it please the court allison claire assistant federal defender on behalf of mr bridgewater the question before you was a relatively narrow one whether the district court erred in prematurely dismissing this case as untimely when it had before it numerous representations that mr bridgewater is borderline mentally retarded and also brain damaged and where mr bridgewater was clearly trying to assert equitable tolling i'd like to start by discussing application to this case where i hate abuse petitioners mental incompetence in fact caused him to fail to meet the e p a filing deadline is delay was caused by an extraordinary circumstance beyond his control and the deadline should be equitably told counsel the only question i have in my mind regarding the application of law is whether or not mental retardation which is referenced by your client and competent incompetent are one and the thing i don't think that they need to be one in the same actually i'm not sure whether they are i find the phrase mental incompetence actually a little bit puzzling in the equitable tolling context because the normal legal definitions we use for competence have to competency to be tried so i do think it's incompetence well i am not saying that a retarded petitioner per se can claim an inability to crowther petition whether the issue is mental retardation organic brain damage some perhaps alcohol related perhaps not that's also unclear to me damage on top of that has resulted in his entire adult life having impairment such that and again this i'm making this in the form of a proffered this was not for the district own because he could not manage things that include advance planning such as paying the monthly rent and if those are the particular abilities that are impaired i think there's a reasonable case that he could also established with the assistance of counsel to guide  the court and there were five requests for appointment of counsel to judges who normally understand when it's appropriate they were all denied it's clear from the little bit of investigation i've tried to undertake to see how much is there is there that he can't do this on his own and file a petition in a federal court neither of which he did it now what i find interesting in this particular case is the suggestion that somehow mr bridgewater has had this longstanding mental impairment which would have precluded his understanding of the requirement that the e p a imposed upon him to initiate a collateral attack on his conviction either in state or federal court between april twenty  in my brief in this case is what happened that caused mr bridgewater some two and a half months or so roughly after the expiration of the statute of limitations to cause him to file a petition in the california supreme court did  have cognition at that point that he needed to do something to optimally protect whatever right he had the collateral review of his judgment at that point in time was there something that happened that trigger mental retardation and there needs to be an evidence rehearing to flash that now well that's that's the problem that i have with their argument in this case and that is basically we can sort of call from different periods in time when petitions have you filed what grounds did you raise what was the disposition of those actions all of those things he's able to answer quite apparently from the record without any difficulty and yet somehow in all practicality we don't know if he an represented that he could not get any assistance from any of the other inmates in prison because of his supposed that mental condition in fact he described himself in a pejorative as a retard who is unfavored by the other prison inmates in the system and therefore was ostracized because of his not all condition and therefore i was not getting a system so i think the only reasonable interpretation we can make from this record is the petitioner did complete these recommendations the district court consider the objections that the titian are submitted to those findings and recommendations in which he alluded to the issue of his mental papillons so to suggest that the district court had no evidence before it because it was there was no opportunity for petitioner to present such evidence i think is a mischaracterization frankly of the record in the district court district court was aware of this issue the petitioner had been afforded an opportunity to present some evidence on this question he didn't do so and my wife's argument to this court is wet we don't know even from the information the petitioner's counsel provided to this court on appeal if there's anything to suggest that the petitioners the mental condition ever changed from one nine hundred ninety three when this trial was concluded in the state court until this very moment that would suggest as i recall the opinion quoted at that time to stand trial on the state charges that didn't put in big question the issue of the petitioners competence to pursue a ha problem we have is an app applying that language to this particular case where there is nothing in the record that's ever been submitted that would suggest this petitioner was not competent at any i see the laws decision deriving from the factual circumstances that were present in that particular case in which the captaincy issue was clearly presented in the state court and the district court would have been  noticed this was something you needed to be aware of it was presented to it in the form of the opposition of the motion to dismiss the district courts and merrily dismissed the petition finding that the evidence for the record was inadequate honor the magistrate judge did have before him not just a verified petition but also copies of the state court pleadings in which mr bridgewater swore that his retardation was the cause for the delay  he attached in his opposition and they also had references both in the california court of appeal decision and in petitioners petition for review on direct review which provided the findings of the psychologist regarding his brain damaged and  even if mr bridgewater and i concede bridgewater did not do as good a job of mr that mr laws did of realizing it here is the equitable tolling standard the broad concept and what i need to allege very limitations what was presented was more than enough to require the magistrate judge to hold factual development proceedings even if that were not the case i want to point out that on objections to the findings and recommendations mr bridgewater made his most statement that he wanted equitable tunnelling on the basis of mental retardation which counts as a medical condition and had he not even mentioned it before the magistrate judge which he did those assertions in his objections which are before you by the way  tab eight pages three to six impose on the district court an obligation to exercise it's question whether or not to consider that material if it was presented in the first instance now if that were the case then the district court summarily affirming without even referencing the equitable tolling issue didn't do its job and under this court's case and i believe it's brown the first throw the fact that the district judge didn't even mention the material presented on objections and exercise its discretion whether to consider it would require remember so whether you want to look at the magistrates judge failure to acknowledge and decide the issue or the district judges failure to acknowledge and decide the issue or remit is required with appointment  file case on today