showing is the total time you have remaining so you need to watch a clock ok thank you thank you yes i wanted to start with the overwhelming presence of the officers at the trial because i could be dispositive of many of the other issues in this case we had a number of officers whose sole purpose was to come to court to influence a jury they had no other reason to be there especially during opening closing arguments we don't know who they are supreme court case roughly on point tells us that this was a deprivation of due process ok there's a number of cases where what if that's one army was your best or the best  attended the trial in their official capacities as officers are you yes i am i'm arguing that they were state authorized they were authorized by the state or white in the record supports the argument that the service came s part of their state function as opposed to spectators that the trial well because it's the uniforms that made a difference if they came in plain clothes then it wouldn't really make a difference and before trial there was a question it was before the court as to whether or not they could come in uniforms and the district attorney said well ok as long as they're on their way to work or not but that's not what the l a police department no nobody says they don't influence me one way or another so your position has to be that it is a per se violation of the due process clause to have officers in uniform in the courtroom while it no it depends on why they're there for example what boy who cares why they're there that's their subjective view well when this is a case in which a police officer has been killed your client's a defendant they're obviously there to support provide support to the prosecution side and the victim side vision you know whether way to interpret it is that a person a violation of the constitution i can't say it's per say well if it's not then what in this circumstance doesn't have to be exactly exactly on point but there are enough cases that say that outside influences do not belong in accordance very general well that concept is very general in the supreme court has warned us against characterize in the law a high level of generality although there that's there doesn't have to be a case specifically on point that's a little general don't you think well i think that there are cases  i believe it's the wind case that i cited where there courts have said that the overwhelming presence of officers particularly in a case like this does have an undue influence on the jury wrong about this to give an instruction of some sort i guess the jury during jury selection at least that they shouldn't be but you know they shouldn't be influenced by this from iraq well you know actually i don't know because i don't know what your stay on mr stand off so that i would take additional briefing as to which jurors were there or not i so i can't say whether an instruction at the beginning of the of the case exactly what they said because we knew that it involved a police officer so there was going to be a void you're on how juries feel about police officers so it's hard to say whether that instruction at the end of that would have made a difference to the jurors who remained on the panel selected to be on the jury so we don't really know but i do but the law established supreme court law does entitle you to a fair trial i mean that's that's what you are but that's judges judge rawlinson said we keep getting in trouble with our friends in washington whenever we we say something like that they say tell us where we said this specifically about this situation which is why i asked at the beginning what your best case was and i think the case has to probably involve law enforcement officers in the room yes like i said it depends on why they're there if they're there first total kerry versus muslim did have some language in it because that was not state sponsored those were not state actors those were just people who came who who had an interest who knew there who knew the that contact but if you look at their concurring opinion in kerry versus muslim and they talk about general rules tend to accord courts more leeway in reaching outcomes in a state case by case determinations and that does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied and that's yesterday at some point but i want you finish your argument jane so i just wanted to say that off police officers are different they command a different sort of presence i mean even this circuit has said that there is aura of veracity especially in a highly emotional case like this where you have a number of police officers who are clearly there to influence the jury it really does make a difference and and the state was wrong when it said you could come on your way to work that's not that's not what the police officers are entitled to do the police code the police officers manual says specifically you can't wear uniform you can only wear it directly to and from work for instance you can stop at a restaurant on your way to work and eat because a lot of times restaurants are very differential you can stop and go shopping on your way to work you know that you'd like to hear more about the rind doing so would i and so my real question is the magistrate exceed his or her authority and how the order denying the rhine stay was implemented because then the what do we do well we have to send it back up i think for four determination by the district court or i believe that this court can make a determination also on the run stay on the right we don't know whether they were reasonable diligence or not because we don't have a record i would decide to do well so here's my concern about what happened with this ryan stay i went over the pleadings and a result of the failure sadowsky give us the ryan stay it took an additional i counted about twenty five additional pleadings so one of the purposes of rinds you know we when you say well we can decide ourselves that's one option another option is to send it back to the district court to decide yes to any other option if you well i could think that the general rule is that when a magistrate judge denies iran state that order would will generally but not always be dispositive so this potential language i think is not contemplated oh no she will it won't matter if if see if we i do agree with you if our case was a dispositive but our case law says a magistrate judge lacks the ability to deny right and stay when that denial would be potentially despised again your hon judge issued the denial order what language are you relying upon to say that we look to see whether or not whether or not it was dispositive at the time what language you rely on upon your honor that's my interpretation of michel unfortunately there mitchell and there's the status and not much other case law interpreted in those cases because of course after those cases came down magistrate judges knew that they should issue reports and recommendations if there were to deny a right stay so if it's not clear should we revert to the default that's generally it's despite this considered to be dispositive why don't we revert to that language well your honor i'm not saying that you shouldn't revert that language and again the rule is that an order of such as this one is generally dispositive however and mentioned there was a footnote that said that there were circumstances contemplated that would potentially make an order not dispositive and here what we're saying that looking at the facts of this case where mr sad represented by counsel or counsel knew there were six days left on the statute of limitations or counsel was able to come back and mr sadowsky was able to come back to federal court file a potentially or excuse me file  wait till later and see if it turns out that it didn't matter and so your test would have us wait until later and see whether or not the petitioner could have filed a timely petition to determine whether the magistrate judge had jurisdiction a year earlier two years earlier to enter an order not necessarily your honor because again looking at the time that this runs day was denied there were still six days left on the statute of limitations and so at the time the magistrate judge says i'm i'm and here it was well that's why you should question so if you're into the first question was no and that's why i asked you the second one so your position is that if there's any time left on the statute of limitations at the time that the judge denies the rhine stay then it's it's not dispositive it's not potentially this was right it's not yes it's not yes on the facts that's one of the facts to consider so understand it your position is that if there's time left on the statute of limitations th judge and you come to me and say i wonder why the other side comes to me says i want to run instead and i say to myself do i have the power to order this or can i just recommended to the district judge resisting your honor it's just that when i think of the word dispositive i it to me that means that i am for clothes from coming back to federal court to get relief on my on any claim that was dismissed as a part yes yes but i i guess for me the issue is that at the time the magistrate judge denies the requests for rights say there is time left on the statue of limitations and there is more here in this case that in addition that mr in other words the one recommendation said i recommend that you grant a rhyme stay judge right right that they really don't the judge never ruled under right state well the judge never explicitly ruled on the right say however and this report recommendation that was tied see that's the that's what what if i thought that the district judge had somehow implicitly said good job on the right instead a writer and good job on the kelly stay in might be a different case but i just i think the district judge took that as a given i did neither i'm stay they dismissed the under just a claims under the kelley stay and so judge all you have in front of your the exhausted claims right and the judge then deals with them or so i guess i would say that the district or judge never directly addressing the the petitioner and did not well because your honor it's our duty to bring up issues that were that are directly on point to the certified issues here and so obviously here this wasn't a situation where the magistrate judge issued this denial state after mitchell came out this guidance came out a couple of years after the matter i was maybe one year after our fight one year before that decision and mitchell was was decided and i commend you on your integrity thank you  the supreme court has never addressed the issue of whether private spectator conduct could rise to the level of a due process violation and different that's the wearing of the uniforms equate to a button yes that send a similar massive hit mayor judge were negligent enough to let them remain would that be due process when we should even though they were not state actors well i would say i would say no again because in this case if work working within the confines and because the record is unclear as to how many officers were actually present during trial there i think there was some evidence that there were some uniformed officers present at some point during trial i believe the trial court judge stated that it that he did see officers at least during opening statements and closing arguments but otherwise there was no clear record as to how many officers were there but in any event the the the presence of vavasor's did not prejudice petitioner in this case because the jury returned a verdict where they found not true the allegation that the murder was premeditated willful and deliberate and further not true allegation on whether mr saddam knew that the victim was a peace officer so there was no prejudice to mr sadowsky from the presence of any uniformed officers in this case the district court properly denied relief in this case and accordingly respondent respectfully d morning i did want to point out in my reply brief on pages thirty two to thirty three there are a number of cases dealing with outside influences affecting the jury and then kerry vs mostly in deals with private spectators but it really it it's similar here that because the officers were state actors there paid by the state they were wearing state issued uniforms the nature of the case involved a police officer they came during critical periods of time so you have to i don't know how the prosecution could say they were private they were just spectators they were there for a reason and then again just no evidence here though that they were that the police department organized organized this observance in other words that a captain said to a live news squad today you're ordered to go to court to to give support to the prosecution but they were in touch with the prosecutor of the case who gave them who allowed them to do this in other words they asked first and the district attorney said she checked and it's ok if they're on their way to and from work so she so she authorized that so that's why it was authorized by the state and the state was wrong because they're not allowed to according to their own manual but i do want to get to the point where look i mean are we going to when we get to say ok they can wear buttons about the victims and other people can wear buttons about the defendants and everybody's going to be wearing all these you know pro like rallies or something that's really not what a courtroom is about  so so that's the concern i mean if you have a few people maybe the victim's mother like and kerry versus muslim then maybe or whoever but in this but but then again you're going to start this it's going to be like a rally you know what's to stop them from holding up signs or whatever it really does make a difference to injury derrius want all these things they're very perceptive about what goes on in the courtroom so that's why that's mainly our concern so you bring in officers and you bring in the family family's going to do stuff and then like i said it's going to turn into some sort of rally and as to influence the jury  and then just in terms of the mine stay one of the things that i think we found confusing was the fact that the magistrate himself assumed the authority of the definitive word he didn't send it decide to make a dispositive ruling only because it was fully briefed if this court says no and it has to go back and the course says no then we're back here again  so it becomes again more time consuming and we're dealing with the same issues all over again which which we're fully briefed here so that would be one reason why the court could make th