amended judgment replaced and invalid judgment since and conviction with a valid one what that means for the purpose of this case is that the amended judgement constitutes a new intervening judgment for federal hippias purposes so the federal district courts june first two thousand and seventeen order dismissing turner's havey use of petition as successive  and you did that would be a valid judgment certainly what we have are two things we have a statute and then we have a nevada supreme court on bonk opinion the the issue is whether the a judgment that has an error as far as the pre sentence credit for time served goes is a valid judgement or not an arrest one seven six one zero five sub on d mandates that a judgment of conviction must use the word must set forth quote the exact amount of credit granted for time spent in confinement before conviction if any for inserting the equitable tolling issue into this case because i don't while it's not properly before this case and that was my mistake because when i looked back at the federal district courts june first  thousand and seventeen order it dismissed the petition solely upon the reason that it found that it was successive now there was some discussion about equitable tolling in an earlier order but the court did and if we agree with you that the judgement did become valid until the credit for time served was added back in your two and a half years late still aren't you and if you don't have equitable telling you october seventeenth two thousand and fourteen is when the court issued be amended judgment and behaviors petition was filed april seventeenth two thousand and seventeen that's correct there were a half years later there was an intervening supreme court appeal and the remainder from that came down on july sixth but that had nothing to do with the issue of the new judgment it yes your honor and and so the on march ninth two seventh two thousand and seventeen so there is a nine month issue there that you said july sixth two thousand and fifteen and and the new one is filed in two thousand and seventeen and march that's more than nine months is it well let's see there's like so july six two thousand and sixteen well you said sixty and i thought you said fifteen right but that's when you know it's him a nine months after the one year expired yes your honor and again we don't have the problem is we don't have any findings as to that issue when the record isn't really developed below as to whether there's equitable tolling in that nine month thing you said we're not going to consider equitable  been years so it looks it straight statute we've got i'm sorry can you repeat over that if i understood what you said a minute ago you said you didn't mean to put in the equitable tolling argument so we put that aside then what we have to look at is the date on which the amended judgment became effective if your other earlier argument is correct and then we see when your new hey b s was filed and it's more than a year yes that's your problem right   equitable tolling arguments i don't know if he explained the nine month delay or not he he explained equable tolling arguments throughout the sting so a lot of bottom line t answer to my colleagues and my question without equitable tolly you're out of luck because of the time even if your earlier argument is correct you're now saying you need to consider equitable polling my colleague asked whether it was raised for the district court you say yes maybe maybe yes maybe no but the bottom line is that without that if it wasn't diligent it's that he's out of luck right i believe that's true your honor unfortunately we don't have any findings from the federal district court as to timing or equitable but we can't hold any of those we have to rely upon the record and if there's nothing in the record that your or your client meets the requirements of equitable tolling such as diligence  you know we can't help you can we we on that point the court can help at this point as to the only issue that i think is properly here which is the success of knowing at the end  we certainly could help you on that if we agree with you but i'm just saying and this is as judge shima the problem is even if you're right about that he didn't file his what would be an original off of that particular amended judgment until the time period had expired i would have to have equitable tolling to make it up and he didn't argue what he needed to do that i guess again  caviar that i don't think that's properly here the one potential argument is that gonzales wasn't decided until two thousand and seventeen and so he did not have notice of the fact that he may have a claim became time barred and in the gonzalez case had nothing to do with that because you he would have used the logic of gonzalez to get the result that he wanted to to get away from the second or successive petition problem right could have but again it depends on whether gonzales provided the necessary notice whether that claim was available prior to the decision and but even if it was that doesn't answer your statute of limitations problem doesn't i heidi stern on behalf of respondents i'll start by addressing the timeliness issue and as the court has pointed out the the appeal in this case from the amended judgment was decided by the nevada supreme court in july two thousand and fifteen petitioner did not file his federal hate b s petition until april of two thousand and seventeen so it is untimely absent equitable tolling just to provide a little bit of background about what happened with equitable tolling in the district court the district court handled this case sue a spontaneous and ordered issued an order to show cause essentially asking petitioner to respond to the timeliness argument petitioner d file a response to that its docket document ember seven in the in the district court where he basically didn't address any timeliness related to the amended judgment instead re arguing ahead and refer to his his response here because it's a little confusing and he argued that the the fact that the united states district court had dismissed his previous federal hate b s petition for failure to pay a filing fee constituted an extraordinary circumstance and that the united states district court had misled him as to his ability to file in that court he also argued that because he had submitted what was actually titled a state habeas petition in the federal court and that the federal court had not alerted him to that that that was it was basically the united states district courts where i believe so yeah but although the court does address timeliness in its first order to show cause so it does raise that issue and says it's untimely please explain to us why it wouldn't be so i believe there are two findings from the district court one is on timeliness that's the order to show cause and the second would be on the successive position which is this appeal from your perspective as the state in this case i got it right ye from your perspective you really the defendant has given no no basis for equitable relief referred to an earlier a b s filing not the one he was going to get maybe just to be clear that was also rejected previously pays his i've got a little argument already rejected and i got it again here so it affects his argument there was a second or successive claim about the earlier one you know  of those dates is correct which i assume they are then he had a period of time to file and he didn't do it within that time period correct and i can refer this court to the page of the d i and we attach the washoe county docket and just to show what happened in this case and so this is that docket entry fourteen dash two and that shows when the  his motion to amend the judgment was filed it shows when the management is issued and then it shows the appeal from that and then on the next page fourteen dash two page six it shows the date that th so we have to show cause order which was june and  to continue i apologize and so i think there's no question here that this was a late petition there's also no question the petitioner never established any reason for equitable tolling a moving up moving on to the other issue in this case certainly the respondents position that while gonzales answered the question of whether this would be a success of petition for the state of california it did not do so for nevada and i have provided the court with a couple of additional citations just that i wanted to bring to your attention these are precedents from from the ninth circuit issued recently one in two thousand and seventeen one in two thousand and eighteen and in both of these cases they are twenty to fifty five cases but there their analysis i think applies here as well which is that not every case that changes the length of a prisoner sentence  whether there is a new judgment is whether the old judgment was rendered invalid and it is a response position that in nevada the credits are part of the sentence and there is a statute that says they should be included in the judgment of conviction but there is no finding such as there is in california that the prior judgment is invalid if it doesn't include those credits so it's our position that this type of change is a clerical technical change and if you look at the briefing in the state court below there was no disagreement that that mr turner was entitled to these pre sentence credits the p included the number it was just that it needed to be included on the paper so that the department of corrections could apply that to a sentence but the crucial factor and  critically the the only sentence only a sentence awarding all these credits is valid in california there is no such statement in about it and so i just asked one of th short yes remaining time your opponent indicated that he should not have brought up equitable tolling because it was not addressed before the district court if i understood has just argued is submitted