good morning judge nelson judge fletcher judge bybee my name is david porter i'm with the federal defenders office for the eastern district of california and i represent the petitioner anthony smith the issue in this case is  this court sitting in bank in socal gonzales applies or with the subjective diligence throughout the limitations period suggested by some three judge panel so this circuit applies make no mistake about it these tests are as judgment as judge murkiest said irreconcilable what do we do with  opinion for the panel and gibbs your honor is as we explained in the in our brief it is illogical and irreconcilable with the supreme court decision burnett and soak up gonzales to say on the one hand that stopped clock governs but on the other hand the court may consider as kind of a secondary or tertiary matter whether the petitioner was or you don't or you can't prevail today that is that that makes things very clear for us that would be actually very helpful to know that but it would if i change the tenor of the argument that that is very clear your honor i think i go both sides agree to that  and here's here's why they're irreconcilable the diligence throughout the limitations period test completely subsumes the stop clock t stopcock test just says whether the person was diligent during that period of extraordinary circumstances if you're going to look at it diligence throughout the limitations period there's no reason to have the first test you don't know you can't you can apply both test the diligence throughout the period totally subsumes the stopcock test and me as how you're opening brief indicates that you think gibbs is inconsistent with  tolling not equitable tolling and as this court stated in the grand versus worth of this judge reinhart's opinion he explained why pace isn't relevant in this case pace involved a four year delay before the person was even done with the state court exhaustion requirement that doesn't apply anymore since states have adopted by and large the one you're statue of limitations for corpus in their own proceedings so that that that issue is not coming is it is not even coming up anymore so as as judge reinhardt explained pace is is is just isn't is unanimous that the the clarity and treating similarly situated put petitioners similarly is is the benefit of the stop clock rule if you apply this diligence throughout the period that totally destroys the counsel what is it that your client gets the benefit of so he writes his lawyer and says look i need that i need the records and the lawyer delays a month or  so and finally does give him the record leaving him actually quite a bit of quite a bit of time in your practice in your understanding what's a supreme court a state supreme court denies  petitions so that we start that we start that clock to the prisoners always have already have the records in hand i'm trying i'm trying to think i'm trying to figure out sort of as a practical matter how do prisoners if they're going to decide that they're going to represent themselves pro se for on their hay vs how do they get the record and do we have to drink every day after the california supreme court denies the writ that they don't get the record they get an additional day for that it's first of all in this case it was two months that the that scott conklin you know what if it wasn't in two days would you get to get two days if the petitioner could show that those were extraordinary circumstances i think that's what your question is getting at were these extraordinary circumstances and what made this extraordinary i mean i've we've seen ordinary a lot of it we see a lot of cases in which in which lawyers don't follow the state bar requirement that you turn over in a timely manner the records and petitioners being forced to file a state bar complaint against that lawyer and then the state lawyer and still taking several weeks before responding to that state bar complaint and finally after two months sixty five days returning the client's own records to him that to the lawyer upon hearing of the denial did he file state bar complaint did the lawyer timely respond to the state bar complaint these are all the fact intensive circumstances that yes how long should we stop the clock if the record is so much how up for one year two years three years how long should we stop the clock until those extraordinary circumstances are lift until the person gets his gets his materials back we've got a different question and you may not be the right person to answer it but you're the person i've got in front of us if we conclude that there's an irreconcilable conflict between gibbs as you can and gibbs is of course the later case and it's a panel opinion do we have to go on bob to get rid of gibbs or do we just get to say that gibbs is wrong and we couldn't know in grant versus worth out the court said we have never and never is underlined in the original we have never denied relief to petitioner because he did not exercise diligence after the relevant act extraordinary circumstances possibility yes yes you have but you have never so held and i think that that is the distinction that you get when you begin to remain on to a district court for further consideration if we're never going to hold that yes i agree you know when the process is about to take you over but aspects of habeas corpus under and should we take that into consideration as we look at what the rule is likely to be from the united states supreme court confronted with this question yes i would encourage that and i would encourage the court to look at r t i is the january case was an a t p a case it applied the current version of the statute of limitations it decided both the questions of statutory tolling and equitable to just in case it might be confusing in two thousand and sixteen the supreme court came out with a case menominee indian tribe versus wisconsin of wisconsin i'm sorry versus the united states they said in no uncertain terms we decide pay soley on diligent in trying to get his records from his lawyer although the question is does he get credit for the time that he spent contacting his lawyer and then when he didn't get satisfaction contacting the bar i mean it's clear smith was very anxious analyzed diligence outside of the time of impediment now remember petitioner would have you apply diligence only inside of a time of impediment pace applied the diligence requirement or analyzed the diligence requirement both before the statue of limitations started to run and after the impediment had been lifted and only in those two timeframes now whatever you think about pace that's completely at odds with keeping the diligence requirement inside the impediment time in artists the supreme court was comparing two different kinds of tolling one was a grace period tolling which adds a certain amount of time after a triggering effect and they were also analyzing a stopped clock style tolling statue of limitations where if something occurs they stop a stopwatch and after the impediment is lifted they start the clock again and they held the almost on remarkable conclusion that tolling means to stop the clock that's unhelpful here that begs the question should the clock be stopped at all during the sixty six days the clock should not be stopped at all because there is a causation problem and the diligence problem in this case the problem with petitioners argument is that essentially he asked this court to imagine that with ten months left on the statute of limitations he was ready to hand over his federal petition to the federal court but equity demanded that this court allow him an additional ten months and then sixty six more days to sit on his rights build into our analysis of that one year that the statute gives him in that in many circumstances one years an appropriate time to sort of gather your arguments do what you're going to do prisoners representing themselves pro se don't have easy access to the law library or all of the time they're not necessarily learned in the law they get help from the prisoner's i mean it's not like somebody sitting in there a lot of us that can do something at the end of the week so they're given a year which is already not very much and you're saying well you know it turns out this guy only gets ten months why is that consistent with the statutory period of a year in terms of what congress probably had in mind first of all congress never made any findings on the record  that a year is what they thought it should take well that's the year they they gave a year and we may infer from that that they thought the year was the appropriate time and the other point is that the nature of time frames is that the time will be a luxury is for some and not enough for others for example in this case the petitioner for simply photocopied i'm sorry simply copy down his petition for review changing a few words here and there a year would have been luxury is for him another petitioner may need to make it sick may break a leg may need to do some research may need to present claims on collateral review because they were exhausted on direct appeal where they were here and that will be not enough time for him time periods necessarily include some and exclude others the predictability is in meeting the statute if something happens pace demands that you be diligent and you try to get your petition on file they even suggested to petitioners who are confused about time here it's something may be happening that that was rushing them get your protective petition on file you know i hear all of that and of course it's not implausible that those are important even controlling considerations but one of the advantages to a statute of limitations is it's clarity if you've got a year the rule that you're contending for is not clear because the r contending for is ok you've got ten months and you've got to show diligence within that ten months so what if there was two months you have to show him you have to show diligence within that two months all of a sudden we're down into the weeds with factual determination for these cases instead of just just numerical the the the rule for which your adversary contends is very clean and very easy to apply it's cleaner except for the supreme court has warned us time and again that equitable tolling analyses are highly fact dependent unfortunately equity sends this court and the parties into the weeds every time a petition or wants to  as soon as we determine that there were extraordinary circumstances that would forgive the first two  months i'm not sure i understand the question you see you're back in the weeds equitable tolling but in this case and in cases that are comparable you're out of the weeds and into territory where the rule is clear once you determine that there were extraordinary circumstances during as prevented timely filing as of the last three words of the equitable tolling standard in a p a contacts prevented timely filing so we have to look at those sixty six days and yes it's clean to say it was only sixty six days he was diligent during that time but we also have to look at did that cause untimely filing and here diligence severed that causation because he had ten months where the record is devoid of any evidence that he needed anything more than a couple of days to copy down a few words when you when you make that argument are you saying that a motion to reopen under sokol becomes all us is then analyzed differently from  it quite possibly could first of all sick options all this was dealing with a very very short time period of i believe ninety days i'm not familiar with all the ins and outs of ins cases but i do know that they were not dealing with the federalis problem we have in the they were not dealing with such a harsh statute as the a t p is and they weren't dealing with pace as for clarity the federal statute of limitations has a whole bunch of almost ambiguous vague things built in and that is there's exceptions there are exceptions for supreme court cases that come out in between the time of the finale of conviction and the time filing the federal petition those restart and stop the clock depending on variables there is with diligence could he have learned of a claim for example maybe a prosecutor releases and brady information long after a conviction the federal statute limitations builds that right in i don't think it's quite fair to say that the legislature was looking for absolute clarity and unfortunately i think may send us into the weeds time sometimes  i would love to answer any other questions you know thank you very much thank you would you please put one minute on the clock for mr porter thank you judge fletcher in terms of the luxurious period that my colleague was talking about he makes the same mistake that the magistrate judge made in this case he did not simply repeat verbatim or change a few words he actually deleted one of the claims that was in the state court proceedings and more importantly this gets us into the speculation that soak up gonzales in the supreme court of said you should not get into when you have extraordinary circumstances you were fairly direct in figuring out whether the person is diligent in overcoming that particular circumstance and when he has the clock starts again but if you're not focused on that period  does diligence during the period after extraordinary circumstances mean how diligent of the person have to be what how much of the record do they have to have these are the the questions that of confined really  hurt the district courts now in gives this court said courts should not take it upon themselves to decide how much a claimant needs to file a federal case that is exactly what the district court in this case had said you have ten months that's enough thank you thank you very much thank both sides for their argument with us is davis now submitted her decision in the next case on the argument calendar this morning united states versus davenport