s properly file for lack of a better a better phrase in other words was the district court correct that equitable tolling applied because of his medical and mental condition and was the was the district court correct in in finding that the procedural to fall was excused for because of his mental condition dealt with two of them we asked you were actually one of them we asked you to tell us whether the judge abused his discretion in finding that the notice of appeal was not timely filed but you come back with a separate document rule and  between the time that the c e o it was issued and the time that the matter was free the supreme court dealt with this issue of the impact of late notice of appeals and the ability of a district court judge to extend time and then in a rather frankly harsh opinion where a petitioner followed the district court judge's order  terms of timeliness but the district court judge having been wrong about that the petition was still precluded so in my view the the whole the issue as it was certified for appeal ability by this court was really more properly addressed by considering the the supreme court's intervening decision and addressing the issues that are subsumed within that which is the separate document rule to the extent that the court would have preferred that i move for a modification of the cia please consider that motion to be made at this point but in my view t supreme court the supreme court's decision intervening decision was well on the first one you give me my own personal view is that you'd have a tough time on saying that there was a  for a five issue that would come out your favor and the separate document rule clearly is a very good argue but let's just take the second and the third argument just because it was highly in dispute on equitable polling and i'm here to do that today these really are the a pelleas issues to raise my point prevailed in the in the district court and was not seeking appell rebut it if they were when they were asked and i don't see anything i mean there's a good argument that you if you're the apple you haven't necessarily waived it but what we're trying to figure out is at least based on some third circuit law but what this quite extensively in terms of what a certificate of appeal ability means does it simply mean that it's appealable or is it a direction from the court these are the things we want you to write i don't write speaking only for myself i don't want you to waste your in terms of the equitable tolling as the court is aware the the district court held an evidentiary hearing on the issue of titian ors mental condition at the relevant time during the period when he failed to file a variety of documents with the pennsylvania court and then the additional year where he didn't file or you extra year and a half where he didn't have to show the federal court  the evidence you're hearing was rather one thirty and the petitioner testified at that hearing regarding his mental state the appellee at this juncture seeks to introduce a large body of evidence that was never before the district court because they failed to obtain the documents in sufficient time and failed to present any expert tesla whose fault was that that actually he signed the limited waiver mr allen actually saw and took a long time in doing that this is actually explained in his testimony that the district court accepted which is that he signed a waiver that was the standard prison waiver for he filled in the dates as he understood them to be relevant that they thought were not relevant as it turned out not really relevant or not highly relevant as it as it as it turned out it was within the period of time the district court believed it was was relevant it was when he stopped making filings in the various courts he had always been as a district courts a very conscientious about making his filing and that stops and picks up again and so this is the records that were released were during that period of time in fact he did release some records and notwithstanding that didn't do anything with the misgivings yes forgive me i know that my colleagues are interested in what you're talking about and i think i may collaterally be interested as well but as i understood it we thousand and five and i don't understand why we are discussing matters that indeed are subordinate to that because if we had no jurisdiction we have been advised that we can do nothing and if the notice of appeal was not file timely we have no jurisdiction and i was curious to know although i don't like to divert you from the interesting discussion we've been having i would like to know why i judge giles order of december fifty should not be honored by us after  had sent it back to him and we had said determine whether or not the certificate of appeal ability should be treated as a notice of appeal he says it cannot be functional those of appeal below is different than it is now the supreme court has has undertaken to clarify the significance of the timely filing and the lack of power in the district court to step well  would be one i know you didn't do it but that's what i want to know this court is ultimately responsible for its own jurisdiction and for determining whether it has jurisdiction i think that this court is perfectly capable of making that determination given the state of the law  the supreme court made it clear that under no circumstances that you have any power to extend beyond the statutory tough and that even in the situation that spirit was dealing because the supreme court was very rigid about well it was it was very careful i suppose it's better to say to follow the the exact letter of but you some of the questions that anna highlighted and also just reiterate sort of what we see of the bottom line of this case being that mr allen can't prevail on either procedural or substantive grounds because  rule well we believe that the rule fifty eight a defect that mr allen detected very late in the process is non jurisdictional and that can be way but obviously jurisdiction as a general matter is non waive a ball and can be raised by the sports it was fun at any time but we would just note the ironies as to the jurisdiction that the district court here was never given a chance to fix the speaking werder that's complained of and rule fifty a day was designed to prevent confusion about the entry of an order whether to prevent any confusion on the part of  future appellant as to the import of the document and there is no question in this case that this was an order adopting the report and recommendation and that no one was ever confused about it's important we ha or facts and background etc with regard to your your order that it doesn't comply with the separate document separate document is just have a one sentence piece of paper that accompanies there was some discussion but not in my recollection of send in the extensive discussion under that case i'd have to look at it again more carefully then it was a six page order by a quarter page order this was a  yours then even if if it was violent that does not require violence does that mean that we would not have you is that it's a complicated interaction certainly that there's been as you pointed out several years of litigation over the issue of the timeliness of the appeal and only before this court is the issue of the not this was never raised until the blue we review it our respondents position is that judge giles order was correct applied rule for a five correctly and that the time to appeal could not be extended on the basis or argued earlier by mr allen since then mr allen has argued well i'm not going to worry about that argument i'm going to focus on the fact that judge newcomers june of two thousand and four or as we've argued in our in our briefs that the roll a five determination by judge sauls was correct and that there's no way that anything he subsequently filed could be treated as a motion to extend that deadline and we also believe that the roll fifty eight the fact does not excuse and alter the time of filing in the manner suggested by mr allen but again where so we did go one but as to the other issues and as the panel correctly pointed out mr allen's arguments as to polling and fault are literally being raised before this court for the first time today and just to in order to respond briefly to those as to the equitable tolling and as a consequence those arguments should be treated as weight this is our position notwithstanding the issue  givens did not briefed the two issues in response to our significant of a fuel bill of rights but but mr allen one of those is low so it was not he was not charged with the responsibility of raising that's true but nevertheless it's difficult wants the opportunity for a new trial and one has to ask why he was confronted with multiple life terms the possibility of being sentenced and given that victim impact testimony which was really quite devastating and also underscored that in almost every instance mr al and was the ringleader who directed his coconspirator what to do and when and i would just highlight if there's any difficulty reading the police reports are supporting documentation that mr liam and highly respected criminal defense attorney in philadelphia had before him when advising his client we would like to make sure that the copies you we only get there right get there no i know and but i wanted to underscore that chronologically speaking that lucidity extends throughout the course of the state court proceedings he and as you'll see when you were viewed the testimony before judge newcomer when he was trying to explain why he filled the volatile federal pay vs the titian the documentary evidence demonstrated very clearly that he was able to function at a very high level and accordingly we are asking this court to reverse judge a new comer as to equitable term tolling and as to procedural default because as you say we shouldn't even get the merits in this case because he failed to make the breath sorry threshold showing for a fired for equitable tolling or for default and also judge newcomers conflation of those standards was improper as well because they are tolling requires a different analysis than is required for exhaustion but what your strongest argument before us i don't know i feel they're all very strong as the equitable tolling and develop and merits decision on a wooden open well you can but it's important to remember that judge newcomer we believe committed reversible error as to the tolling decision and as to the default decision and although he was correct as to the merits because when he did get to the merits he was confronted with an irrefutable case of a very cogent litigator mr allen and again one of the victims yes i mean we don't get you know we don't but it is there is a distinction and the guilty but mentally ill plea recognizes that and i mean just look at the relevance determination that mr allen made independently of former i mean we've had a very pleasant working relationship with ms gibbons here but with prior counsel there was some difficulty obtaining needed discovery for that  olling hearing and what's very striking about that whole sequence of events is that mr allen himself made the relevance determination he didn't think it was relevant whether he was on medication before or after and he repeatedly said i didn't think it was relevant so i think that just underscores the fact that he is a i thinking litigator and was able to file many documents and stay for throughout the period in question and  rights and then that's a no i did two thousand he files a motion for reconsideration he goes back and tries again with the pennsylvania supreme court but let's go live to of two thousand so he's trying to fix this but let's assume  in some house shortly after somehow after of ninety nine number nine ninety nine in ninety eight scuse me that he discovers that he's beyond the one year but he was on medication but if he's not on medication in ninety nine in two thousand why does the to two thousand and one to file something how in the world can up with polling come into account in that situation if equitable polling ever applied the need to in effect let it go well i think that at that point he's probably aware from his other colleagues or think that would be a terribly unfair arbitrary way of looking at how judge newcomer made his decision i think you know i don't know i don't i don't think he was happy with it but regardless of his happiness or not i think that he heard sufficient evidence from mr allen he he's had the opportunity to cross examine him and but they didn't have the documents with which to cross examine him because he only signed a limited release and the relevant documents but the but he has that were highly relevant were not turned over because he determined he determined they will give him the early documents but he won't give them anything during the appropriate time period and you're your new comer let him get away with your own or just that with all due respect my point is a mentally ill prisoner and the the other side is the state they control the prisons they have well that says to the documents they have access to the doctors they have access to all kinds of he never complied with that it was it was never clear that he personally had i was aware of judge newcomer's order and how it impacted his disclosure requirement were represented at that time as if he was represented at that time well my when you say he wasn't personally aware you mean that the lawyer who represented him read judge newcomer's order did not make it known to his client what was required did not comply with that him self so that the state was at the disadvantage with respect to any of the medical records that first of all the state had access to the new smell of order as well of course so they have an opportunity to hop on the phone and call greater furred and say wait a minute this release is all wrong there's a mean that the defendant at that point has the burden of getting the document or does the plaintiff have the burden of lying that's really what we're talking about i realize that it's the state of pennsylvania but by the same token they when they get a document a day before the hearing and they can't really analyze and they can't get the material that supports that they're at a bit of a disadvantage frankly when they didn't have the document seven days before the hearing why did they file a motion to compel and then judge newcomer i don't know that he would have known that was the sprawl problem we could have hashed out the problem with the limited release the full release the order but right now you know we're we're looking back now to a point where we're saying well there was this problem you know with the disclosure there are problems with discovery and pretty much every case  comes down and there's there are ways to deal with that motion to compel potion to dismiss for discovery violation i can go on you've done a great job here why we have three he and i just i just i just i don't quite understand i just i just have one final question because let's assume we get past the let's assume we get past procedural vote let's assume even for the moment that there was ineffective assistance of counsel that's highly debatable what was the pr prejudice was that he could have had a trial would prevail on and sanity defense if the if the court reviews these the three available psychiatric reports it's not i didn't i did look at those were independent parties are saying that you know he's not problems since but it looks like it's under control there would be a relapse a trial but it looks like he understands what's in the car to charges against him looks like he could defend against the first one was that he was marginally ugly was marginally capable of entering a guilty plea well there was real question if he was going to march capable means capable but in the first the first evaluation that's included in the record is that you know with the the difficulties that might arise at a trial well frankly when you have a client who's who's that close to the precipice in terms of a trial you have i personally would certainly have problems having that client waiving the whole slew of constitutional rights that one way at the day after he's pled guilty he thinks edward ellis the president he doesn't know what day it is or what they did understand thank you very much this case was very well argued we will take it under should work we should any further briefing i would be most happy about