the legit procedural default the answer questions about it but here's what i would like to to do if you start looking at this case with him having effectively three months lat left to file his petition and then you take a look at the law you know holland and mourns in the cases from our circuit on equitable circumstance or quotable polling they leave open and leave open some things that should be resolved with more questions and more facts expired when counsel the late italy notified the dia of the california supreme court decision and then his counsel expressly informed him that his federal petition was due by a date certain and i think it was about two and a half months away you know eight thirty for right now so i guess one of my first question is how then did the delay make it impossible because that's what  infer that he thought he didn't need to take up the cultural right at that point on his after having a public defender for a long trial paid for state of expense after having his direct appeal paid for by the state by the capital him is significant did the circumstance make it impossible for him to timely file i think that it did because it's borne out by the fact that how hard he tried to start preserving his record a month after the deadline create a spectrum of sort of sort of a kind of a spectrum of sorts where more diligence might outweigh extraordinary circumstances and vice versa but i'm curious because your brief doesn't argue the stopped clock  approach as is has been articulated in gibson and luna didn't your roof didn't really say that that applied in this case such that the  was stalled until november twelfth of two thousand and twelve and under which i guess mr ball the deal would have had until november twelfth two thousand and thirteen to file his federal petition i guess what's the reason that you didn't argue that or do you not believe the stop cock approach applies in this case it is honestly hard to make that argument credibly with the court because the state petitions he filed after his cut off deadline and so to me the fact that he tried so hard to get his record on but his deadline would have been a year if you argue i guess i'm not sure i understand wh he passed the deadline of january thirty first and then he files which could have been construed as gap polling and so i guess i'm not understanding well but there's a whole nother approach in this in this gibbs case that what would have counted the time from when he first style to be a whole year and then to show that he was diligent in that year and it doesn't look like you're arguing that i'm just trying to figure out why not i didn't think gives as credible of an argument as allowing tolling and essentially giving him back those three months or the time that he you know lapsed the important thing about the case is that considering the federal rights he's giving up severity of the case it should you know it should be seen on a spectrum as the evidence you're hearing cases that from this district are the circuit leave open and are you aware of the holland case you mention there are now so i'm sorry however versus miller i'm honestly not ok because it appears that the same magistrate who ruled in this case ruled in that case and granted equitable kaloogian similarly failed to notify regarding the california supreme court's denial of his petition for review and i was just trying to see if you were familiar with it if you've done any further inquiry to explain c what might explain mr clue she's a mission here i honestly have not that's it's good to know i would ask for an evidentiary hearing at the very least in this case given things given what i've presented and that's all i have thank you we discussed in our briefing that's just something that has come to the court's attention i guess that's involved mr kluge she's same thing same same explanation same sort of extraordinary sort of circumstance surrounding no i'm not when an extraordinary circumstance prevents a petition from probably a petition on time the clock stops and the petitioners entitled to a full year from the removal of the extraordinary circumstance to file a petition it seems like in this case it wouldn't the application of the stopcock entitle mr boba dhea to tolling until november twelfth two thousand and thirteen one year after he learned about the california court of appeal or supreme court's decision well i certainly don't want to argue too advanced argument way it's not something that's been articulated by well it's not that articulated in the briefs well but it's a legal question i think that's important so skin if you could answer it i appreciate it well my only my only understanding of the facts here is that there was no obstruction created by the state that was preventing him from casey actually didn't tell him until after the deadline had expired me that that this tape titian for of you had been denied and in that case the petitioner and his family had actually been contacting his attorney several times to try to inquire into the status of the  reasonable person or isn't told to rely on counsel to inform him when state court issues a decision correct no actually i disagree i think that's exactly what was held in instead case i know that his family was contacting the attorney and still just as kaczynski said that there was no showing he didn't just try to contact the california supreme court's check on the status of the case so no i don't agree at all i think the case law is clear that you can't just simply sit back and assume your attorneys can tell you no problem man or i would also note that that banks versus walker case also cites the third circuit case th just cited what were the time lags involved i don't remember exactly the specific time lag but in thanks for says walker the deadline is actually expired on of the time that something how long was the petitioner waiting for a decision from th at i don't remember offhand but seems to me that's the key fact in every one of these cases surely if you're if you've waited ten years for a petition for review to be decided and you haven't done anything to inquire of the court or of your lawyer everyone would agree but that's probably not showing diligence but here if i remember it was only a year or less hope well it depends on i mean the petition for of you is about september twenty sixth two thousand and eleven ok so maybe have a year until he f assume that it might take roughly that long for the california supreme court to act on the relevant filing there's no obligation for the client for the petitioner rather to check in with a lawyer every week in it or check in with the court you can your title to rely on your lawyer to let you know of significant development developments in the case aren't you like but i disagree i think bang for banks vs how long was the delay there i apologies then if you don't know then you can't rely on that case because if it was five years then fine that's totally distinguishable now if you're going so mean the delay there was only six months then i might listen to you but if you don't even know the the time period i don't think you can invoke that case is controlling your well i do think that case is clearly on point saying that it's not enough to rely on your counsel yes i think the case law is clear that it's not enough to say counsel didn't notify the petitioner i think yes whether it's banks versus walker or with caba yes i believe this case is clearly said t petitioner can with what's too law were too weak where's the cutoff i don't think that's a question that needs to be decided because what has to be shown is whether there is an extraordinary circumstance and whether the extraordinar circumstance prevented the filing right so are you separating out the cert a certain extraordinary circumstance or are you incorporating the any time that might have lapsed into the extraordinary current circumstance i'm trying to understand your your approach to the extraordinary circumstance which would come you know allow or one of the sort of significant factors toward equitable toll so there are several factors they have to be viewed individually the facts tend to  i thought you were saying it was controlling this is an unpublished district court decision that our colleague judge kozinski authored when he was sitting by designation it has no controlling effect on our decision here and it's actually i just read it and it's inconsistent actually with our controlling circuit law the point of law that you've just invoked you're right that is what judge kozinski held here but it's not consistent with our subsequent circuit law so if you're going to invoke a decision again authored by one of our members at least tell us that it's a district court decision and it's not binding ok i certainly i certainly apologize to the extent that i was misleading i have provided the entire site in my brief for that case so i certainly apologize for not providing i'm just telling you the legal principle that you can vote from this case is just wrong it's not it's not our circuit law so everything that you've been arguing in terms of the framework that you have this question of judgment is irrelevant know if you're familiar with the case of we's are versus kerry not hand is that something that was in the brief time we held in that case without reservation that twenty one months was not an unusually long time to wait for court's decision a california supreme court rule also provides that the court will promptly notify the parties of his decision i'm just trying to figure out why doesn't compel the conclusion that acted with reasonable diligence in waiting one year for a decision so no one should incite to banks what is your response so my response is it's not simply a question first of all the ultimate question is whether he prevented him from filing his petition i want to make that clear the ultimate question is whether there was an extraordinary circumstance that prevented a timely filing he was paying for a lawyer here in this case who did not tell him when the supreme court most a year afterwards when he told them about the supreme court denying his petition and it seems like as you know shortly there after he made some steps if i understand this record correctly by going to the state and trying to find for file his state hey b s he did something in february i believe it never was actually filed but he in his declaration and i think he may have submitted one other crop or any sort of piece and then he did something else later to that later from that and so i guess in this circumstance i'm just trying to figure out there's a lot of moving parts here one is but he doesn't file and in that time he doesn't fall federal titian till november seventh twenty thirteen about a year later he has to show that extraordinary circumstance cause the late filing and can't under the  gives me great pause because in the case of hubbard the court granted equitable tolling and i'm just trying to figure out how we reach an inconsistent result here i mean i know you probably haven't read hubbard but the facts are nearly identical in november of two thousand and twelve mr culchie sent a letter to mr hubbard informing him of the california supreme court's decision returning his file and advising him that he had until january thirty first two thousand and thirteen to file a federal a petition and in that case mr colludes the same lawyer similarly blamed his delay on an office move mr hubbard had done nothing to verify the status of his decision for the how do we say in one case that that was did constitute extraordinary circumstance another with almost nearly identical facts say doesn't i apologize i'd not familiar with hubbards on that prepared that's the last in time and in light of i guess weezer which i was not aware of you have a twenty one month gap and then in light of the judge's comments from the center how do we reconcile this with the same defense attorneys if the right thing to do is to send this case back failing that i would ask that the that the court keep this open just briefly so i could submit some supplemental briefing specifically on hubbard