we represent christopher west in this this appeal that the appeal centers around a situation in which a person in christopher  june of two thousand and four the documents with some fly indicate that he was housed in those cells during june and it lasted all right and then and then i i understand judge pleats view was that your client said the he filed or he gave to officer looks yes ok all right go ahead i'm sorry to interrupt i just want to make sure we got those dates right because you have some confusion on my part yes and so what transpired is and during that time period according to katrina burley who was an officer at the vaughan prison delaware and she was the head of the the medical unit and there were mister west w hal's he was not allowed any pens handles any reading material whatsoever he was not allowed to go to court he was only allowed out of the cell to have a shower otherwise he was in a ten by ten concrete for upwards of five months that in fact her testimony indicated that she had never seen her seventeen years had never seen anyone restricted for as long as mister west had been placed on a psychological close observation because he had a tendency to swallow things whether it was pens whether it was a what they call a fork or support which is a spoon and fork plastic he had done that several times had yet psychological problems and he was being treated for it and that's the reason he was housed there originally do we know that his conditions in june when you managed to file were different from the conditions during the august th to november rd time period that was not discovered we couldn't we couldn't really discover that because there were obstacles in the way i'll put it from us gagne access that although the other testimony by the person said the only way he really could file would be by going through a mental health which see like a different situation from what happened in june i agree and i think i think there's a distinction here to be made it in the gym mister west gave an affidavit obviously and in the june explanation where he said he was giving it given a special condition involving three officers he was shackled he was muzzled he was able to prepare for filing but that filing never caught fire he was relying obviously upon the prison but he could not follow up on that because he was he was i think isolation twenty four hours a day didn't have access to the library or to any computer or anything else to text file at and he didn't know it until that his june filing was confiscated but he didn't know that until he got out of p c l and he actually explains that in his state is finally right he says that specifically and i think that this connect was that just noriega thought he knew it prior to that and should have taken steps to to perfect his file he in a timely fashion and an argument as he would not even know that it wasn't filed because he obviously could receive mail he could do anything but take a shower extraordinary circumstances or do you honestly say that her equitable tolling argument is wrong which then goes back into judge fleet's determination i don't know if we can even do that so what's what is your desire regarding the outcome of this case or that the analysis if you will why i think i think they're kind of in combination to a certain degree because the judge uses judge suites somewhat analysis of mister west's knowledge or or in the knowledge that he should have had during those sixty three days that his filing did occur but but the reality is if you look at the dynamics of his isolated in isolation incarceration in a setting where he has no access to anything he gets serve food on a tray through a metal door with a two inch opening with this this this clearly should qualify as a just an extraordinary circumstance given mister west not part of the problem here it seems is the west own version and seems inconsistent with the facts as you describe them the fact that you describe them which makes sense to me is that when he is under close observation in this war that he doesn't have access to writing implements the western heard that he prepared something and gave it to john pfleger on on june th two thousand and fourteen so he has 's not as if he had access to it he had to get a special condition just to prepare but that document that even the judge seems to question whether it even existed but it looks like judge nor is taking it as if it's it it never got five and there was no way given his it's housing and restriction that he could ever follow up to find out if it was filed so it have it is the that if he couldn't possibly be expected to have fallen through as to whether it was actually final while he was under nice restrictions correct yes that's exactly what we're saying when we say there's newly discovered evidence in that beef now we know from his filing that he didn't learn until november th and we learned that from and i don't think i don't think that works because it really isn't the it's never just i'm thinking out loud here i appreciate that and there is new there is newly discovered evidence in the sense that there were depositions in the documents supplied after the ruling by judge sleep which judge sleep did not have was not privy to and i want to bring up to the court on one very important thing mister west had filed for discovery during his records and that didn't he he asked for housing records and he wanted to take the positions but again he was proceeding at the time and no ruling was ever given and he was given no order to allow for discovery so that the things that were discovered after judge pleats ruling which was the deposition of katrina pearlie as well as the the documents housey yes they could have been known earlier but he was he was never allowed to discover them the because they could have been known earlier we really can't we can't large that the concept of newly discovered evidence to mean something that you know someone didn't didn't get access to but was clearly available somehow well i think it would expand the concept i think i understand that i just think in a certain setting as mister west was it to him it was newly discovered because he could not have discovered it any other way technically he couldn't so it read when you are housed in a cell for twenty four hours a day for months on end you have no access to anything and how could you quote so so to him it was newly discovered is it new evidence that wasn't available no but it is evidence that was new to him because misapprehended the time at which she st learned about the non filing of the june twenty four teen petition would we send it back to her she abused her discretion by making finding actually and her equitable tolling argument based on the fact that he wasn't faultless was was probably incorrect but why shouldn't we should we remained this for her to reconsider her ruling in light of the fact that we now know she also i point out she lost you also misapprehended what the deposition testimony pointed toward she she cited the testimony and said it showed that you know he wasn't routinely provided with pens and burly said it was her what should i think that's my relief for the request so we shouldn't decide this on our own we should send it back i think it needs to be so i think a hearing he's you know i think i believe should be cremated and a hearing should be held on the  of that in light of that  he assumes when he gives it to mister pfleger that it gets filed but then when it comes out of p c s so apparently he looks at his his prisoner account and doesn't see a deduction for the five dollar and there are two possibilities it seems to me one possibility is he's not telling the truth when he says that he had something to john pfleger on the team and the other possibility is that he is telling the truth and he did he ha for whatever reason didn't see that it was possible the there it was lost destroyed missing and those who would have you know seem to be the only the only two possibilities are there other possibilities and can take testimony as to whether you know you bring in mister pfleger and he testifies and he says yes he did give it to me and i passed it up the chain to whomever he was supposed with the president i don't know what happened after that and if that's what mister pfleger testifies to then i would assume the district court is going to say that that mister west was not entirely if on the other hand mister pfleger says i don't know what he's talking about he never gave me burden the burden is having its extraordinary circumstances but if in fact i know you don't know this to be true but if in fact mister west gave the filing the petition the flieger on the  and it didn't get filed and he was incommunicado for all intents and purposes until november th which was past the filing deadline how would that not be an extraordinary circumstance with respect to you could produce pfleger in response to that and say that never happened isn't that something that you would have the burden of showing he certainly put the issue before of that listen i gave it to this guy these guys did it and no one has no and a pretty good details about it credible then we'd be in a different posture but that that's not where we are we have the case was just procedurally your regular by virtue of the fact that judge lee i mean nothing to regular about him retiring he's had to retire but so if if we do think that a hearing is required i mean what's the remedy if we disagree with your your argument on appeal was the remedy just vacate remand for hearing about in the extraordinary circumstances analysis if we take his his mental condition into account at all i mean here with the evidence that you know if he did have access to pens he said he was swallowing them he was eating mattresses of proving that he absolutely couldn't couldn't do this it's just i couldn't find any case law the put such a heavy burden on someone in this obviously difficult situation  because it can be helpful and you're both extremely helpful in this argument and we appreciate it will take the matter under advi