below and even to this court has been an equitable tolling there's been a recent decision from this court decided when the past week that changed the dynamics of this case somewhat of submitted twenty a j on it it's gonzales versus sherman he said it was decided last epa time clock for votes successive petition purposes and for at the time that's going to change the timeline that this court is looking at for the act will tolling framework now it may not reduce all of the need to to have time but it may in fact and it's certainly sort of the are you guys that story telling you got a three year period that you need equitable polling for this is actually right maybe not now so well can you help me with the math assuming gonzales controls and the clock starts at a later date then what was in the record what's the difference here the complications of the new amended judgment was entered on november the briefing because of course the state of nevada should be able to weigh in on this decision on this case but the writ of mandamus and the pros say pleading canons of constructions and such should have been construed by the state court as a corpus especially given my client's well documented mental health problems mental deficiencies legal blindness and such of the in the state court was aware of that so that would factor into the proceed pleading evaluation can you give me the date on which you file but i know within the record the federal first federal habeas because the first federal a v s petition was filed in two thousand and fourteen that's what i thought well but there's a lot of litigation that goes on right after the but it sounds to me like he's still going to need it equitable tolling to get him over the maybe the other factor that we have here that's been more starkly presented by the new case is statutory tolling under twenty two forty four d one b which is an impediment to filing and one factor of this case that we've extensively focused upon is that mr shropshire was still extremely diligent in the trying to litigate this petitions in state court when he should have been filing something in federal court so doesn't that that caused this case to fall within our per ninth circuit precedent where we look to contemporaneous actions in the state courts that's an interesting point and what i wanted to address it's been dispositive in several of our prior cases mr karr arguably just positive it is a strange factor to look at it seems to be that the cases say that if you actually file something albeit late then it's not it wasn't an impediment to you filing which if you think about it logically doesn't make it a lot of sense because perfect sense to me because you'd have a much better case if he'd done nothing but the peak is then you could say well the reason he didn't do anything was he was in administrative segregation in the ward and when him access the post office box or he's mentally ill and didn't know anything about what to do the problem is that he's doing something he's doing it in the state courts and the federal courts well if he was never if he was so mentally deficient he was never able to file a thing of course we would never be here and i imagine that there are hundreds of people who are lost in what you're making and i'm of entitlement to equitable relief which means you have to show extraordinary circumstances and another distinguishing point your honor even if the court doesn't want to address the he actually filed something argument is that it's not just the lack of ability to get a file or mental health here it's blind and i'm overlooking at the top we're not looking at was he never able to file a thing because the course as i said we wouldn't be here at all it's whether the delay is reasonable i didn't we thought we had a one circuit case dealing with an intern petitioner who didn't speak english and we look to the fact that somehow he must have been able to either find jailhouse lawyers to help him or somebody was helping him translate so there's no showing here to support a claim of equitable relieve that blindness was an impediment if he was in fact blind you would have some difficulties as a litigant in this context by relying on one factor solely if i was here arguing that lack of file lack of his mental health record solely that would be a problem if i was arguing for is that he doesn't have the burden of proof in order to establish extraordinary circumstances and i believe we met that bird are least enough to trigger a hearing which is essentially what we were asking for to explore some of these issues and that what we've there are things that we still don't know like the site gives and ruden recent court cases from this court which talks about attorney abandonment the difficulty of filing a petition if you don't have access to your file we don't know here to the extent  and my client was actively trying to get the courts to give him his record to give him some help to assist him with this case i mean this is not a question of lack of diligence and i understand how it works against me in some ways but if you look at what he tried to do before he adding a law clerk assistance the first petition he filed which was in two thousand and ten the district court just dismissed it out of hand and said of this is this is conclusory doesn't really say anything so this argument that even if you're mentally ill or you don't have your file if you just go ahead and file something well that's what he did and that was it just the state court just blew my water on it doesn't the record before us the transcript transcript of all the proceedings support mental competence oh yes i has a very strong record on the income yeah so after the treatment and all in the state proceedings we don't have any incompetence on the part of can waive your constitutional rights would be a higher threshold in my opinion secondly the lake's crossan reports i don't think you've answered i'm just getting to explore ok go ahead and accept a record volume three we have the psychiatric reports and even the reports from like crossings which is the facility in about a week they send people to regain competency they say he's competent with the cabbie that is treatment must continue his medication or she has medication would be all right right but the problem you have is that the state of the record is that as of the time that he was sentenced a determination had been made that he was restored to competency and there's nothing in the record from that point to the present  suggest that somehow he became incompetent again i think i think that's what the thrust of that's the from my colleagues question right what the dusky standard is not the governing standard to determine whether somebody is suffering from an impediment such that it impacts ability to file a timely state i thought is he saying he didn't have access to his prison health files i mean could he not have produced some suggestion that he was having mental competency problems after he'd been restored to compensate he's been in custody the whole time as you know well there is a yes so there is a we made a record to see the pleadings our opposition to the motion to dismiss that it wasn't until federal council was appointed that we were able to kill any of these records at all any of that would be the lower house or the medical or the mental health card have any anything in those records to show that he became incompetent again after he went to prison no but we did request further factual development on that issue by way of it i understand i understand i'm not sure i understand you want to hearing in order to try and see if there's something out there but you have his records now right so the prison records and they  they don't address the competency issue at all they would all they would show us is whether or not he was his medical medication regime and whether or not the the person was complying with that ok i don't know that we have anything that shows that he be  shops are says what i think i said again here was that he didn't have access to any of his files he says particularly others just quoted he says throughout the entire to stay post conviction proceedings mr shropshire never had any of the records in his case but just ten pages later in the same briefing on page thirty one mr structure says mr structure did have some of this file when he filed the state petition he just did not have all of it and in fact if you if you look at what he filed in the state court in the second his petition he actually did  federal district court and he says those were those initial competence reports so i think that's important because as i think it's already been alluded to by your honor system or in what this court has said over and over again it said it in at least two published opinions and it said it in many unpublished opinion cycles public opinion says that if you have the ability to make an argument but you don't have certain materials that would help you in bolstering that argument supporting that argument but if you have the ability to make the argument you need to make that argument on time and and then you can supplement it later this court said that in waldron ramsey in a public position in two thousand and nine the court said it again and ford versus plyler another published decision and it relied on those decisions multiple times i've got a list of them here  bert versus marshall banville us williams versus ochoa all these unpublished cases i think you know i think in part of the briefing there was some discussion of well these are you know these are all published cases i think the reason or so many are published cases is that there's two published cases that they cite too and it's such an  uncontroversial what we don't do we generally don't publish of the law is clear who is already it was by the prior published exactly your honor and here's the problem that mr structure has and i think this goes i mean one of the odd things about his holdings it's a little bit of a moving target if you read his reply brief he starts to really emphasize well i have i have mental health problems and he's got blindness was kind of throwing it all into the into the pot but i don't think it helps because the problem is there's sort of a essentially tolling as i think a causation standard you have to be able to show that whatever you're pointing to kept you from being able to do what it is that you that you are being able to file on time and the problem for mr shropshire is whether you point in the blindness whether point  thousand and thirteen filed in two thousand and fourteen both his pro se federal petition and his pro se second state hate his petition and ultimately i think what this court is is saying so so without getting into you know the details of his mental illness argument and and his other arguments i would say the problem is god is that you can't prove that you're unable do something that you did that's the problem is god that's what this court has said multiple times and in cases and i think that applies i mean the cases that i cited to apply specifically to a situation here where you're pointing to certain documents but i think it would apply with regard to whatever your argument was that you were saying you couldn't you know that you couldn't follow in time i'll turn to the actual innocence arguments if if the court doesn't have any for the question on i think he's got three serious problems with his actual innocence theory one is mr shofar does not even try to show that he's actually innocent of kidnapping for all eleven of the different victims slash incidences of armed robbery that are actually charged and the information he his whole argument sort of predicated on the false factual notion that only one case was tries to tie it up to this is a wayne and that's his argument i didn't there's no way i actually kidnapped that guy but the problem is it doesn't match up if you look if you actually look at the excerpts of record eighty six or a seven it's not just mr so when's the first name but there's there's if we actually says and this is helpful to something i notice just just a couple days ago the first the kidnapping count applies to all of the named victims the state would show that the defendant held against the will of one or more of the victims named in count one of the information is just and that information i just he says the state would show that he held at least one of them so he's saying that we're not going to say so i don't think it's quite a fictitious play here i think what he's doing is something i get the point that ok that's what he's doing and i this really because that's not that's not what he's are you saying what i can show that i didn't do it was doing it and i think you have to show it with regard to all with regard to all eleven and he hasn't even tried to do that you know so that's that's the first problem and that actually addresses his mendoza argument that he says also because he says well i can't have been guilty of both robbery and kidnapping for the same person under nevada law but the problem with that is that's assuming that he actually pled guilty to robbery kidnapping with regard to one person in one incident and again there's a leaven different incidences charge in the information for both of those counts and so he would have to show there's no reason for this court to soon that it's the same incident and he could be guilty of robbery of one of the people and kidnapping of another of the city but i thought i thought he was charged with eleven separate counts of armed robbery and one count of kidnapping in connection with one of the eleven robbery if you look so i think initially he was just charged with a bunch of robberies and then what happened is on the day of the plea they charged our eighty six experts record eighty six three seven they actually filed a and information with the court then you see it's file stamped and it's actually has all eleven of those incidences as and that's that's basically that's why and that's why in answer just fletcher's question i don't think it's and i don't think it's a fictitious in the sense that the prosecutor was thinking recently so i think that hey listen we have eleven robberies where the guys hold somebody to gump well designed or said the fictitious is related to the asportation element and the defense was waving any challenge to that element and that's what i understood fictional to mean in the sense that there might be a legal issue there as to whether the victim clerk was moved a sufficient distance and he did say that but then he goes on to say but i do think that with regard to one of these eleven incidences all of which are as he specifically says they're all named all of those eleven i could show i think if we got into the weeds i could show that keep in mind for kidnapping in a vat all you have to show is that he said don't move right that's kidnapping or you move over there that's all you have to show and keep in mind that you know might be a problem with a robbery and a kidnapping but he what he's saying is listen i've got eleven essence i can show robbery with one of them and one of the other ones i can show kidnapping what about the fact that had he been convicted on all levin the court could have imposed consecutive sentences  therefore they are more serious in the sense that the plea allowed him to to enter a plea to kidnapping and robbery with while armed with a firearm and as i understand there is a sentencing and handsome for the firearm under you know about a law that requires a consecutive sentences that's right your honor to be to be fifteen one to fifteen years on the robbery it would be essentially two to start to fifteen years on the robbery and one the fifteen on the it would have to be you compare you take a practical approach as you compare them to the maximum possible sentence when you aggregate them thank you well let me ask a question just before you as i understand there's separate indictments let's call them eleven accounts are separate crimes and what you did with the prosecutor did is they pulled all those together on the one criminal information that's correct he pled to that one single document charge or proven less like one asked what taishan that the prosecutor was not saying we made it up he's saying that you're saying that he has to disprove that it that it existed in any one of those eleven and i just want to make clear i'm not saying that after the fact but that's why i just no briefly did aggregate all these robberies they still have a higher maximum size in the kidnapping which is life sure they would if they were consecutive sentences you can get a higher sense a life with even i mean theoretically because you could say that the petition he might have a pretty strong argument but he's not in federal court on all this stuff he's he's he's litigating in state court but he's got a little gate the state court before he gets anything exhausted and he's doing everything he can and it isn't until last thing