please the court tim foley for petitioners meth in two thousand and four this court remanded this case to the district court for a factual development regarding the question of whether the petitioner was entitled to equitable tolling such that his two thousand and two federal petition would be timely sensually the remain and then to before dismissing the two thousand and two petition on grounds of untimely as the district court had analyze factual allegations regarding equitable told the district court did not appoint counsel mr smith was fending for himself and the district court did not hold an evidentiary hearing instead of the district court review the documents and allegations and while they held that mr smith was entitled to some equitable tolling for a period between ninety eight and ninety nine the district court held that the allegations of mr smith lacked credibility and that he was not entitled to equitable tolling for that time that's the main area that's one of two main areas if you don't feel the ninety eight ninety nine period there is a separate dispute because the magistrate judge then weeks to out to decide that as to two thousand and one two thousand and two period a period during which mr smith was exhausting his remedies in state court because pace had changed the law with regard to whether a california diligence de fault statutorily tolls the running of the federal time he was not entitled to statutory tolling for the time it's spent in to larry county court in two thousand and one and the time he spent in the california supreme court in two thousand and two the magistrate judge made that ruling without giving mr smith a chance to respond to that change in law and without giving this transmitted chance to argue equitable tolling or detrimental reliance with regard to that two thousand and one two thousand and two petition those are the two main bones of contention the ninety eight ninety nine period in which mr smith made allegations and titling him jackal tolling in the two thousand and one two thousand and two period in which the district court reached out and held that he was not entitled to statutory tolling i want to go into more detail in the ninety eight ninety nine equitable tolling period mr smith represented himself in the district court he made a number of factual allegations the most significant of those factual allegations is in paragraph seven of his declaration and his opposition to the motion to dismiss which is that page s thirty three to thirty four of the excerpts of the record in which he alleged that when he was sent out to the to larry townie in the fall of ninety eight for the litigation of this larry county petition he was not allowed to take his legal transcripts and documents the president essentially packed them up when he returned in september of ninety eight without a caring the president told him his legal materials were gone they couldn't find them they tried to find them they looked for them he asked them to look for them he never saw them again now under law curses mueller and a number of other cases including espinosa matthews versus california this court has held that the confiscation of legal materials such which is that excerpts of record to seventy in which the magistrate judge did something fairly tricky and i mean tricky in the negative sense he misconstrued fishnets allegations by saying that i'm going to alleging he lost his legal materials in december of ninety seven now i can see the petition was not entirely consistent and he did allege a lot of things but the magistrate judge by taking the december ninety seven date as the date of the last of the documents then was able to say well since petitioner filed in the spring of ninety eight some state petitions that included transcripts as exhibits i'm going to reject the credibility of the petitioners claim that he was without his legal material of the ruling until larry county court that's that's correct it is that of then the cost petitioner to be shipped out of prison to to larry county for us that's when you might go to start extraordinary circumstances yes well i think the it the extraordinary circumstances would start from that day because he didn't have his materials with him and when he got back to the prison he was told they were gone and when with the end of the extraordinary circumstances  the extraordinary circumstances would be over after a reasonable period in which the time he tried to reconstruct those documents the allegation is that he's entitled to a year of aquittal talling because from march of ninety nine on the district court gave him that quotable tolling because of his medical condition what happened was he attempted to reconstruct his legal materials then he got sick in ninety nine recovered from his illness in two thousand and one and then began march first a one right see the problem here's what i here's the problem i have tell me what i'm missing the direct appeal was over on november tenth and ninety seven so the clock statutory tolling and eight hundred ninety eight is the start of extraordinary circumstances equitable tolling start to get two hundred fifty seven days left if you go to march first old one at the end of an extraordinary circumstances you have two hundred  fifty seven days left the clock starts again on march one the time expires and with two hundred fifty seven days on nov thirteenth or one of the heaviest petition is and filed until age twenty one or two at one time that by two hundred eighty one day that is where we get into the second part of my argument at march first two thousand and one is entitled to statutory tolling because at that point he's back in court in two larry canny litigating and exhausting his remed s rejection then the court cited dickson clark and black and held thanks that the order held that it was a mixed finding the court held that he had failed to give sufficient grounds for the renewal of some of his claims had failed to give sufficient grounds for the repetition of his claims and the hideous and held that asked a new claims he should have brought them earlier but it was not an unequivocal timeliness the fault that's the nov thirtieth two thousand and one ruling it's my put to my position that that is in a fact a ruling based upon conditions for relief so under our to lose as opposed to pace i would have thought that it be page that's not properly filed and instead of just giving one reason they give a bunch of reasons that all in the penalty as well as together would compel merits of any of his arguments he did not rule on the merits of any of his arguments but are to the still good law for the proposition that it procedurally flawed petition is nonetheless properly filed if that procedural flaw is a condition for relief as opposed to a condition for filing now with timeliness is a condition for filing that's fine but the ruling in this case in the two larry county court was a mixed ruling th bind conditions for relief with conditions for filing and therefore was properly five so to get back to judge tries question he's entitled to statutory tolling from march of two thousand and one through the larry canny ruling in october of two thousand and one then he's entitled to statutory tolling during his time in the fifth district court of appeal now whether or not the california supreme court's ruling in the two thousand pocket requests that appear in his case file and he even used some of the cases that he requested in subsequent filings the credibility determinations were were denial of that petition of the first petition after the equitable tolling may have kicked in and i cite bonner on the very next page and if you compare the two quotes they seem to be