m honor i don't believe that there's any showing here that the court didn't think it didn't have discretion there's been no show positive showing that the court believed it didn't have discretion what we're missing here is the burden of required to act as the attorney the petitioner does not have the right to have a strategy instructions on hippias corpus proceedings from the district court so i think in order for that to to be proven justice thomas petitioner would have to show somewhere in this record that there was a misunderstanding on the district court's part on the magistrate part there's no showing of that what is shown is that the magistrate issued the order  factually a little different granted but the principle all the same if this court finds a suicide bomb to rule it will just be bad law it's going to be confusing and it will be contrary to the u s supreme court precedent but the majority sided the rinds decision and said that if the petitioner is concerned about protecting his or her rights a protective petition is the appropriate ruling for petitioner would not throw any of this court's precedent into question in jackson the court said that the error of the district court was understandable given the fact that the proceedings in this case predated the opinion in rinds by three years in this case the court issued the findings and recommendations to want to have months after rind strate judge was asking the petitioner to amend the petition and to calculate the time period here is your argument that at that time the court should have also didn't know whether the petition whether the limitations period had expired or not because the petitioner didn't complete the petition that's why it was ordering the petitioner to complete the petition and turn it in well as far as this this is not erroneous it's telling the petitioner to turn something in so that i can determine whether the statue of limitations has expired or not here he turns his petition in there's a motion to dismiss now the statute of limitations has expired by five months and she puts out and the night a straight judge puts out an order that says you know you can dismiss if you want or will this mean proceed here dismiss for you and you can go back by the way there's a statute of limitations issue out there and it and it may have run now she's thrown a life preserver out earlier in november and said here is this life preserver i'm going to determine where this actual imitations is run and when she issues her findings and recommendations many months later she doesn't do that various there's nothing affirmatively misleading about what she said what you're suggesting is she should have said more i'm suggesting that by the time she can shoot a report recommendations what she did was affirmatively misleading by saying you have this option out there or to go back and if you come back and if the statue of limitations hasn't run then we'll consider the issue on the merits special limitations had