to come back and argue about it if we overcame the procedural hurdle that trial console misunderstood the difference between career offender guidelines and a fifty one notice as the court's no griffin or guidelines or prevent or cracking fictions due time i ten or fifteen years pending on how long the length of sentence was and a fifty one notice if you've got a prior conviction when you're eighteen is still qualifies under a fifty one when here above and beyond the attorney error in calculating that limitation step i'm absolutely certain i'm happy to address that you know first of all when we look at the framework holland of the supreme court case talks about probably but you that name call for two things number one the petitioner must have been pursuing his rights diligently and that aspect of the task looks at things within the litigants control so let's look with it what's here we don't have waiting years and years and years mr wright raised that the first opportunity which was when attached upon conviction suppose you're right about reasonable diligence i think the harder point for your side of the case is extraordinary circumstances and if we look at the affidavit i think it was jennifer wicks filed what seems to be the case is she made a bad missing the deadline but other than that the attorney client relationship was functioning she was engaged with him she went to the prison this isn't the case where the lawyer doesn't return phone calls for a couple  years or abandons the client she did everything the lawyer reasonably would do and filed a pretty good twenty two fifty five motion and but for the miscalculation of the deadline the representation was identifies that there were additional conflicts that were not waived by mrs wix which would suggest that in fact the attorney client relationship wasn't going sell well there's information about mr cooper who was appointed to do twenty to fifty five because of her conflict not doing the job properly is are those new factors that may be in addition to these other things we should lean see with the district court thinks about is there any value to us doing that i mean talking about us remaining the same how the district  a sixty motion pending in can really dig into this conflict of interest problem which i think is by any definition an exceptional so well you know it's the reason i follow the sixty motion when i did  this court to punch in the hopes that my sixty piece is an indicative remain and is not upon me he goes he does week we see jurisdiction back for purposes of him to rule and then they can come back up then we'll come back off in light of that that on november twenty eighth of an abundance of caution and just blew the deadline and to come back to your question you're going to force the one you know we when you talk about let's say he wasn't diligent and for various reasons i diligent for various reasons i believe he was you know he find a lawyer he met with his lawyer he signed his affidavit early he contacted her this wasn't just that you're my lawyer you figure it out he you are asserting the possible wix possible conflict of interest as a basis for establishing extraordinary circumstances now this sixty  issue yes i'm sorry ok i don't conflate so so you may or may not be able to make that showing on your sixty b motion and i assume if it's denied that's a final order  can hear it but i gotta go but right but we have a pending appeal from a final decision and then final decision by judge walton finding no reasonable diligence and no extraordinary circumstances and you came here as the pallant and did not raise that conflict as a basis for us to find an extraordinary circumstance in this pending appeal so i don't see why any conflict did a lot more on this two separate requirements firstly look at what your client did and then we look at what the weird is that what holland says yes or ok so and they're both require us right the vast majority of twenty to fifty five's filed in this and every other district don't have a lawyer so the order ok this is what happened here is a typical in that mr rice had achieved a lawyer second of all because you don't have a lawyer if mr rice had chosen to follow home twenty to fifty five typically pro se pleadings aren't entertained when you're represented by counsel right lack of diligence as opposed to the mistake of the lawyer no i don't know but you disagree with me that there are two separate required correct but i guess what i'm trying to say recorded i think most fall down on the first problem someone has a lawyer and morning your honour's may please the court katherine kelly on behalf of the united states your honor as defense counsel's aptly stated the only question here is whether or not the district court properly denied equitable tolling and then the answer in this case is yes because all we have here is garden variety mistake in calculating the deadline for filing the twenty two fifty five motion there's simply nothing beyond what has time and again been rejected and procedural default so maybe it should be a factor in equitable tolling there both are credible inquiries because he was told not to raise it on direct appeal by this attorney who said she'd do it in the twenty to fifty five and then leave out of the same time she recognized she had a conflict of interest that was going to require her to withdraw she wasn't paying attention to his deadline she was just following the the timing of another client just carried him right along on that he did everything paragraph three she says i was appointed to represent anthony rice and his appeal before the d c circuit prior to being appointed mr rice and his trial codefendant who should represent mr bailey sign waivers of potential conflict because she represent mr bailey at trial so she is not saying that she has a conflict she runs out of scenario going forward with additional work on the twenty two fifty five might might potentially leaders of the conflict know she had to withdraw i mean she told the court someone else had to get appointed correct so she made those arrangements but secondly what the court is looking at is not whether or not a future conflict if any might affect the timing of the finally all that is looked at under holland is whether or not the defendant has been pursuing his rights diligently as an actively litigating his case taking stock dishpan in extraordinary circumstances stood in the way that prevented his timely filing through his nothing of this version wrong do you dispute that he was diligent i do dispute that he was diligent in all that all or is he supposed to do all that he said and i compare this to make day which is one of the rare cases where this court has granted that would be told and all that it is said that mr rice did in this case was that he quote in this which says that affidavit continued to follow up with me which is about as big a statement is as you can imagine and that when she visited mr rice in prison in the fall of twenty fifteen by that point he had already signed his affidavit which is not exactly a sterling example of diligence what you had which was very different in this court when they granted equitable tolling in mcdade you had a defendant who had  went out and got three affidavits from impeachment witnesses on his own he had gathered evidence in support of his ineffectiveness claim he had personally told the attorney what the filing deadline was for  the twenty two fifty five motion four months before it was due in a letter and he had research his claim and all of that information was recorded in letters that were before the court so what he did though is he raised this thing from the get go the second he realized the problem he raised it at sentencing like crazy he wanted to raise it on appeal was told not to buy this attorney he insists on twenty to fifty five motion everything you could to make sure was going to happen  unusual and all we need is reasonable diligence right well what we need is under the holland test we need both that he's been pursuing his rights diligently and in extraordinary circumstance it was outside his control i'm just  doesn't say that what happened there was the minimum you know that's right your honor it was just an apt exam to we have to look at those facts right we look at the facts and compare them to these facts and there's nothing in that day that says the circumstances  this case would qualify no it said that i'm not saying that big date sets the standard bar on what has to be diligence and it's just an example given that the supreme court has time and again said this is a spearing only granted type of relief that those are the site types of circumstances that get you to equitable polling and time and again the supreme court has said and this court that the garden variety miscalculation of a filing deadline by an attorney is simply not an extraordinary circumstance i get that something better i mean the other and whatever so now apart from diligence exceptional circumstance yes all right so we have a mistake by the lawyer but we have it's not just writing when you add in reasonable diligence by the defendant you had both your honor and the exceptional but about the exceptional circumstance here you have a substantial plame ineffective assistance presented and heard by a court and this just seems to be a serial problem of ineffective lawyers and the market being this guy from having his claim heard i think that exceptional supreme court said it best in lawrence versus florida and it said that if a defense counsel mistaken miscalculation of the limitations period entitle the defendant to equitable tolling it would essentially equitably toll the statute of limitations period for every person whose attorney missed a deadline and that's all we have going on here i never think come on we don't look at al we also don't look at the merits which are obviously not before the court at this point because all that we're here on is in the certificate of appeal ability is the issue of whether or not are we just report or we forbid them to look at the merits if he was going to be i guess not part of the telling test are you don't look at how mean it was and nor do you look at what the merits of the underlying claim are why can't there be i'm sorry there are cases says that can be part of exceptional circumstances a extraordinary circumstances i would give a co example for instance in lawrence versus florida you had a situation where you had a defendant who was claiming that he had relied on his attorney who was also claiming that he was mentally incapacitated and he was a death row prisoner and in those circumstances review challenge to a criminal conviction or ordinarily they should have an attorney competent out of the six and i'm going to do it and they're not able to do it until the collaterals state that we need to that we are going to we're going to be very hesitant in coming this off that we really do factor in to equitable analysis and there was procedural default but i don't know why that would be i think what you saw on equity then direct review of just meeting federal filing deadlines in the federal case i think was key and why neither martinez nor trevino apply here is because those are cases that deal with state prisoners who have gone through a straight procedure process and then come to federal court but they don't affect cases attorney deadline error in those cases it doesn't why would i am sorry it just simply doesn't apply here because why wouldn't we take that same type of under as i see our federalist system right we have to have the greatest respect for procedural rules and states and force them to of them when you're dealing with state defendants have already been through a state hevia as before they even come to us and so equity should be less our judgment about what's relevant to equity if they don't apply here your honor because in this jurisdiction the defendant is allowed to raise an ineffective assistance of counsel claim on direct appeal so you don't have a situation where he only has the one bite at the outlet is twenty to fifty five is the federal system different from the texas system that was at issue in the second with intravenous intravenous seems similar in that you you can raise ineffective assistance song direct review but it's not the preferred option no it is different particularly in this jurisdiction because this jurisdiction under the rashard case not only can you bring in ineffective assistance of counsel claim in the d c circuit on direct appeal the common practice of this court if ineffectiveness claim is brought on appeal is to remain and the case to the district court to deal with the ineffectiveness claim in the first instance to flush out the well but his court appointed attorney told him not to mimic what he said he got serial problems here with his representation but you know the same court appointed attorney that later had to back out her conflicts she has not had to back out for complex that she has never stated that she was certain she had a conflict and mr right and his co defended both weed and possible cause so what if in every situation when the court is simply looking at the issue that is before the court today which is whether or not the district court properly granted equitable tolling the only factors to look at under all the supreme court cases are whether or not the defender was diligently pursuing his rights and whether or not there were extraordinary circumstances that in his way outside his control that stopped him from filing a timely twenty two fifty five and under that test which is all that is before the court today and all that should be looked at is the factors that mr rice is simply not met that  test that the notion that he relied on his attorney doesn't change that when the court looks at the lawrence v florida case nor are facts about the quality of his ineffective assistance of counsel or the merits of his ineffective assistance of counsel underlying case before this court and i would like to make clear before i rest that it very much is disputed whether or not the defense counsel or trial miss understood the difference between the career affidavit and she represented him both under ect appeal and in the twenty to fifty five process at the beginning she certainly knows what to put in an affidavit and the record is what the miss wix asking she father twenty to fifty five and similar painlessly with it or shortly thereafter she filed a motion to appoint cuts all under the criminal justice act and what she sat in that motion was under signed consul was appointed in the d c circuit and his father twenty two fifty five motion on mr rice's behalf but she believes she is conflicted from further representation given that she is a potential witness and also represent role in the release but what has that to do with her missing the deadline well a couple of things wrong the first of all when we talk about why she couldn't raise it on direct appeal the waiver the big talk about why there was a waiver what she got a waiver from from both mr bailey and from mr rice is i will write your appeal based on what's confined on the record there's no conflict and that i was on the record or it isn't she certainly never got a waiver because she's a potential witness to ask exceptional circumstances spaced on the conflict and when i ask you that this question on your opening you said that issue wasn't before us the issue is not for squarely in the brief side it's not at all in the br what you have here is a lawyer who was appointed for direct appeal out of conflict but it was ok for direct appeal got the waiver on direct appeal right away and or in the course of representing the client on direct appeal has has to have conversations with the client about what issues are best raised on direct appeal what issues are best raised on twenty to fifty five so to that extent those proceedings are intertwined with that stage of the proceedings right correct and then she files the twenty two fifty five the the motion and does everything she can do to preserve the client's ability to get a new conflict free counsel except by a long time except file it on time which we know by itself doesn't support tolling correct but in terms of in terms of how she manages the conflict she simultaneously files the motion she files she tells the court that the new lawyer will need to supplement the proceedings and judge walton grants both motions mr rice gets a new lawyer and he supplements he files whatever he wants is conflict free counsel so she starts in a situation where she has to be engaged with them on twenty to fifty five and then she disengage is in a way that preserves his ability to go forward with the new lawyer you got a lawyer who was arguably conflicted but you just said number one that's not the four of us and you never answered my question is to even if it was how it relates to her missing that i mean i think that i get your concern but i don't get the boy's dad line is nothing other than bad math relates to bad bad mathematics right relates to missing the keep saying i want to make clear on the stand when she got to that she says she is conflicted at the twenty fifty five stage which would include the filing of the twenty two fifty five