otherwise the district court erred the government agrees and that leaves the question i think for this court of remedy and what form the direction the district court should be on remand should the court keep the current dismissal with prejudice in place mr richardson's runs the risk of having his claims be time barred because he filed his hate this petition in two thousand and sixteen timely but because he bounced around trying to diligently throughout this process comply with the district court's directives to for example exhaust the claims as hevia claims he would run the risk of being time barred should dismissal with prejudice remain in place and he'd be forced to file a brand new action that could potentially be subject to a statute that petitioner and i think especially in this case where you have a petition like mr richardson who is diligently try to comply with potentially competing directives that he's received throughout this process we think that the best option for mr richardson going forward is for this court to reverse the dismissal of his claims with prejudice and direct the district court to give him leave to amend those claims amend that petition essentially treating that petition as a st complaint and then was leave to amend alternatively nettles describes the option going back to the supreme court's decision and will wording of converting the hate b s petition into in one thousand nine hundred and three complaining now nettles cautions that because of array and some of the additional requirements that prisoners have to comply with in order to bring section eight thousand nine hundred and eighty three claims that conversion option may not always make a lot of sense here however we have a very unique situation where mr richardson should let the judge make that determination about the conversion so rather than just simply doing it ourselves give back to the charge to determine whether that should be converted to the one thousand nine hundred and three then if the judge makes that determination go forward i think that's exactly right and that's what our point is the conversation never happened nettles contemplates a discussion between the district court and they have the mistakenly havior mistaken hades petition know what what's going to happen going forward right there are three strikes rules that come into place right next and i do maybe three claims the point here is that conversation didn't happen and i think the district court if you look at the district court's opinion this case was trying to be solicitous to mr richardson especially in light of the northern district of calif fornia decision and mr richardson's i think throughout this case diligent attempts to comply with the court's directives so i think that conversation can and should happen in the st instance at the district court level and i think our view that's what we would request is that the dismissal with prejudice be reversed and then the district court with mr richardson engage in that discussion as to whether he would like to amend the hevia spit ition to assert in one thousand and three complain or whether he would prefer that the nine hundred and eighty three complaint that he already prepared be treated as operative for those purposes i think the worst possible outcome is the current outcome where he's got a dismissal with prejudice and so if he wanted to bring in one thousand and three dollars complaint he would have to file a new action and run the risk of those claims being time barred but the court doesn't have any further morning on our stop in your general charles for responding appellee as set forth in our brief we concede with petitioners position that the district court lactate is jurisdiction and that should not be educated on the merits so i would submit that that judgment should be reversed the question however on appeal is whether it should have been adjudicated on the merits or whether should be dismissed without prejudice as as your honor pointed out it is in the district court's discretion my interpretation of the certificate of appeal ability is that this record made that determination and did not ask should mr richardson an opportunity to amend or convert the petition rather dismissed without prejudice to file the new complaint and that is precisely what should be done here well how do we know exactly what happened what would be the harm in just sending it back to the district court and let the district court make that decision and the district court may decide that there is a dismissal and then you must file a new complaint or given the circumstances here there's an amendment that relates back we don't know the answer to that question but why not let the district court tell us precisely what it's a view is on that there are i would i mean there's no sort of harm to anybody right right your honor i wouldn't i'm not going to argue that there would be in sacramento and it would not appear that the central district court would be the proper court to entertain or to to kate such a complaint so then the court could figure that out rather than us so there's really nothing for us that respondent or that that the government wants to raise any potential claims or defenses i think that can all happen from the district court as part of the district court consideration of whether to allow what the right course for b i think are human remains that the district court should have that conversation the st place and so we respectfully request that this court reversed the judgment and direct the court consistent with nettles to have a discussion with mr richardson about how best to bring forward those nine hundred and eighty three claims thank you thank you thank both between counsel here richardson versus board of prison hearings is submitted