and look at that now if the court looks at it and and if your idea of exercising your discretion the court would ascertain whether it has any merit and if the court felt that it didn't have any merit and said you know i'm not going to let you reinstate it because i have looked at i've looked at the issue i don't think there has any merit or not going to let you reinstate it if the court were right on that would that be enough for the court to do at that point where i know that's not what you want but we're talking about an exercise of discretion is what we're talking about that the court looks at what he's actually saying ascertain is there any possible marriage and if the court were to determine that there's not merit in the court could say well i'm not going to let you reinstate it claim and so i'm at that would be an exercise of discretion if the court went through the long stay read the there are there's a dca state the c n n opinion jamming with the instructional issues that have to do with the you can correct me if i'm wrong but for purposes of the decision of whether to reinstate i have to follow night circuit precedent to make a determination of whether there's a showing of an exercise  when i look at everything here i think it's harm you know that that he's not going to prevail on it so i'm not going to lie and there's nothing like that here that he even wrestled with the merits that's true but then this that the district court is not required to look at the that the district court you know here there's nothing there we have nothing to review there it is that's correct there is no expressed language that it considers the underlying merits but all along all the parties in this action recognize that this was not a meritocracy claim official recognized that when he put it forward and the state when it responded took the position that under the united states supreme court precedent this was not a claim he could prevail and a was involuntary intoxication voluntary intoxication is never a good isn't that the argument that should have been going on in front of the district judge in terms of that the district judge said ok i see why you're wanting to reestablish midst and then look at how hearses carrying the district court has got ok i'm not supposed to know about i'm going to ascertain either that hope versus kerry i think it was wrongly decided and under and had peer review i i don't think that they're properly interpret supreme court precedent and say i'm not going to let you reinstate it and then we come up with that record and we would make that we would make that determination was a contrary to supreme court precedent or whatever but now there's nothing there's nothing that went on like that i believe because of the instructions the jury could have misunderstood and found mr hoed guilty of second degree implied malice murder even even accepting his self defense argument that is not the would be a waste of judicial resources to send it back down for the district court to exercise that discretion now i think that we can also look at the district court's denial of the certificate of appeal ability and there again it time the next case to be argued is zero seven five zero one seven three united states versus three weeks each side has two minutes