district court concluded that falconer was not credible and that his lawyer who testified that he had told falconer you could appeal if you wanted to but there are no issues going on i'm not appeal appeal were not filed for this reason and that his testimony before the district court coffee further testified that is usual practice is to file a notice of the deal if requested but that he did not in this particular  presented to the stay court that he could have presented in a federal petition at that time he had a matter of weeks possibly days depending on exactly when this conversation took place to file a state petition and he filed a petition unfortunately about two and a half months time was ticking while he was awaiting the resolution of the appeal he believed was pending he had no no cause or reason to take further action because he believed his appeal was pending and i think that then he's not entitled to such storytelling but because so how can we say that they were unreasonable in making that determination as a matter of state law i don't know if you need to i think for federal for the federal imitations period this court can find that that because of morning my name is tom go over i'm from the nevada attorney general's office i'm representing the police in this case just off the bat i would like to know that in the appellants pleadings she's already conceded that she one hundred eighty six some odd days have run on the statute of limitations here and so we're really looking at a question that might be resolved we have to disputes here when does the special limitations mr ron april fifteenth of two thousand and one as the s district court judge found or in february two thousand and two when it's alleged that that's the first time that mr falconer found out about it so that's a first dispute and a ball and it involves about two hundred ninety two days and then the second question is  ethical polling question whether or not they're entitled to equal tolling upon the following of one time the state court petition and so you being members of an article three court depending on which issue one is you could actually make the other issue me move as the first issue as to when the statute of limitations should run from the alleged failure of the credibility determination by the u s district court that when they had their conference in the court room on march sixth of two thousand and one that counsel and the staff alkan or got together some conversation went on about you know what do you want to appeal you know what did you file or and there was no question about that at all and i would and i think that the u s district court correctly inferred from that letter that at least as of may twenty second of two thousand and one mr falconer knew that his counsel was going to file an appeal form and and so i think that's one piece of evidence another piece of evidence that i think it's pretty compelling that you know i really fail to point out in the u s district court they'll point out ninety seven he explained the reason for his untimely filing of this court appeal was not because he thought his attorney had fathered rec appeal form and he had been waiting around for that he blames  idea that maybe the statute went by and he didn't know he knows it's late and he blames it on the structure of living program on his arrival to the high desert state program he took the initiative to enter a program to better himself and it goes on and he talks about the  appeal briefly explain why you did not well he's talking about he did he did raise a claim of ineffective assistance of counsel for failing to follow appeal that's that's ground number three right that's a claim that's not the reason for not bringing your right and i don't think it's can it conclusively proves that point i think what it does show is it's consistent with what the the defense counsel have said that actually that actually if you get back to the first conversation there well what do you want to do i want you know i want to follow appeal what type of an appeal i mean at that point in time you know if dr g had just made a record that would shock any appeal check i mean if you would if you would look at the at the that well from the fact that coffee had told the district court judge that it was ordinary practice was you know i and the state district court judge i think i still believe that you know hey the district court's findings supported that he didn't agree to undertake the deal but why does that change anything i mean i think at that point if your client says i have a duty i want you to appeal and you say you don't have any grounds for appeal you have to you already have two hundred eighty two days that it ran it's going to be on time and there is no reason for the untimely filing basically ok thank you for your argument you know anything else for us the bottom line is that council was deficient in failing to file a notice of appeal as requested and the result of that deficient performance had a domino effect on the rest of what falconer did following that he was justified in believing that his client and his attorney had filed the notice of appeal therefore he was justified in awaiting the resolution of that appeal before taking any further action unfortunately he had a very limited amount of time to take the state action or further action after he learned both counsel for their argument the case just argued will be submitted