case the district court's decision and the respect where this court referred to myriad state court pleadings and the dates associated with those pleadings but the parties and the district court all agree as to the date of the filings that are relevant to the statute motion which was filed on october th two thousand and twelve the trial court found that motion difficult to interpret and for other reasons dismissed it without prejudice but also granted mr morris leave to precedent compain to a green versus secretary hall versus secretary and bates versus secretary this time period was told in the petition is timely whether the initial rule three dollars a motion tolls the controls whether a state post conviction motion is properly filed and those cases recognize further that under florida law when a post conviction motion is stricken with leave to amend the amend in motion relates back to the date of the original filing reasonable problem with yes the trial court did have discretion to determine what a reasonable time would be and it indeed did when it read mr morris is amended motion unfounded expressly found it timely and  motion by no mention of the timeliness it did not argue in any way before the trial court that the amended motion was was untimely or that it was unreasonable for the trial court to allow amendment do you meant i'm sorry allow amendment of the motion to statement no argument that it should be dismissed as untimely but me ask you a question of a hypothetical so i think i think the point that you just made is own is a compelling point in this particular case but what if the state court had set a deadline so the state court and said you need to amend your men within forty five days and then the petitioner had not done that but had followed on forty six day forty six right and i ruling so long as the amended motion was filed within the two your statute of limitations that you have for such motions under florida law and spirit if you read spirit very carefully spirit didn't really upset that rule it cited that rule that if a timely but insufficient motion is filed the trial court must allow at least sixty days to file an amended motion but if the amended motion isn't filed within that sixty days  statute says the court in its discretion may permit the defendant an additional opportunity to amend so i guess i guess the point of my question which you didn't answer by the way is isn't there  i mean so we're not just applying florida law you're right we're applying a federal statutes don't we at some level maybe not in your case but in some case we would have to say look in this situation there was no time way or no properly filed  matter pending in the florida court and so the hypothetical that i raise is that maybe in that situation would be one we would say even if the even if the florida state court said you know what i'm going to consider this it wasn't you know  terrorism effective death and all the act was deference to state court decisions and a stutz especially true with respect to state court procedural cision and so in webster versus war as i said this court stated that the court sh guess your answer to modify to call me if i'm wrong would be if the if the state court allowed you know so the state court says fall in thirty days that's not what happens on the  files a motion to amend in fifty days if the state court said look this was not timely but i'm going to consider it anyway then we would be bound by that and we would say it wasn't timely nothing was pending that's what you say that's correct said look you filed you know look you filed this a year and a half after i dismissed without prejudice i mean whatever just huge amuse you know how to call and the state court just it doesn't say anything about time  just rocks along and says i'm just denying it on the merits would we be in a position there to say that nothing was into the know the state court went back in and address the the merits of  book i'm not entirely sure your honor i haven't confronted that situation but i would think that if the trial court didn't make an express ruling on the time when yes but instead went forward and reached the merits that this court would have to presume that that the trial court had act a question i think you're right that there is a difference between what florida law allows and of federal law but it seems like here we have a florida state court specifically saying that the amendment is timely and under this under this circumstance it seems like federal would have to defer to what the florida supreme the florida court said about it so what do you say about that specific finding by the florida court that it was but couldn't the trial court here have said just file it when you get around to it could he have just put that in his order and if he had done that then this would have been timely what if he had just said look file it within the next twelve months i mean when we would be bound by that just as just as much as we're bound by his conclusion that it was timely even though he didn't put his pacific date and his order trial the state court found this to be timely but unless if a state court doesn't find it to be timely then we're not going to find it to be timely right so in the in the it's in the hypothetical that i suggested to opposing counsel i said assume that the trial court just allowed them to file it but never made a finding of whether it was timely or not doesn't if we if we adopted a rule that said under that circumstance there would be no towing would not solve the problem that you're suggesting exists where just you can just hold the federal statute forever specifically said this amendment is timely if my proposed rule is that in that circumstance there is tolling but if a state court didn't say that it was timely or you know it was a timely on the sort of an order that had been filed that it set a deadline in the state court that we would not toll in that circumstance but in this circumstance because the state courts that was timely we do bad that so your argument seems inconsistent to me because you're asking us to look at florida's state law to determine when you get to a mint and relay back and you argue but at the same time you're arguing that state law does not is not dispositive of that question so which is p a the idea that matter should be litigated primarily in state court and not in federal court and isn't isn't doesn't that suggest that we should allow the florida so so your reading of the state courts border is that when it says this amended petition is timely it just met it was within florida's state statute of limitations regarding the fact that the district court denied somehow deny mr morris is petition on the merits in addition for timeliness reasons and and i would state that i disagree with that said that sense the behaviors corpus petition was untimely his claims are now time are in quote should not be considered on the merits and so in this case i would s that there is no alternative and we're going to merits that the magistrate judge did mention the merits in passing on lng on the equitable schooling issue that was brought up in the in the district court as to whether or not based on the merits mr morris could demonstrate a fundamental miscarriage of justice but i would submit that there is no alternatively on the merits here and the only issue before the court is the timeliness of of the petition itself with respect to the state's arguments that  limitations period also comes into play and what's preclude that from happening i mean what happened here critically was that mr morris filed his amended motion while there was still time left on the federal limitations period and so it's distinguished from other cases before this court has decided such as melson and simply in those cases the amended state motion was filed after the federal limitations period had run and therefore those those petitions did not relate back and did not till the time they were not properly filed they were not pending and the limitations period ran here mr morris filed his amended motion while there is still time left on the federal limitations period and for that reason the state's ruling that it was timely allows the amended motion to relate back to me that was also true might my memory isn't in also in holland and really in dates and so the concerns that the state has about these proceedings going on indefinitely is not true because at some point the when your federal limitations period will run out so your position just to just to make sure i understand you so your position is basically that if i file i'm up to sure i follow a motion it's dismissed and then i wait