untimely and therefore did not told the federal statute the magistrate judge answer this question yes and therefore dismissed gonzalez as pro se federal petition as filed twenty seven days late under control in law the answer is no this court should reverse and remain for consideration on the merits evans vs chavis provides the rule in this case their rule is that in the absence of a clear indication that a state petition is timely or un timeliness when we look at the order as a whole and we have to look at the context here and he filed the same claims in each corps and in the superior court he filed his initial petition there just four and a half months after his  after the conclusion of direct review and the superior court order is quoted on page six of our brief and you'll see that it denies six of the claims because they could have been but were not raised on appeal that's the dickson rule now this court cites reno for it but reno talks extensively about texas the superior court also says defendants less ground for peel is inadequacy of trial and appellate counsel it says defendant failed to present sufficient facts warrant and relief and we'll see again that that orders on the next page of a brief page seven the only sentence of text that explains the decision says the petition is denied for failure to state sufficient facts demonstrating entitlement t relief requested that's the same rationale given by the superior court for the merits denial of the two ineffective assistance clinton and the court cites duvall for that and the pages of the vaal discuss two rules one is about the dixon bar for not for raising claims that could have been raised on appeal the other is the walter use bar for re raising claims are already resolved on appeal and one is the time bar  because we have the same claims that the supreme court tonight six of them for dixon same sex claims are here so i think the most reasonable  far is a reference to the dixon bar it makes no sense that this case is his untimely and right we know from chavis that moving between the lower court to the higher court if you do it within thirty or sixty days that's within a reasonable time it's not an issue in this case that cannot be the reason for an timeliness because he filed less than three was that in a row here the interval here was he loses in the superior court and less than law applies so that if a later court would clearly indicate that a petition is untimely i think it would be deemed that well would be deemed untimely for that court there's there's no dispute in this case that the superior court petition with  tolling cases and there found the petition timely where the first superior court petition was filed over seven months after the conclusion of direct review we also cited in re newness in our reply brief california court of appeal case it says six months to file your initial superior court petition is timely the attorney general hasn't responded to these and if he has cited a case finding its initial superior court petition on time after four and a half months i don't remember seeing it in the br one thing i just would like to try to reserve some time so i just want to say one more thing famous lawyer words a couple more camps it's not clear he submits a letter from a lawyer saying i will the appellate lawyer said i'll give you the transcripts once the california supreme court action is over that's in october and then he he files his superior court petition by the following m for a ruling he went to the district court and said hey i'd like tolling the district court said i have no jurisdiction denied without prejudice neither the request nor the district court's order mentioned the pace case and protective petitions if that happen on whether this appear quite petition was timely please the petition was timely in the eyes of the spirit court judge in in the eyes are you making arguments the state making the argument today that that wasn't we need to know when to start the clock so what's your position please the clock started for th speech under state law when the supreme court tonight review in october right and then what's your position on whether or not the superior court petition was timely place the superior court judge found a timely the higher  case that supports the finding of a three week period on timely and reasonable can you say to any case that that that proved to be some kind of a delay was the reason i asked that is because that has some something to do with you know what the court of appeal meant when the you know cited see also clark right where there was you know appealing to you know to the time of this rule because it seems to me i mean you know on reason why i mean almost ludicrous to say three weeks is untimely i do a ludicrous to you untimely then you know his state petitions were improperly filed correct and he didn't get the benefit of that time that's correct so it's important to know wasn't whether or not his filing in the court of appeal was timely that's not when you measure it don't you measure it from the time of the supreme court decision yes all right then wait wait go back to these are you know months before the supreme court i mean that's pretty court the decision well there were three weeks after the supreme court you can i think the resolution of that your honor says that the two judges saw it differently right now aren't you this is really like pulling teeth so isn't your position i mean there aren't trick questions i'm trying to just understand you are going truly are you saying that even though the s court treated that petition as timely that the court of the peals to judge to see miss question yet in my clarke meaning not that the three week interval was too much but it went back and your position i think is it went back and said the superior court filing was a timely yes matsch right this way from that i think we have an answer as someone who isn't from california can you explain to me when i habe is a petition filed after a resolution of a direct appeal is timely yes it's timely under state law your honor and as seen by federal law when a reasonable time has is when we're still within a reasonable time and a reasonable time is subject to a moving pendulum it seems well if it moves but not that far because well then if if we're going to entertain any notion of due process how can a play station or be entitled to if his order or his request is clearly dismissed and he doesn't know where he's supposed to start when it's supposed to and i have to say that the court can look at merits as well as procedural issues the i can't tell you what spirit court didn't rule on time we know this but i can tell you that clark unequivocally in this context means that the petition w untimely i can't think of another case where it's proceeded like this where the superior court found it timely and the court of appeals put an inmate clark site in there to do you know i don't i know that there is often a lot of variance among rulings the three levels of hevia street view i haven't seen that specific variance but but often the courts don't agree i think the with the i have a minute left and i think what i'd like to leave with the court is to hide behind what the district called silently into river to flee site those cases so i think the last thing i'd like to say is your honor that the federal suit different sometimes but as a matter of state and federal comedy the state has a right to interpret its own loss with respect to timeliness and i would submit that that's what occurred here thank you can thank you very much would you please put a man from the top we took a lot of your time and but i do think we got to a place where we understand now because the state both said that they weren't contesting timeless at this appear competition and now i think we understand that they are joined respond to and they've provided no persuasive argument as to why this court doing its job under child this should find it untimely and i think it's clear but i just want to say i think the court is right to say this is an unusual case and i think mr gonzales did everything right did we really supposed to do he was channeled in the state court he acted diligently and it's almost like a strike of lightning that this clark on a page with three different bars now prevents him from hearing on the merits and this court in so that versus hardison six fifty eight f thirty eight ninety eight said that an erroneous belief applied procedural bar to snap our federal review i realized that