of statutory tolling in this case has been resolved by a panel of this circuit with the issuance of the guest on versus palmer decision in october of two thousand and four last week i provided the court with both whether or not petitions for his corpus in the california state court are properly filed within the meaning of two two four four d two and also addressed whether or not there can be interval tolan for applications that are filed in a lower court in california after i think this petition already has been denied by the california supreme court and the gastown decisions resolution of those two issues both favor mr millet having said that as the court had the specific issues about  morning your honor robert david retired deputy attorney general appearing on behalf of appellate may please the court i would like to spend maybe one minute on equitable tolling and then spend the remainder of my time on the statutory and dapto in issue suffice it to say that the district court's findings on the equitable foaling issue with her clearly not been shown to be clearly prison life to be expected to be taken into account by prisoners in preparing their petitions and are certainly merely ordinary circumstances not extraordinary and in addition petitioner never showed a cause the connection between these extraordinary circumstances that he alleged and his tardiness because as pointed out by the district court which awarded him one hundred ten days of equitable tolling for the stated considering that petitioner presents the same claims that he presented to the supreme court and to the california supreme court two hundred fifty six days was ample time for parents to file a timely petition and of course he cannot argue argue to this court that he rony a plea believe that he had to present those claims to the court of appeal after a painting the denial from the california supreme his claims in the california supreme court and filing warning him that he had all he have to only one year with under the a d p a and but that the petitions in the state court would toll the statute until he received the final decision from the california supreme court that was his decision and of course the court knows that ignorance of the law is no excuse and even negligent or  advice from an appellate attorney are not do not constitute extraordinary circumstances and  court was on the merits that's correct it was based on procedural bars which are exhaustion which do constitute exhaustion and after he exhausted that was the last rung of the ladder exhaustion was final and there are therefore he should go through immediately to this court that is the whole purpose of the e p a which fosters both exhaustion and prompt filing in federal courts once exhaustion is completed then it behooves him to go to federal court he can file simultaneous petitions in the state courts but the devil at the deadline the clock is running once  the in the reply brief to which i take issue on page four of the reply brief there's a statement none of the california courts dismissed any of this petition for delay and instead every one of the four petitions was denied on the merits while at the court look on page forty eight of the excerpts of record that the california court of appeal division five denied the first petition that meet being a third petition while the policy under the a t t a statutory fully provision of twenty two forty four d is to encourage exhaustion and to promote prompt filing in the federal court under kerry and nino and big therefore there is no gap filling after exhaustion is achieved under carry a new petition at the same or lower level triggers a new round unless two conditions are met one is if the court denies under swain and says we need more facts and the court does not deny as untimely able to argue that the round had not been completed when the california supreme court denied that petition to understand correctly that i did scary but at this moment they're all a little fuzzy which one is which but what when when an article isn't as well when it makes reference to whether or not the court has tonight on the merits it's taking that is an inference there must not a vanity time in this problem the court went on to deny on the merits and that your position is that the current case is different because  the court of appeal was explicit in touching both cases but the part that you're concerned about is the court was explicit in saying that it was untimely even though it did go on to discuss the merits that's correct it any of the previous cases involve orders that touch both faces or cited alternative grounds no in the night circuit cases that i have researched that i have not found one that did that and the alternative that we may be the first to raise that question could be if if if the court will well look at these cases they all speak in terms of and specially carry filings that precede quote upward for aggressively higher steps of the exhaustion process the time never sought reversal by the lower court the decision by a higher court whereas here appellant went to the california supreme court and then went down to the court of appeal seeking relief and in essence reversal from a lower court of a higher court decision on the same claims now remember that in gaston the first petition to the california supreme court was not a haven this petition on the off with any claims submitted it was simply a petition asking for relief from default because counsel well gaston represented himself on appeal and then neglected to file the brief on time so he went to the california supreme court the decision made already by the higher court by the california supreme court he was now presenting these claims and he went up that ladder to the california supreme court that is not what happened here appellate for the supreme court  thirty four it is it is a mixture of denials under so i mean dixon lindley duvall and you're now in in gaston correct because in gaston remember that in gaston the there was there was no second petition to the california supreme court the said ok we'll read this as being like the grant of a dem or there's a procedural problem the employed it specifically and often given as one of them so so you can read that and under gaston there's a suggestion we're supposed to read the denial by the supreme court as one that wasn't simply untimely but there's a procedural problem perhaps of a different kind that could be cured the problem here is design or stand your argument is that he goes back to the court of appeal and there gets turned down in time when the spaces anything that had been stated by the california supreme court and ghassan his his own petition to the california supreme court was seeking relief from procedural default the court of appeal issued a new ruling regarding swain and then he started a round of trials or court of appeal california supreme court in addition this court should be cognizant of the fact that at no time did the petitioner in this case state to the  of appeal or to anyone when he was finding that the reason i'm finding here is because i've been told that i need to provide further more particular rights back so that i need to beef up my my factual showing he said the only reason i'm filing here is because i have begun to doubt the advice of my appellate attorney and think that the federal courts will not will not even will automatically deny my petition unless i've gone to the court of appeals he was not concerned about elaborating or or correcting a deficiency in the record gas and also i should point out to the court i'm sure the court is aware we have filed for rehearing gaston and the panel has asked for further briefing on that matter if if the we learn from welch the language of the appropriate ladder from the newell that the petitions must be filed at the next higher  and ramirez repeat that language that this is all an exhaustion process that goes up and if you start at the top then you have exhausted in that completely and the round answer and i would simply quote from tinker seven circuit case that i cited in my brief congress could not have intended tolling and definitely by the simple expedient of filing repeated  you have an option at that point but other than that you can follow original with insta peer court the court of appeal or the supreme court you can file it anytime there is no specific deadline but wages and reasonable means are the guidelines that the in that case this court noted that the california courts simply do not apply leeches or bars on reasonable delay with any kind of regularity it's very much catch as catch can the california courts which put  i look at the facts of this case and i guess i can stay with you through the california supreme court and i hear what you have to say about the first california court of appeal petition i got a real problem understanding going back of the california court of appeal again having already been told untimely and merits you lose to go back to the same court and knock on the door with what is essentially the same request having already been told you're untimely and sort of like all that the second time around he's going to be told he's on time leave which he was so i understand the dilemma you raise that says what's he supposed to do maybe even leading up to number three expresses in greater detail why those attorneys were effective and this petition the fourth one attaches as an exhibit for the first time attaches a copy of that letter from trial counsel that says you have to exhaust traditions and issues in the state court before you