good morning your honors may have pleased the court carolyn weygand from the federal defender's office for mr foley and i will attempt to reserve two minutes for rebuttal your honour's the first issue i wanted to address is the respondents argument that there is some uncertainty about the fact that attorney greenberg did not send mr foley the district court denial of his petition in two thousand and four i think attorney greenberg says very clearly i didn't send it to him he adds more detail to make that understandable but i don't think he wavers on that and also mr foley's behavior once he does know suggests that he was a  litigant who would have wanted to appeal and doubted lee if he had known in two thousand and four that his petition would have was denied would have asked that in people be filed so i think that fact is very well established is there anything  two thousand and ten he gets a letter from the clerk letting him know your petition was denied back in two thousand and four at that point we can see from his first following letter of march fourth two thousand and ten he's like i can't believe this happened has there been an appeal and i didn't even know about it so at this point he's very much in the dark and he thinks perhaps there's even been an appeal he is not aware of finally gotten the declaration from the attorney admitting that he never sent him the decision and he says i've i'm you know indigent in prison i've been trying to find an attorney because of my indigence i've been having trouble so here it is and he does his pro se motion at that point if he have a file i couldn't find anywhere in the record where he got anything from mr greenberg i don't think he did i don't even know if he ever got actually the district court order denying the petition in two thousand and four from anyone because this is a matter of some concern to me and so mr greenberg was trial counsel mr greenberg doubtless trial counsel but he was  forgive me all right so he's in state court so again i'm envisioning a file of some sort and then in his declaration he indicates that as to the federal petition in his in his file which i think he said only exists on his computer that was the petition and the request for an extension in the and that's it correct but i still so this very modest file if at the federal level parent lee but i can't see where your client ever received it so this all gets back to judge nelson's question i'm trying to figure out what he was doing in that four month period of time to prepare this well motion i believe i mean it he says in his cover letter with the motion i've been trying to find an attorney to help me i'm not educated in the law  and you know i have been unable to find a new attorney and it should be noted that i mean the whole time this is happening greenberg is still at counsel of record really greenberg you know should have moved to withdraw if he was not going to act as his counsel to say the whole time surely that's not true between february and july greenberg the first time we see greenberg terminated it's only an entry on the docket there is no order terminating him and that does not show up until july second of two thousand and twelve so from feb twenty fifth to two thousand two thousand and eleven when greenberg file declaration to this four months four and a half months till july tenth two thousand and eleven when the letter and pro se motion are considered the sixty motion greenberg is still counsel of record now foley is trying to find new counsel but you know i don't know that he knew that he could file a pro se motion but he's casting about thanking the clerk for their help saying he doesn't really understand the law but he's doing his best and he gets the motion filed and four and a half months is not longer than the period in the tawny case or the loud case  mackey i believe it was about three months from the time client knows his attorney has deceived him till the date that attorney actually did go ahead to the motion for relief read the law law was much more diligent than your client i think we have to look at the context of my client's position he's indigent in prison not well educated at all and you know he's he's doing his best he's writing trying to get information asking the district court to order his attorney to give him information so he's he's trying from prison to do the best he can and i think he fulfills the diligence requirement given his his position your honors if there's no further questions i'll save my time for rebuttal that's fine good morning and may please the court sally espinosa deputy attorney general on behalf of respondent warden and she has answered the question of why you feel that mission foley was not diligent under the circumstances of this case certainly around her  as an initial matter the petition was filed in two thousand and one which was now going on fourteen years or actually over fourteen years ago and mr fully admits in one of his first letters to the court that he well initial correspondence he asked what's happening what happened with my case he knows no later than february twenty fifth two thousand and ten that his habeas petition had been denied and he waits a year and four months from that initial date to file his rule sixty six motion just wait right he was trying to get information from the court the lawyer wasn't responding even when the court served him with this letter so there's certainly activity going on there except for the last four and a half there is some activity in your honor but also the his letter of dated march twenty fifth he indicates i had a feeling that something was wrong as it had been nine years since my filing i know i had another lover level of appeal but i'm pretty sure i'm screwed now because of the time that's passed so in this this is again february twenty fifth two thousand and ten he knows there is another level of appeal he knows that something went wrong because there has been he is occasioned an enormous delay of nine years between even inquiring about his  petition right and so what is your response to the case we have out there where if a if a if a defendant has been told by an attorney i will let you know i will serve you a copy when this happens that in those instances i'll do the petition anyway and he's talking in the context of talking about whether or not petitioners family can pay him i'll do the petition anyway if you come up with anything fine it'll be frosting on the cake if not i'll put something together so you can make it to federal court so even from the beginning of this attorney client relationship petitioner was certainly on notice that mr greenberg intended as we see from his declaration to do the petition and to just get mr foley into federal  court and so it doesn't seem that there was more he didn't like some of the cases from the circuit he didn't deliberately mislead mr foley into believing that he was going to do anything more than that and as we see over time unfortunately he indicates in his declaration that he didn't respond to mr foley's letter and that even his is his letter of february twenty fifth tw attached to his declaration he says to mr foley don't expect me to i think his quote is do not expect the court to act on its own without any further motion or request from you i guess i don't understand your position are you are you saying that  petitioner that he was the petitioner should have known then that he was being strong and that he wasn't going to have anything happen well my position is that if this mr greenberg indicated to him this is what i'll do for you i will do your petition i will get you into federal court and so that's he did what he agreed to do his mistake was in not withdrawing from the case well even but to sixteen to go to judge voters point the lawyer sa quote i failed to inform mr foley of this result and any time when i failed to preserve his appellate rights i mean the implication is that he intended to but that he taken lee understood this person was a former client so he disregarded his correspondence right but mean again this reconstructing this declaration after many many years have passed but he also still goes on to say i'll do the remember saying i'll do the petition whether or not your family can pay me and i'll put something together so you can make it to federal court so can you please i don't understand that what so he should never and so he didn't have any duty to tell him that had been denied no he certainly did but i think my position is that he he he according to his declaration he agreed to do the petition to get mr foley into  and the petitioner had no way of knowing what had happened that's correct so my position is that he mr greenberg agreed to do the petition and to get mr paul into federal court but after that and it seems that he didn't inform him of the denial of this based on his declaration that it's possible it's likely that he didn't form him but that should have put mr foley on notice that he should well a number of things including the fact that mr foley didn't respond or great mr greenberg says i didn't respond he wrote me letters i didn't respond to his letters he says he has respond to th district court sending him mr foley's letter on march thirtieth and so and then he says february twenty first twenty eleven don't expect the court to act on its own without any further motion request from you so at some point i think mr foley it was incumbent upon him to connect the dots here and realize i need to take some action here because with the passage of time he has he has his that's why his rule sixty six motion is untimely because he didn't do when he sat on his found that we're like mackey for example we have found where a lawyer didn't abide by the rules to appropriately withdraw that the lawyer had abandon the client right your own or do you distinguish your case because for at least two reasons first of all mackey i would explain that mackey in this court did not directly in mackey say right what set forth basically what a district court can do not what it must do under these circumstances and also i would also  having written to the court eight months after entry of judgment and also his away and filing israel sixty six motion was only about three months versus what we have here between the time that mr fully realized in twenty february two thousand and ten that his vision had been denied and then he waits a year and four months to access it except here's the problem and then i'll i don't mean to belabor the point but it's not it's not the time by the time he starts writing to the court that's because he's been writing to counsel for some period of time we can't tell over some extensive period of time and he's getting no response so so i don't read from that they sitting on his rights i'd be fine that these trying to get his lawyers attention and he can't get a response not the first time we've read that allegation certainly in a criminal case but in this case the attorneys declaration comes forward and says yes he was writing to me and i was ignoring him right and so we don't know how many times he wrote to mr greenberg but as as his letters demonstrate he he knew he he says i had a feeling something was wrong i knew i had another level of appeal and so when mr greenberg didn't write back to him it was it was incumbent upon mr foley to exercise some degree of diligence we know when that was when which was well when you say when when mr remember that mr foley wrote to me he doesn't he said look he says letters plural so i presume that more than one and we don't know what the dates were we don't know we don't but so but at a minimum i would say that mr foley's letter dated february twenty  the federal petition was filed in two thousand and one so it's pretty ancient history at that i mean it may be about a decade had gone by certainly and and yes no file but what your your constitution so this is a very brief letter that he in that year and four months could have put a symbol such a letter at any point in that time and much sooner than that your informants thank you counsel and we share your arguments they appreciate your argument thank you your honor so i just want to make a few brief points in terms of counsel as pointed out that mr greenberg's early letter to mr foley said  know do what i can to get your petition filed and and she makes the argument that he didn't really claim he was going to do too much more but the point is he stayed on his counsel of record if he really said i'm not going to do this pro bono anymore he could have moved to withdraw that would have placed mr foley in the position of getting service from the court and opposing the opposing party and of course at that point mr foley would have been served with the denial and so i think you know when the maples and mackie talk about this part of the problem with abandonment is when an attorney actually stays on his counsel of record the litigant is left without getting served with anything and that's what happened in this case i also wanted to talk about the the period of time between and ten when mr foley knows something's gone wrong and the date he finally filed his will sixty be motion mr foley for a heavy burden of proof to show that he had been abandoned certainly it would have been surprising to the court that if he had wanted to file a notice of appeal he didn't just file it back in two thousand and four so he needs to really establish that the reason it didn't happen is he was a bit of my counsel that is very serious difficult threshold to show because it's not reasonable attorney error it's it's actually breaking that fiduciary duty and so he does not have that evidence until the feb two thousand and eleven declaration greenburg finally files the whole rest of the time he's trying to get that evidence and then as i said i think the four month period is really in line with other periods and other rule sixty cases such as law and makea where it does take some time to find new counsel or to just figure out the law enough to do it's also worth remembering that the maples in maquis decisions didn't come down until two thousand and twelve that was when those principles of abandonment and use of rule sixty six were really set out can you help me what was th when came down what was the status of this case so mr foley had filed the the pro same motion in the press in two thousand and eleven so at least i can forget how many months prior but that was on file the district court hadn't really done anything and i believe it's january of two thousand and twelve maple's comes out maybe if a few months later mackie comes out and then within two weeks of that the district court decides i'm going to characterize this is a rule sixty motion so that's when and then but he's going back to the two thousand and eleven pro se motion that was prepared