the titian is untimely at a point when he was required in one circuit precedent to take the facts as alleged by the petitioner is true and i think the facts alleged by mr brancato from saying his name right the inmate who was assisting him sufficient facts in the record the court should hear or hear an evidentiary hearing to resolve those different facts from both sides the and the may ask a different question the judge that's the judgment became final on july sixth two thousand and seven is that right yes wrong and no appeal was taken correct so if we focus on the twelve month period between when the appeal time and in sixty days and twelve months if there is no equitable tolling during that time with this petition be timely no your honor we would need equitable first met the the petitioner in i believe march of two thousand and twelve is that right i think that's right yes so that's about four years after the end of the first twelve month period absolutely wrong why would then putting aside that he was and that could go to the value or the weight of his testimony why is his testimony or that collaboration sufficient to show clear error here if he didn't if he's observing the petitioner four years later i think on its own it there might be an issue there but again going to the corroboration the record the motorcycle accident the fact that he told the police that the devil made him do it the fact that the patient department indicated he was on a memorandum and his statement at the that he was on a pain killer i think those facts corroborate not only mr brancato his opinion but also raise a significant issue as to whether that condition was chronic and the condition mr prado is talking about it isn't something like an infectious disease he's talking about it a mental impairment for which i think an inference is he's been suffering from this the issue at the preliminary excuse me the issue at the evidentiary hearing if i were granted an expert would be whether that expert understanding that retrospective evaluations are disfavored that they first finisher but i think in this situation this is a situation where that psychiatry is their psychologist would be giving critical evidence as to whether he has a condition now and whether that's the kind of condition that would be as chronic and long lasting your i'm sorry i didn't mean to no i never liked it when i was on that side of the podium i actually enjoy being interrupted because i'm tired you he did with the assistance of what we called these days a jailhouse lawyer files some pleadings in state court correct he did you are yes where they timely file well first if you file the i tried to f start now i will interrupt you when you start with a yes or no oh well summertime is somewhere untimely on the first one i think he follows it for untimely notice of appeal but it was too late it's noticeable time and long lapsed then file the request for transcripts i suppose that's timely but they denied it because he said he didn't have an appeal they request to change restitution i believe that would be timely since financial circumstances change but a bit again why somebody who put files to requests when you're serving a four year sense just really doesn't make much sense to me so some i think were tommy but somewhere especially the initial it was untimely let me come back to the evidentiary question because i think if there's a soft spot in the case for the statement as this is that's it i'm not quite sure i know the law here if this were summary judgment i understand we're supposed to take all the evidence on one side and just believe that if the motions made against that party is the same true when we're talking about evidence or hearings for such things as equitable tolling that is to say is the judge allowed to do any reconciliation of conflicting evidence without having an evidentiary hearing cooperative from the california attorney general's office she was very helpful in getting those prison records that were submitted to the court which both sides take different views that we both see evidence to support our positions in those records that was received  but if the if the on the motion the facts as alleged have to be accepted as true why was it necessary to submit any evidence well your honor i think both sides got to put up the option to develop further evidence and su more facts to the court so i'm alleging in the prison medical records are just facts that support the position i think the district court has to take the words sta mr brancato is true that doesn't mean he has to say i therefore find he's entitled to relief he still has to make a legal judgment on those facts as found my position is those facts as set out by mr brancato do establish the need for an evidentiary hearing i think that's wrong that nothing counterbalances that in the district court should have granted to hear if that answers your question earlier you meant you referred to the you said they drug pharmaceutical drug  colloquy wasn't there and interchange concerning the use of a drug yes right but i don't think it was ramrod if it was a pain killer for the legs in his pain now it's absolutely true it's not at the police call that he's taking ramrod i'm getting that fact from the probation report which paired shortly thereafter so my position is again an evidentiary hearing would be needed to see whether he was taking their pain that medication along with the painkiller at the plea and see if that would have an impact on his ability to comprehend the legal proceedings what do we hear from the other side and you save some time thank you good morning and may it please the court mike manion on behalf of the state respondent let me begin by going directly to the question of how the district court handled this case and the evidence sherry airing i think with respect that this is somewhat different the procedure that this court has instructed for this particular context than a typical motion to dismiss in cases like the recent decision in or thel what the court has said is that the district court must look at the petition and make an assessment as to whether there are non frivolous allegations of severe mental impairment that would be sufficient to satisfy bills and if there are then the court should expand the factual record whether that's by discovery or by the type of submission of exhibits that happened here and then consider those allegations in the light of the expanded factual record and that's exactly what the district court did here the district court denied our initial motion to dismiss because it took the allegations of mr kotto seriously and it instructed the parties to meet and confer to expand the record and seek discovery if appropriate after that the parties submitted detailed documents from the state court proceedings and the central file from the state prison records and the district court conducted a very searching inquiry looking at mr brokaw to statements in light of that record and i think it determination that petitioner had not carried his burden of establishing severe mental import parent that made it impossible for him to satisfy the federal statute of limitations was not clear error in light of the record that was before the district court and that is presently before this court which includes among other things the fact that petitioner was able to file a number of documents and internal administrative proceedings in state court proceedings some of those were viewed as untimely or procedurally deficient to be sure but others were not and they indicate a general understanding of legal proceedings and inability perhaps with the assistance of others and some places to file the requisite documents to seek relief the balance of the materials including documents that my friend has pointed to i don't think corroborates th type of mental impairment that petitioner is concerned contending that he suffers from there was a detailed clique colloquy in the state court and as your honor pointed out the trial court judge did follow up where appropriate including asking specific questions about medication petitioner volunteered only the pain medication for his knee but that state court was very careful to ask whether that was affecting his thinking his ability to understand and comprehend the proceedings i think that you know another point i would make is on this record it is the case it is apparent in the central file that there is some mental health services that petitioner has been receiving but that he's been receiving the lowest level of treatment that is available in state prison which is a can to the type of treatment that someone in the outside world would receive if they're getting outpatient psychiatric services i don't think that that documentation carries the burden of the high burden that a petitioner is facing in this context if the court has no further questions does the record show whether there was any assistance provided to the petitioner in connection with the several eighty eight requests some of which were granted some of which were denied your honor i looked through for that and i wasn't able to determine one way or the other do think it's probably a fair inference that there was some assistance because the record does speak to it's rather limited english proficiency and the documentation for those requests are written out in quite quite clear  english but i'm not sure that that affects the analysis one way or the other because whether these are documents that he's been able to prepare by himself or with the assistance of a jailhouse attorney or someone else in the facility the point is that he has demonstrated his ability perhaps with assistance to file this type of document and i think that these court cases in decisions such as yeah they indicate that even when someone has very limited abilities or english proficiency if they're able to get the with the assistance of others file this type of document then their failure to do so in federal court is not a basis for equitable tolling with respect to mr bro otto and the testimony or declaration that he submitted as i noted earlier that was several years after the first twelve month period expired and response to which mr jordan said that just if that's what would have justified an evidentiary hearing  which a person could have an expert could have testified as to the likelihood that that condition existed back earlier what about that would what your response to that what two points your honor i agree this was after the fact and certainly retrospective analysis has a more limited probative value than documents about the specific period of time i think that the problem here is that there is nothing beyond the rather conclusory statements of mr brook otto to establish with specificity that there was any possibility of impairment so severe during this period that it would satisfy the bill's framework and so i think it was appropriate for the district court to take those statements and then conduct a more searching factual and kori based on the record but i don't think that this court's decisions require per se an evidentiary hearing just on the basis of that type of allegation and i'd point the court to its or fell decision which is very similarly postured where the district court did just essentially what happened here mr ricardo did mr brook otto referred to the petitioner as someone who has was the equivalent of a ten year old terms of mental capacity that is right your honor but that is a statement that is in the record from mr ricardo but again and the district court pointed this out the balance of the central file which was the document actually submitted before the district court does not really substantiate that i mean there are a number of prison proceedings where prison officials come to the conclusion that the petitioner is able to comprehend the proceedings and then of course at the state trial court proceeding there was a plea that trial court found to be knowing involuntary thank you ok thank you very much  before the district court the record had been amply developed there including extensive as i remember psychiatric records here we did ask for an evidentiary hearing because i think there are some issues that could be resolved to answer the question of whether we have the preexisting condition and whether he really did or did not understand what was going on at the plea it always seems a bit strange to me when you ask somebody pleading if the medication is causing the inability to understand what's going on because if it does then you can't answer that  question and finally his judge grants that's last question about whether he had the capacity of a ten year old looking at the facts of this case and the unfortunate crimes that were committed here or used to be community or involved very young victims again the nature of the crime i think in some respects corroborates the possibility of this condition of the man having an inability to see things  anyone older than a ten year old did it what about the statements it's reported in the police report where he had a witness reported that the witness said been asked not to report what the witness had observed well i think he made it ten year old be afraid of what had happened and i think he did understand he had done something wrong the question is did he understand it with an adult mental capacity as opposed to a child and between when he met mr bravado in march of two thousand and twelve and the filing of the petition here  the state petition was that in two thousand and fourteen i thought it was about eighteen months eighteen months about eighteen months you know why is that due diligence well again as i understand the california state procedural rules they don't have a a cut and dried when your deadline or deadline is we do they have to use reasonable diligence and i just again without an evidentiary we don't know how many other people mr brancato was helping whether he had the time ability to get to the legal library but i think eighteen months is not an unreasonable amount of time to prepare a petition by a non lawyer in a jail but the eighteen that during that eighteen months the twelve month statute was running for the under this for the leisure runner but