the district court i think the district court made several mistakes beginning with misconstruing mr grant's claim for equitable tolling mr grant is not asking for equitable tolling for the delay in the mail the district court emphasize what the what the district court did was interpreted mr grant's claim as being won based on not receiving the california supreme court's order in a timely manner that's what the mr grant to say believe was on the twenty first of november the the order came down on the twin the sixteen when he got on the twenty first back you want ok so those five days he says ok i'm not complaining about that well let me ask you this he says that he stillman the case decided by this court that immediately means without delay that's a definition in the dictionary and we know that he says that the court that's what the court used and we know he says that he's verified allegations are to be construed as being true then i rebut it but we also know and that's in the supplementary excessive record your honor we also know that he did in fact receive it on the twenty first because that's when he when he sends out this request out to the prison tru be november twenty first now incidentally you want to we're not really necessarily relying on nov twenty first we said over and twenty first is gone days gone over with we're going over my twenty second which would have been tuesday now keep in mind now that order came down november sixteenth which would have been a wednesday so assuming it was in mail and he took prison officials to process the mail on monday which would have been november twenty first they still have plenty of time when he asked for his present trust certificate to prepare the certificate and give it to a second followed with this but we don't know when he actually received the shit if we get do we we we we do know we do from these allegations a lot of what happened was the certificate was given to the counselor in december second but he didn't actually receive it until december nineteenth which is the day that he signs off on the petition merely that the certificate  second because it's just because basically following up on and say hey this is taking longer than usual can you tell me can you give me some indication where we are but so that on december eighth there was a an inquiry by him at least certificate is given to the counselor for that particular prisoner then the cancer is supposed to call the prisoner down so he can he can sign off and send a petition out what happened in this case daughter is that the casket held onto it it's also extremely risky because once you file it in the district court the district court may look at it on a screening process right away and dismiss it and once it's dismissed it's done and you have the same appeal you have now ambiguous because you have you disputed in your briefs or anywhere in my brief i think i said that he claimed in the district court to a file that about the twenty second of november so there might be one day difference ok but otherwise i am fearing that legal arguments were coming too but as far as the factual arguments we can take the date the council gave us yes you are i think that's correct good legal argument the certainly he's not entitled to equitable tolling from the moment he requests something from the prison because it's not extraordinary that it takes a few days for something to take place so if he for example asked for his trust account on the twenty first of the twenty second he wouldn't be entitled to tolling well he's never alleged that there was that it would be extraordinary for the present to take a few days but there's one other and and i believe now critically but on the twenty eighth or the day the statute the statute linspire when he expires and this is what i think is critically important with regard to correct there was some doubt in our brief about whether he had done anything to show diligence between the time he first submitted assuming that it's true that he submitted his trust to come with us and i did have a question  had been diligent between the twenty first and the and the expiration of the of his own statue of limitations on the first was the date of the first request at either the twenty first of the twenty some at the date of the first request but what we know now and no one knew before now is that when he submitted that request he believed he had at least until december sixteenth to file a timely  well i took two differences one is explains why he was casual as approach second if this is an equitable proceeding and the principles of equity seem to apply if there was some additional delay between december second which we think is already too late but if there's additional delay between december second and december nineteenth this because he told the prison officials there's no hurry  him hard well i would say that he told them that what there was no hurry it's not that he didn't press and he told them affirmatively there's no hurry but but still in any event he was already too  politician he didn't do what happened in miles which was in him to prison officials his petition for filing he's not entitled to constructive tolling or construct the following from the trial from the twenty second  he all he did was he was engaged in following prison procedures and asking for a trust certificate that took off six or seven days depending on whether the twenty first of the twenty second is the d received the notification through the mail of this conference or in courts now nowhere has anyone suggested or provided any proof that six or seven days is an extraordinary period of time and in fact it seems clear that it was havior the burden is on him to establish a factual basis for what he'd have to say what a what a reasonable period of time what a reasonable expectation is for a prisoner in that prison when requesting it and he's not and he's never even suggested that you think you think it's a you think it was unreasonable for him to wait until he got the certificate before filing yes i do fine well i mean i really think if folks don't really know that you know they could get the failure to include the check or certification of a request for employment office not in your state and so i suppose we should pay much attention i beg your pardon i think it's not in your briefing so i suppose we shouldn't pay much hearing two reasons we think that his claim constitutional claims were properly resolved by the state courts but the second is line drawing of the statue of limitations is always going to present a difficult problem because some cases are going to be just before and some cases just over the line this case this case is slightly over the line and slightly over the line because mr mr grant didn't understand what it is the statue of limitations expired that is unfortunate but unavoidable unless we're going to send all of our really is this what you went to law school for to prevent this person from having a hearing on his constitutional rights your honor i know he views this complex this court has instructed me in that regard on a few occasions as well and you've instruct in this argument yet well stop talking haven't i agree with that but what if it's not penalizing him it is preventing him from unilaterally extending the limitations period because he waited to the very end  couple of quick points you're going to want if if this court were not to find that it was an extremely circumstance that mr grant things then when he would have to overrule miles i would have to overrule steelman and the fact that mr vienna just brought up may have multiple causes but the fact remains that the prison officials promised a lawyer they were going to get this thing faxed over in time immediately that's what the word the word i would use that was enough for the court to find that proximately caused