ambrose and december of two thousand and eight and then primarily in january of two thousand and eight enter two separate orders directing that council brief a particular issue before taking action the court had granted a certificate of appeal ability and have requested the court appointed counsel for mr kramer be a point of this was and december of two thousand and eight record it does not appear that chief judge kane had the opportunity to see that order right i looked high and low in the record and i think judge ambrose gave a lot of leads on the two orders that were entered at that point right i clearly think judge came would have had she had the opportunity to consider that would have gone ahead and made a decision at that point and consider the petition at that stage well certainly allowed the  properly could be properly filed under twenty two forty forty two that certainly is one of the issues also judge column i don't think there's any doubt about that the doe we have decisions which say that one program is not proper filed i think the decisions we've looked at and i took a look at that issue as well that's something the mr cramer brought up in some of his documents what the file before the court and the cases that we're looking at appeared to be where the petitioner had run out of time it was simply trying in desperation perhaps to try to file something with the court to toll the statute here in this particular permission i'm sorry without the court's permission yes without the court's permission in an effort of trying as a as a desperate last measure to say look let's let's bring a halt to this week and i've got to stop this one year statute of limitations from running so let's file here given the circumstances i think the pennsylvania's supreme court was quite justified in following its own court rules obviously it does have a court rule on that particular subject that deals with that very subject which is very important to the court and that is a a court rule that's quite specific on that and that is the pennsylvania rules of the poa procedure rule one o five am be sections a and b that's very important in the talks to the court that tells the court that a liberal construction a modification of the rules can be a warranted and the notes to that particular rule clearly indicate that statutory time limits under this particular chapter do not applied were peel's or to other judicial review by the supreme superior or commonwealth courts and that the rule be which really brings to an end it says you cannot on certain appeals go forward with this you cannot grant the state of relief it does say that the rule is not intended to affectation the power of the court to grant relief in the case of fraud or break down in the processes of the court i'm sorry i didn't know much rob sorry your honor but that leads us back again to the superior court decision on the the events of march two thousand it had more basic than that set of going back to the pennsylvania like i think i would still prefer instead of using equitable tolling i really don't think as i look at the case and look at the record that the court needs to deal with park two that's the equitable tolling i still think this is well i think with the holland case it came down in june of this year at that point clearly the court now is dealt with this issue of equitable tolling it's given the guidelines but i think they're very consistent with what the courts of appeal of been looking at for quite some period of time the two part test and i think even using the equitable tolling i think that mr kramer will prevail and that the district court should consider the petition for writ of habeas corpus at this point whether you go back on park to what i call equitable tolling or whether you go back on the timeliness issue i prefer to see the court actually just address the timeliness issue and go forward on that by looking at that again that application to the pennsylvania supreme court  fact that the court retroactively if you well wiped out a period of time what other wives was going to be tacked on and clearly that additional five months would clearly part mr kramer over the deadline at this point but as we look at it right now two hundred and seventy one days have been consumed in waiting that could be used on the statutory tolling this point two hundred seventy one days so we're not close to the three hundred sixty five day one year statute of limitations so i think on the timeliness issue this court can send it back on that and feel comfortable doing so but if not i think the other section of the case the equitable tolling it could stand on that as well given the unusual circumstances we have here i do not believe so if you want to send it back to judge cain and have the judge make that ruling and then bring it up at that point if necessary that certainly would be the let me say the safe path and that pressure and that perhaps get that was sent back to work i suppose in all fairness to the chief judge it would be helpful for the court to to send the matter back and say please take into account this additional issue which apparently was not brought to your attention and liberal accordingly at that point mean i mean what you want to i took a look at the petition but i have to tell you i didn't spend a great deal of time going over it and i have not spoken with him except through communications  position here is that the judge did rule correctly in terms of prior law on this particular issue this court the third circuit in douglas versus horne two thousand and four it was a sight at three five nine f three d two five seven all of his his direct review he had had spirit review he had supreme court review this was on a post conviction collateral relief action how how can you say something is on timely when the president is a court itself invited to be filed one proton this is not someone who came in out of the blue and wanted to come in proton the court itself said look we understand you didn't have an opportunity to had said that since he's out of options what can he do on terms of his state court appeals that's the only thing he could conceivably do in terms of his overall post structure he could also find out his he is corpus at that time that the main issue is on file this this appeal they invited him to do it for thirty three told him what his options word but it's not it wasn't an authorization saying that it's going to be a valid feel that they allowed him to do it they granted authority d ction for discretionary power review unlike the direct appeal where it's the clock doesn't begin until the sense becomes finalized and therefore you have additional time to follow either if we wish to stay say criminal proceedings we need to file a separate motion to stay the proceedings it's it because it's not a valid it's not a standard application for her no i'm not fine correct and the whole nature of it is it remains out of time and the supreme court can deny the petition for el al kut or based upon the time when they were no they granted leave to file the no proton petition however for court for it to make a determination as to whether or not that twenty to forty four day is equitably tall in this case the man is faultless if you could prove that your honor in this case attorney this case the defendant defense counsel attorney rick robinson had sent correspondence to the spirit court that correspondence informed the spirit court that he had an e mail address the spirit court had given notice that it would be releasing all of its decisions that he did not receive this e mail because he doesn't have a computer and he doesn't check e mail that's attorney error this attorney provided the court with an e mail address on his correspondence which is evidence on page twenty they also said that in the past he'd always gotten business i don't believe it was intentional i believe it was a minor attorney mistake however the spirit had sent out notices saying that when you provide disappear court with an e mail address they will use the e mail addresses address to serve non presidential opinions upon the part this via e mail and then a few minutes later he goes oh my goodness i don't have a computer i don't check what you know that was not a good move a member that's not the scenario he sent them his letterhead on the letterhead and he has an e mail address which apparently isn't totally meaningless order had gone out our position is with the discretionary nature of the pennsylvania supreme court's decision that the defendant at the district court level would have had overcome the presumptions in those cases that i referenced he's saying in sixteen he the attorney robinson and sixteen wreck appeal or a civil case where the client has been sued for damages or other type of relief where you have a situation where this is the end of the case if if we hold your position to however as shown by his actions again in secret level subsequent to his firing that he views even when he does that he's unable to actually meet his burden and our position is that at the at the at the district court level and before the kind of pennsylvania courts that the defendant when he received his spirit court opinion back on december seventeenth two thousand and six he would have still had by our calculations until january two of two thousand and seven to follow is he just in a timely manner and beyond the time when if you didn't f the equitable towing but after month after month after month of nothing from the defend my talking about a few months but you don't and i and your and your briefing does not deny that if we told the time after which he from did know that there was an adverse decision about question is if it's told equitably he would be timely under twenty to forty four if told i'm not saying it should or should that if told it would be it would be time our position course being that it's not time thank you very