expired thereby cutting off any further federal relief well then the dismissal is without prejudice correct that's correct so once he has some claims ruled upon entitled to a jury determination i'm sorry i'm in in the usual case the civil commitment process in washington involves a trial by jury i understand all that but i didn't even focus on that around what basis do you have to argue that we should expand that to this case where as you come into the district court after that time you have no exhaust sustain anything no power to keep the case and then when that's the order we're revealing i'm having trouble conceptually seeing how we could be characterize good morning and may it please the court my name is paul wiser i'm an assistant attorney general appearing on behalf of respondent richardson this proceeding mr mcgarry has essentially conceded that a certificate of appeal ability is required for this appeal so i think that takes care of the one issue i didn't request briefing on today's argument is that threshold issue of whether he should receive a broader certificate to include the rights versus weber stay in a certificate either of those positions was argued in the district court and near those issues for that matter state ag or make a showing of any constitutional violation required for a certificate of appeal ability under section twenty two fifty three because exhaustion is a statutory rather than constitutional issue but above and beyond that the district court wasn't called upon to stay in a  day mr macquarie's petition back in two thousand and five and its decision was plainly the correct one at the time in two thousand and five mr macquarie's remedy at that time and still is his remedy is to pursue a new first have  it was disposed of by the state courts and i know that shortly after the district court's dismissal i believe it was that the washington court of appeals decided mr macquarie's direct appeal and then sometime in two case was not resolved completely until june of last year and i believe under the tolling provisions of twenty two forty four d d that first of all that mr mcgarry this commitment didn't become final until ninety days after the washington supreme court denied review so in other words sometime in that would entitled to tolling all the way through june of last year and now we are getting close i think we're within a few months of whatever the one year deadline would be on mr mcgarry petition obviously any discretion and there's obviously no abuse of discretion here by the district court mainly because it was never asked for this remedy and staying in a section twenty to fifty four petition effectively excuses a petitioners failure to exhaust his claims prior to filing and as the supreme court has noted in rights versus weber it's frustrates the objective of encouraging finality by allowing the petitioner first to pursue his remedies in state court and it would effectively reduce the incentive to exhaust prior to filing the petition of state of vance and just in the ninth circuit but in any of the federal circuits i believe still your honor i have not done an exhaustive search on whether it's ever happened but i'm not aware of it ever happening so mr mcgarry isn't entitled to a do over just because he now regrets that course the litigation course that he followed after two thousand and five after the district court dismissed his detention and exhaustion is to be determined at the time of the the petition not when the case on appeal and i'm i'm not i'm pleased that that council is not suggesting that this court should term and whether in fact mr mcgarry now has exhausted his state remedies because i don't believe that we have the complete record between those two events between the u s the date of finality ninety days after the wash and supreme court denied review and the date that mr mcgarry filed  as we can see we are that the clock is ticking on him and he is getting close but i don't believe that he's gone beyond the one year time limit of the district court to get exactly the right thing in this case  mr mcgarry that his petition appeared to be an exhausted or contain an exhaustive claims asking to explain matter whether he had exhausted state remedies or was entitled to some exception mr mcgarry was unable to do that and the district court dismissed without prejudice i believe just requests should be encouraged to take that type of action and shouldn't be put in a position where they are second guessed for what it is that they did so we ask case on this but i'm really having trouble understanding why we should make up a new doctrine that no court has never my reach on the scene of the dance rather it's always dangerous to take legal advice from your adversary but you might have just gotten some things to say from the sound of it he has an opportunity now to file a timely claim now i can't independently verify