application to the state court to the california supreme court must determine the federal court must determine what the state court would find out the six months the way would be reasonable and in our case there's under the facts of a case it was unreasonable yes but how would we know whether that was unreasonable and the facts of his case that's never been determined as it no state court and all of the petitions that were file isn't my reading of the cases no state car court has made a corpus system which portends against original jurisdiction at every level of review and so there they don't seem to be terribly concerned about whether or not it takes five hundred twenty two days to get things or his counsel both the state's the state california state supreme court about the time periods and the california supreme court the clerk wrote back that there was no time limit applicable to the filing of an original habeas petition and that court so the reasonable time come from is that from the just from the jurisprudence i realize there's no there's no california s a requirement that the petition be filed within a reasonable time so how would we if we were to remain on this issue to the federal district court to conduct an evidentiary hearing on that issue what evidence is there in the record before us to explain what the state argues is a total of five hundred twenty two days of unexplained delay what good cause does your client have to show to explain why it took that long  other than being basically being a pro for representing himself and other than that he doesn't have any because for none capital cases the state of california has never determined what is a reasonable time period for original petitions but clearly the supreme court is contemplating a much shorter period than five hundred twenty two days i mean they actually use thirty forty five and sixty days as examples of sort of the typical period of time that would be deemed reasonable don't they and they do that yes yes in that case but in terms of reality there is there is no california print court has said no specific time there was something applications well apparently without any limit it was a federal issue is it not the issue is is whether or not your client had something pending before the california courts and the problem is we've got a five hundred twenty two day period of delay in which there was nothing filed nothing pending within the normal definition of that term and you told just a few minutes ago that he doesn't have any explanation other than the fact that he was pro per at the time but were to establish grounds for equitable tone but it and as we stand isn't it why well it doesn't apply for the simple reason that the united states supreme court has issued a ruling on this issue since the parwan the first case the first time this case was before th court stating that the time delays a time delay of six months is not justifiable and the time delays as we stated in our brief are two hundred nineteen days and two hundred twenty two days respectively between  intervening change in the law for the bar application of the law the case doctrine and evans reach a this as the united states supreme court decided is a intervening change in the law as to the time periods which are justifiable well in some cases it can be chaotic well i don't think it's chaotic in this case and this case and the supreme court said this a federal court in evansville chavis a federal court can determine on the facts whether a petition was timely under i mean each case stands on its own well while that is true each case to stand on its own the court if looking at these delays of two hundred nineteen and two hundred twenty few days which is longer than the six months  united states supreme court said that was a justifiable delay and then i can make that determination in that case yeah as we argued in our brief in this case as well so i don't think that that is making a finding  or are you suggesting that the in house it should be there is no dispute over the fact of the two periods of go away totally more than five hundred days mr bronson and concedes that there are no other grounds for equitable tolling it's simply the inmate was pro per and as a result we should declare as a matter of law that that is an unreasonable period of time in light of evan's vs shavers and those are situations which this court and other courts have addressed may give grounds for equitable tolling but as judge tolman as as noted there was never any pleading of equitable tolling the district court even sat in its first time this case was before it that there were no grounds raised for equitable tolling and petitioner has the burden to raise equitable tolling issues and he has not done so as of yet so he would not be entitled to any equable tolling under those grounds whether he had access to the law library i was in solitary confinement or could not proceed are cannot file legal papers for some reason or another it's just not been addressed and it's his burden to address that and that's not the case here and i'm not convinced that they said six months is too long in every case even if there were a reasonable showing i just i don't get that out of the case but you know you  add the supreme court said and you're honest correct it is an unjustified delay of six months and then i have here what we have here is we have no justification and we don't know what the delay was due to but it's as i stated earlier after all this so maybe we ought to give them a chance to go back to the district court and and raise that issue i would argue against you knowing that times going as to the first i c claim on whether counsel consulted with his with the petitioner regarding his right to appeal this case the case of roe versus a counsel properly consulted with his client on the basis for an appeal and we don't know whether that happened because the records are not clear on that and in that scenario this court  to do that was not appropriate decision but you know i think the petitioner can make some kind of a case for the fact that his lawyer should have looked at the ninety one  records from the prison i think it was that it was more on his mental competency but i don't find anywhere in the record is what the nine hundred ninety one records would show and now that time made the determination on his interviews with counsel i'm presuming is in her view with counsel that the obtaining of medical records will not be required and we have to leave that decision to trial counsel who's there at the time making these decisions on whether h saying that he was not competent but those issues could have been and may have been flushed out i look for that transcript of that plea hearing and i cannot find it and i did receive some reports which i included in the supplemental excerpts of records from some of those experts on what they testified about are presumably would have testified about at that hearing but those were the time to flush out those issues not eight years after the convictions you know after is played guilty to that and he had his opportunity to to attain those records for that hearing and i don't know if those records were in fact obtained for the hearings just not clear on the record well i guess my problem was one with a prejudice because the argument seems be if those records had been produced they might show something that might have helped him but how can you find prejudice for failure to produce them when you don't know what's  them i mean it's just a guess that there might be something while i would just go back and i would as we argued in the brief that there were yet three experts saying that just there was competent to stand trial and they have valued other reports maybe not determining his competency as of i believe one thousand nine hundred six when he was in the trial court so that was five years later and the experts as i stated had plenty of opportunity to explore other documents that proved or disproved his competency so they could have had those records that psychiatry's might have looked at him but we just don't have a windowing because you can't find a transcript here i cannot find a transcript of that hearing only thing as i inserted in the supplemental supplemental excerpts of issue of whether the five hundred per the five hundred days is and reasonable her say it without hearing the if this court were the do that and not allow a remain on for  and if this five hundred days you have heard to put something in the record from which we can conclude that there should be an evidence you're hearing in order to resolve the factual question the problem is that that you're saying to us is that we should remain for an evidentiary hearing because he might be able to come up with an explanation in the absence of any showing at this stage that he even has a well as least in the case of  things specifically don't have a purely or clearly another reasonable has clearly an evans versus chavez the supreme court was not saying that it's an unlimited period of time our supreme court the u s supreme court so regardless of whether or not california has all court decision or statute that says as a matter of law this is too long we have to look at it through the lens of the supreme court's decision in evans asking us to determine th