good morning may it please the court best one and that is that three forty five f thirty seven ninety six and in that particular case this court that's the first case that this court decided whether attorney misconduct as opposed to say misconduct that could constitute equitable tolling under the d p a in that case which is out of washington an attorney had been retained by the family for two thousand dollars to file a petition for a b s in a district court the attorney failed to do that now i realize that the issue is slightly different in this case because we don't have an attorney who fail to file an appeal but we do have an attorney who was appointed through the state of same standards of attorney misconduct attorney negligence and extraordinary extraordinary negligence are going to apply so that's going to be precisely my point even though in this case i mean the family didn't go out and spend their own money the state of california paid an attorney to represent mr mr rodriguez now the attorney until february twenty seventh of two thousand and seven that the supreme court said you don't get the extra ninety days in which a petition for certiorari been filed you can't tack on the extra ninety days in this case the district court and the night circuit had been using that extra ninety days all along so i would submit that ninety days should should apply but in this case the attorney did stand a letter to my client twenty first of two thousand and three and i think the letter on the first notify you of the date if the california supreme court the nice review i will know that date and then a couple of paragraphs later she also adds i will notify you of any development on the part of the california supreme court now the difference between this is a chart dereliction of duty case and cases where the courts have found well there's no there's no duty vs therefore is hey b s counsel gives the wrong due date there is no harm no foul because there's no constitutional right to an attorney and here we have an attorney that is appointed in direct review but in that case your your rulings talk about the conclusion of direct review was the denial by the california supreme court now again in spry versus one that's on page t sixty seven the site is two ninety two thirteen sixty three and it's at page ten sixty seven that the night circuit talks about the conclusion of a direct review was the denial by the california supreme court and another case if i may add although you didn't ask the question but the second best case on that friday versus hickman two seventy three f third eleven forty four two thousand and one night circuit case and that case there's but with this court saying and looking at all of the cases i found where you look at direct review you are seeing that direct review ends with the filing of the position with the california supreme court and the denial of that petition so your case the say well once the petition is denied and you don't have a right you don't have a constitutional right to hey b s federal haviland then there is no dereliction of duty for the attorney to have given and direct review level goes through to the california supreme court because your case is have just with it that way then my client does have a right to have reasonable guidance from his lawyer which would have included this specific information when the california supreme court tonight his petition for review for all he no one knew they had granted review or something had come up with a that extended the time mere attorney negligence is not sufficient exactly that is that is exactly what you've ruled over and over mere attorney no this is an example of they go against might be a miscalculation of the one year period that is correct appointed there i would have done a number of things such as having the california central california project testify that when they assign a case to an attorney it includes a mandatory duty to a fil petition for review with the california supreme court i would have tried to subpoena that attorney to a hearing or get a declaration with your client so that accounts for the fact that the record is not totally complete do whether we should exercise our discretion to apply principles of equitable tolling i'm not sure it has much to do with that i don't think roe vs ortega has much bearing on this  guess i still think you have to get to the the analysis of equitable tolling whether or not the circumstances were extraordinary and whether or not the petitioner was nevertheless diligent throughout all stages of  find any cases similar to this were in the attorney says i'm an i'll tell you when the california supreme court finally decides your appeal and that's a very important date and i'll get that  attorney's office maybe she forgot maybe she mailed it to the wrong address and into this is anything more serious in the practice of law than the statute of limitations and i when it runs and when it does i can't think of anything more fundamental to the operation of a cases that the mere attorney negligence in calculating the statue of limitations is just ordinary negative list is different the calculation is not i don't i don't think it comes to you me and to the facts that comes to that request for an extension of time in the district court but then he abandons that argument and doesn't present any evidence and his request for an extension of time for instance he said i need some time to find some evidence that i wrote a letter to my attorney and that  me he was looking for that evidence and he abandoned that argument in the in the federal proceedings i don't i don't know whether or not he did but was there a way for him to get this information out waited sixteen months sixteen months after he was advised by his appellate counsel that he had one year to file a timely federal petition from the time his petition for review was denied sixteen months later he files the supplemental petition for review in the california supreme court not a request for status but just a supplemental petition for review he then waits another two months just to figure out whether or not petition of hers original petition for review w a total of a year and a half after he was notified that he had only one year following the denial in addition he was on notice of the california rules of court provide for a procedure that at most it will petition for review a single petition for review at most ninety days he waited a year and a half to try and figure out whether or not his case was still pending and all it took was a letter to the california supreme court he didn't have to do anything extraordinary of the doctrine of equitable tolling is independent of the constitutional right to counsel and the us supreme court affirmed that and alarms vs florida where they do refer to equitable tolling and since you don't have a constitutional right to federal and the doctor the doctrine of equable tolling is is alive and well perhaps not a plain old that frequently that is alive and well so it doesn't have anything to do with constitutional right to counsel in terms of my client's diligence if i may just a few moments to that my client did write to the california supreme court and he said quote i beg the court to give some response he didn't know what had happened to his petition for review and once he heard from the california supreme court december fourteenth the california supreme court rejected he then sent on january twenty ninth two thousand and five he mailed a hay vs petition to the eastern district which then became final stamp february fourteenth like one in the briefs that is that in contrast to the finding of the district court that he was diligent once he found out that the petition had been tonight he then scurried into action and as soon as possible did file requisite petitions ok thank you thank you both for your arguments the case just argued will be submitted for decision will