of day vs mcdonough i don't really think there's a whole lot of profit in talking about the procedure it's pretty obvious that the district court made a mistake by not giving mr webster notice an opportunity to respond and because that's the case and it's going to go back down to him probably should settle so while i agree that if this court were to agree with me on exhaustion we could also put to bed the you know inquiry that the district court would conduct upon me now and and i think it's i'm hoping that it's pretty clear that there's no substantive procedural or really meaningful difference between california's proposition of cruel or unusual punishment and they ate them in its prohibition of cruel and unusual punishment when it comes down to grossly disproportionate if it's the identical standard if they're really talking about the same thing then that that would be a fair point which is why the supreme court remanded to see if morgan's standard for in effect assistance was identical to the final co counsel i have a question for you i had something to do with that receive all one and then following rereads because i think the supreme court was giving me lessons when they were first me but i don't recall in that opinion i mean the last sentence i believe is the remains that remain and portion which i mean there'd be really no purpose in reminding it if it were correct to say that the fact that ineffective assistance is second offense of indecent exposure is always going to be disproportionate and it would be my position that twenty five years for eighty dollars for the cocaine is always going to be disproportionate but you know i don't even even if he wasn't a good morning your honor kevin via the deputy attorney general for respond and apparently in this matter i'd like to address three issues and i'm happy to do it whatever the court does but first of all the question about whether mr webster exhausted his federal claim in the california supreme court second the issue whether california and he the california constitutional standard on cruel or unusual punishment is identical to the federal standard and  or were they perhaps more pertinent were they identical at the time that the petition for review was submitted by mr webster's counsel i believe and i think it's clear that they are not identical so even if the even if is there a proportional proportionality principle of some sort or is there some content to the california constitutional prohibition against cruel or unusual punishment that addresses something other than the method or means of punishment that is is there some is there some room in the california constitutional provision for an analysis of the amount of punishment that's awarded for a given crime and to a given defendant and while it is true that in which the california supreme court referred to federal constitutional provisions and cases applying that transitional provision they also refer to the development of the law in other states sort of impaired a parallel or similar development of the law in other states so i would assert that lynching is quite simply and it at the end and interpretation of the requirements of the california constitution added the gloss to lynch that's important it looks under the rule in california from dixon the rule established by the california supreme court court's addressing a question of the california constitutional provision look not only at the penal code offense and the sentence but also if such factors as motive method the involvement of the defendant which was the critical issue in in dickson  prior conduct and personal characteristics such as age and in context that development was terribly important for this case because the petition for review was filed in two thousand and four i believe i recall about probably completely foreclosed any chance of success under the federal constitution and that explains the way the issue was drafted in the petition for review counsel for mr webster set for appeal heard in applying the federal constitutional standard but rather quite expressly that the court of appeal urged in applying the state constitutional standard so so just like or more lenient standard under the california constitution or at the very least asserting that there was a a more lenient standard and that provided the basis the avenue the requirement for relief for her client mr webster th a state court need not be given the lenient treatment in the state courts that are given to pro se litigants and in fact with regard to counsel petitions this court has described the requirement as to refer to specifically interpret in those petitions or drafting those petitions is not like writing poetry it's simple enough if you want to raise the federal claim it's quite simply say in the california supreme court under a separate issue ha my review of them those cases of addressed largely two issues one is the issue is where the district court just misses a case for a procedural default that's boyd and the other is where the district court heard this is a different circumstance and the reason this is different is because this is not a procedural the fault or if it's not a statute of limitations violation which are affirmative defenses to be pled and proved by the state it is on the contrary something that is jurisdictional or nearly jurisdictional under the statute that is that district court cannot grant relief on and on exhausted client and under rule forth it can see from the papers and in this case it could see from the papers that the claim is on exhausted that then there's nothing to there's nothing to be gained however counsel is not the main point in day i mean here you've got the court dismissed say for failure to raise the federal playing field or to exhaust but if you don't give notice you don't give the person the opportunity come before the court maybe the court could be persuaded at that point in time to help maybe this has been exhausted in response your honor i got in your response i would make these two points  it a difference in a case for example i think not in this case because i think if there were a mix petition if yes i understand that this is i know i know about the expectations of i'm going professional life that is there was no exhaustive claim there was nothing that could that could properly be before the district court for the retention of jurisdiction so and that and that leads me to my second and more general point that i hope to make with regard to what the district court did in this case and why i think it's both pragmatic and good in this case when the district court dismissed without prejudiced what was it what is the eight holy  exhaustive petition that is one claim that was clearly not federal addressing california statute and one claim that had not exhausted the federal crime when the court did that there were five months remaining in the statute of limitations if he had instead i followed the direction from the district court which as you have no exhausted federal plane before this court then there would be would have been no need no cause for up for holding his matter  and it was only raised before that so they exercised their discretion to view it as a weight and then the final paragraph is the judgment of the ninth circuit is reversed they did addressed that very issue and i have not your honor the my purpose in citing ball when and why i said it was that bob one says that there is something at least they didn't reach the argument of whether identical circuit case is either adopted or rejected that they are if if there were such a case i would have found it but i don't believe there is such a case i think that there really is a gift i remember looking up the organ line just to see if there was any merit to the position of petitioner and i ok and then any other questions from if you're going if i can just say one thing briefly this is i got twenty five years for eighty dollars worth of cocaine and there's something terribly wrong about saying that there was some magic words approach that he didn't say cruel or unusual he said cruel and unusual or vice versa that's that's just wrong he deserves it i mean if his claim doesn't have merit to lose anyway he says a chance should have a chance to determine whether it's