the morning i'm john ward here on behalf of mr around and i think i have to confess i'm longing for the days of lachie when here we are mr brown i'm sorry mr  final on april twenty fifth one thousand nine hundred ninety so that under and put the statute would have run a year later april twenty fifth two thousand on may eleventh two thousand mr two thousand and two two thousand and one i'm sorry he within the period that would have been remaining to him had there been a gap tolling filed a petition so that the question before this court is what do we make of these three weeks between particularly arguably are ok now our position is that there's two reasons why they're the district court erica you can see that nothing happened during that one year that's that's relevant here well  something did happen that's in the sense that that opposition is too full course of all that on this record his position is that his federal detention was timely because in september of ninety nine he discovered the factual basis maybe i should back up a little bit and and remind the court of why this this case is a little bit unusual this was a guilty plea in state court and the magistrate apparently proceeded under the assumption cases where the statute begins to run when mr west reasonably should have discovered the factual basis for his claim and that is because playing this one is going to give us distance of counsel and the ineffect mirrors i mean the claim is that there was a dim cap defense and that he was incompetent to plead guilty ok now if indeed that's so how is he to know i mean number one and secondly where you have to have two things first of all we know that counsel didn't do anything ok part one or part two there has to be a good some evidence to support a good showing that the second prong of strickland applies that there's prejudice and it's our position that that part of the strickland claim arrived when mr west received the report in september of ninety nine from dr hiser so i believe her name as saying that he was psychotic at the time of the  code was adopted what he might as well say i didn't get the sense that i was on steroids well i think with all respect i disagree to the extent that diminished capacity went out one door diminished actuality came in the will say attention or filing across a position and i think literally construed it can certainly support the claim that he had a mental defect he also in addition had a defense that he was incompetent to plead guilty based on his mental condition at the time so that's part one the second reason why we believe the district court erred is because in his objections to the magistrate's findings and objections he asked that the court  look into the better of equitable tolling now in march of two thousand when he still had time under the strictest construction of if he was hospitalized for a period of a month for a suicide attempt and he was in the acute care facility of the state or the hospital at corcoran on that basis before dismissing the case the magistrate should have held an eviden period but but well but she was not asked to address the issue of his confidence she was not asked to addressed she was she was asked to address only his psychiatric condition at the time of the offense what i'm saying is equal protection you know there has to be something that brings you both something the council didn't do and something that council should have done i think in a mental case you know in a case where the defense is a mental defense you have to have something to indicate to the court in your petition that there's a good faith basis that there's an arguable basis for saying there was it was not correct it was not according to the law for me to have a pleaded guilty or be convicted on the basis of intent to kill when there were arguably reasons why did not actually form that and tats and clock when no but however we do have other evidence in the in the in the petition that controverted by anybody that he wasn't in fact he was and he was in the psychiatric hospital for a month during their fury when the clock was running because he had made a serious so he has to show that up until august twenty third or ninety nine i just couldn't possibly have known who told you what the problem is he really could have even even assuming it was true that he didn't know until that day he certainly day when it's coming out do you think i'm crazy he could have asked counsel what happened why didn't why do you need this come out at the time of the police why what happened and then there's no showing for example that counted in the doctor's conclusions were eleventh per se is that is the day it seems to me that there is it's clear that on this record there was enough time after april twenty fifth to take to give him the two weeks that he needed under the most strict construction of my second point is that on this record there are cries out if the court does not agree with me that we can find time a list based on this record it certainly cries out for an evidentiary hearing on that point i mean the magistrate's decision did not talk about it i