i believe it would have been a few months after if five expired you know it's ok let's focus the time being on the period of that five year that while he still could have done something did he do anything i want to request affection from what i can read from making other decorations the only specific firm thing is that they requested the files back about three months after councils within because he was doing nothing which i think declarations of the sister and the wife in reno and should be made to the district court to see if there's anything further here rather than just let this thing lapse because the record is not that clear without a hearing some therefore the hearing should have been granted by the magistrate to see what other only the record that was before the district court at the time the entry of judgment was filed in this case the district court in a judgment on may seventeenth of two thousand and two that's experts a record seventy seven now according to  today there was one clear requests for files made about three months and that support he's fighting to declarations that were contained in pages ninety five of the excerpts records those are taken from the notice of appeal  in the requests for sifted repeal a bill that was filed on october eleventh of two thousand and two these declarations that were drafted not only were they not a part of the district court record they weren't the declaration have even been drafted at the time the judgment was entered in this case so essentially his equitable point argument is based on these documents that were contained in the most of appeal but he's made no effort to persuade this court that strong you can argue that i i'm understanding was that that that the ninth circuit already granted him the leave to file it and that is that they should already been resolved few pages long and essentially when you look at it which is found in excerpts a record sixty five and sixty six it really just contains a few simple allegations without any and the evidence to support it says that on well your honor he did i mean we do have a strong statement from so it wasn't spitz and that that drug test and other words they understood that that might get them somewhere the unfortunate thing is that they didn't make that allegation in the district court and that's why can't be considered by the honor i would imagine from spirits and that wasn't merely the fact that that the attorney missed a deadline but that it will these repeated requests for the files that will comply have read spritz one thousand that but i am not entirely then what difference will make when the guy that ask you first found back if if if there is you know the guy is a lawyer is a lawyer is being negligent is being average and what's the conduct of the of the you well i think that when you have these repeated requests without getting the files returned to you i think at some point the court is now evaluating this attorney as this isn't a case where i know but i think you can't he was doing everything possible that he was acting reasonably diligent and with go to well that because it requires both the you know to attack little time to show extraordinary circumstances beyond his control made it impossible and spits and general's office from his attorney on direct appeal all kinds of things like that that he didn't allege in this report and i would also point out that when he had stated to say that he it's yours to be a copy of the agreement between petitioners wife and the attorney and it says that he's only being retained to investigate finally and that he not that he was being retained to specifically file a federal petition