good morning you're honest and may please the court my name is morgan stacy a third year law school student at notre dame under the supervision today of attorney bob holman we have been appointed by the court to represent the petitioner in this matter mr bryant fifty five after the one year statute of limitations had already lapsed however within that twenty two fifty five mr bold claims that he is functionally illiterate and mentally incompetent and further attached an inmate education data transcript to more it the mental incompetence claim also made in the twenty to fifty five does address a prior two thousand and eight state court conviction i mean which mr ball has alleged he did not knowingly waive his right to counsel this w conviction and at his federal sentencing when he was sentenced as a career offender because the career offender status requires two prior staker convictions in addition to the allegation of the the defense attorney prosecutor in regarding mr bowles mental incompetence has not been addressed by the district court at all and rather the district court dismissed mr bowles motion as untimely and without hearing any argument or conducting any fact finding regarding the if this court were to remand to the district court for an evidentiary hearing to determine the mental whether or not mr bowles mental incompetence interfered with his ability to timely file his motion they may very well reach the same result and dismisses under his criminal history yes and no your honor his mental incompetence in regards to the twenty to fifty five is whether or not he was mentally incompetent and therefore incapable of filing yes that's true your honor but mr ball is proceeding pro se or it was proceeding proceeding as twenty two fifty five and he made the claim of mental incompetence within that and therefore that should be enough to trigger an evidentiary hearing at the district court level to more fully investigate the claims that was made and whether or not it well that we can also look at the fact that he claims that he didn't know the difference between being represented by whatever his name please support one thing i want to point out to begin with is mr ball has never claimed that his intellectual disability was the reason he filed his twenty to fifty five late in his that was taking i guess longer than he thought but he put in his twenty to fifty five motion he was waiting for that decision to come on a from the illinois appellate court and this is the reason for the lateness of this twenty two fifty five filing petition or further praise that prays that this is sufficient reasoning to excuse the late in the file so it wasn't as intellectual disability he was awaiting the outcome of a separate state court case involving his prior conviction and that's why he filed this case his twenty to fifty five was late and i think judge cheney mentioned just simply saying i'm intellectually challenged or intellectually disabled therefore my twenty to fifty five can be three months late three years late is going to open up the floodgates if a district court has to have a hearing simply because an inmate says i'm intellectually disabled and that's why my petition is now three years late three months late two years late whatever is not even claiming that's the reason why is twenty to fifty five is really the merits of his underlying conviction were never addressed by this record or the government because we advice this report this twenty to fifty five is completely untimely uses should you should dismiss it if you choose not to dismiss it will address the merits if your honour's want to know there was a case back in i think it was two thousand and eight and we have the transcript from the state for change of  thought was still representing him it was a different assistant state's attorney and a judge who advised defended of his rights to counsel in the senate wanted to represent him so it wasn't the same guy no christopher person david hyde was the last state's attorney in richland different assistance based tourney it was tied reads i believe according to the transcript that's not in the record because we haven't addressed the marriage yet but they bring luck i'm sure when they bring it up because supposedly same guy it's state's attorney not the same is a matter of record in state court mr i have the transcript of be glad to so i don't want to see it i just saying it we're i'm concerned about going outside the record but it's a matter of in the record in the state court when i say it's a matter of records the court i order the transcript from the court reporter in receive the transcript i don't know if it's in the state court record or mine so i don't want to mislead the court by saying it's in the state court record if you have any questions i'll be glad to answer them  you've got two minutes  your honor is this court did find that mr ball had alleged facts sufficient enough to bring the issue of whether or not and his mental incompetence did interfere with his ability to timely file and that is why this court has issued a certificate of appeal transcript to try and support this and because of that an evidentiary hearing is the most appropriate relief in this case at the district court level to fully investigate that claim and whether or not it did interfere with his ability to timely filed a motion and further as the government has said the transcript from that state court conviction is not part of the record and is irrelevant as to whether or not the motion is timely or if it warrants equitable tolling and just to briefly address the issue of opening the floodgates this court did decide in davis that equitable tolling is something that needs may be supported by a claim of mental incomp five in which he claims he's functionally illiterate and mentally incompetent while also attaching an inmate out a transcript was his claim of mental incompetence and his twenty two fifty five in wh  he says that he is awaiting the illinois appellate court to come down with a decision and that's the reason for his untimely n'est that's not his exclusive reason for filing untimely that it's also this kind of mental incompetence that