thirty fifty years in this case in our contention is that if the first one isn't entitled to equitable tolling then the court should also consider whether the second one which relates to a brady issue that didn't write been until well into his original post conviction proceedings whether or not that one also should be considered and for equitable tolling so but to begin with the first the claims that would have arisen from mr brown's direct appeal his original thirty fifty one motion in state circuit court and his federal his state k b s petition before the florida supreme court there was a series of attorneys that represented him pursuant to florida statu relating to the fact that all capital collateral defendants are entitled to affective assistance of counsel in those proceedings originally he was assigned to a c c r office they quickly conflict off the case without doing any work although they did have a brief communication with mr brown and then the second attorney was appointed mr de moore and mr de moore the extent of his representation was in writing mr brown a letter and then writing him a second letter about him know he was withdrawing from the case you know just so sure that i'm up with you this is so is direct appeal became final honor i mean i didn't have a lawyer didn't have a lawyer he was in the state of texas the federal government you know jurisdiction back of mr brown and put him because he had a federal federal sentence that he was serving in so they removed him from the state of florida and took him back he then didn't get counsel appointed until august tenth so from may third to august tenth there are some odd i guess there would be one hundred twenty days or so would be we would be asking for tolling but i think even more importantly so when the second attorney gets appointed mr bond of course see that's on february sixteenth of two thousand and two hundred eighty nine days now extraordinary circumstance that he was given attorney the attorney originally represented that he would be working on the case in his initial letter and then according to a bond of course he who comes in after the fact says nothing was done nothing was done so if that isn't abandon it when you represent i'm your attorney and then do nothing i don't know what it could be other then to be characterized as abandonment so those are the first two hundred eighty nine days can i ask i know you know a lot more about this than i do when you're talking about this in terms a little bit different than i was thinking about and so can i just ask you about whatever his name was that has to do with statutory towing right as a so i think this is what i was so and that the standards different so you know it has to do with well that there was a brady valise and so there that was told because the information about this witnesses identity was not turned over by the state as required correct ok but so at do do we have any do we know it either or when that information came to be known by the state number one and i know mr bond of course he raised it but i don't know which one of his petitions he raised it and did he raise it in the november two thousand petition the february two thousand and one or the april two thousand when because that stuff's not in our record the best i could tell ok i do know that he did not raise it in his initial thirty fifty one motion and it was only when he started preparing for the evidentiary hearing that he then noticed that there was this entry on wire so there was a thirty eight fifty filed the day before the evidentiary hearing was supposed to begin originally mcguire was only testifying in relation to i believe mitigation issues and that was why bond of course he was calling him but in preparing the writ that you need to do in state court to have someone brought from state custody to the county for testimony he did notice this this entry in so that was april of two thousand and one right yeah that's right so that's when the amended motion gets they believe the evidence you're hearing starts april twenty seventh which is the day after it's in the exhibits that were attached to our supplement to the petition and it's exhibit t january twenty sixth of two thousand and one so this is you know four months before the evidentiary hearing where the state attorney reaches out to ohio and the the ohio department of corrections and asks for information about keena and apparently gets information back because that ultimately gets disclosed to mr brown several years later  so we do know that the state in the state of florida you have an obligation to disclose brady regardless of whether or not you're in post conviction or trial but it nothing was disclosed in til much later from that particular inquiry on the state's part now at the evidentiary hearing bone of course he asks and the state also arranges for him to have an attorney before he testifies to advise him because there may be some issues they're going to subject him to prosecution that the issues are not revealed but when keenum takes the witness stand in his ass to state his name he takes the fifth amendment later in his testimony he answers a question as to whether or not he's used particular aliases and he does agree that he has used a couple of particular it leases but not jeffrey scott keenum which technically wouldn't be an alias because it is his name his birth name so but he says he denies that jeffrey scott is a name he's used as an alias so after the evidentiary hearing you know he does had tried to pursue the issue saying that there was there was information out there clearly there was a criminal history that he was unaware of and he does raise that to the floor supreme court in that initial a ppeal from that post conviction motion and that but what happens is then when bon or comes on the case later after the first initial thirty fifty one has been affirmed by the florida supreme court honor then makes a motion for discovery and the state resists turning over anything that it's gathered on keno and ultimately the circuit court state circuit court judge grants her motion over now in those records there's specific information about criminal history and there's information that bone of course he did not have in relation to there i think there was some sort of document legal document a will or something that showed that in that legal document he was referred to as keenum so based on those records then barner files the successive thirty  fifty one contending that there was a brady or a due process violation a potential good leo violation but she's somewhere summarily denied because the court in the state took the position that this has already been litigated even though there was new evidence that had been disclosed and it's never it was not raised as brady the first time around it was only raised as newly discovered evidence and in florida that means that your burden of  your standard of what you're trying to prove and your availability to what you are entitled to is somewhat different so in brady is a much obviously a more favorable standard to be under that standard the newly discovered evidence  something when when do you think it became brady was that in january of two thousand and one or do you think it was brady some time before that well we don't know i mean having not been a prosecutor i don't know what prosecutors do to prepare witnesses but what i have my understanding is that running an n c i c on your codefendant slash critical witness probably happened and if that happened then they knew that it was ohio that he had he was an escapee from ohio using a different name an alias in florida when he was arrested and took the plea deal here in florida there's no evidence of this record about when that might have happened or isn't if it had right there's no evidence i mean the bomber claimed there were these red flags and she said set out those red flags of why you know what had triggered the state attorney in two thousand and said even if there's no time to produce evidence or to find out what the evidence is the evidence are here and so if they have a good faith basis you know they should have an opportunity to find out when did the state know about these circumstances and you know was it at trial because if so then that changes changes things in terms of cross examination and you know keynotes credibility which is just as quince points out is really critical to the case against mr brown can i ask you about the statutory tolling issue with regards to subsection d one b yes that one is based on the brady claim and nothing else and survives only for that claim is that accurate right i mean in zack the this court said that you know does it revive the life of all of the claims if because it is it is clear that more than a year passed between the various time frames of that a getting that issue in the state court so assuming that you are right about everything and that this only applies to that claim not to your other general arguments if you are right about that the clock started ticking on that claim in july of tw when the florida supreme court denied rehearing on the second three point eight five zero is that right well i think to be fair the clock starts ticking when the evidence was disclosed no no the clock starts i'm assuming that you get statutory tolling all the way through so your claim becomes available when the discovery is given to you and then the then mr brown file of the second three point eight five  and you go all the way through those proceedings but then the florida supreme court ultimately denies relief by denying rehearing in july of two thousand and ten is that right that's correct ok so at that point that one year period even if there's been statutory tolling all the way through that period then begins to run yes ok what do you do about all the time that passes and granted there isn't much extra communications with mr brown he mr brown specifically asks why does justice quince say this case is ripe for a warrant and the the easy answer to that is because you've exhausted all of  appeals and your so now you become worn eligible it's a very simple answer in the state of florida but chris anderson doesn't answer the question instead what he says is well it's just moving along in the process you're getting close to being done so he doesn't tell mr brown the truth about the tolling and he then later represents but that the answer to that question doesn't necessarily have to do with to it's unrelated to the merits of this brady claim is it not it's well it's if he had told him the correct answer it still wouldn't have anything to do with the brady claim the answer would be you've exhausted your state remedies and now you are in one sense of the word eligible to have a warrant of execution signed for you but that wouldn't have done anything with regard to the brady claim that was just rejected or you're only eligible if all of your appeals have been exhausted federal and state so the governor doesn't see your name in less you have gone through federal court and the u s supreme court has denied  was wrong no justice quince was right because they knew that he they knew that he had not met his a d p a clock at that point how would they know that if that issue hadn't been litigated wel they knew that he had not filed after his original thirty eight fifty federal his petition i guess justice quince is not that she knew that but certainly they were aware through july of two thousand and ten i'm i'm with you on all of that for that one claim but then the hey be is petition is not filed for another five hundred and ninety something days the he petition yes that's late yeah i'm asking you how you get equitable tolling to excuse the late filing on that claim on your alternative argument well one one i would say is the a e abandonment issue again because andersen does not have contact with brown for nearly a whole year despite brown's letters to him asking what's going on don't bypass federal court i i see you filed a circuit to shim but i want to go to federal court and and has andersen explained in any way shape or form why he didn't file within a year of the florida supreme court's  decision no i mean andersen made representations that he that he was timely which he clearly was not and so he misrepresented that fact it was not around there was no affidavit or deposition or no there was no evidentiary sort of proceedings in the district court we submitted our appendix which i think it taken as true certainly would entitle us to have an evidentiary hearing based on the the wreck but we don't so on this record we don't know it won't so is your argument on this specific claim with the statutory tolling that you win as the record stands or that you warrant an evidentiary hearing to find out the reason why mr anderson did not file on time well i do think we win as we stand because we do have these periods of time where andersen disappears and doesn't respond and that's very similar to holland where the client is writing and what was characterized as abandonment so there is there is a good chunk of time that would help with the tolling you know i don't  i want you to answer just one but i was looking back at the the last time this panel wrote an order in this case and we talked about the fact that it's that enter some finally came forward to us and basically said he had a conflict of interest divided i don't think he used the term divided loyalty but he understood at that point that he was part of the equitable tolling problem and recognize that he needed to be replaced and that's how how you ended up here i mean i had forgotten that just you know i think that's important but that conflict at least the way i'm looking at it and i i need to do a deep dive into the record to become as familiar as both of you are with that but that conflict arises because he filed late and because he can't represent mr brown on appeal when one of the argument is going to deal with his untimely filing and that makes perfect sense that he can't he's got divided loyalties but my question is do we know i guess you've answered is we don't have anything from m anderson on the record as to the reason why he filed the hey be as petition when he did is that accurate that is accurate ok we they're there i'm sorry but  i have i just wanna make sure i'm not missing any of them are there five letters from brown to anderson in this period for a while sorry i guess it's four letters and a phone call on brown's behalf and of those five communications four are expressing concerns about filing federally and getting it done on time yes or are there any other ones besides the ones that i've just mentioned on no the ones that are the ones that are in those exhibits that we attach to our supplement are the ones that i believe you're correct as far as how many there were but the other issue i just want to bring up before i ask if i can reserve the rest of my time is that there's also this issue of brown's intellectual functioning that also does present some challenges  and i think some extraordinary circumstances in this case because he he functions at a very low level clearly he does start writing letters after he's been on the row and is surrounded by people who and other inmates who have you know it's gone through the process understand the process but he himself if you look at the various letters in the email from bonn or to her investigator it's clear that he doesn't comprehend exactly what has to happen in this is you know this is complicated to begin with they think for people who have degrees in study of this  n do this daily but for a person who's in the bottom four percent of the population in terms of his intellectual functioning this is this is a very big challenge to expect him to do more than he did and so he does start writing those letters and i submit that that shows his diligence he did it earlier in the process he did try to reach out to the person running the registry to show some concern about his case  he's not sophisticated he doesn't know any precise way to to convey what he you know the information he may have about federal appeals and a t p a deadlines and that sort of thing but i do think that that's another issue that has to be considered in could certainly serve as an extraordinary circumstance here and as part of you know a reason to show that he with what he's working with he was extremely diligent in trying to make his case to get his twenty to fifty four file and and with that i would just ask if i may reserve the rest of my time rebuttal you may thank you good afternoon if you don't have to use the court my name is marilyn back you i'm with the florida attorney general's office and i'm representing the responded the department of corrections in this case it's a couple things i just want to clarify because a few details were missing in the presentation here mr brown did unclear why conflict counsel could not continue to represent mr brown but for some reason they withdrew in august of one thousand nine hundred nine and that's when mr a more day more not sure how to pronounce his name was appointed he has had coun throughout his proceedings the entire time there was another gap or i thought there was maybe i'm wrong after ms bond or left and before mr anderson came on from january ninth of two thousand and to april twentieth of two thousand and nine miss podder she was allowed to withdraw by the florida supreme court during the pendency of the appeal of the successive thirty eight fifty one and then mr anderson was appointed to pursue the appeal on behalf of mr brown but that was during the pendency of the appeal of this the success of post conviction motion in state court ok so didn't matter that he didn't have a lawyer explicitly and also the issue of mr mcguire slash genome was raised in the november two thousand post conviction motion in state court by mr bott accorsi that's his initial post conviction that would have been a substantial claim that the state would have needed to respond to so he was that you said he raised before the other venture hearing he in his initial motion to the state court mr bond of course he raises newly discovered evidence that mr maguire was in fact or maybe an alley as mr keene i'm from ohio and he finds that out based on the dios esearch and the d o c records the florida department of corrections records indicate that ohio had put a detainer on mr mcguire slash keenum in february of two thousand so mr bond of course he raises that in his november two thousand motion as an issue of newly discovered evidence i'll look for those three pleadings the november the february and the april d could you all if you are in agreement about what those fallings were could could you all get together and produce them for the court that would be fine with me ok thank you that would be helpful yes also i just have another question that's factual in nature when exactly was the additional discovery turned over by the state to mr brown after the florida supreme court denied rehearing it was  i believe is when december of two thousand and six afternoon camera inspection had been completed but i do want to step back a little bit from that because the demand by miss bawn or was in two thousand and four allegedly the suspicious activity by the prosecutor that happened at the evidentiary hearing in two thousand and one which i'll get to is what raised this red flag allegedly but she doesn't even ask for any kind of discovery until two thousand and four and i want to clarify what she asked for was the state to create and produce records to from the ohio department of corrections as well as the f b i on mr mcguire slash kena she's not asking for the information that's in the possession of the state attorney's office that information was sent to the registry pursuant to state statutory rules and in that disclosure through public records litigation back in nineteen ninety eight nine hundred ninety nine is an n c i c of c i c record regarding mr mcguire that has no indication that he's mr king i'm from ohio so the information the state had during the trial the what happened here is that the state was compelled to produce evidence not to give over evidence that it had in its possession it was ordered to produce evidence and there was quite a bit of litigation about that and the state did take  florida supreme court which was ultimately denied his untimely because there is a florida law that says and federal law that says f c i see n c i c f b i investigative records f b i criminal history records are privileged they are not something that can be disclosed to anyone other than a another criminal investigative agency and so when the state writes the letter back in two thousand and one to ohio saying i want the records of mr mcguire slash keenum this is after mr bond of course he has raised an issue of newly discovered evidence in his initial post conviction motion so is your position that that was the first time that the state became aware that you know him and mcguire were one in the same was when mr bond of course you raised in this motion that was the first time the state became aware that there was a detainer based placed  under the name of keno ok let me ask you again is that the first time the state became aware that mcguire and and one and the same i don't know that they became aware that they were one in the same and not trying to  too much but that's the first time they became aware that it either was an alias or maguire was an alias so the answer would be yes i guess to your question so that was the first time that anybody raised any issue of newly discovered evidence that mr it did not know it had nothing in its records that would have showed it that mcguire and keno more using i don't know how to put it so in a way that you're going to be happy with but in my view that we're one in the same person i understand yes intil until november when bon accorsi made his filing correct and is there anything in the record that that substantiate s yes there is actually because during the evidentiary hearing in april of two thousand this issue comes up and during a break in the proceedings the prosecutor goes to his office and he comes back and he says this is after i think mr maguire has testified that i'm letting the court know that i'm handing to mr bond of course the certified convictions in the indictment from ohio that i received i went to my office i didn't realize that i had them but here they are i obtained them as a result of mr bott of course he raising this newly discovered evidence claim and i'm giving them to him now the records that were subsequently disclosed in two thousand and six include medical records mental health records disciplinary records post conviction pre and post sentence investigation records from ohio those are documents that would not have been given to the state of florida or to the attorneys in this case because their privilege under ohio law this was a long progression of how we ultimately ended up getting these ohio records and it was because the state was ordered to get them from ohio and then we had to domesticate a florida order in ohio to then allow them to be sent for an income or inspection this wasn't the state trying to conceal evidence that they had in their supreme court on the appeal from the two thousand and eight successive post conviction motion found that that issue under state law was procedurally barred and untimely so we have a state court decision based on state law that that issue if it were going to be raised it should have been raised at a minimum within a year after the two thousand and one evidentiary hearing if that's in fact what generated this sufficient that the state might have this evidence but there was nothing presented to the state court in there was nothing presented to the district court below that there was any efforts on behalf of mr brown from two thousand and one when this evidentiary hearing happened till two thousand and four when ms bonn or is now asking for these records what the transcript of that evidentiary hearing for the first three point eight five zero was not in the district court record not to my knowledge your honor the state didn't file it i didn't with this answer i don't believe so because the issue was limited to the  because there wasn't any diligence in attempting to develop this alleged brady claim from two thousand and one to two thousand and seven when the successive post conviction motion was filed  before in terms of the record the state is terms of the state court record what was not before the district court on remained what they did not have that it should have had or probably should have had and i am going to say this is what i believe was not before the the court i don't believe that the evidentiary hearing from the original thirty eight fifty was before the district court in this case the orders and pleadings were before  the district court but not the actual evidentiary hearing and i also don't believe that the evidentiary hearing from two thousand and eight was included before the district court i could be wrong on that matter but i believe it was based solely on the the pleadings and the record and i realize that that causes a little bit of a concern as far as you know the argument that's being presented here today but when you peel away the layers of the onion you get to the point of realizing that mr brown hasn't shown any diligence with regard to either to the initial name so here's my problem with that if we look at what's in the record we the reason i have all these questions is because i can't tell from the record and so if i'm looking at what's in the record i see that you know there is this there's this instance where  ina maguire one and the same there is this letter from the prosecutor it looks like maybe the prosecutor knows something that he or she hasn't turned over and then there is a subsequent order from the state court that then requires discuss further discovery so it looks like when you're looking at data that mr brown may have established that there was a brady violation and that he could not have known i recognize that this is the florida supreme court held differently on the first on the success of claim but it looks like he could not have known until such time at least as all of the materials were turned over pursuant to the court's order to do so and so that that would have started a whole new clock and you're talking about his diligence but to me that doesn't even begin to kick in until we as stablish when the alleged brady violation occurred right and not when it occurred but when the materials were actually turned over and so he should have been on notice of these materials and so i can't even begin to figure that out based on this record and it seems to me like that would be the state's burden to demonstrate well i'd also point out that in the florida supreme court's opinion affirming the denial of the success of post conviction motion it notes that mr brown even as of two thousand and ten could not establish that the state knew about this keenum flash maguire issue at the time of trial and mr anderson subsequently files i think it was his motion for certificate of appeal ability in this court and i believe may of two thousand and fourteen and continues to represent i don't know that the state knew about this back in two thousand nine hundred ninety six or one thousand nine hundred eight when the trial occurred i am looking for a government funded discovery to find out if the state knew and that's not a brady claim that's not a brady violation you don't get to you know dig through a prosecutor's files or go through depositions and get all this disco but my point is simply this though i don't know that from this record you can tell that i mean you're telling me things that certainly make it seem that that's th case and i have no reason to doubt you but if it's not in the record that seems like it's kind of a problem well i guess i would just refer the court to the florida supreme court's decision in two thousand and ten where it says counsel conceded that he had no so during the state proceedings he was unable to prove that there was a brady violation he's still on a bill to prove that it was a great violation but that's an alternative basis for a decision that doesn't go to the  timeliness issue or the equitable tolling issue i know you've been asked questions about it so i'm not faulting you for answering them and i'm saying saying he has no brady claim and can't establish a brady claim is a different way of resolving this case than deciding that he's untimely and that the untimely and this is not saved by a quotable tolling yes and no is there needs to be a valid underlying constitutional claim even to talk and that not v trial about mr king let me ask you a procedural question and i'm going to ask miss macdermot the same question when she gets back up if we think that those two or one  evidentiary hearing transcripts are important for us to figure out these issues do you want us to look at the evidentiary hearing transcripts if you supplement the record on our own or send this back down to the district court for e mand if we were to get to that point ordinarily i would say that you should look at something that wasn't before the district court i didn't strike my direction above but all i need in this particular case  these are transcripts of an evidentiary hearing that deal with the very issues that are being raised in this court and let's not forget and i understand that it would have been beneficial to provide these to the district court on behalf of the state but it is mr at these documents so you you would say i think you can tell me if i've mischaracterized what i think you're going to say that if we think it's necessary to look at the records of these two or one evidentiary hearing that you should be allowed with miss macdermot to supplement the record with copies of those and then we should look at them ourselves yes you're ok and i know we've talked a lot about the alleged brady claim but i just kind of wanted to point out as well that this isn't a case of if you go back to the original denial of served by the united states supreme court in this case in may of one thousand nine hundred nine this is not an issue where petitioner is a few weeks a few months or even a couple years out of time we're talking about over a decade of time that passed between the firm and his conviction and sentence in the denial of cert by the united states supreme court and the filing of any motion and even that motion even if you wanted to accept that that this alleged brady issues started the time ticking again even that motion was not timely filed and i realize that ms mcdermott has represented that mr brown wrote some letters to mr anderson regarding his federal claims but we know by nine hundred ninety four mr brown knew of federal pondar from her investigator and two thousand and four that says essentially and it's in the record i'll let you look at it in their pleading mr brown has been told by someone of his quote unquote federal issues and that's all he can talk about now is his federal issues this is in two thousand and four he's already three years at least past the time for filing his maybe in four years is a federal habeas petition so we know he knows as of two thousand and four something about federal issues and that e mail even says i've explained to him that his time has expired and he seemed to grasp that at some point but now he just wants to talk about his federal issues so what did mr brown do from two thousand and four to diligently pursue his rights even at that point and then we get to where  starts an additional round of state court proceedings including this demand for all this discovery which ultimately she received ogo arguably have the state filed his petition and timely matter she might not have but that really is not particularly relevant to the fact that his petition was still ultimately filed in a timely manner well it's only only relevant if if for some reason there's reason to believe that a brady violation occurred and that they did not have reason to know it or should not have otherwise known what was in the content of those records and that all of those records were somehow part of that brady violation and tells the times it was turned over by the state right and again the red flag that has been continually alleged through the state court and through federal courts bonner to find those records and i'll take that back and i know this isn't before the court but i don't want to misrepresent it either the during the litigation in two thousand and four when responder files this demand for discovery she does say she attempted to get with the ohio department of corrections they wouldn't give her the information and because the information was privileged and not something that they would provide to her which is why she ultimately filed the demand to get a court order to have the state create these documents to have the state go get the documents from ohio so you know potentially she made some efforts but she wasn't appointed until two thousand and three so whatever effort she made we're still well outside of a time for you know establishing any diligence if your claim a rose in two thousand and one let me ask you a question which is based in part on a position that you vehemently oppose ok so the first part you're going to just have to assume something you don't agree with assume that the brady claim that you don't think is valid to begin with was properly raised in the second three point eight five zero motion and that statutorily all of the time until july of twenty ten is told on that claim and that claim only so that his clock evolved that is correct and i know you disagree with it starts to run at that time what are we to do with the record as it stands with regards to mr anderson not responding to mr brown's letters and then filing an untimely hey b s petition even after that one claim well mr anderson did respond to  a number of an issue a letter from mr brown after that claim with regard to what justice quince and justice period in meant in their opinion he does explain that then there were some other efforts by mr brown apparently through letters and phone calls and at this point mr anderson goes ahead and he files the petition so he does file it late but he does go ahead and file the petition now if he did it untimely as a matter of negligence that's not sufficient for an extraordinary circumstance that would allow for a little tolling so you need to have both you need to have some diligence on behalf of mr brown and you also have to have an extraordinary circumstance something beyond negligence on behalf of mr anderson and i realize that counsel is claiming that mr anderson abandoned his client but he only filed the pleading and he continues representing mr but if he filed it five years later and every month mister brown wrote brought him in a letter saying when he filing my petition i'm really worried it's not going to be on time well i think there are two issues there one would be a closer issue with reference to whether mr anderson s behavior met extraordinary circumstances but there's also an issue of diligence what did mr brown do when he realized his his attorney was not filing he writes in every month he wants about right but even in holland mr holland went ahead and filed his own petition because he understood that he needed to go ahead and do something this guy has a seventy three verbal score well and you know that's an issue that goes to his intellectual functioning that if it's ok with you if you both before we leave this topic about abandonment negligence that i've noticed and it's something that's been worrying me for a while so in order for there to be tolling there has to be a band a bad faith divided loyalty and then that opinion has since been vacated and the standards a little a little looser for it equitable toing do we need to re man so that she can apply the the law as it stands now i don't believe so because one can dead was vacated and a new opinion was issued it was an opinion and i think it even says right there in the opinion this is an effort to clarify what we said we didn't say that the only thing that would absolutely one hundred percent nothing else would ever rise to the level of extraordinary circumstances abandonment but it is certainly one of them that could rise to the circumstance of the requirement for extraordinary circumstances and it's kind of one of those situations of it's hard to tell sometimes what it is but you know that the language she quotes from  of abandonment from mr anderson so what the law is is that you you have to have something more than simple negligence and the only thing they could establish if anything were negligence on behalf of these attorneys not abandonment and that's the basis of their claim they're not claiming for instance mr anderson is mentally incompetent or has some other circumstance outside of mr brown's control that led him to file this petition like  right yes and the question is how far along that continuum do you have to get toward abandonment than away from negligence to satisfy the equitable tolling precepts your argument is that you have to get to abandonment or that something close to but short of abandonment might suffice in a given case i can in my own head come up with every circumstance that would might satisfy extraordinary circumstances but when you're alleging that essentially your attorney abandoned you you need to prove that your attorney abandoned you and that's not what happened in this case so to the extent there was any negligence on part of mr anderson i apologize if that's not a overly satisfactory answer and i realize that it this area of the law gets to be a little granular after a while depending on the cases that you're dealing with but if we stick to the case that we are dealing not timely filing the petition and as when and again i just reiterate he does the ultimately file it and he does ultimately ask this court to be removed as a matter of his own conflict because he wouldn't be able to adequately argue equitable tolling oh before i forget it will start asking you questions of the time will run out very quickly let me ask you the question that i asked was because you if we think that we need to review the transcripts from one or both of those evidentiary hearings first do you agree or not agree that both sides can and should supplement the record here with those transcripts or do you think that's a matter for remained i think that's a matter for remain and we can end that answers the second question which is you don't think we should be looking at those transcripts ourselves even if you supplemented the record correct ok i just want to clear you know explain though i mean i realize those are part of the record they are not you know they certainly in the normal course of circumstances are available to you my consumer issue here should we should be oh this is only my personal view i don't speak for my two great colleagues we shouldn't be diving into a state court record our own and finding it you know somewhere in the cyber world than then looking at her cells without the parties telling us this is the record we've looked at it this is the certified copy here it is that's that's a different thing so it i just think that it could open up a whole scenario where we're trying to give you more than just those pieces to say but we can explain or we can refute that representation that was made to the state circuit court with that so you need to look at it and so that's my concern and i don't necessarily know that there's anything like that but i fear that we then turn this court into what it's not supposed to be which is the fact finder and so i realize that i'm asking then for more process and the court indulgence but i think that that's the appropriate thing to do would be to remain and if that's a concern and allow us then to hopefully have an evidentiary hearing but at a minimum supplement the record with anything that we think supports or refutes the various pieces of evidence that could be submitted at that time or pieces of the record do you think we are going let me ask you the other question then which is the question that judge martin asked was because you do you think that a remained is warranted to apply what i call the the new kid a equitable tolling standard or the standard that we develop whatever it might be after the first kid a decision was issued or do you or you think that's something we should do here on appeal ourselves regardless of what the record looks like i mean i think it goes to your doing it to novo review and so if the law has changed i think it would be appropriate for the court this court to be able to then find if the district court had misapplied something or case changed their analysis so under under that circumstance i think because of the standard of review here it would be ok for the court to review based on the new the new kid day and i'm outnumbered but i certainly never object to every man and so but yes the but and that was part of our argument was that the the district court didn't use the correct standard and that is why the court should reconsider the various findings that were made but i just want to mention something about bonn or because if she if if you're not inclined to total all the time from the disclosure of the  supplemental records that came in two thousand and seven i believe then bought her becomes relevant to this tolling issue and bought her in in the thomas case which is in the district court right now the state has stipulated with the defense that balmer intentionally miss the deadline the a t p a deadline so if the the right bend brady claim was in her possession then certainly i think that and if she's going to become relevant we would need to have some sort of proceedings to find out why because we know that in thomas she didn't file because she wanted to challenge the statute and that as the eleventh circuit said in the remained opinion thomas that would be agree just and would likely rise to the level of extraordinary circumstances that would require equitable tolling but isn't she also faced taking all you've said as a given isn't she also in a little bit of a different posture because of the time she gets appointed an attorney in her position the minute she gets the file could make a rational judgment that he's already at bard when she  she gets appointed in july of two thousand and three right or thereabouts his conviction becomes final in may of ninety nine and the three point eight five zero was filed in two thousand already outside of the one year window and then by the time she gets appointed another four more months have passed by couldn't she just think he already blown the ed but deadline i might as well put all my eggs in the state basket and see what relief i can try to get them on the state side because going to federal court is just not going to be feasible well two things first i would say absolutely not if you inherit a case where you're concerned that the a t p a deadline has has been missed it's the attorney i think ethically must do something to go to federal court and to make the case whatever case it might be it might be weak it might be strong but you need to make the case and you need to ask for the stay if you've got something going on in the state  courts you would never even if that just plays out horribly wrong like the stake when the federal court dismisses a mix petition and says i'm not staying but under the my sake they could it i mean they mean they could well you can't just dismiss the mix petition under rhymes you would hold it in a band's not always well you're not required to hold the mics petition right you're not required but it it would be i think that the burden of the state to show that those state proceedings were meritless or something else would have to be so high that you wouldn't do that as an ethical attorney that understands the importance and the various problems of equitable tolling you would be my only point is she's gotten this case at a stage where the patient's already in serious trouble right the case is already procedurally damaged it's not pristine and lawyers have difficult decisions to make when something like that happens true but if she if she misses that but deadline on purpose has happened in the other case that's a whole different you know ball game but she didn't get a case that was clean i see this distinction you are making but i don't think that i think it's still agree just professional misconduct not to do something to assert your client's rights in the federal court and move for th abeyance move for equitable tolling and put those put that out there because all you're doing if you don't is setting up a case like this where it just becomes one time period after another which clearly the burden becomes more and more overwhelming so i do think it's relevant what balmer did or didn't do in terms of the both the claim that comes later in time and also as to the first post conviction motion i appreciate your time i would just ask the court to grant her reverse the federal district court and grant tolling in this case for mr brown thank you thank you very much these are difficult cases and the presentations very helpful thanks to