the court i am here on behalf of the appellant wendy kelly i've reserved five minutes of my argument time for rebuttal today where you just you can watch the clock and stop when you wish thank you your honor we are here today because the district court heard by holding that mr burke's was entitled to equitable tolling for the untimely filing of his federal petition under ed there is a one year of statute of limitations for the filing of a federal petition and mr burks filed his petition long after that judgment was entered in his case in march of two thousand and eight he did not file a notice of appeal from the judgment and therefore under arkansas law his conviction became final in april of two thousand and eight that meant the statute of limitations under dan rounding and it ran out with no years after the statute of limitations ran mr burke says never claim to be entitled to any kind of statutory tolling and therefore if he's entitled to tolling of the statute of limitations it must be because reasonable diligence mr burks did not act with reasonable diligence because he failed to do anything for more than five years at the time  when he went in front of the circuit court the state circuit court the special judge there relieved his attorney mark o'mara for it and told him that the public defender was not appointed that he he had to pursue an appeal himself and that he could ask for help if he wanted it and in that in that same transcript before that there's discussion where even the lawyers themselves aren't clear what's going on when it happens when it doesn't is it isn't realistic to sort of say oh well the one line that he should have walked away with was you can proceed with your own appeal does it doesn't that sort of ignore the conversation that happened before then no your honor because the reason there are various to resolve that for example we're here today we're discussing a bunch of different issues and we're going to come to a resolution at the end of the court was very clear whatever confusion may have been discussed getting it was resolved by the and at the end of the hearing do you can add any confusion leads that the court says so clare's i'm indigent and you can proceed with your own appeal and ask for assistance i suppose if you need to i think the i suppose it is directed towards if you need to if you think you need help  there is no ambiguity whatsoever over and telling mr parks you need to proceed with an appeal by yourself and mr barker if you have the constitutional groups well he even testified that he proceeded by himself right yes your honor so he obviously either you understood it or he took the initiative without understanding it but he testified that he claimed he filed an appeal although there's no record of it as i understand it correct your honor he stated at the hearing held there did he date that i remember the claim but i don't remember the date to the date did he put a date on when he claimed not your honor he did not even roughly that is not my recollection he merely said i pursued an appeal  was you know in may he asked for and that is on the record he filed a motion for portions of the record that was denied by the way i had used in may twenty ninth of two double weight is that correct in may of two thousand and eight he requested a transcript in order to file a motion he said to vacate his conviction on the ground i believe of ineffective assistance of counsel right and that was denied and he admits that he received notice of that ruling the circuit court denied and in july of two what i'm trying to say since you know that do you know he was before or after during a round that he was claiming he filed the appeal we don't know when he could you tell by the structure of the af you can't tell now thank you we cannot tell mr burks was not diligent he did nothing for five years to monitor an appeal he did not  even if his motion for a transcript work construed as a motion for a transcript to pursue an appeal he never appealed the denial of that which he admits that he had noticed he didn't try to contact the arkansas supreme court court of appeals the clerk's office there's no evidence that until late thirteen like thirteen needed right now and then in late thirteen when he was told that no appeal had ever been lodged  e still did nothing to pursue his federal rights and that's the issue that's in front of the court today gordon versus arkansas clearly holds that what's at issue for purposes of due diligence i not the pursuit of state post conviction remedies or even a state appeal but the pursuit of your federal rights even if mr burks for some reason thought a direct appeal  pending which the state disputes and denies he was clearly told by the criminal justice coordinator in december of two thousand and thirteen that no state appeal had ever been filed then if if he was intending to pursue his federal rights he should have filed a federal petition then and then mr rosenzweig repeatedly states that it would be ludicrous to expect mr burks to file a protective federal hevia the law from the united states supreme court and in fact this court is that petitioners do in fact have such an obligation if they have a question about whether or not they have preserved their start remedies are exhausted there start remedies and to prevent them from being caught in a catch twenty two there are a diligent petitioner will proceed to the federal court he claimed he did two things that there's no record of claimed he appealed and what was the other thing he claimed he did he claimed he filed a state alleged extraordinary circumstance here what do you think it is i think that what district court said i think what the district court believes was an extraordinary circumstance was the lack of a counsel direct appeal but that is not an extraordinary circumstance under under holland versus florida because they did not stand in his way to prevent the timely filing of his federal petition his conviction need only be final in order for him to pursue a b s relief and the lack of an appeal did not present prevent him from filing and in fact he's never had an appeal and he filed his happiest petition so there is no and thirteen satisfied his diligence efforts if there are no further questions at this time i reserve the remainder of my time for about oh all right you may mr rosenzweig will hear from you if you're  g versus florida counsels that the court should not put itself in a procedural straitjacket with regard to equitable tolling in this is an extraordinary case in a lot of ways and extraordinary circumstances are presented here most equable tolling cases seem to fall least the ones i've read all in one of two categories either it's an attorney makes up some passion or it is a pro se litigant message suddenly up in a proceeding where he is or where there is no entitlement to counsel and here we leave everything in this case flows from the original sin of the just flagrant absolute denial of constitutional guarantee of right counsel based upon the finding of a special judge who didn't know what she was talking about and how does that affect our diligence and alice's if you've got if you've got a lawyer are you more expected to sort of sit back and say well my lawyers handling it or if you don't have a lawyer are in which are in the record they're part of the state's exhibits were documents which he thought were an appeal now they were but he thought they were but he p presented s that he i couldn't find a haiti to see there but i think i know what happened he was confined in jefferson county arkansas which is where the prison is in an arkansas law you have to that as my speculation as to what happened but what we have here is someone who again look at his particular circumstances he's filed some stuff that's been denied he he is he has been denied his constitutional right to counsel and the guarantee of counsel someone's told him though it takes three to five years or so and just sort of figures that's that's what it is i wish the facts were different but those are the facts but under the particular circumstances that we're facing here samit that's that sufficient another way you know we say that you reasonably diligent if you rely on some guy at the law library at the jail under estimate on timing isn't that gone you create a pretty gaping exception to this requirement because of the factual circumstances in which is presented you're not the way to seventy one denied counsel on a direct appeal i mean that it's got to be incredibly rare if at all i mean of what i distant person being denied counsel and direct appeal i think this is a silly generous type situation that calls that calls for you mean it's reasonable ryan a guy in the law library when you're talking about a ruling of a special judge that's that's the circumstance have a judge and told him not to file an appeal that's like several cases from several of the circuits that we were able to find and if a court tells you something like that that is told him he wasn't entitle to a lawyer when he clearly was in relieve the lawyer he had in gross violation rowley case law but specific rule and and so and again what's that got to do with why he is allowed to take five years before he takes any action well because he didn't have anyone that he he he was deprived of of counsel to which he was entitled who could have told him something differently and and finds out that no appeal no appeal is there and that's when he started the process you went to state court this is the new judge that her judge right had a hearing and said i don't think without an opinion i think another way to look at this is as a form of attorney abandonment it's a judicially ordained and sanctioned attorney abandonment but that i think that's that's an alternative way with a what's the most points discussed this in terms of abandonment right well well i mean the more courts you do not know sir it's not i think that's an alternative way of looking at it in other words this isn't someone who just like in the holland case just sort of ran off and didn't respond or anything else like that he went to court and got permission to abandon but it was none the less another way i mean there another perspective you have on it is you can look at it as a type of abandon of your right to counsel then it would if you were if you had counsel or if you or if you're in a stage where you're not entitled to counsel that's that's  holland says you don't put yourself in a in a procedural straitjacket you look at the individual cases and this is an extraordinarily almost unique if not unique case and of the particular circle holland was abandoned by ken holland was in a bit but he had a lawyer and he had some a court appointed someone he had a lawyer this guy didn't you know at this time during the time that the clock is running this guy had no lawyer he should have a lawyer but he didn't that's that's the that's the mean that's that's what we've done with what we have here and it's i mean it's i mean the state agrees that he was intitled to a lawyer for his for a direct appeal there's no dispute on that and they can see that it in passing in various parts of it in the brief he was entitled water he never got one and he was sitting there alone un counsel semi literate in prison deprived of counsel convicted of a heinous offense think something's going to send some stuff i never  extraordinary circumstances now this idea of protective hate years you know i i don't think that the court should be in under the particular circumstances of this case when when you want someone to go not following your argument well what i'm trying to say under the particular circumstances of this case when a person is then he is is without counsel at a time where he's supposed to have counsel he appeal assumes that nonetheless assumes that you have counsel and he approved he had indicated there is no question the record he indicated i want to appeal to his lawyer levert says he wants to appeal  but he doesn't have the money to pay for i don't mean to play for this but how important is the fact that he didn't have counsel in your diligence analysis in other words we've got a few filings on his part  could it have been no filings on his part until he found out later in what where every line of this case but it's a minimal minimal number of steps he took and so you seem to be putting a lot of weight on the fact that he didn't have counsel well yes well he thought he filed something that shows he continued to want to pursue his clients he files a motion for a transcript he files a motion for discovery  this at my guess and my guess is that's my that's where that's when he sent off those two documents and he would have been a barber if in fact he's actually written any regularity thing he knows that the transcript plesk economy whatever if he said something in it didn't you know through the prison you know mail can we got mail that it didn't make it to the pole ascii file might as i say my guess is that he did send something to jefferson county in jefferson county just round filed it through and why do you guess that or because i've dealt with jefferson county so much that's my guess there is nothing in jefferson county that was the county in which the big count in lincoln county but tucker but tucker which is a big in tampa maximum security are in jefferson county i thought you said it was that bar where he would know he had been moved around my understanding he's been moved around where in other this his statement there is further evidence of his lack of diligence because if he did in fact file those and made no inquiries whatsoever as to their status until late tw thirteen that is evidence of lack of diligence i was surprised to hear mr rosenzweig say this morning that these cases that this case is like a case where a client has been abandoned by an attorney because the circuits case law is very clear as petitioner cannot continue to rely be thought to have reasonably relied on clear that if the client is not hearing from the attorney the client can no longer reasonably assume that a pit appeal is proceeding so to the extent that mr rosen so i think those cases are an surreally with the concept of an extraordinary circumstance nothing about the lack of counsel to pursue a direct appeal interfered with says ability to file a federal hevia spit titian and that is the question that's before the court it's it's a did something did an extraordinary circumstance happen that prevented timely filing and as judge benton when you were asking mr rosenzweig questions about whether or not a judicial action can warrant is an extraordinary circumstance that's when the judicial action goes to the federal filing deadline and that is not the case here the judicial mistake that's alleged here has to do with the availability of counsel to pursue a direct appeal while unfortunate that mr did not receive appointed counsel to pursue an appeal under the specific facts of this case which meant mr rosenzweig repeatedly states as important he was told that the onus and the burden was on him and had he followed that advice he could have gotten a belated appeal in the arkansas supreme court and presumably we would not be here today if there are no further questions at the start of our respectfully request