into consideration the age of the juvenile the court also has to take into consideration whether or not that crime in effect makes a juvenile beyond redemption whether whether the i understand that but the question is and maybe the stress and matter maybe we take the case is we find it now rather than then but is it possible that or is it possible that if all that happened is that should have happened moment they are announced yes you're essentially saying that i mean my understanding is that there were some course that before montgomery held that miller had already determined to be retroactive correct your hon so at the time that mr parris felt his position and that this record the district court had should have taken into consideration whether or not the case west transferred and we know that the court didn't because when the court rejected it when the court analyzed twenty two forty four b you actually if i understand the question correctly miller didn't declare the danger you are in that case that's one of the reasons why this type of claim should not be subjected to the twenty to forty dresser i was asked but at the absolute no that is my argument your honor i thought that but justice or kelly's highlighting the danger of actually for petitioners like this like mr perez the danger that they would be facing we know that it takes a while for the supreme court to if we follow dart for example in the in the context of the two of twenty to fifty five the court there itself said it was it's very unlikely that the supreme court would take would declare within a year and petitioners have been a lot like you for example in the context of johnson because the court did that just in welsh here we're dealing with with post convictions petitions of state prisoners which good afternoon your honor says supervising deputy attorney general stephen matthews for the respondent may please the court the issue here is that his position is appeal is an invitation for this court to render meaningless the gate keeping e if the issue was that the tissues judge should have transferred this to us originally well this court actually the district court referred the case to this court following the denial pursuant to ninth circuit rule twenty two three a and it's order denying pursuant to burton and united states report burton case directed the different court to dismiss the case for lack of jurisdiction and then what the court did in this case was precisely what the ninth circuit rule twenty two three a says it's supposed to do is when it denies  the petition was dismissed by the court for want of jurisdiction all the all that was your first here and that's correct all i was here all this court needs to do in which would be in full compliance with twenty two forty four would be if it wanted to it could treat his appeal as a request for filing a second or successive potential were the court to grant that it would return to the district court the petition would be filed and then we would have an opportunity to respond to that  wouldn't stand in the way of that we wouldn't stand the way of this court complying with twenty two forty four and granting permission under miller as made retroactive by montgomery to that is a new rule of constitutional law made retroactive not previously and that's sufficient and but even that is is not a pertinent issue to the issue at hand here because as the petitioners made clear in the brief their argument is not that they had to comply with twenty two forty four but that they did not have to comply with twenty two forty four and that their claim could be raised without this court in exercising its gatekeeping provisions under twenty two forty four because they claim that the claim wasn't right until miller came out but of course that would that would ren render meaningless twenty two forty four because the nats are in that sense miller's the claim was was was not ripe until the supreme court decided it let's make this really see me so if we treat this as a second successive petition and remained of the district court we are fulfilling our gatekeeping role and are twenty to forty four and this case can continue with the district court addressing them and the other issue is the no that's that's correct the old the only issue when you say all that your brain well our argument in the brief that was was precisely for what this what what was was was suggested which is is that for this petition to be heard it should follow guy needs to have this case heard on the merits what's the best way to do that and so it wasn't clear from the briefing for me either that the government is saying all right there's a gate keeping well mission here go ahead and say it second success successive but here's how you basically get him back there so that the case could be heard and there seems like a case that the parties could have worked out prior to argument i think i think i made it clear in our brief that we believe the district court correctly ruled that absolutely no difference in this case is that correct the only difference is that they because they didn't comply with the rules that's why we're here and they've sought they've sought by here because you didn't tell us a need neither of you told us that there is currently pending in this corner request for presume that was that was before the court at the same time that the and it's actually in the excerpts of record the district rejection it's not often we can make both sides happy you'll be happy that we're going to follow the rules and your opponent will be happy that the