his case diligently and that some extraordinary circumstances stood in this way it's clear that arguable polling should be applies very much but it's also clear that one of the limited circumstances in which it has been applied are cases in which the prisoner is legal were destroyed i'm not sure there's a specific reference that establishes that but to me i've always understood it that his transcripts his files his the decisions everything he had were removed from him so he had nothing destroying destruction the charles is no longer a reason for not filing at some point right correct so he does cry i state hey b s or something some point pile on well first you file the federal i that declaration within weeks he filed his federal petition about maybe that was misguided as the magistrate pointed out he could have filed his own declaration but it isn't a record when when the state supreme court said we don't have the we never got it can't be right because they acted on right now i don't know whether he has a right to get his papers back or not have his papers back or anything like that but to dismiss that presented to the district court as a separate reason for a new tolling period letter to the state supreme court i can't proceed any further in federal court until i get my copy back of my soul petition so we don't know was there and yet you're hearing all this well all and all but the stock that question crews up right it proves why i didn't file his federal second federal petition on a timely matter i didn't believe i could file a judge until i had proof that my materials were lost by the prison i'm saying it is a prisoner but no one's going to believe me and so he goes off on this year long venture to try and finally get the warden who finally does say he supreme court's denial of a titian for review on direct appeal becomes final on february fifteenth two thousand and one correction officers inadvertently threw away  proceed anyhow and what he did is he filed a petition in the orange county superior court first there is a memorandum of thirty three thousand just yet included all the issues that state court of appeal that was the night then everything was filed again in the california supreme court that was denied that the money lost they did not lose it embarrassing and i offer them and then the next thing that happens when he writes back and says but you must have because you know my math they don't bother to answer but i don't know i district court on a telling question no there was not some we don't know the answer to these questions because nothing is really high and well there are some questions that are a little significance that to which we manage to get a very unusual declaration now he could and the truth probably is that if he had filed a timely he would have had a harder time having anybody  filed the petition in the district court in a timely manner without the supporting declaration from the warden and the obvious he answered obviously yes because he filed somewhere petitions on how much your theory are and in my supplemental excerpts of records i included the whole situations filed in the three levels of state court there's a memorandum of thirty three pages that went t his opening brief on direct appeal and that was dismissed by the district court i was referring to what he filed in these three state courts are he views corpus and if you look in the supplemental excerpts of record you can see that he present california supreme court had he been able to demonstrate why it justified a fourteen month delaying heiling but there was no hearing about there was no need for a hearing because petitioner demonstrat from the california supreme court actually does file yes the district court says that's too long but there's no record about what went on in those fourteen months i would point this out the war court to turn over any material that was the cause for the delay because we have the warden signing the declaration on july seventh suspect institutions being signed being submitted on august first of two thousand and three that  and in fact in the petition the allegation is not that i couldn't a filed earlier because the supreme court didn't give me back materials or couldn't find materials the only allegation to justify polling is the warden didn't sign the declaration but we weren't legally compelled to object but that is the position that i took in this case that the petition was untimely despite the fact that the state first destroyed his legal papers constitutional rights and the state's position is that doesn't matter if your constitutional rights are violated so what because he made a mistake and in that legal analysis which  not particularly qualified to make and instead wait for the war because he did that he should never have his constitutional rights ensured but when the street destroyed his property and the state supreme court treated them as done that he would have a right to have his constitutional rights determined in federal court if you complies with the statute of limitations yes if he doesn't know and he didn't comply because i made a mistake thinking that he had to wait for the problem is that he still could have filed the petition that second petition in a timely manner and did not use a thank you