convictions mr griffin has relentlessly improperly challenge his a c c a sentence in the district court i would like to discuss two topics with the court this morning st the district court did not carry out its duty to measure its own jurisdiction under section two thousand two hundred and forty four being in nd even if the court did carry out that duty the court erred in denying mr griffin motion as successive you  length for the st time in in two thousand and nine i would like to point out that the district court has never made a finding based on timeliness it doesn't have to we can look at that  you make your argument on what the facts are and what the law should be applied to them and if we decide you losers matter walton's no point yes your honor our not even if we wanted to let the district court consider it we could simply not speak to it are we could we manned but it seems to me like this has been going on for long enough that if your argument for timeline is unpersuasive as a matter of law we hope to bring it to a conclusion now yes sir and i'll talk about timeliness then immediately mr paine in the meantime i thought judge f early in that order that you're looking at judge understood judge forrester held that the twenty five dollars motion was excessive he then moved on to query as an alternative question whether or not the motion was timely to begin with judge forced to raise that on his own but it really is dicta his ultimate holding did not depend upon the time in this question now he also got the time that the last sentence right after you never see page pretty intense discussion says for the poor guy and reasons that would be a reason with what he just mentioned and and he starts out there even if the court were to dispose of the numerous procedural hurdles to this claim it would fail on the marriage yes the use of the subjective tense thereby turns more to shows that that is an additional ground that isn't the basis for his holding on page five of believe he did declare that the motion was excessive in to your question judge carnes at the end judge forester certainly did include everything in that conclusion re sentence but again this court can look at that order and decide that the timeliness of that corporation a determination was not the basis of that denial and if the court were to look at the time in its question with the freshet here the court should agree with me that mr griffin was in fact timely the u s supreme court in johnson the two thousand  johnson case so that a defendant must provide prompt action once his state court convictions are vacated here mr griffin filed his twenty to fifty five motion in the district court that that's not your problem problem is lack of diligent after the federal courts and that's enhanced on the basis of three prior convictions you waded in where from six to eight and ninety he attacked it to his rule fifty nine emotion with judge forester in two thousand and nine in response to judge forester's discussion of the time of this question just forced or didn't sentence mr griffin in may of eighty nine in nine months later mr griffin filed this letter most of the fulton county superior court challenging his three burglary convictions now judge carnes your question why can't this court simply deny us on time low level way to manage their true you that there's a deep factual narrative there that needs to be explored mr griffin asked for an evidentiary hearing we would ask for one below if the court was reading factual there mr griffin explained in his role fifty nine dollars emotion that after he filed a letter motion which he attached he then waited for the district court to pop star the superior court to respond he didn't get a response then he hired counsel he said once he hired counsel the motion languished that was his phrase that after counsel was hired the motion languished until finally in december of ninety six dollars an attorney filed the formal state habeas petitions mr griffin did work hard during that six year period to have the superior court  claim now it's not simply a matter of sending in the letter motion and that's sitting on his hands for six years from a prison cell he was trying his best to move the issue forward in this period court don't remember anything that he did  in february i don't remember that he did anything until he hired counsel and the counsel for state petition in december of ninety six which as i say was over six and if you yes you're on to mr griffin explain in his fifty nine emotion that he did do something in that interim he sent letters to follow up letters to the superior court inquiring about the status of his motion and then he did hire counsel and then me i don't know that any facts are disputed however mr griffin has not had a full chant and then there's no need to have an evidentiary hearing if there are no disputed fact you plead your facts in the motion and the court then you have an avid interviewing on the disputed facts you don't have a hearing just for the guy to get in front of him say here's my theory of why i want to prevail your honor i don't read the rule about evidence or here it's have been titled him to relief had he been able to prove st mr griffin and provided the motion that he filed nine months after his sentencing hearing back in the superior court nd mr griffin talked about the various letters he wrote to the superior court urging them to review his his motion rd he said he hired an attorney forth after that time period the motion languished in his in his words and then th his counsel eventually filed a formal motion while under the law what is the doctrine under the law that entitles him to get around the statute of limitation to follow facts are true well the johnson case itself in the supreme court asked the court to measure th conceded that you don't fit under any of those and they're basically the way i read your brief if you're arguing or would argue are told in iran yes you are you wondering if i didn't argue it properly also before judge downs officially vacated the stay convictions mr griffin did that in anticipation of that vacate tour and asked us forester to stay the motion after judge downs and superior court vacated the convictions mr for  i don't think that could possibly warrant even a hearing when he waited six years that may be so your honor but mr griffin played additional facts he client then the court may overlook that time period here that may have been what happened mr mr griffin is a pro se an educated prisoner it was doing his best to lay out the facts and the issues and he urged judge forester for the evidentiary hearing he didn't get it this conversation that we're having here is exactly why the case ought to go back to the district court for the court to have a thorough exploration of this now that i have not looked at this through fifty nine he that you keep count for anything sent the wrong address not on the electronic docket did you all are did he try to appeal the knowledge of fifty nine tennessee highway on that on your chart which is helpful i don't see any entry on that here thank you i birch on behalf of the united states of america based on the court's questions to mr dodge i'd like to dive on the letter that we were talking about the letter that griffin raised for  the st time in september of two thousand and nine was well considered by the district court as judge barnes pointed out there is a link the order in the record at its document eighty four dollars it's an eleven page order where the district court goes through the details of the letter and it's important for a couple of reasons one of which is that the district court did not when mr griffin raised the letter did not dismiss the argument shows that that was an alternative holding of the district court the the due diligence and the problem that griffin has with the due diligence was very much an alternative holding and not just dicta and i think the eleven page order that we then see diving further into griffin's arguments on that question didn't straight the importance of that for the district court the other thing that's important about it is that the district board to go through and analyze the letter and said it was not at all clear that that letter had been filed within the legal meaning of filed but then it went on to say it even had it been filed that there is nothing that showing up on the document on the docket and that passage of time alone if we are just concentrating on that letter that passage of time alone is a due diligence problem for griffin he cannot demonstrate due diligence based on that that is clear that the district court analyze that in two thousand and nine it was a critical part of its holding in the order that it issued on that which is again document eighty four and fifty nine where we get the long ruling on the letter argument with our c e o i addressed that anyway we don't we don't know we don't see anything separate on the docket indicating a separate appeal of the rule fifty nine based on the timing it's possible that this court had the district court's ruling on the rule fifty nine motion before it when it did not by the cia but what i what i'm unable to tell you is what exactly that record was that was before this court when it made the ruling on the rules sixty days away he doesn't look very good for mr griffin because if he didn't try to appeal it well then he stuck with the district court ruling that he didn't to be reviewed by this court and that this is been going on for quite a long time and it's clear at a minimum this was fully litigated in two thousand and nine all of these facts were before the district court and the district court entered two orders that deal with this at great length and that should be the end we should not be back talking about this again and the finale that's necessary the reason that we have due diligence requirement statute of limitations requirements is that because there must be some finality here you are running into incredible record problems here based on the age of the case trying to sort back through what happened but what is clear from the record is that all of these questions have been fully litigated in the district court and in this court or or have not been appealed and so this court should not consider should not remain and because the district court based on that properly found that were successful in terms of having those litigate at they did not turn out how mr griffin would have preferred but he was successful in having the issues considered by the courts and that's all that's required it is true  thousand and nine i think boyd is distinguishable from where we stand today because of the due diligence problem that the district court has already resolved against mr griffin i think that's factually different posture than in the boyd case because we also have a definitive ruling from the district court where is in the boy case there was some concern that the timeliness issue that the court had looked at again that has to do with time line as well and that your honor that's correct i do think there are some overlap here because the courts talk about both in terms of jurisdiction and in terms of being a new facts talk about it sort of together in terms of whether or what what the due diligence inquiry informs because the do the lack of due diligence is related it the timeliness requirement because the one year statute of limitations requires that action be taken within one year of when the information should have been discovered with due diligence so the requirement really does come into play in a couple of different places in the inquiry here and i think in this this case is very distinguishable from boyd on those grounds although there are many similarities to the boyd case undoubtedly there are many similarities i do think the judge cons i've gone back and look at the order denying mr griffin c e o a in two thousand and ten and judge william pryor signed that order and it appears that mr griffin only included a sixty b issue in that just far as to makes a ruling about the letter and it's not going to can it wasn't really much of a motion and it's it's on out of time then at that point if he doesn't appeal isn't aren't we then stuck essentially what that district court ruling was he doesn't get to revive it some ten years later but no your honor again mr griffin fifty nine emotion didn't just start a new issue it simply was related to the earlier one and we look back at the origin of judge forest wrong the c e o way deny later is not binding are not buying this court today that one judge order didn't have any discussion at all the time in this question you know it not be treated as binding so you're saying if if we see a district court some years before have ruled on that has ruled on the same client prisoners free to bring it again years later and just say the district court was wrong or we're generally no  finality cannot be gained at all costs as judge hill once wrote in gilbert finality without justice is not justice but justice without  say that to every claim barred by the statute of limitations i mean we've held claims bar about the statute of limitations where the attorney made a big mistake not the pro se petitioners are not the petitioners fall oh you know a layman in prison and we've held those claims for close to a large number of decisions doing that so we can't just simply say it's the lawyer's fault are there was a mistake or somebody dropped the ball it really has to be an extraordinary circumstance to mount to tolling and i don't see how your argument fits under for exception for i just know well the reason it fits your honor is that mr griffin raised the claim in the state court within nine months of his federal sentence he that is prompt action if i've ever seen it the later orders in the district court simply got iran each and every time when boyd but if you write something within the time and then you repeat it five years out of time or nine years out of time that is intent barred by the statute of limitation it may be in some situations but that's not what happened here mr griffin was relentless in raising the issue in every way conceivably possible under every federal rule that we can imagine and while this does have superficial appeal to say as the government does enough is enough there are exceptions even when finality is as important as it is the finality principle is based on a couple of factors that simply don't apply here st it's meant to uphold the integrity of the process a dram of them is there's the r law and there's no law and acted in the united states code that says regardless of the rules set out here in where necessary you can create an exception and and it's all governed by finality and when we shouldn't have that is just not we can't just equitably say that rules not going to apply i agree with you on it but in boyd position clear that we read that order as having ruled on yes or no and i don't have a better answer than the one that i've offered today to any pressure to have thank you mr dodge we appreciate it next