i'm trying to get the sequence of days straight and think i have that's difficult but i want to make sure i know understand what you're claiming you don't claim that there should be any tolling between the time that the s state a b s petition and the hiring of federal habeas counsel right and those two that's either two hundred and twenty four thousand two hundred and twenty six days the record is not clear what that counsel was hired on but i'm not sure it's relevant those are the two periods ok thank you now yes please because because one of the disputes in this case is whether or not you have enough days to get there right yeah i know it's a it's an important point and difficult was it's a typical point to to get to get your head around  impairment change i was wondering why you're not also asking for the time when federal habeas counsel had been retained because there was a longer period at that point and i'm not sure i understand that the mental impairment changed during that time we don't need it is all that's on you and you never saw it below right and that's all you know the numbers maybe i'm wrong if you got that and you didn't you need both of the other two in order to prevail i thought if you don't get both of the other two this one's around right i mean this isn't a kid like so most cases will have to deal with saying episodes of psychosis or something with this is like a persistent mental impairment so we could say he should just get you know appropriate for the whole thing but maybe try to make  it harder what i was wondering if it made it harder because if the theory is that the mental impairment prevented filing then it seems sort of like it should continue as long as the mental impairment continues at least in some way and so by not asking for tolling for that period i do wonder if you sort of do undermine your argument from earlier if it had been me i would have below i would have just said it's a total tolling said a whole much for me let's focus on you're not really complaining about the quality of the petitions that he filed you just complaining that he didn't file them a quickly enough and sequence to each other to preserve statutory tolling for you couldn't get together with council to raise the claims that you'd be raised right but here nobody complains about the claims that should be raised indeed the federal hey b s raises the same claim right as it must so what's the what's the causal connection between  impairment so the cause of connection is that if you look at the cause of the causation test is whether the mental impairment caused the late filing the fact that and that goes part of that analysis is whether mr myler understood enough intuition i think behind your question may be so bold is that the claims are there are people just to file them but we don't know because there's been no finding by the district court what his mental impairment was and whether it prevented him from being able to  maybe the next step in this proceeding i guess is your answer right so if we were to say judge like you just can't say his mental impairment was irrelevant because he had counsel right the judge might still find as a matter of fact that his mental impairment right didn't wasn't the cause of the late night right so your argument is is simpler i think and i want to make sure i understand it your argument is that by saying mental impairment was irrelevant and therefore i don't need to determine what it was or what he did the judge erred absolutely there is no you know that we're not we're not here to decide whether or not your client's mental impairment actually affected his absolutely that's absolutely correct right but the argument is really i mean i think really the central argument is very simple but there is no way to square the district's holding that mental impairment is irrelevant with bills what bill says district courts must do so let's go let's go back to bill because the other question bill this was another represented equitable tolling when somebody is actually represented by counsel during the period i don't think there's i think there is one let me see if i can pull it up here is case last word so st circuit case there's case law and order country but i'm just looking in circuit but i'm aware it's rare to see these equitable toll right ace's when somebody is represented by an attorney and there's no claim that the attorney they tourney's filings were deficient that's right here we have a claim to the attorney's filings were perfectly i i think it's a separate question whether it's sufficient under california law to abide by his professional obligations i don't think he's abided by the professional obligations at all but i do have a six circuit case actually reversing a district court rather there was one in this court right so we have a rule about reasoned in our court that we're bound by reason to do you think this is really ticked yes and let me go into a limit more i mean if you know i think it's also backed by sound reasons and both equity in the nature of the causation test so when you talk about causation the question is again whether mental impairment caused the late filing the fact that the person who was providing assistance right bills is not dictated insofar as it talks about the assistance from jobs lawyers but nothing in bills and nothing in the nature and nothing in holland would justify for purposes of causation saying that well there's no causation as long as the person giving assistance has a law license that's the causation point and then in equity it would be sort of like the opposite of equitable and fair to say well look the guy went beyond what's reasonably available and actually got himself a lawyer and so we're going to hold further his lawyers missteps further against him because he took those extra steps i think those are the reasons that would support applying  good morning and they please the court deputy attorney general sharon markovitch on behalf of the warden i'd just like to start off by noting that the district court didn't find petitioners mental impairments were a relevant to the district court said proof of petitioners mental and psychological problems with irrelevant meaning that the parties in the district court presented competing evidence as to whether or not petitioners mental impairment but you have does not mean that they could put in competing evidence the judge said i'm not going to resolve that competing evan it's irrelevant so it seems to me he did say his mental impairment was a road that i don't need to find where there was impaired or not because it makes no difference analysis yes that's that the last point is correct and that's because bill has a two prong test the st is the mental impairment was so severe that it prevented that timely filing and the nd was the nd prong of bills is the causation requirement so what the district court did was essentially similar to a strict one analysis where it assumed the st prong of the test was satisfied by petitioner that it wouldn't resolve it and it went directly to the nd prong in this case and that's the but for justified where the question was whether all we have in the record is an expert saying he didn't understand the nature of the proceedings how do you understood the nature of the proceedings he would have consulted with counsel a long way to make sure that counsel was doing what he promised in his contract was to which was to preserve all of his state and federal rights and his mental impairment prohibited from doing that that now a judge might not find that to be true listening to a witness or hearing contrary evidence because that's the only evidence in this record so how could the judge find an absence of causation it's incorrect to say that that is the only evidence in the record of course we have the prison mail logs which show substantial communication between petitioner and say hey vs counsel and we of the contents of those rights so maybe they're incoherent and useless well we do know the content of some of them become because petitioner presented a declaration in the district court that said that he was writing just a habeas counsel he was inquiring about state he and lines he was inquiring about federal habeas deadlines that he had learned from a jailhouse lawyer that there were such deadlines he asked about the status of his state habeas petition and it goes on to recount some of the information that  told him if you start out with you so i'm sure that you're here that he was so impaired that he would have been able to effectively communicate back and forth concerning the answers to any of those questions are we still stuck with a factual finding  it was because state heaviest counsel delayed in between filing those to haiti's petitions that the limitations had expired it wasn't be can there be two causes i mean maybe if if mr milan had been more competent he could have done a better job of reminding her communicating with a lawyer or maybe a lawyer wouldn't have done that then mr milan sent five letters to save his counsel specifically during the statute of limitations period and counsel sent him for letters again we don't know the contents of those letters but they sure didn't provide them in the district court and any defect in the record to that extent is again he failed to meet his burden however his declaration shows that he could communicate with counting the number given that he was in unable to communicate he was arguing he was unable to understand in this case the necessity for frankly i'm not sure many lawyers understand it he was unable to understand the necessity for filing the state he shoots in a any particular temporal sequence so as to preserve statutory joerg read purposes given the affidavit from the expert about his impairment i'm not sure why it's clear that the fact that he communicated with counsel shows that he was able consult about that issue well it just lawyer told him that there were there are deadlines and then he promptly wrote c b s counseling inquired about that so he had the wherewithal to understand that there were deadlines and then inquired about them with counsel and the prison maillard show that they were writing back and forth between each other so again the bells test requires that the st prong is the mental impairment problem and the nd was is the shot and again there's simply just isn't any causation the mental impairment wasn't what resulted in the delayed filing and it was that it was frankly the two hundred and thirty two on the causation i think you said earlier that there was or did not do was nothing more than ordinary negligence right that's correct so it's hard to classify that as and that was in your view the sole cause of the couldn't you say in fact he asked his counsel several times about timeliness and got no proper response well we don't know he didn't get a proper response again we don't know the continent the letters we do not stay here with counsel was responding to his letters and his questions contained in the letters he says that in his own declaration but but yes petitioner was writing to counsel again it's possible that petitioner was asking him questions about the claims that counsel was going to raise in the possible is r is what he was trying to say and i think it's important to understand the background litigation in this case there were no less than five rounds of briefing on this equitable tolling issue we have here for two sat as conferences and where these issues were fleshed out so the district court had plenty of information from both parties in terms of briefing and opportunities for petitioner to prove his case what was in the letter is that he was impaired at the time and the district court just simply found that it was a turning neglect that resulted in the statue of limitations period his mental impairment plainly played no part he was represented but that's true what's the harm in reminding to have the judge that more clearly because it seems like the judge didn't apply the right legal standard but maybe you're right actually in the judge's head it to forty yes and the petition was not filed eight hundred and forty days late it was not with the judge's sixty be ruling making the making the fate maybe as filing on the day that he filed it the numbers say that there's there's enough time so that it was timely now i don't know how goren by a court is going to resolve the issue of in the smith case about whether or not one then has to look at diligence saw a tolling for the post period between federal between the federal filing and the last denial of state a b s that at least on a mental impairment basis you're arguing counsel was the legal consequences were just factually did you argue to the district court if i don't believe that we argued to this court i'm not one hundred percent certain about that i think i i don't know i'm not sure whether we have those for those for it but i don't know whether we are just below or not and you know really what i gave was an example of how you calculate it it wasn't about you know whether he would be entitled to tolling and the evidence of the times or not if i could just make  actually i'm happy seeming that you know yeah i mean ok i'll just say you know i mean my friend my friend on the outside said there's all sorts of things that we know i think the court already understands that we don't know anything because we haven't had an evidentiary hearing to determine the nature of the parents