corpus races gross inadequacies of his trial counsel however as laid out in my brief submitted to this court before this panel can even begin to consider the claim of ineffective assistance of counsel that mr anderson raises the court must first determine whether or not the statute of limitations is laid out in the way has been fulfilled or not  we raise several issues as to why mr anderson's petition should be deemed timely the first argument that i will begin with is the argument that mr anderson's petition was timely filed under twenty two forty four d one a which states that this one year statute of limitations doesn't actually begin to run until the lower court decision is final  this case the facts will demonstrate that mr anderson was convicted and sentenced by the trial court he then timely filed an appeal of his conviction and sentence with the ohio court of appeals and opinion affirming his conviction and sentence was issued in november two thousand and eight whatever his appellate counsel failed to notify him of the court of appeals his decision he did not learn of that until he on his own discovered the opinion and finally received a timestamp copy in april two thousand and nine and once he wrote the being time stamped by that you mean date stamp so he knew when it was issued or what's the honor but he raises the i think it's april twenty eighth of two thousand and nine is the date that he actually received the opinion that he filed a notice of delayed appeal with the ohio supreme court which was ultimately  mr anderson once he learned of the court of appeals decision april two thousand and eight acted diligently in proceeding with his appeal about how diligently that he acted after he later point yes your honor you say you act yes and the argument that we had in that is that first of all under do you want a we're arguing that the motion for delayed appeals here is part of his direct review i know that there is cases i mean we have case he then goes on instead of filing an appeal of that decision with the with the supreme court of the state goes on to file other collateral relief a tax there is things go through that process doesn't get anywhere three years later he then decides to file a motion for delayed appeal with the supreme court for the state in that case that is different here because first of all mr anderson preceded immediately after learning of the court of appeals decision to file a motion for delayed appeal after he learned that he didn't file for any other collateral really in between there to see where that would would be the same if he had waited three years before moving for direct appeal i think that i think there is a distinction to make and the reason why i say that is in the police response brief they cite to the keeling case that the defendants motion in that case which was a motion to file a late appeal because he didn't actually learn of that a decision until a later date after he could have filed for a timely appeal of the court of appeals decision in that case they said that was part of direct review in the distinction that they made was that there was no other relief taken by the defendant in that case in the interim might end up saying it's one of the other and if we say it's one of the other it's probably no because sure my question that that's what we think it will really examine your arguments assume that's what you think yes i mean the same that's what we think which is that that's for purposes of this case collateral even though we understand your argument but yes then my question still is was how do you get around how diligent he was when he waited nine months eight or nine months ye ok yes why was that diligent for several reasons the first is that because he reasonably believed that this was part of that his direct appeal as per the motion for delayed appeal as part of his direct review and that he therefore was timely filing his petition not even nine months later within the one year statute of limitations because the statute of limitations he thought didn't run until the ninety days expired for filing a petition for writ of certiorari supreme court have sought petition for writ a certain friend of the supreme court even if he didn't before the one year even started the second is that under twenty two forty four d one his argument is that he didn't even if you find that it was a collaterally if the motion for the leader healed that's correct that he thought that he was still timely filing this because he didn't actually learn of the court of appeals decision until he got it in two thousand and nine and i'm asking about two hundred ninety one days that didn't have anything to do with the previous delay and he well he can add in reliance that he was well within the one year statute of limitations explains that although there's a difference between diligence and making your own interpretation of the statute and waiting until the end because  ohio supreme court denied his petition on july twenty ninth ok at that point he had a minimum of three and a half months and probably five months to come for all of those and potable reasons do you have any cases that say that the i mean the general proposition we have here is the person the technical physical sense had the ability to file within the one year limit and he didn't do it yes the reason that he didn't do it was he thought he had more time yes for reading that's crap you have any cases that say that that's good enough to be the kind of due diligence that you need for equitable tolling because it's not just kind of ordinary due diligence it's part of something that is sufficiently important yes you're i'll let you  you please the court my name is mary and recent an assistant attorney general and i represent the warden on this action we think this is a fairly straightforward statute of limitations case here we would ask  court to affirm the district court's determination dismissing the case in response to some of the discussion that's just continued the law was well established that  senate was not entitled to an additional ninety days that his denied delayed appeal was in fact a part of the collateral proceeding we have now not just the one  the record where it was that mysterious the reason mystery and or sin was in nine months late is because he thought he had an extra ninety days i don't we don't believe that's in the record furthermore there is case law saying just the fact that you were wrong about the law does not equate to equitable tolling and be happy to brief that  i'm not going to go into the details of all these dates except to note that mr anderson claims to have received his appellate court this position in the mail on april twenty eighth two thousand and nine we don't know from what he filed in state court when he actually knew of that decision or what caused him to receive it i believe he said he got it from the court and even then he didn't file his motion for delayed appeal with the supreme court within forty five days as you're required to do so and if you're considering the smith case he he should have filed within a forty five days and didn't do it the presumption that one other thing about the dates because this ninety days to the supreme court i wasn't sure that it made any difference but by my count and help me with this  if the time starts running from no ok strike that i think i may i may now understand if he gets the forty five days that he didn't use to go to the ohio supreme court and if he gets the ninety days that he didn't use to go to the u s supreme court and if he gets the tolling while it's before the supreme court then he might come in just under the one year that right i'm believe that's correct your honor if he were to get he was he needs each of those he was slightly less than three months outside the statute of limitations when he filed his abs petition so  en he's clearly timely well the no the question point starts that the time before the high oh supreme court is told because if it's not direct then it's post conviction and if you filed post conviction then it would when it's done it's direct all the way opera i mean if you accept the theory which i'm asked posing counsel to assume that we would reject it but if on the contrary you accept it then the time in the in the interest of times as part of the direct appeal some x sternal circumstance stood in his way his state court filings are minimal on that there's a motion for delayed appeal and all it has is one rather self serving affidavit saying this is the date i received the timestamp copy of the court of appeals decision it doesn't say when he heard about it it doesn't say what he did to monitor his cases he has a duty to  do and in the district court in the petition he never even mentioned that council had not sent him his court of appeals decision he has made no claim of ineffective from a timeliness point of view he could have filed that same minimal type document that he filed with the ohio supreme court and it would have them put him into court timely right i mean it's not that the federal has some higher standard automatically did that so i'm not sure it required the law library and all these things that he says were reasons for his not filing it and by the way that's again not a basis for equitable tolling here  and finally he has raised the issue in his brief of actual innocence and in order to receive relief on that basis he would have to show new reliable evidence  and he has not shown that he brought forth a letter a letter written purported to be written by the victim that later came out at trial it was in a time mistrust so it's not a new killer question how reliable it is and in addition the facts here there is a lot of uncontroverted evidence of a brutal attack and it can't be said that no reasonable juror would have found him guilty he feels on the on the actual innocence there's a statement of it within one of the brief papers saying the d n a didn't match the petitioner do you have any idea what that's supported by or what that's adverting to if you go back to the trial transcript which we filed in the district court after the certificate of a b appeal ability was granted it was not trial transcript wasn't originally filed because this went out on a motion to dismiss limitations but with regard to the d n a there was a bureau of criminal investigations expert who testified who said that he examined the rape kit which was taken from i believe underwear and certainly here in all and bad in all areas of the victim that there was semen found there but it was such a small sample you could not include or exclude mr was he had no sex with the victim and then later on his statement was that he did have sex and it was consensual even though she's there with a broken arm and having had her head bashed in and threatened to have her children a month period for being timely and as your honour's had asked three month period when the well one year but he was late by almost three months so our argument of course is that a year plus three months plus a little right and so if this is considered if his motion for a delayed appeal is considered part of directly of you which of course is up to your honor's to decide then he would be entitled to see actual imitation occurred until the ohio supreme court finished forget the ninety days you'd still be in time right because the over at eighty days is kind of a red herring isn't it well yes in the legal point of view it at worst it's relevant a mistaken view of the law well it's it's not really a red herring because it cases point out that directory use stops after the time in which you could seek a petition for certiorari the united states supreme court so need those ninety days if the ohio supreme court is part of directory use because the ohio supreme court didn't finish until july right within a year right so presumably he would have still been on time had that been considered part of the director you are correct but the law it of course just to clarify is that it even if the supreme court supreme court would come back and said no we still firmly of conviction he still would have been allowed to allowed to that this petition was tightly filed a few other things in regards to the question about the d n a evidence there are citations in my brief and i'm sure there are as well in polly's free as to where exactly in the trial transcript that is laid out but the summary is correct that there was testimony that the d n a evidence could not include or exclude him and again i would argue of course that you take a close look at the differences between the cases that are cited that say that the clear precedent for this panel to go off of and concluding that it is part of his direct review and therefore your honor who would argue that his petition is timely and that at the very least it should be remanded back to the district court for