star to recess to chambers and we don't have the equipment that we have here at the end of the argument will ask everybody to leave the courtroom and we will do the conferences in the courtroom mr erson always hate us because because the district court relied on a free antiterrorism and effective death penalty act understand a rose against london in a way that ensured that mr urson always timely fully exhausted claims would never be reviewed by a federal court rose against one plate monday held that district courts could not consider so called mixed petitions and the district courts therefore must dismiss those petiti would have i think the answer is no because he's not presumed to have a detailed knowledge of federal procedure he received an award and the council did not the district court say those three days after this he's filed something in the court system and my current you are correct all right your honor if i might expand a little bit further though on the foot that you've alluded to here i think that the problem with presuming that that cures all ills is twofold the first is that the text of the judge's opinion not this very last footnote that simply quote from rose against  text of the opinion tells him that the the petition will be dismissed without prejudice that he has an available state remedy and he should go and try to exhaust his claims from these district court's opinion of acct over thirty one of two thousand and three i think the problem with that is that it does not make clear to him what resubmitting it means by the time this person only received this information in a footnote is petition had been dismissed sue a sponte because the state never raised the cost an issue so with was a no notice to him at all no opportunity for him to argue that yes in fact he had exhausted those claims and what he was told was it was a dismissed petition to sign as your own make a point in your brief that agreeing to use a district court the lane for something like fourteen months before is active at which point we would have passed the one year at them since when under your view should the district court have acted i mean if we're going to write a presidential opinion what should we tell the district judges are they required to act within that how much time in order to permit the enough time to well and i'm not sure that that's what this court needs to do i think instead what the court needs to recognize and i think that that justice o'connor recognized it and that penalty metairie graph of runs against weber and that is that oftentimes simply through congestion in the courts in the time it takes these things to percolate through by the time a district judge gets to an otherwise timely petition the statute of limitations under a d p a will have passed and so therefore instead of simply reflective under miller or mason and what has been approved by the supreme court in castro simply enter an order say this is a mixed petition so you can point to anything that the district court did that was wrong w it decided the case on the fourteenth the period itself was not improper your honor the question is do we take issue with the fact that it took to around fourteen months to get to it yes the answer is no  that at that time he give notice to petition ruth that he was going to dismiss the petition there's nothing in this court's precedents or in the supreme court's precedents but i think that it's fair to say that given the stream consequence of that  missal what he should at the very least have done was to say to mr personally the court proceeds your petition has been a mixed petition you something like a show cause order you well you have twenty days to tell us talking about there are two district court orders one of them is on appeal the later one the second hideous petition was dismissed that's what we're here on review of however obviously we need to discuss what occurred with the first petition and what i would say  with the first petition the two ways that i would posit that the district judge erred were one he didn't give notice and any opportunity to be heard and second the language of his order not unlike in graf against more unpublished opinion of this court the language of his order suggested at least to mr urson only that he could go back to the state court exhaust his remedies and come back to the district court when in fact that there are a number of circumstances that kind of arise and inmate comes to district court and he presents a mixed the titian and the district judge says your petition is next now the district judge may in rare and because they happened to be associated with an exhausted claims they were tossed out and now when he comes back they're gone he will never get federal review even though with the exception of guilt by association questions posed by the twenty's i think that the answer is that at the time judge brown heard the first petition and dismissed the first petition there was no law that said what he had to do that doesn't mean that he didn't  is the second order that's was up on review before this court and the problem there was that knowing what happened and with the benefit of that and with the benefit by the way of runs because they had already been decided judge brown nonetheless dismissed the petition refused to find equitable polling even though he could see what had happened with the previous petition and that in fact there was a  all to answer the take on question ok thank you thank you matter because in fact a district court relied on more than just those verses on the decision which is obvious in the court's written opinion before going to the cases that the court did rely upon and why his decision was correct i just would like to note for the court that when these this petitioner went back to the state court he still did have the opportunity to be heard on those and exhaustive claims he was pesticide your state court limitation to be heard but in fact the court did hear him on the merits of that claim then decided that he the claim was not worthy of being granted because those claims had already been adjudicated by the court but is a satchel issue isn't there with respect to what the state court did whether it considered me an exhausted kind or not and that's not in the cia and i don't even know whether we would have jurisdiction to can see can expand the yes exactly are you referring to the exhausted claims that were present in the first petition yes i'm ok i was curious about judge grounds initial decision dismissing the mixed petition question is could he be heard on those that were exhausted your honor it's our position that while he could be he need not be in this case and he still would not suffer any prejudice or unfairness because there are only three want to commit myself to the top of my generally would not have an objection to such a review a cursory review which is all it would take in this instance to determine that there was also  would be the procedure by which that was done witness have to be that it goes back if that should be done then it goes back to the district court to decide on the equitable poling issue and the district court may decide now equitable calling it wouldn't be equitable to tell in this case because there's nothing to the claims or it would be accurate of all because there might be in germ of something there that judge brown gave a late notice in an opportunity to be heard my question was had then and then go off in the law at the time that judge decided would not have his decision been actually misled the plaintiff we don't have any actual misleading here of the defendant by that planted by the defendant or if they just plaintiff was in some extraordinary way prevented from a certain his rights he was never prevented from asserting his rights in his initial petition it was his error that caused this problem that we're now before the court on he was not prevented in the next one in every way from filing his first petition correct when i agree with you hundred percent because i don't think the judge brown at my perhaps your honor and there is a case also that as the name escapes me right now but specifically says that extraordinary circumstances do not equal the initial failure to exhaust remedies so that by himself would not bring him over the threshold and also the other i think circumstance was if the petitioner properly filed pleadings that in the wrong form and that's not the case that we have of course here today as a matter that he was proud of saying well your honor his pleadings without the usually be viewed more liberally but in this case again it does not because had the petition not been dismissed after the year had run and he had gone back to this court with those but the grounds that he claimed in the second p c architecture and we would still be in the same place because again it's our position he did not properly as a last as makes no difference in a case and that's why the state argues there ended up being no prejudice despite the bumpy road that we took to where we are now the end result would have been the same supposing i we were to disagree with you the issue while certainly on anything could could happen but in light of the cases that have come out in the five years since the district court dismissed this first petition it's unlikely of course it could happen and then the protection would now apply and the court would decide whether to grant equitable tolling based on the three criteria in the winds case which we i would argue wouldn't have applied in this case in any event so yes your honor it could happen but it would be rare district judges do you agree that the district court should issue a stay and then a what are only in extraordinary circumstances i mean there is language like that sides there are there is language in these cases that say telling in advance should be done sparingly it should not be a run of the mill remedy or run of the mill event in the state would lawyers in the willing to do that and well we've created an opportunity yeah i'd like to begin by answering judge sluggers take home exam question yeah i think that the answer is that the district judge has the ability to do that whether was that i think that it's always within the discretion of the district court now to do that but i don't think that this court needs to instruct district court or judge brown in this case particularly to do that i'd like to address just a few issues in  the first is the question of will this recur again and i think that the answer to that is yes it well and let's go back if we might to runs against webber and i'll stand corrected i think i said that justice o'connor used the word extraordinary she said very limited i think is the language because i think i did with a slogan or didn't and look through the union very quickly nonetheless it is something that could be sparingly used one of the circumstances of inmates who have mixed petitions and who do not qualify for state and advance those are the people like mr erson ollie and those cases will always occur because they may not meet the standard what happens with those people what justice o'connor told us in the penultimate paragraph of her opinion in was they should be on the out to carve up their own petitions that did not happen here that's what needs to happen in this case obviously judge brown did not have the benefit of rinds when he issued his two thousand when he made his decision and he said i see an exhaustive claims here and this is a mix between to dismiss if you would have said wait a second judge i would like to what would you ask him to do i would say your honor i'd like number one to argue that they are exhausted because he disagrees with you and your honor i respect that decision now having made that determination i know that the statute of limitations has run so therefore i'd like to ask that you allow me to carve out the  saying well i wasn't i have a follow up actually because i wanted to see where you stand if that's the case then if you were to go if we were to agree with you the only thing that would remain are the three exhausted comes well i think that's goes back to judge brown would go back to those three questions i think that there would be a decision for this quarter for judge brown to make and just order may go ahead yeah thank you it clearly those three counts the three thousand should go back i think there's no question about that they were exhausted they were timely everything else but i think that there would also be a question for judge brown about whether the other claims that were presented in that second petition had been exhausted by the time the second petition was filed because if we're equitably polling then we have relation back and we have claims that are timely and and exhausted now i realize that that sounds as though it's giving something of a windfall to mr arsenal it but of course he didn't create the circumstance i remember it was i'm going to sure because i'm not the time and then figure out if in addition to those three claims there are any others that he's going to hear and i think that to some degree that's going to be within his  when the sooner we agree with you what is the reason that we give in saying that there was political the reason your honor is that the constitutional right to federal