good morning and may please the court my name is carl fairness and i represent the appellant willie frank jackson in this case the court must decide whether fifteen months was an unreasonably long time for jackson to wait for a decision from the texas court of criminal appeals jackson's wait was not unreasonable and in fact jackson's decision to contact the court after fifteen months shows diligence for three reasons st it is difficult for anyone but the specially for a pro se prisoner like jackson to predict how long it will take a court to reach a decision  the texas court of criminal appeals was required to send jackson notice so jackson could reasonably expect to be notified once the court did reach a decision the state's brief says quote this court  mean the circuit has never granted a petitioner equitable towing following a fifteen month delay in inquiring about the status of a state and a b s application would you address that directly as to whether it's true and if it's true how that affects your case it is true judge smith this court has never addressed the specific facts but that this case is most analogous to this court's decision in hearty of the quarter in a case that we discussed at length in our briefs and at a party involved in a loving month delay before the petitioner reached out to the texas court of criminal appeals for the st time and at the time that this court decided hardy it had not addressed a case in which in a petitioners initial of eleven month delay had been sufficient to demonstrate dil after patience on the part of the inmate will always be forgiven and he just waits indefinitely well i think there is a limited southwick and how do we know we get there how do we know we're not what the lucky thing is that i don't think we need to set the limit in this case the supreme court in holland said that we need to look to similar cases for guidance and that's similar to what this court did in a party where this court looked to analogous to circuit precedent and it looked to time periods found to be reasonable by other circuits and after considering those busy it found that the petitioner acted diligently so when we look at those same sources in this case and i'll get to them in a nd but those sources support finding that a fifteen month wait is still village now but i agree that there is probably a line somewhere and in hardee this court characterized its prior decision in the lewis which involved a two and a half year delay as an extreme dilemma and we would concede that at some point in the extreme delay would warrant a district court denying accountable tolling but in this case this is really analogous to this court's decision in hardy and and to the th circuit's on bond decision in  petitioner waited fourteen months before contacting the tech or the excuse me the california supreme court the california supreme court like the texas court of criminal appeals in this case had a rule that it would probably notify all parties once it reached a decision and in that case the petitioner was also proceeding pro se like jackson was in this case and the th circuit found that a fourteen month wait before contacting the state court actually showed diligence given the california supreme court's don't call us we'll call you policy and those same two factors a pro se prisoner and a court rule that requires the court to send notice were two factors that this court relied on heavily in a party and there are also two factors that the th circuit relied on heavily in night and in fact if this court found that jackson was not diligent if this court draws the line at fifteen months it would actually the st court to do so in the th circuit snape decision like i said the same two factors were at play it was a pro se prisoner which it's difficult for a pro se prisoner to predict when a court will reach a decision and that petitioner had received assurances that he would be notified as soon as he did as soon as the court did rule on this petition just like the texas court of criminal appeals in this case was required to notified by the court of criminal to when a decision is made what was his was the evidence in this record of what he had been towed or otherwise knew about the practice i don't know that there's any evidence in the record that he was told anything affirmatively but there is obviously evidence that the texas court of criminal appeals is required to send notice and that's texas rule of appellate procedure seventy and that's the difficulty in any of these cases is that the same conduct doing nothing is perfectly consistent with both sleeping on your rights and it's perfectly consistent with being tele waiting patiently for a court's decision and that brings me to my next point is if it's consistent with two different things you know what else to look at well let's look at jackson's diligence both before the extraordinary circumstance and after the extraordinary circumstance and in this case there can be no question that when jackson knew the clock was ticking after his conviction became final and once he finally receive notice from the state court he acted quickly to protect his rights even after he received the adverse judgment from the district court in this case jackson filed his notice of appeal just five days later every other indication is that jackson moves quickly to two addresses hevia strains and that's consistent with the fact that jackson has a huge incentive to do so  in prison for ninety years and he has an incentive to try to get out he has a motivation to try to get out and every action that he has taken in this case backs up that motive so i think that's why it was the nd circuit in d s they say we're only going to impose a duty once a substantial period of time has passed we're going to give a pro s prisoner who is entitle to notice a little bit of a benefit of a doubt before we impose a duty on them to flood the state courts with inquiries about the status of their case besides hardy this case is also analogous to this court's decision in kolker in coker the petitioner inquired st after eight months and then he waited just a little bit over a year and inquired again so he had to increase with just under twenty months jackson in this case has two inquiries in just over twenty months so it is also analogous to coker and i think one of the biggest issues is that the district court didn't rely on any of these similar cases for guidance the district court only relied on a single case and that was another reporting recommendation and it was also called jackson v davis a different jackson and the same davis and that case also involve the fifteen month wait but besides that fifteen month wait that case has nothing in common with this hits in that case the fifteen month wait was because the petitioner forgot to update his address to the texas court of criminal appeals so it was his lack of diligence that caused the delay in the  place that petitioner waited for three hundred and thirty dollars days before he even filed his state he was application so he had let almost the entire statute of limitations run and even after receiving notice that petitioner waited four more months before filing his federal hades petition so even in the absence of even with equitable tolling the statute of limitations in that case would have run the cases that are on point for way ny the next are decision and ways are in this court decision in party and kolker all support finding that jackson acted diligently in this case therefore we asked the court to reverse a district court entry man this case for any consideration on the merits of jackson's federal hate his petition jackson fails his burning to show that the district court clearly air and abused its discretion and denying jackson equable tolling based on his lack of due diligence in pursuing his stay heaviest application the timelines in this case fall neatly in the gray area between two guidepost cases does two published this circuit cases reaching opposite conclusions based on differing levels of the positions diligence this gray area between the two  of the obligation to give notice there if there is a statute saying that the clerk of the c c a must mail copies of the opinion or order to parties it's a texas code of pulp procedure seventy seven point not quite the same thing what happened in this case the record here shows that the c c actually you can see that the nd they did send a notice eventually and but that one was not received and that and i don't hear a challenge to the to the prisoner's assertion that he never got that of delays and his case that was determined it was an eighteen month period so it's somewhere between nine and eighteen months based on these two precedents if you see the kind of split that about a year as the timeframe we're looking at and that particularly makes sense when we're talking about a year long statute of limitations if your you don't hear from a case in a year you should be concerned that your statute of limitations may be a stay at stake and that's when a diligent petition bar that they're just they have an obligation to stay in touch with their diligent there at but the courts the previous press and this court says that we not only look at the last part of the case we look at the middle part of the case and that's where the problems arise in this case he sounds case fifteen months he didn't hear anything for fifteen on three m strawman harty which are the best cases we have there there under very similar circumstances this case and the time lines fall and between those two cases and we're looking at abuse of discretion standard here and given those two dollars to two dollars cases the district court had to violate its own law it didn't in this case the c c a complied with the law it mail to notice the problem here seems to be more of a problem in the postal service than it does with the c c a and that is a distinction that's present in this case  diligence that the inane make as only a certain level of control over what he can do and this inmate has shown both that at the beginning of the time period or the overall time that we're talking about  at the end he showed extraordinary diligence for an inmate and so his problem was patience and for fifteen months he was dealing with not hearing from the court and trying to think of what opinions i may not have written within a twelve month period and sometimes that happens but in stroman you don't have that other kind of diligence going on by the end maybe more than seven months of limitation pay or to lapse that that was eleven months you say nine but we got us i don't i don't think are bright lines here you want to create a bright line to say that twelve month is it nicely nothing that makes that a legitimate place to put a line this is an i'm sympathetic as i st raised with your opponent that they want to be some upper limit the dishes can go on forever but i have a hard time saying that is just a month longer than it already shares for three months four months circumstances and you should take in all the circumstances of that case and we think the big good guideline here when we're talking about one year statute of limitations we've provided in our twenty eight dollars j letter statistics showing that the somebody should check up on their case but here we're talking about fifteen months and yes we don't dispute that stroman is less diligent jackson but there are signs  diligent in some some instances for instance stroman checked in on his case only ten months after following his state a view south cation jackson didn't check until fifteen months and moreover stroman after checking in and ten months he got a reply telling him that his case was still pending which it was so really and strong as case it comes down that eighteen month timeline although strong was a little less diligent on the other end of his case it's really about that eighteen month period and harvey firmly forecloses this case in this favor but again we emphasize that already checked in for the st time after nine months and again after two months and a rd time in two months after that so three times inside stroman and hardy you can see this gray area develop where we don't have any definite answers in the law as to what diligent and korea's foreign and mate who does not receive notice as to the disposition  and it is because this gray area that the district court deserves deference from this court and this court is obligated to give the district court deference but even if you disregard that deferential route stander view  circuit so explicitly applying a do it day novo review has primary out of circuit case he's talking about play the night even that court struggled with whether a fourteen month delay was too much the the circuit panel in fourteen months is not an unusually long time to wait for your case to be decided and the statistics we've provided to this court so that's just not true in texas i don't know if that's true or not not california but it's definitely not true in texas and c deciding its cases relatively quickly and it's been doing that that way for well over a decade at this point now jackson also suggests that he was just waiting patiently and didn't want to flood the state with inquiries and checking in on your case once a year is not flooding the state with inquiries i don't think that's going to be a problem for the courts and waiting fifteen months is not just being patient that's excessive it's sleeping on your rights has no final questions we conclude and waited and asserting that waiting fifteen months simply is not diligent behavior and there is no precedent for finding that the district court clearly erred and it's diligence determination this court to affirm the district cour colleague did he said i heard him just say in answer to a question that he's not proposing a bright line what he what i heard him say was that one year is a good guideline well i think earlier when judge higginbotham asked him how often you should check in he said annually when he was ask later whether he's proposing a bright line and he said that he was not and then he continued by saying one year is a useful or a good guideline that's that that's what i heard him say and i wrote it down whether it's a guideline or a bright line rule or a suggestion it's it's for clothes st of all it's for clothes by this court's precedent in coker the petitioners nd and rd inquiries are each a little over a year or so anything right at a year is is not a political because this court found that kolker acted diligently despite twice waiting a little bit over a year and any kind of annual requirement there's just no statute that says there's a one year requirement or anything close to that there's a statute that says that the texas court of criminal appeals has to send a notice but there's not a statute that says that you have to inquire after this amount of time nd regarding this great area in between har in filing his initial state he was happy cation which to can seven months and then in filing his federal pay vs petition once he actually received notice was another seven dollars weeks so strawman was much less diligent then jackson in that sense and i think it's also important to remember that the eighteen month delay in stroman was his nd inquiry to the texas court of criminal appeals not his st and the whole point of drawing the line anywhere is that at some point it becomes more likely as time goes on that the court has not received your decisions so if anything a st inquiry should be more forgiving and requiring more frequent follow ups after that also my biggest problem with your argument is our abuse of discretion standard to hold the dispute judge and to you in your favor as opposed to having discretion to weigh the short of uncertainties in our case law as to what a proper time is was of the analysis of why this was to wrong we can determine whether we initially agree with the reason or not but there still is discretion and we're not making you do novo vision it's not a fair statement that's fair but the district court you know when my colleague was talking about the gray area in between harding stroman the district court didn't mention any of that the district court didn't make an analysis based on anything except one report and recommendation that is almost completely irrelevant to the facts of this  the supreme court in holland made clear that courts have to exercise their judgment based on prior precedent even though equity is a case by case and alice's we still want some you know consistency and predictability so really all we're asking the court to do is to do what it did in a hard is to compare this case to analogous to circuit precedent hardy and coke or compare it to time periods found to be reasonable by other circuits and that's fourteen months and flay that's sixteen months in night and find that because jackson was a pro se prisoner and because the texas court of criminal appeals was required to give him notice  he acted diligently by inquiring into the court fifteen months after filing his federal hate his mission excuse me his state he said and again we ask you to reverse the district  a pro bono all right last case of the day gleason versus mark