you're saying that because the unusual timing on this matter that because the court did not anticipate what another court was going to do it didn't tell your client what might happen that the the second one if he if we know what that is how defiled it back in the district court he would have been been able to go forward if the difficult would have denied it he would have he would have come up there was a case right on point com mark a back in two thousand and five that would have allowed him to simply go back and amend his british but what he did the only thing he did that was technically a mistake was that he filed the petition albeit with an application in the ninth circuit of this particular appeal so what he did was he may have rewarded it but the claims are essentially they come down to the affidavit that he was able to secure from mr howard here as to whether or not after you have got back ration he exhaust is claims continuously all over the child supreme court and he came to federal court the only thing he did that was against not the right thing to do if you will and precipitation it's hard to say in the state courts when he started in the federal court in the form tells him not to do that that that was his mistake the last but let me ask you let me ask you is this the district court ha there was no construction there was no requirement for an unusual risk construction of this whole no no no not now but obviously what our court should have said by the petitioner was that this document that you're this document was second or successful and that therefore he was going to need to seek permission after the conclusion of the first petition we should have instead told them that the proper venue for you to do what you want to do is to go stand right now if that were the case he's clearly had a first petition it's been litigated so if if judge want for it is correct then what do we do with this current matter do we is a claim that could have been brought well before the two thousand and seven initial initial petition that was written i understand that but as a judge wapner pointed out arguably arguably our court i'm sure without misled this joe so here we have a inequity but he still has had a first petition ruled on now we have the second but it wasn't filed the appropriate thing before us to treat this on the merits and just go on schlub say it's not a second or successive position how are we get there or do we have to send it back to the district court and let the district court redo this even though there's already look at what he has proposed and concluded that it doesn't meet you this law or an s o s standards could we properly decide on the merit treated treated as whatever and then just say we're deciding the merits it doesn't make it good by to think that maybe there's a reasonable probability of a different result what we have is a record that is devoid of any statement from mr brown his or her basically it's a government's position that whatever our court decides we can't decide the merits if we were to agree with the opponent's position we should send this back to the district court to work out the math of the record and make a decision at that point is that correct i don't know if that's correct and i agree with my colleague that of course second are successive is not the final term of art the question here is has it been abused but it seems to me we have this anomaly where you've got this