pursued his rights diligently throughout the one year statute of limitations period and beyond under holland versus florida mr mayberry must only show reasonable diligence and not maximum feasible diligence further and both more versus knight and ryan versus the united states this court how that courts can consider the realities of prison confinement when evaluating the reasonable diligence pronk of this test mr mayberry was housed in the psychiatric unit of the prison which made it difficult for him to access the assistance of other inmates when drafting his documents to the court as well as reading any sorts of correspondence with the court mr mayberry showed his diligence throughout the one year limitations period by securing assistance to help him draft an appeal for his initial conviction a motion for a new trial in the state of wisconsin a letter to the state court about his post conviction relief and finally his an exhaustive habeas petition all before the one year statute of limitations period has run further this court has not conclusively how it's the periods of inaction during the one year limitations period foreclose the application of equitable tolling in carpenter versus the petitioner waited twenty one months to file his exhausted habeas petition in the federal court despite explicit instructions from the district court to do so and contrast mr mayberry took only six months to refile his petition in the fair and i'm sorry in the state court to begin the exhaustion process further when the district court dismissed mr mayberry's initial on exhausted haiti's petition they offered no explicit warning that his statute of limitations was about to run or that he should be aware of how little time was left further mr mayberry's mentioned competency in two thousand and twelve to twenty thirteen was in fact an extraordinary circumstance really know do we how serious mr may burn mental illness is nor how name back to him during the one year limitations period yes yes your honor we have no explicit evidence of his mental incompetency from the years of two thousand and twelve to twenty thirteen however we do have his one thousand nine hundred nine medical report that classified him as a person with mild mental retardation and noted that he was suffering the effects of a car accident that had left him in a coma for somewhere between a week and a month and the car accident was in the one nine hundred eighty s and mr mayberry was evaluated in one thousand nine hundred nine and in that medical evaluation the doctor indicated that there was no indication that these deficits are acute or subject to change over time to challenge conviction a trial here where you're attacking on the merits the effective assistance of counsel why would it be what was on reasonable of the state courts rejection of cancel to not raise his mental competency because he had in the past been found incompetent to stand trial so merely the fact that he was not incompetent and then found competent wasn't conclusive proof that he was competent to stand trial for this underlie con well maybe they could have raised the issue but if they if if he's competent to stand trial there's no prejudice from the failure to raise it but on the merits here i don't we have to apply that put deference as long as the state court's decision on the merits is reasonable we need to uphold it so what's on reasonable about the state court determination on the merits and if we  honor if we reach the merits of this decision it was unreasonable of the state court because there was sufficient evidence that mr mayberry was incompetent at this time to do it was incompetent at the time of this trial  trial in dane county criminal cases in two thousand and two thousand and four right yes your honor so why is it unreasonable to say given that history there's really nothing there's nothing to do here competency did in fact rise to the level of an extraordinary circumstance understandable mr mayberry just needs to allege facts that if proven would entitle him to relief mr maybury has provided sufficient evidence including his one thousand nine hundred ninety eight o'clock report the fact that he was found incompetent please the court so put to shop for the state of wisconsin i'll begin by discussing why maybury fails to make the required showing on either prong of the hall and to step test for equitable  i would like to briefly touch on the evidentiary hearing issue judge crabbe did not abuse her discretion in determining that maybe reason a legit incompetence did not rise to the level of an extraordinary circumstance and that he did not exercise reasonable diligence during the limitations period in order for mental incompetence to qualify as an extraordinary circumstance it must have resulted in the petitioners on timely filing and this court has made clear that the causation requirement is strict indeed this this court said that something more than but for causation i essential mental illness or incompetency must in fact prevent the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them here we know that was able to act upon his legal rights during the tolling period because he filed other documents during that time and as in this court's foster case may vary offers no explanation why he was able nature and extent of mr may burglaries mental illness i believe that's correct your honor we do have the few words notation from the twenty fourteen prison record that says serious mental illness and in parentheses diagnostic but as your honor suggested that notation doesn't provide any further detail on the nature of mr mayberry's alleged mental incompeten mayberry can read or and write they even however assuming that he is illiterate this court has previously said that illiteracy and inability to cope with batterers legal those characteristics do not rise to the level of extraordinary circumstances they are perhaps some of those circumstances are nothing more than the garden variety claims that many prisoners ha and in addition it may vary did not clearly show that he exercised reasonable diligence throughout the entire one year period and many courts including this circuit have stated that multiple months long periods of delay indicate that a petitioner it did not exercise reasonable diligence throughout the entire one year tolling period the show in this case  voice and if that it happened here we wouldn't have any timeliness issue at all would we that's that's correct your honor perhaps you could address the merits of the of the underlying sure so this this state agrees with judge crabb here that mayberry is on likely to prevail on the merits of his ineffective assistance of counsel claim given that in two thousand and eight went to trial nothing would have given counsel quote unquote reason to doubt his competence at that time and given that the wisconsin court of appeal well your e mail from the other side is not that there was nothing but rather there was the one nine the operative time period for evaluating counsel's actions under the birch case in wisconsin and i believe a case from this court is the time of trial that a previous finding of incompeten necessarily mean that the defendants you know you're not are not necessarily that's correct the argument on the petitioner side as i understand it is that that should have been enough of a signal that effective counsel would have looked into the matter i willing to waive his privilege and i believe his trial counsel was present at this evidence or hearing and ready to give testimony but based on the lack of waiver privilege and the minimal pleading trial and then later on also in the year two thousand in a separate case maybe he was found competent to stand trial in two thousand and three i believe in another matter he did not contest his competence and based on the fact that there there was a conviction that he was competent and then again in two thousand and four he contested his competence and the court determined that he was in fact competent to stand trial and i would just like to comment on the d l those were issues raised in and competent to stand trial in two thousand and four get those yes your honor on the evidence or hearing that mayberry when represented by counsel in the district court did not request an evidentiary hearing on the equitable tolling issue and he now asks this court for another bite at the apple to supplement the record but still does not indicate what evidence if any would support his allegation that his mental incompetence prevented him from finding from filing a timely petition excuse me and this court has specifically said that unsupported speculation raised for the first time on appeal is not a basis to re manned and maybury he's been litigating his competence for years but has only ever been able to produce those same two pieces of evidence hundred ninety nine report and this twenty four team a prison notation reversing judge craps decision here under an abuse of discretion standard would be a waste of judicial resources and your honour's on rebuttal and first mr mayberry the fact that he was found incompetent to stand trial in one thousand nine hundred nine and later competent does not automatically or is not just positive of his competency in two thousand and eight and there were enough red flags that we contend that his trial an appellate counsel's should have investigated his competency to stand trial in the underlying decision in this case second mr maybury requests an evidentiary hearing because in the two thousand and fourteen prison transcript he was denoted as a prisoner with serious mental illness it would be surprising if there was no evidence in his prison medical files that explained or didn't explain why he was denoted as a prisoner with serious mental illness and why he was housed in the psychiatric unit of the prison so there is