in determining otherwise the district court and so on publish district court cases that they would seem to suggest that merely remanding restitution would not create a new judgment but i believe that those district court cases are inconsistent with this court's decisions in coleman and gilbert in colvin of course what happened was that the the event was convicted number of drug crimes it was reversed his convictions were reversed or used as one conviction was reversed it was returned with instructions to vacate that conviction and two decreases special didn't if we even if we assume that it is the judgment in this state court crazy new judgment starts to restart the clock don't you still have a court to my knowledge has never held that a post conviction proceeding must run simultaneously was seen with from if you go back though is it is sort of he made some tactical decisions or they got him into this position in their career if if what you're referring to was a tactical decision being that he dismissed his his appeal and decided to pursue rather rather rather than direct appeal to go back to the trial court and try to withdraw his alford pleas and yes i guess i would be a tactical decision i don't think that there was anything he could have raised on direct appeal because this is essentially the issues you had to raise with draws please were outside of the record so he had to go back down to the trial court to try to do that so so he he he went back down to the trial court moved withdraw his guilty plea arguing that it was untimely the trial court judge in his decision although it ultimately tonight post conviction relief it also denied the state's request that his attention be dismissed on time proceedings should run simultaneously by the montana supreme court and with no indication from the trial court that is a titian was on time when he had no reason to believe that he should file protect so so it is pretty he's is proceeding under the assumption that is petition is timely i think he was led to believe that by the trial court  you know we agreed with him that his position was timely and then he thought up to the montana supreme court and of and found out differently so he did throughout all of this he exercised i post convention because because throughout the the years really that was being litigated fully and honestly and legitimately believe this is petition had been properly file  and for a timeline standpoint i think it's important to understand that mr peterson filed his petition two years late and that's true whether we base this off the original judgment day or the amended judgment caused in time we find out and i would also argue that it isn't necessarily extraordinary for a record to do something that's later overturned by an appellate court but ultimately the timing is really the issue here and there's no way for that because that untimely filing and essentially what he's asking for is this is for this court to resurrect a and it previously expired statute limitations which which is not the purpose of that quibble over now because he doesn't only grant you raises in the in his opening brief provides two different dates and his reply brief one is the petition date and that's important to him because he needs it's a work back although we're clock back all the way to the day of the petition or it isn't to be timing the nd date is  ordering the state to respond in a nd date goes back to the date of the petition and essentially what he's argument that he's making his he was confused by the state of the law but number one that's not extraordinary circumstances and number two the law is not unclear make good the montana supreme court's opinion it out as if it's some sort of revolutionary opinion it was not it's literally interpreted the plain language of the two statutes that apply here two statutes that peterson avail himself of proposed to relieve and ultimately both of them plainly stated in their language that there is a one year statute of limitations on those claims and that's what the montana supreme court this isn't this isn't a revolutionary opinion frank it's quite simple you know they can look at it and and i to try to compare it to the argument that he's trying to make because there is no basis for statutory tolling in the plain language of the statute is a clear one year time limit and that's what the montana supreme court said so the state of the law jackson essentially is is is not something that that is supported by statute or the montana supreme court's opinion really what this this is this is this is that attempted to subvert the general rule of the statue of limitations and that's not the purpose of that quibble towing the statue of limitations is the rule equitable calling is an exception and if you applied the way that the peterson it was untimely is not entitle the statutory told and so if he was to try to use the state of the law her reasonable confusion of the law every defendant or every petitioner could come in here and stay well i didn't understand  attach sworn testimony from both the district court judge and the victim that deny the predicate of his claim and it was he was he when he did that was he acting it's a wash it doesn't count but i think that yes you could sworn testimony that undermines the predicate of a claim then i think that you fail to provide a factual predicate to support your point how does it undermine it just it just shows that there's a conflict well the only the particular case i think that he could certainly have provided someone who had personal knowledge of of the allegations that he's making when he provides sworn testimony from the two people that are going to people that are involved that deny it then i think  math think that when you once you does that it's an allegation of sexual activity and you need a witness who saw it otherwise the claim cannot be raised on with based on hearsay correct when you have sworn testimony from both the people who are accused and based upon what he's provided the only two people who have personal knowledge of the the predicate for his claims i think that the hearsay affidavits from him and it's important to note too that these are these are just this is a husband and wife who say that the victim  told them this in two thousand and nine so you have sworn testimony from the judge that goes on to be sworn testimony from the victim that denies the allegations in the in the here's the affidavit so i think that you have to be able to federal level read yet there was no evidentiary hearing what he did was you raised this in a state a b s petition and in montana supreme court order they dismissed that petition and said you've failed to meet your burden here to show that you incarceration is unconstitutional and they cited two facts in this case are quite complicated and they they cited to a news report regarding this campaign this contentious judicial campaign involving a trial judge and another attorney montana and hope we noted that similar accusations surfaced in the local media during a recent race for district court judge or valley county and peterson is only repeating these stories and ultimately  state proceedings regarding this that the campaign itself and the false advertisements that this attorney would be running against the judge included these same allegations and this attorney was later disbarred for relying on false recklessly disregarding the truth as to the statements that are that are being made here and relied on by peterson to support his claim and saw i think that within a context that matters and it matters because you've got sworn testimony from the district court judge that's on it and you've got a sworn testimony from the victim and ultimately this is already been determined in another matter and it is is not necessarily binding here but it certainly informs the whether or not this is the predi to pursue this claim for the what's your position on that i don't think that it should be encouraged to proceed further because of the information he provides in it is petition and the sworn testimony from both and district court dealt with it the way that he did was because this was not raised in the objections this was raised for the st time on appeal so this report didn't address this head on or the district court did was interpret peterson's objections essentially because in his response to the state's objections what he said was essentially i also have actual innocence claims and if you to show a bias claim that may impact the analysis and i'll address that further in my directions you never addressed it further so the district looked at the objections and said well because you didn't specify this i'm going to address it as actual innocence you're going to interpret your judicial bias and his actual innocence and essentially said that actual innocence exception does not apply here so  i just want to be careful here if you saying actual innocence that better address that just in case but again he didn't address the judicial bias crime under one d because it had been raised under one ok this is the off if this court were to determine that the statute of limitations began to run at the time of the amended judgment mr peterson's post conviction petition would have been timely for the amended was filed within one year which is the statute of limitations for both the state and the fed and the federal question now ultimately the you know the montana supreme court's decision i guess determined as made this ruling that i would disagree was something that was very obvious and and wrote this petition was on time and it wasn't i would argue that it wasn't particularly obvious primarily because the trial court judge didn't find  so and so that's why i have to have that equitable tolling organ but it's not as if you can say that his petition was was nine months too late as my colleague says it would have been nine months late if if in fact the statue of limitations runs from the time of the in the judge so so if the petition run if if the statue runs from the time of the amended judgment to stay post conviction petition would have been filed within the federal statute of limitations so what's your what's your basis for equitable t issue of the the trial court ordered the state to to respond to the petition is because ordinarily i mean you would look at it and determine that this thing is untimely and probably  denied that they had this affair this ongoing relationship but in in the submissions that he submitted in federal court there is more than that he submitted  evidence through her facebook messages that she and she and the judge were very very friendly and additional affidavits the affidavits are hearsay and i recognize that but i don't think that the fact that the  hearsay should should should  you should should should should block him from making pleading in the st place and make sense if you should be given an opportunity to try to prove prove this allegation through here with non hearsay evidence and i think i went through it in detail in the supplemental brief but i think i think he has he has evidence they can show in fact that it at the very least ms porter in the trial court judge district court did look down it is national innocence going in the district court said she digital bias doesn't go to actual innocence because you can obviously you can have a bias in her and still be guilty so that's the way that the district court misapprehended the claim now maybe that might be because mr peterson proceeding pro se wasn't particularly hard call in the way that he raised it but i but he did the president require an affirmative misleading as opposed to just in the running it's ruling well that case happened to be in las vegas and there was a little more to it than that and she had an attorney who was not representing her at all i mean the court found that there was a complete lack of counsel and so that was part of the  judge kept granting extensions and turned out the judge granted extensions and the tension limitations well so in that case as well there was no that answer session for today