after that extraordinary counsel with respect i i'm i'm having trouble understanding how you say that because his counsel he said he had heard anything she said i thought you'd receive that she then filed something in the state court and i think there were approximately one hundred and forty days left to prepare he didn't file anything after that how does that become an extraordinary event but he filed a federal probe petition approximately seven and a half months after the ending of his court proceedings but after the one hundred and forty dollars days was over right her so basically what i'm saying is that he's blaming this on the lawyer and you know whether there's any culpability or not the reality is that one hundred and forty days prior to the end of the statute of limitations  under it counsel filed a pleading he had that amount of time to file the appropriate petition and failed to do so within the statute of limitations why is that extraordinary and why should he be entitled to equitable hold of the situation well it's an extraordinary event because due to his attorney's failure to tell him for ten and a half argue was showing reasonable diligence under the circumstances now if he had not lost that two hundred and twenty four dollars days by my calculation his federal position actually would have been filed early and that's there wasn't a finding of fact that he did know all we have in the record is a receding attorney said i thought i had sent it which means she thought she said it but she never said she didn't and there is nothing in the records that said she did that because your client never testified that he didn't so how it seems to me that there's an old missing here a lead and getting up to counting can you help me with that please yes your honor whether or not his attorney thought she had sent the paperwork mr brown still took the step of calling his attorney to the way i understand that but he never testified he never filed a doctor there's no facts in the record that he didn't get it all we have is someone said i  but there's no facts in the record he didn't get it is or there are not which is why i would ask if this court has questions or concerns about the facts of the case that this court remey and t know but when i put forth the back for mr brown that necessarily and putting forth facts that can justify equitable falling under this  declaration given the record before the court his attorney filed a declaration stating that he did call he asked about the status of his direct appeal which i think the clear in print is that means he didn't know direct a deal had been denied he had also filed his supplemental post conviction petitions early in which he complained about not having communication with his appellate attorney and he explicitly told the court  he was trying to be diligent and he didn't want his seems to be i'm tired and so the truth is it did not occur to me that mr brown would have to file a declaration swearing to all of these things when i believe the record speaks for petitioner from prison can necessarily do in one hundred in forty days and i think that's important i think mr brown's sentence that he's serving is relevant to the diligence inquiry he is serving life without parole which in nevada does mean he will never go before a parole board you know he will die in prison unless he gets released in the i don't know and i think the sentence is relevant because that goes to show would want to be so comfy in his petition and and make sure he didn't want to leave anything out and i argue that under the circumstances one hundred and forty days simply was not enough or  seeking the exception respondents are standing on the rule of standard mr brown must meet his very simple yes to show extraordinary circumstances that prevented him from filing and diligence in this case the just for court's order was strongly good or found no extraordinary circumstances nothing prevented him from filing timely so the court didn't even mention i believe the record speaks for itself there are questions that have been asked before i came on i believe already some stage so was that be in jail the rest of their lives to get it at least get into the batter's box even though they made some mistake are there any cases that you're aware of that an x period excuse is given to a person is in a position where they alternative is to give them and i'm r's that's an interesting question your honor simple answer no i do not believe there is the case that it was with equitable tollway where the question asked was is the with the exception of capital is the prisoner's sentence by itself to be considered in the analysis of equitable tolling i don't know of any cases that are in this particular case if you were to consider of it you would have to leap over the three hurdles to m se petitioners file their federal petitions frequently very very simple and then amended later when there's issues about the statute unlike some of the other cases that have been  credibility as being a determining factor i would agree i don't believe this is that case if i remember correctly mr brown's of public turning is what exact words in the declaration i thought he had received our paper receipt which imply only means she sent it so if she hadn't sent it you would expect her to use words the effect of i thought i that's not what you asked i thought you received our people work is what i recall the actual words saying that being said that by itself what mr brown chooses not to file a decoration setting forth any in smith's recently all of those cases the petitioner has made a considerable showing of what he did sending letters over and over again telephone calls state bar you your honor i would just say that it appears to me that there are many open questions in these questions about mr brown's credibility questions about whether his attorney did or did not tell him that his direct appeal had been denied questions about what was going on in seven and a half months that he was drafting is prose a titian that again as i said it raised fourteen grounds for release many of them legally and i would ask that given that