the united the diner's court of appeals for the th circuit is now in question ok so art look let's just before i call the case for argument let's just make sure everybody can hear one ok so our st case up for argument today is trevino versus datsun go ahead andrea's case the district court ignored this court held the exact opposite that administrative remedies are unavailable and p l r a exhaustion satisfied when a prisoner submit a grievance and the prison failed to respond andre is a factual conclusion that your client did not in fact proceed with the appeal the way he asserted that he did it why wouldn't that factual finding be binding in our case stated a prima facie case for relief so it couldn't make then making that factual finding and we should assume that the state court was properly of buying its own body and deciding the issue that was actually prevented not making a factual finding it wasn't permitted to me i know that even if it was making some kind of factual finding this is a situation where the burden is reversed between the state proceeding and the federal proceeding in the state case mr trevino bore the burden of proving that evidence is required so so mr trevino did didn't meet that statement here meet that burden here that said i i think it's worth pointing out that this isn't a situation where there was no corroborat  for summary judgment another thing attached to both the be amended plate and the motion for the opposition to the motion for summary judgment is quite a bit of documentation about his later efforts to get new it's not clear what proof defendants think it inmate in this or to view no decision should have submitted once he mailed the appeal it was out of his hands it's not clear how he really could prove with documentary evidence that that he did mail sent it through a confidential internal mail and it did so did he market confidential it doesn't specifically say so there there are you know further details that different and your that just a few minutes ago as well from from a collins counsel if that's the case how can one how is the federal court supposed to apply the california standards but you look at the case of right versus state of california which is a california court of appeal decision that he finds that the exhaustion requirement under state law in terms of the person's remedies and  exhausting efforts in this case we limited standard in the same evidence i'm not sure why we need to resort to collateral estoppel why can't we make the same decision and if we don't make the same decision does that suggest that maybe there was something is feel about the superior court judgment i don't believe there was anything askew about the future of court judgment i believe in this case under standards of collateral estoppel to avoid any consensus decisions between state and federal court council's argument to be that in the state court there was a different burden of proof and the burden was on the the inmate to demonstrate exhaustion while she thinks in federal court the burden would be well instead on that on the government could could we use collateral estoppel if indeed there are the burden of proof is different i mean it's to me that the burden of persuasion is different p r a you have these the prison coming forward and saying there is a remedy available we made that shot and then the burden shifted to mr trevino show that something to specific case made the court found that he did not and in a form twenty two whatever it is is identical to the exhaustion requirement under the p l r and that your argument yes that's the argument and if you look at the right versus in a california decision that says that the exhaustion requirement the prisoner's evidence insufficient for some reason and if so what is the reason is insufficient misdemeanor as evidence is insufficient because he failed to prove his burden which is single allegation of a last d appeal in which he provides no evidence of how he submitted it or who he gave it to or anything like that is not enough to meet the burden of mit machination no because the court can determine whether the inmate whether the inmate statement is reasonable is a veteran law based on honest government so even accepting his statement on that issue you can determine that it is not up to the not to do so in those certainty is there anything in the prison exhaustion regulations or policy statements that requires a prisoner to submit multiple multiple form twenty two's in regard to one in particular incident not specifically but i would say that once mr trevino was on notice that the prison did not receive his appeal you have an obligation to take advantage of those additional d remedies the rovs the police decision specifically says the prison regulations are open to two interpretations the prisoner should err on the side of using those remedies that are available mr cook you know did not do that instead he submitted this one more point two in august he got a response the next day their response told him we have no appeal and then you did nothing for bankruptcy proceeding it was the exact same issue that the same elements the exact same burdens it wasn't a case like this one where it was two distinct legal standards the burden of proof shifted and the entire argument here that administrators remedies we're not questioning how the court reached decide the issue that the defendants are claiming it did and there's no question that courts are permitted to look at the record and the posture of the st case to determine what was actually litigated and actually decided in that case that document it big defendants are correct to say that there is some kind of free standing of reasonableness in for a prison prisoners are required to comply with the grievance procedures that the president felt creates that there's not some kind of asking you know when is this grievance going to be processed and then after he heard back he did submit a nd grievance later in august so this is not a situation where he just filed an appeal and then gave up but even if that had been the case suggest that that would be a reasonable way to continue forward also this court has never considered follow up ever if necessary in previous exhaustion opinions even though the kinds of efforts that the district courts it's just in would have been available  every case and finally i think feeling the presence of the requirements of its own grievances dumb it makes sense the their own grievance system with whatever rules they have want it requires prisoners to strictly comply with those rules but the background assumption there is that the administrative grievance process works the way it's supposed to it's fair to hold the prison through the process it created