on a decision to deny release that sentence with a new injury and mr broader than diligently pursuing a challenge of it and i see ninety nine and he should be entitled to have the merits of this claim reach ninety because he may have had a similar claim a ninety ninety five and that position is is wrong because it fails to acknowledge that there was a new injury with the ninety nine hundred ninety nine decision  what element was present in nine hundred ninety nine which was not known or reasonably should have been known in nine hundred ninety five there was a several different factual they had indicated that they only wanted a six month period of active supervision to the legislature in one thousand nine hundred one said we think that we should have for all the criminal justice procedural protections when our parolees revile eight they should be prosecuted and sentenced based on their new crime they shouldn't be prosecuted under relaxed standards of the prole board and say prison based on a parole violation so that's that was the basis of the one hundred eighty one that you tor in the rules interpreted in green were nine hundred eighty five rules and while may be similar in purpose they are specifically distinct in language and they talk about a can they return to the term conditional discharge they don't use and they don't use language of eighty two rules that clearly and unequivocally equate active supervision to a discharge discharge as we know by the oregon court of appeals and davi we can get to the merits we can go back to the district court or if you're prepared i think we're ready for you to rule on the merits as well perhaps in court green court number one green court didn't interpret the same will happen in court neither the green  thinking however that perhaps you still reason that you made consider whether the statue limitations is grounds on suppose the district court's decision so i want to go back to that for a minute and clarify for you in case days parole revocation because of substance abuse at that point he knows that at least the state is taking the position but he said trip for parole he thinks he shouldn't be subject to injury that he had seen scientifically but it wasn't the same injury just doesn't johnson he can't be obligated to act at a time when he had no real incentive revocation sanction he admitted he really had a revote he had violated his parole he's not going to review of that necessarily are you saying that he agreed to undergo one hundred eighty days of revocation if i understand your point there's no reason for us to speculate as to whether or not he actually obtained a bargain from the state because it decided not to prosecute him for that we don't know that there's no facts in this record and i don't think it's appropriate for us t what what's important here is that there was a new injury and at that time he still had the right to raise the jurisdictional issue the incentive doesn't change it does change i believe because it changed well if it does had no counsel but it wasn't until the federal prosecution that he could even be deemed to have an interest in doing so because of a sense of or a new injury and that's what the supreme court said why isn't why doesn't he have that same incentive motivation in ninety five he's facing one hundred eighty days he's facing given his history the continuation of parole in the possibility of being hauled in yet again in the future even after the hundred ninety days is gone i don't think suggested in our brief that he could we don't have to second guess in this case whether he might of one of the resources of the state that he can he can he can choose  want to have him perhaps live in the fear of being being incarcerated again but under the rules at the time he knew that the that the board's matrixes if you was going to be revoked he was going to get his ninety day or one hundred eighty days sanction it wasn't until they actually impose a sentence even even greater than the minimum terms of sentencing judge recommended that he had reason to act on his new  maintained whether he had enough time in order to file actual federal haydee a suspicion while he was in custody i think that was still a little bit unclear as to whether or not you actually have to file wire in custody and then  not become moot because you still under supervision but definitely under oregon law there is an awful lot of confusion about whether he could even raise the board failures discharging on parole on the ninety five revocation decision judicial reviews in the court's decisions and i really release what should be a bottom line and so far as you can see i think you should recognize its real core in johnson and said that the triggering event is not is not when diligence starts which i think is the distinction with us on assignment suggest that the triggering event is when the petitioner could have determined what his counsel failed to investigate which was that there was jurymen misconduct the triggering of that is when the claim arises period you can you can look to see whether the defendant was diligent and getting there but it doesn't arise and i mean it's special not trigger until it arises five the board continue to exercise this recession including another revocation in one thousand nine hundred nine now the difference there is that the board at that point after six or seven revocations and sanctions are of lesser amount of time decided we're done with this guy we're going to deny re release and require that he serve the remainder have a sentence at that point petitioner went whoa now that gets my attention well the factual predi not when the sanction a serious or serious enough to get his attention it's when he knows the important facts in this case based on his claim that the board was continuing to exercise jurisdiction over him now and petitioner twenty start for in the footnote where the state talks about the johnson case the supreme court held that the requirement of due diligence must demand something more than you know diligence at all if the if you've waited to raise your challenge you know in your state court proceedings it just doesn't work work like that and that's exactly what happened here he waited for an additional at least four credible based on the record and the record clearly showed petitioners lack of credibility because in state court what he said specifically was not that his parole officer misrepresented to him that the board was extending  but in his state proceeding he claimed that his parole officer had not provided him with notice that his parole had been extended so it was exactly the opposite and that he told the state court that he was telling the federal court and based on that inconsistency on the record record twenty five so the district court can certainly make a finding of credibility based on the record when the record clearly shows that he told the state court an entirely different story than what he told  so there is no basis for example following plane there was no reason why he couldn't have pursued a plane the claim he raises and regarding the merits of the claim i'd like to this is a haskins claim we have seen these claims over and over again it's the same claim that the state courts rejected and haskins and thomas and what the what the state court said and haskins and again and thomas is that regarding that recommendation the boy was under no obligation to follow the parole officers recommendation but could and then issue a certificate of just charge the board had to do all those things and in addition the board had to be satisfied performance was excellent and there was no basis at all a fall off for saying yes yes he's a good he's a good guy and parole should be just why didn't the board actually or you know your honor i don't know the answer to that and i don't know the answer to why they didn't ask that the board already is the maximum state of the sentence and to clear that up as well that was also a confusing issue and again that's why i cited green versus baldwin in the twenty three letter law about periods about this or provision the term of parole and the sentence so green makes it very clear that the thirty six months and those rules that we're talking about is what the board can do five rules were not the same and something else happened in eighty six that's just incorrect as a matter of state law and i would refer the court if there are any questions about the rules to the haskins decision and the green decision which support found because he told a different story the opposite story and so he's not even if the court were to find his petition was untimely he is still not entitle to equitable tolling based on so that's important as it relates to the merits state board again continues its its game its shell game we've complained about this  required under the rules he's not taking a different position it was a pleading that said i wasn't i didn't get the notice i was entitled to under the rules he wasn't saying my parole officer never and i never discussed the fact that i you know