make a case for exceptional circumstances and he has done that petition has documented that the actual audience extraordinary circumstances the state and his way of state action and  statute of limitation grounds this amounts to extraordinary circumstances i'm not saying it's malfeasance by any means but it was an advertisement it was neglect it was a mistake because what before that what happens that the state failed to obtain the complete record from the trial court including obtaining the delayed petition for review that the petitioner used a vehicle to say i have to satisfy the exhaustion requirement this led the state to misconstrue the procedural posture of the case and applicable law here's here's a problem i have with your position you're taking on behalf of me just in the fact there's nothing we can do about it the question is what's the consequence of human errors tells us that the law has changed and the fact that the arizona supreme court belatedly decided to hear the appeal on the merits means that the statute is told such that the statute limitations them star to run from the last day that they are now previously there not been a law he does not seek reopening under rule sixty b for i think i think just a little over five years after him and  ok why not because the courts and the sneak told the diff told the petitioner that his position his interpretation of the law was and correct he is incarcerated this is not this is not a matter of course ignorance this is a this is a point of law that petitioner and the petitioner was able to read the statute this is this is what it says he comes into court and every every level of every level he's being told this is you are incorrect he has no way of knowing that the supreme court issued a has had to address it a many levels that does not make it when you enter potations you know ok let me ask you this on page twenty six of your brief you quote some quotes from writing from your client who recounts that he learned about him and his case in talking to a fellow inmate in around may of two thousand and fourteen and so on tell me how that got into the record because i was i was looking through the papers that i had and i couldn't find it but i'm sure it's there it's on the docket and so i just help me understand where that he is on the record and was that in front of the just record and what form i don't have everything in front of you just give me a general idea but this you know made this made this representation during the pleadings that he was filing in this record so this is this is in the record before court i don't know exactly when you felt it might it probably was in his reply to one to the court's order and you and you give me a documentary on john but this information was in front of the district court yes it w what i do want to point out is that the fact that the burden the defendant the petitioner has to move has to meet is extraordinary circumstances the diligence issue does not does is not necessarily  that should be help to to the same level as the different being able to meet the actual extraordinary extraordinary circumstances test because what we have is that in this case in this case because it is not a procedural issue diligence is not measured by the passage of time you can only be measured by actual knowledge this is what this is what the district court actually  that you bring this issue up a second time he says is this what you want us to consider to justify or explain extraordinary circumstances no extraordinary circumstances is based on the state action error occurred when the dish record says i don't have the whole record record but at this time i go i'm going to rule against a defendant the statute of limitations so those are what this is a this is kind of  and again for sixteen years and here we are today and the state you still state still says that the case is decided after the decision of petitioners case constitutes ground to basically keep to keep the courthouse close to good morning your honor my name is adele ponce and i represent the state of arizona in this matter the dick district court did not abuse its discretion in finding that the supreme court decision and heaven as versus quarterman issued five years prior factors the factors are not rigid no i understand that but i'm just trying to looking at that factor itself i think the judge has made a mistake that doesn't necessarily mean that when you look at all the factors the answer has to come out there the way in mi not it's not an abuse of discretion for the court to determine that the fact that the parties didn't rely are that there is no change and the status of the parties weighs in favor of the status quo i mean i think that's not an abuse of discretion the part of the court to say with but that misunderstands that factor mean if you have a state of affairs and the parties change their position reliance on the state of affairs that's a reason to leave the state of affairs as it was or we all understand that but if nobody did conclusion in weighing all of the factors and i think the more important factors are really three other factors that were certainly the first two that were emphasized by the petitioner and the third factor that really wasn't discussed much which is appeal he'd never had his appeal heard by the texas court of appeals the court of appeals hadn't decided his case are looked at the merits of his case and the texas court also explicitly stated that it was resetting essentially all of this post conviction deadlines in that case i think in this case by contrast the petitioner sought permission to file an out of time petition for review it asked the court of appeal he got the urls on the supreme court to denial it was a summary denial but you have to hear it i mean consider it before it could be denied so maybe it's more accurate to say that the supreme court considered it denied review it didn't  procedural basis it simply denied review it didn't review it so it didn't deny it on any sort of merits it didn't consider the case it didn't exercise its discretion to review it  maybe were mensing words here but we have petitions for review all of the time that we did not that doesn't mean we didn't consider the petition that means that after consideration we deny review well not in i think this court though is not a court of discretionary review for the cases that come up from the district court the arizona supreme court though for criminal appeals is a court of discretionary view so it's more like the united states co perfunctory one sentence order or something it was a perfunctory one sentence order denying review but is there a distinction made between procedural denials and denials that is i think exhibit eight and the supplemental exercise record exhibit  ok now i understand you contesting the point i may end up reading this differently but assume for the purposes of my question yes that this was a route that restart limitations ground cases from the ninth circuit at that time held that timely state court proceedings could not restart the statute of limitations once expired there were district court reads the arizona supreme court action the way i just did in my pathetically deemed timely human as was not decided at the time right and he weighs that factor in favor of reopening but ultimately he finds that the long delay between the time the petition was initially dismissed and th petition for reopen was filed petitioners lack of diligence and the fact that the original let's talk about lack of diligence there are two reasons for two periods the first lack of diligence he so let's take them one by one is the first period is his reason given insufficient to justify the way i think the first period is not really relevant to the question of diligence that's at issue in this case i think the second factor here  that the time of the dismissal of his initial petition petition that was in two thousand and it was affirmed by this court in two thousand and two that's after the initial period you described that's the that's the third factor  another after all the fancy talk is done he never gets his he heard on the merits now we all know the most he was petitions are losers i have no idea whether this is a loser or not but it may well be but somehow someone looking at the system from the outside sort of going through this to say you know this guy just never got a break and because of the procedural things and because he was in prison where he was going to get killed with the other papers caught and he was found in his cell well too bad you're out of luck you might or might not have a good reviews but there were never never going to get to the merits that just doesn't strike me as a good system and i'm not sure we're required to have our system operate that way particularly under  are all sixty provides that a petition has a motion to reopen has to be probably thin a reasonable amount of time in a district court here didn't abuse its question in finding that this five year delay was not a reasonable period of time i think if the court if there were simply as petitioner s when you find out about the case then that allows you to file a motion to reopen there would be effectively no limit on the amount of time that the passed before petitioner could bring a motion to reopen or focused on the reason for the delay between him and his being decided oppose will will reopen and i don't think so why not because the rule requires that it be brought within a period of time and i think the district court would have had to form its own independent  if you what if the state i'm not sure i'm talking to you personally what if the state had said when the sixty motion was filed we don't oppose we're happy to reopen but we're quite content  i suppose we could have done that but i think the court would have still had to make its own application of the rules to determine whether the circumstances warranted reopening and here they didn't and i think it also bears noting that the petitioner you know really focuses on the fact that the state initially filed a motion to dismiss in the state of the record that was before the district court that initially dismissed the case but i think on page one of its reply brief it just sensually admits that  him and his versus quarterman doesn't provide the research on stances necessary to reopen this case i think its focus on this part of procedure is really misplaced for a number of reasons first those issues weren't before the district court that analysis where you would have all the factors sort of level wow the phelps doesn't provide that each of the factors is weighed evenly i think the what this court has to determine is whether the court reached the wrong conclusion and weighing the factors well what if we say yes you know you reach the wrong conclusion the factor number three right but then i think it would have to look at the remainder of factors and find if the weight of its overall its decision  the law as it existed at the time i mean as the district court pointed out this court had affirmed the dismissal cases from the ninth circuit at the time held that timely state court proceedings could not restart the up a statute of limitations and all of the other circuits that specifically looked at whether or not time appeal could reset they have a statute of limitations held that it could not i think petitioner really narrowly and rigidly reads this factor to require a supreme court decision that directly overturns ninth circuit precedent that was in place at the time of the dismissal i think this narrow reading really turned on its had given that g filing his petition for an out of time appeal he explains the reasons why he waited six years to do that he explains that he was under darius that he was you know worried for his safety in all of this but that when it comes to explaining the five year delay in filing the motion to reopen pursuant to him and as even his explanation that he provides essentially amounts to being told after the five years after the decision came up that he became being told about the decision i mean those are the kinds of details like the ones that he provides accounting for the reason for the delay it's simply oh i didn't know and someone told me about it or you know about it but i don't understand why the judge says he does not i can answer that question petitioner gave this explanation after the court issued its ruling so the court issued its ruling and and petitioners  objection to the report and recommendation he lays out what the facts were petitioner was what was proper he did not address the diligence as deep as detailed as he does when he files his objection to the report and recommendations but this is not i didn't read from the report recommendation imagine i read from district court order well what then i don't have i'm sorry i don't have it in front of me i know petitioner every time the court rules he basically goes back and he says what this is the case so he fleshes out after he receives the court order so this is what happened this is what happens in this case every time the court says what you know you basically didn't do this it goes with the second i did do it and this is what i did so i'm very sure about fact that he did tell the court i found out about this and now i'm here then the course says well you but you didn't i give me enough information and at that time petitioner responds basically this is what happened i heard about it  may and i filed my motion and i from a motion i believe in through two or three three months afterwards so the court that i have the court did not have petition a second motion before it when when happens is that for now a t v does not turn on what the court does with its foot for now a t v occurs when the judgment of conviction has been rendered the orville ability of appeal exhausted and this is what petitioner did he