for a lot of state court filings and rulings in this case i want to focus on the ones that are central to answering whether tolling makes this petition time the starting point is figuring out when the state court judgment became final that's when the federal limitations period begins now the magistrate judge said the judgment became final on february th two thousand and fifteen when the sixty day period to file a notice of appeal after pleading no contest around our position is that the judgment became final on may th and the reason for that is that wolf timely filed a nd notice of appeal and it did not deny it did not dismiss the appeal until april th two thousand and fifteen so that's when the judgment became final and then we find from a case that the attorney general cited and this is the law after being denied in the court of appeal he get ten days to file a petition for review in the california supreme court that gets us to mail webb and and that's when the judgment becomes final so that's the starting point certificate of probable cause and ultimately to effectuate a notice of appeal yes yes and wasn't he denied that in january i thought california said well you know that it was over then he could appeal well that's that well because it's not one strike and you're out with a notice of appeal but he gets the full sixty days he could file another proper notice of appeal within the sixty day deadline that certainly federal practice if you if you file a defective notice early in the appeal period that doesn't mean you don't get the time to come back and meet the statute or not it denied certificate of probable cause why how could he then file a go ahead and keep trying to find well i think if we look at how the state court handled it it's not an open and shut matter dick court of appeal issue to no a c and it didn't just immediately dismiss the appeal and then it took several months for it to consider that to actually dismiss the appeal so i think if we look at how the state court handled the situation we should credit the state court action this is not this is not a situation where we look at whether the appeal was properly filed like we do under statutory tolling i think we look at what the state court actually did but even if we do that and even if we give you this may date it seems like you still have a problem getting it to be timely well we have several hurdles and i would like to try to petition for writ of mandate was filed so i think i'm hoping the court will agree with that the magistrate judge also properly granted statutory tolling from one hundred and nine dollars days that the superior court petition was filed through the denial of the california court of appeal petition and the attorney general agrees with that too so i think that's off the table where i would really like to focus on is so argument that we get statutory tolling from the time the court of appeal  circumstances you can go beyond that and so did the case maxwell versus rowe where this court said it was reasonable to file a petition fourteen months after the prior denial now i realized they had an evidentiary hearing so it's  different and it was one hundred and sixty pages long and this incredibly lengthy record i mean there's nothing like that in this and i think it was a capital case yeah well i hate to penalize a petitioner for being short and getting to the point to critique i often hear you i am at the time needed to put it together was the point there and here i don't know why it needed so much time it was a guilty plea and not a lengthy lengthy trial well but that but the attorney still needed time to review the record and do research the petition it's always true that the sixty days kind of accounts for that in the normal i mean that's where the sixty days comes from right as a presumption well i don't know i mean i think there's th distinction in cases where people come in late and now whether the sixty days is meant to cover that period that could well be but when you look at the cases there are cases when a lawyer comes in and does more work and because a sixty days is a benchmark and not an absolute rule i think there's flexibility there but don't you have to have the facts and you didn't have an evidentiary hearing so would you have to have the facts just to fall within the category  this was a complicated case with a lawyer had to come up to the minute in order to defend it's not as complex as maxwell i acknowledge that there was not as much to do but we're also not seeking nearly as much time  as there i would also like to address you know in its alternative we have an equitable tolling argument that i'd like to get to and that is based on state habeas counsel not filing a protective petition under pace during the time that she had the case because there were still time on the federal clock at the time that ms marshall was was appointed if we if we take into account the tolling we've discussed the forty one days one hundred and nine days and if we start our clock on may th which i know is you know in dispute but many event by the time is marshal got the case and even the process where mr schmidt who comes in and out right he's there's a retainer agreement then it's return or their job is not only to try to win relief in state a b s but also preserve the right to federal review right we know that they federalize claims they exhaust claims another key part is watching the federal clock and making sure that doesn't lapse on their time that didn't happen here and we've cited cases that support the proper that hell are granted equitable tolling for state habeas lawyer letting the federal clog run and paste makes the point itself because when you look at pase the petitioner there he followed his petition pro se but soon thereafter the state court granted haiti's counsel and it was after that happened that i think when you look at his opinion there are some in be guilty but he's he's on the case and then the clock runs and that's when the supreme court says no no it's not unfair to not grant you statutory tolling for this what turned out to be a late fall petition you could have filed a protective federal petition in federal court that's what should have happened here that could have filed a federal petition that could have protected his right to review c m down to a minute fifty i'd like to preserve the rest of my time lessers any questions thank you and the filing of the california supreme court petition if petitioner is not entitled to that time period through edible or special polling then at that point regardless of the finality of the judgement of the conviction date either claims from the very beginning when he mentioned when he tried to seek a certificate of probable cause when he filed his notice of peel and every stage so he could have easily filed that and also there's no right to counsel anyway so any time spent on that was really not a necessary expenditure of time and then in terms of the same same arguments apply also there is no real connection between this time the time that appellant delayed with regard to that there's no indication that the scope of the counsel's representation was to represent him anything other than in the state of california supreme court petition and we can also assume that that wasn't within the scope also because appellate himself was the one who filed the federal petition it wasn't filed with counsel so aside from that there wouldn't have been counsel's obligation to at least tell petitioner you better go file a protective petition in federal court of the length of the the claims in the complex either are on par with each other whether it was prior to having counsel or after their very similar intern and nature and in terms of the  length of time the council took to file the petition itself she only took about fifty one days from the retainer or that the date the check was sent to her so really that was a reasonable time and i went not say that's negligence by any means but even if it were considered negligence for purposes of actual tolling what we've seen in the courts is really has to arise the negligence from an attorney would have to rise beyond a garden variety negligence that have to basically be akin to abandonment and that's certainly not the case here on the statutory tolling point i just wanted to bring the court's attention to a case called of sunni versus juror being zero which is a case respondent cited and in that case the district court held an unpublished opinion a ninety six day delay between filings in the superior court in the court of appeal and then a later ninety eight day delay between a filing in the court of appeal and the california supreme court were not unreasonable given that the petition had been substantially rewritten and that's four hundred and forty five nd one thousand one hundred and fifty two the problem here is that you have many more days and i mean it is that it is the same claims they are sort of rewritten but it's i don't know if it would count as substantially rewritten it's not that different right the eventual petition well there's you know she cites eighteen cases it's much more extensive extensively researched it is it is more time habeas you know if there's any questions about about that that would be determined i think the the remedy is to remain for an evidence or hearing on equable towing and we've cited laws