his state application for post conviction relief so as to toll the deadline on his federal hate his petition this court has addressed that issue and has answered it in mr jones's favor on three previous occasion in drew and in estes so can i ask your question about the lancy i take to be the closest case in point for you delayed see though right was a little bit different because there it's just an ink blot we have no idea why the state court did what it did and here we've got this state court decision that i will concede is a little confusing and you've got to parse it to figure out whether the state court is really doing that timeliness thing or the merits thing but doesn't that distinguish it a little bit from de lancey like where we actually have something to which we might that the case the court was disposing of mr jones as motion as one that was legally sufficient on its face but ultimately didn't justify some relief the florida post conviction or all three eight fifty eight sets out the ways that a court shall dispose of a motion in certain events under f one if the case if that motion is legally sufficient on its face and untimely the court supposed to summarily dismiss the claim with prejudice but here the court didn't do that instead the court of knowledge that mr jones had filed his claim then went to address the merits of his new evidence claim and sort of tangentially looked at his strickland claim so so that that's i guess the question i had in trying to figure out what the world is going on in the state court order because as i understand it and you can correct me if i'm wrong about this that newly discovered evidence in florida is plausibly related to one of two things it might be a timeliness thing right this sort of gets you pass the time bar or there actually might be like a freestanding newly discovered evidence claim that under mine's the conviction that you're entitled to relief is that right yes your honor and if if i could address that in just a minute i think the that and the first category under alleges that is that the petitioner has some newly discovered evidence and that they could not discover that evidence within two years they were bringing the motion within two years of having discovered that evidence so the plain language sort of sets out this category that says you can't file a motion more than two years after your sentence of judgment becomes final unless you allege that mr jones did allege that here so it's a little it's a little difficult because when courts often discuss the issue of timeliness they're referencing the supreme court's decision in pace and let me ask you about that mr willoughby because you are relying on to land sea and drew out of this circuit but this court in say that the petitioners application complied with the laws and rules governing filings when you have a state court that says actually it was untimely it flat out we don't have that in this case because the court dealt mr jones's motion on the merits of his newly discovered evidence claim instead of denying it as untimely and the second point to your question your honor is that pace did not in flat in fact conflict with the lead injury and estes there are two primary distinctions between pace and those three presidential cases the first is that in pace the petitioner never invoked any of the exceptions to pennsylvania's post conviction rule like florida's rule pennsylvania's rule set out a category under which a petitioner could get in under the time bar even after if they were filing after the statutory time had run pennsylvania statute says that a petitioner has both to allege we have to determine whether the application was in compliance with the state laws and rules governing filings but we have a state determination that it wasn't that's not present here in your isn't your best argument in response to a question is an unpublished opinion that has no presidential value at all that's true your honor psychopathy is an unpublished opinion and to that extent this court isn't bound by it as it is bound by de lancey if you're an estes and it is bound away from a reading of pace with any impression other than that the supreme court says when the state court has made a timeliness ruling you defer to it and so on we really kind of debate being here whether the state court order that we have before us is in fact  this ruling if it is i mean let's assume that the state court i think you're frankly gives you the fact that your client alleged within the meaning of the statute i think the state court uses the term of her little that's the same but if the state court had gone on specifically in an ambiguously to say that this is untimely nonetheless seemingly in violation of the state rule doesn't pay say you've got to defer to the state court decision no your honor because pace answer a different question pace answer the question of whether the mere existence of exceptions to a timely finally requirement can make an application properly filed even when the petitioner doesn't allege any exceptions see the issue in pace was that the district court found that pases application was properly filed despite its own timeliness and despite the fact that pace never alleged any exceptions to the statute the issue was that in our tuesday bennett the supreme court sets out this paradigm either an application a condition is a condition  filing or condition to obtaining relief a number of circuits looking at the issue of these time ours and said well if the statute sets out judicially reviewable exceptions that means that the time bar is actually a condition to obtaining relief because the court the court has to acknowledge that the petition is filed and then consider the merits of the claim in light of these judicially reviewable exceptions there was a circuit split at the time so in pace the supreme court affirmed the third circuit in saying at these times ours are conditions to filing now pace didn't satisfy those conditions to filing because his application was late and then because he failed to allege that he satisfied any of the statutory exceptions so pace answered the question are time bars conditions to filing or are they conditions to obtain relief and answered it by finding that the time the time limits are conditions to filing and i don't dispute that here what mr jones says is even though the time limit is a condition the filing the plain language of florida statute sets out an exception to that time limit which is that the petition need only allege that you're talking about florida's ruth report eight five zero rule not statute yes your honor i'm sorry ok but the language of the of the rule itself is what the first dca was actually addressing it says you got to use due diligence in pursuing it and the mood and the facts were or could have been discovered with the exercise of due diligence talking about the two years if they were talking about two years why would they even mention that kinds of things that the supreme court justice scalia set out in our tuesday bennett as conditions to filing are things like the form of the document that it's filed in the appropriate quarter office the time limits on its delivery and then that the petitioner has paid the are conditions to filing as this as the ninth circuit's found diligence is actually a condition to obtaining relief and i agree that the state court did address whether mr jones had or hadn't been diligent but under the statutory language isn't that it goes to whether he satisfied the conditions contained in three eight fifty b one which is that he must allege both that he had some newly discover evidence and that he was diligent in obtaining and in fact mr jones did allege that that's all the plain language of the statute requires now there are other statutes like for example pennsylvania which the supreme court  statutes say you have both to allege and prove that you have some newly discovered evidence and that she were diligent in obtaining that evidence but i mean i guess back to my question so even despite the differences between the rules at issue and pace and here i mean you know the supreme court when it decides these questions it decides sort of issues of law and the supreme court says because the state court rejected petitioners petition as untimely was not properly filed and that's the end of the matter so i guess i'm still left walking away from pace thinking like well y we can sort of debate the niceties of that particular rule at issue but that isn't the supreme court stating as a proposition of law that if the state court rejects the thing as untimely don't go digging around anymore that's sort of end of the case and i see it my time is up  question of course with the supreme court had no occasion in pace to address a situation where an applicant's a petition is and is past the time bar but nevertheless that they allege some exception so when the supreme court is discussing time when it's in pace and  acknowledge that there are situations where somebody might allege an exception all they're talking about is where it's passed the time bar and they haven't alleged or satisfied any exception to a statutory time thank you farai thank you mr weatherby we will hear from m you your honor may it please the court counsel judge newsom you're right that it's almost impossible to re pace as anything other than a broad statement that if you don't meet the the timeliness requirements under state law irrespective of whether you there is a make available exception to the time bar what whether or not you raise it them that is not properly filed even though  myself i you know have fine print you don't have to prove it in florida but you have to prove it in pennsylvania well you'd have to prove it in florida as well i mean you can't just simply a legit and pace law you have to a  it in order to get stay in court it says no other motion shall be business rule three point eight five up says no other motion shall be filed or considered unless such and such so four that we cited mashburn is one i think fleming is one and there's another one that i filed button that i filed a supplemental authority that all recognize that but they all say that the lan pays they say overruled other grounds and there are parts of the of drew and alliance see that with a space may cite to drew only but there's because they're citing drew for a particular proposition that remains but not for the proposition that an untimely filed state motion that an excused is a tolling motion i'm looking at the state court decision i don't see the word on time or no your honor you will not see the word untimely but as judge newsome and perhaps judge vinson also suggested it's impossible to read that order as being anything other than a preliminary order saying you had a chance to file this motion in a timely fashion you did not well and in fairness just so words aren't being put in my mouth i actually don't think it's impossible to read the order any other way i think the order is a hot mess to be honest with you and i can't make heads or tails of it except that i think that on balance the better reading may be a timeliness based ruling but especially given florida law where i understand that there might be a newly discovered evidence claim sort of a free standing newly discovered evidence claimed divorced from sort of the time bar then i actually think you could read this one of two ways and i guess one question i have for us i mean is it is it sort of fair for us after the fact to be parsing the niceties of this mess of an order and then ultimately determining sort of retroactively that yes this was a time when its decision to which under pace i actually do think we have to differ i understand your characterization of the mess i don't read it that way if the judge were inclined to reach the merits he would have mentioned the end effect of assistance of counsel claim he did not always those the words used to work f was one that could have been discovered years before in time to incorporate into his timely rule three point eight five all motion that's why it's frivolous that argument that he made that he didn't learn of this email from the prosecutor to what i a prism was a victim advocate was was discovered by him through due diligence and that's what made it for the us we've we've got a lot of cases here that's in order to for us to defer to a state court determination that a motion for post conviction relief is untimely and has to be ambiguous and i don't know how we can say that this is explicit and unambiguous if the state court doesn't even use the word on a timely well what you're asking for is magic words  have that of into judges i'm not certain about federal law but there's no other way to read that other than this motion is untimely and then excused and therefore i'm not going to reach the merits of the so can i ask you two related well one related question and i can go back and look for myself but have we said that an ambiguity is a necessary condition to deference to a state court session or that it is  discussion comes out of some federal case law from the seventh circuit and some from the night circuit kerry versus saffold u s supreme court where there actually was some ambiguity in the maybe i can help maybe i can help you mr duffy but because judge davis in this case rely upon an opinion but another respected district court judge in florida who i will not name in a case of low z versus mcneil in which it was quoted from pace as as a court the supreme court simply state not quote when a post conviction petition is untimely under state law that's the end of the matter for purposes of section twenty two fifty fo because again quote limits no matter their form are filing conditions so it doesn't they don't have to use the magic word it was untimely if you talk about it and time conditions that's the end of the matter this claim court has already said  i agree the ambiguity also came up in kerry versus saffold which in that case california has this vague reasons alist reasonable nest standard for determining and timeliness it may be untimely under certain circumstances maybe under others i am unaware of no case that holds that the word untimely must be in the order for that order to be considered an ambiguous and judge wilson in response to your comment about  that if or and the argument that simply alleging of a time bar exception is enough the supreme court in pace talked about that not being a good policy the purpose of the a d b a statute of limitations confirms the common sense railing rule out reading that properly filed means something other than filed after a time limit that permits no exception what if the defendant had the opportunity to discover the plea offer in this case within the two year time limitation imposed by three point five zero but was unable to do so until there was newly discovered evidence which is what he alleges here well the two years and the reason that i didn't file it with than two years is because i didn't have the evidence that i needed to file it within the two years and so once i had the evidence to file it i have new newly discovered evidence and i allege that prisoner could toll the statue of limitations as we'll but he's not only in pace you not only have to allege that what i just asked you but you also have to prove that in order to get over the threshold you don't have to prove it in florida but that's not a distinction that pace made it's not a distinction that any court has made no that's not a distinction that pace made because hayes interprets pennsylvania statute that requires not only that you  e but you have to prove that too but it's holding is not limited to that to that theory they do not address that no court that i'm aware of has addressed that and it said it would turn section twenty two forty four scuse me the two into a defacto extension mechanism quite contrary to the purpose of the a d p and open the door to abusive delight so they had that in mind that all you have to do is a legit to get past the time bar then that opens the floodgates and that's one of the policy arguments that we may get we don't you don't deny right that the florida rule at issue here requires only an allegation right requires an allegation that yet ultimately have to be able to prove but i say yes but so i mean so the florida rule here requires only an allegation the state court to terminate the state court order that which i've characterized as a hot mess says that in fact mr jones did of her which i take to mean the same thing as allege newly discovered evidence so at that point if we're just calling balls and strikes on the face of the florida rule here without respect to pace and deference to state court decisions do we say you know do we think that the state court got it wrong and then is it your i mean the state court dismissed something as untimely you know even though the rule says good enough for us if you good enough for us to get past the time or if you allege a newly discovered evidence in the state court says yeah he did it but i'm dismissing his untimely anyway that's not a fair interpretation of rule three point eight five oh ok that that you're going to have to prove that if you were inclined to reach the merits you would talk about the merits of the end effectiveness and doesn't doesn't rule three point eight five zero require not only that you bring it within two years or you have to have facts that we could have been discovered with the exercise of due diligence that's the wording of the rule itself yes and that was the ruling was that he was not diligent that the two thousand and six wrote if you alleges that though he did allege that that's that with that's this case he alleged that there was  a ten year plea offer that the state made and that his lawyer turned back and the judge state judge found that that could have been discovered by due diligence offers and told me he didn't want to negotiate with the state so he's on notice at least at that time and it was years later before he filed another case the getting to the argument that psychopathy is not of published opinion there's a similar holding in suite which is published and sweet construed rule three point eight five one which is the capital version of rule three point eight five zero and found that it was not properly filed because it was untimely he alleged a constitutional issue which is one of the other exceptions to the time i'm not sure i understand do go it's argument because when you look they were going to say it was not if he could have learned of the existence of this memorandum or this email at the very least at the conclusion of history of his trial that might have been shielded under florida's public records law at the time of the trial as possibly work product but maybe not but in any event that was out there and discoverable by him and we do hold pro litigants to that standard there are numerous cases that have done so one other small point that i wanted to make is that there is a suggestion in the the briefs that your honour's to address apple e's policy argument it may be true that under florida statutes petitioners can allege that they satisfy some exception to the time bar and thereby toll the federal deadline for the petition but that's all that's contained in the plain language of florida statute this court can interpret that rule according to its plain language but if it requires that petitioners like mr jones both allege and prove that they have some new evidence so that they were diligent in obtaining it it would read into that statute a requirement that it doesn't contain a requirement that statutes like pennsylvania's do contain it that florida's does not so actually it's interesting i think that i agree with you everything you just said as i read i read the rule the way you do that it really just requires an allegation of two things and that it's different in that respect from pennsylvania's statute or rule or whatever it was and and pace the difficulty for me is that i continue to believe that the fairest reading of pace is that the supreme court really meant to lay down a marker for lower courts that said once the state court has spoken to timeliness that's the end of the matter honor in pace the supreme court said that in the common understanding or an application is untimely and where the applicant fails to allege any exceptions to that statute that's the end of the matter it acknowledged that there were situations where an application could be past the time bar but where they might invoke those exceptions now i agree that the language on timeliness was fairly broad the supreme court said things like when an application is untimely that's the end of the matter but it had no occasion to address a situation where when an applicant files past the deadline but they still allege the exceptions does that mean it's properly filed it seems that your honor would hold pace's application is untimely but i find that the plain language of florida statute sets out an exception so a different category other than timeliness we maintain our position that pace doesn't apply to the situation because pace was strictly addressing a situation point eight five zero just yet because not only do you have to allege that to the did it within the two year term limit but you also have to allege that if it's not within the two years a could have been discovered with the exercise of due diligence it is that's that's a critical part of the rule yes you're so it isn't just to play an allegation i need help you got to say these things and establish that you exercise due diligence no your honor because to establish that you exercise due diligence would be to prove that you had that you exercise due diligence all of the language about discovering new evidence and having been diligent in discovering that evidence is under be one that's subject to the verb in b that says you must allege that  jones did allege that he had new evidence and that he had been diligent in discovery and that's all the plain language of florida statute requires any policy arguments to the contrary would have to read into florida statute  discovered this op we offer could have been discovered in the exercise of the delegates yes your honor and the state court found that mr jones had not ultimately been diligent in discovering the evidence and when it made that determination in attached portions of the record including mr mr jones counsel's sworn testimony at an evidentiary hearing and then a writ of mandamus that mr jones had submitted seeking records from the case so that a pinch of those materials in addressing well you did an outstanding job this probably the first time in the wow you have even graduated from law school yet you already argued a case in the united states court of appeals it's an impressive program at the university of georgia law school is the georgia law school of poet practice clinic i would imagine that most of you here are third year law students who are participating in that clinic well it's good to have you here in the eleventh circuit and good luck to all of you or i will thank you and quarters in recess until nine o'clock tomorrow morning