is reagan the commissioner at all number zero nine deiced sixteen thirty six mr weissman in this  analysis one is whether there is an extraordinary circumstance that prevented him from timely filing his petition the second is whether to exercise reasonable diligence in asserting his federal rights where you went to you basically were given because of aband the multiple prior lawyers we tried courts we tried to fish for attorney's office and finally before that period read out we approached judge brody you know and i guess this is a theme that may be  runs throughout this the issues before the court i stand here today i guess i wished i'd done a few things differently back in two thousand i certainly didn't act perfectly but the standard is not whether i was perfect brief judge brody issued three opinions in this case the first to contain legal errors we pointed them out and i would point out that one of the legal errors was significantly in our favor she agreed that i would hold all in on erroneous grounds we pointed that out another example of our of the time that you were you were looking it was such he didn't from the what the bystander you know i wish i could say that i recollect it perfectly or that there was evidence we were looking for i think it's more a matter of you know when you know we take our job seriously it's obviously important stuff working on as we told judge brody in our letter the materials we were looking for constitute a quote historical record of the case and i don't think it's responsible for hey vs counsel to file a a half petition without having the historical record of the case proceeds i thought perhaps one of the reasons was that you really did need this the the crew statement well the crew statement wasn't contained in the materials we got not able to twenty of production i came only later right so we were looking for everything it turned out we didn't even get everything but once we got what we thought was everything we had filed the next question here of what's reasonably diligent is also an important question you know how does this instead equitable tolling has been recognized courts in the supreme court and been relatively hesitant to expand that reasonable diligence period beyond the narrow window and my reading what have you argued and if you haven't why didn't you argue that in this particular case the scheduling of the conference on the fifty seventh day in effect the court misled you as to how much time you had left so that perhaps the clock would start again yan and you would have a period of time which was relatively short from  a context of reasonable diligence and i walk i remember clearly thinking ok she's she's convene this conference we're going to talk about this these are issues and you know i thought the sixteen o'clock it stopped at least for that short period of time now we should significantly who file ten years after his is he was able to file so you know i guess the answer is somewhere between today and ten years you know there are cases maybe the felix we are the supreme court no the two and a half months was reasonable for the filing of one claim as opposed to an entire petition we've got kristin v wolf which is a non presidential opinion of this court where the one sixty eight app and five twelve n days was a reasonable period to file where ninety nine days i think given the overall situation given the the the court's granting of the sixty days where we're within a realm of reasonable  six well i think it was an implicit extension of the sixty days and maybe that's on me for not having formally asked please extend the sixty days i know i was thinking at the time that that would be  col seems to argue that in looking at reasonable diligence you have to look at the entire time frame share of know what steps reagan has taken  years from when he could file he filed an untimely petition to violated state rules and then even when that petition was resolved against him he waited five months to file in federal court you know mr reagan waited three ninety eight f thirty two seventy seven makes a connection between or equates the timely filing of a state post conviction petition with diligence and if you look at the language there it actually says epa does that  imposing or in allowing tolling for probably file say post conviction petition and i think that's important because pace didn't follow the rules he violated the state rules he filed late we file the state follow the same court rules and file timely would concede is is very good they try to be reasonably diligent and they weren't getting from your client the documents or that they needed they perceive that they needed they went to the court before the deadline which is what any of us would do the question is maybe they were a little late who knows but the court on the sixtieth issues an order that a conference be conducted the conference takes place four days later your c doesn't even show up the court then enters an order directing the commission to provide the missing documents the documents come in a few days later and one day after that they file how in the world is that not reasonably diligent first general i have to correct a few things actually our office never received the notice of that meeting that's why i was waiting there on the fourteenth ok ok we were then served with the order and the documents were provided in the capital case on april twentieth the remaining intact out of the twenty first a day later that's correct and in fact that shows that it wasn't necessary that they have this discovery request they made those documents and their requests for discovery was an open ended request that we furnish them with everything that was in our file all of these documents had been provided in one nine hundred ninety one during the from the time until the time that the reagans discovered that the heaviest petition that they were expecting but were not told that their counsel had filed which makes this case different from sites in or where a lawyer affirmatively misrepresented that he had done something in fact and this other court in this case totally absolve the reagans from any form of monitoring the progress of their case that was the district court prerogative but we're talking about equitable tolling here and i think that's one of the equities that we have to look at having been completely absolved of any duty to monitor his case while it was in your mr with mr perry after that point it's our position that reagan had a duty to monitor at that point he and his mother were informed by the capitol fenders that the test the deadline was over they'd missed it and what they did was sit back and rely on the new counsel now that may be appropriate however this court has said in other cases as and so as the supreme court said that the thing to do with that stage is to file a protective petition to file a barebones petition and he said that in hindsight maybe that's what he should have done even though it would have been woefully incomplete the point being that if sixty days were granted and there was an issue alissa soon you're right on everything you say there was somehow miscommunication as to where they might otherwise find documents that they did not have they go to the court they asked the court for those and once they get those documents on the seventy seventy of or seventy first day on the seventy second day they file and it would seem that that's somebody who's trying to do their job  and the thing i guess i don't understand is why they wouldn't just be the courtesy of saying look let's just let this drop because equitable tolling is of is to be applied sparingly the defendant has the burden of proving that he's entitled to it example i guess came later but it just seems that all we're talking about here is just a urine just simple courtesy i mean these things happen people people they're trying to do their jobs they have filed maybe on the sixty fourth day or the sixty first day but they're at least trying and they filed stream lee quickly after they got the documents that they perceived that they needed or at least some of the documents they perceive th needed i don't really get it but did you ever the test is whether to defend whether the petitioner has exercise reasonable diligence throughout the entire time in both investigating and presenting his claims now it's been  here this morning that the defendant waited only two years before he filed his first post conviction petition in state court that had ramifications for why at the later stages he had a shortened period of time any hay  counsel who doesn't represent his client throughout the entire proceeding from state and federal is confronted with a situation where there may have been things he would have done other were in another way but he takes the cases he finds it and i thought also like to point out there were a number of claims from the direct appeal there were seven issues that had been raised in state post conviction review all of those claims could have been placed in the barebones petition and filed now i'd like to focus on what actually happened  accepting reagan's view and putting every a put it accepting all the evidence in the light most favorable to the petitioner having done that you can see that this entire deal is not based on the extensions and conflicting orders was why wasn't that a second extenuating circumstance well i mean it was at least it best or worst there's at least confusion here judge fisher i find it interesting that when the capitol hill vs unit went to judge brody with and filed a motion for informal popper us they requested sixty days in order to file not one but two federal habeas petition that was their assessment within that within those that document which is part of the joint appendix they discuss the complexities of filing a petition they indicate that they are well versed in in this type of law as opposed to other attorneys that are now with that background they assess these cases and said we can do this in sixty days they also were aware that the deadline had passed at that point so they knew it was imperative to prepare the petition with reasonable diligence now as i pointed out there were at least ten issues claims they could have placed in a petition and i'd now like to return to what happened when the additional discovery was obtained they went immediately to state court to exhaust their remedies which they had to do in order to present a claim which had never been presented in their federal petition in fact the state court found there had been no discovery violation and their entire claim was rejected on the merits but that's what happens you file your petition you raise the issues that have been that are ripe for review that have been exhausted and as mcelwee says the filing behaviors petition is the beginning then you request discovery and then you can investigate to the extent that you find an additional claim if it's if it comes under the provision of the heavy statute which talks about discovery of a new factual predicate you can raise it or you can return to state court and that's what happened i just think if i could   berg i listen to you carefully and i understand what you said about i don't know if you answered my question your question was why weren't the series of counsel had to do was ask the court to clarify it they did not they proceeded under the assumption that they now had a different question is if you were in counsel's position might you perceive that in effect you had been given additional knowing that the federal statute had run no you're already on then i says it or you need to have an extraordinary circumstance and the fact that a case is mean if you were in his position and you said to the court and they fifty seven we got a problem whether you're right or wrong that there was a problem they perceive that there was a problem they sixty the court schedules a hearing they sixty four there's a a hearing and you say you think it knows that's why you didn't show up but once you did find out you can produce the documents literally within days in one case the army in one only one case and only the capitol chaos and some of the documents and then the next day they filed why wouldn't you in other if if the shoe was on the other foot when you perceive that the court was going along with you because otherwise what a court would say hey you just came to me too late it's too bad you better false upon sixty if they are get the hell out of dodge i would not have assumed that i back and start all over with soldiers and i'm not aware that the court did decide aspects of the state court dead but federal court has not the motion for the sixty day extension was as to both a b s petition that's correct the actual innocence claim has to do with the alleged failure of the commonwealth to disclose the identity of an eye witness and in fact we did disclose that the state court found we  the point is in order to qualify for equitable tolling there has to be extraordinary circumstance which is outside of the control of the petitioner and that prevented him from meeting the deadline it's our position that once the defenders of the capital defenders were involved in the case the fact that it was difficult or that the case was complex is not an extraordinary circumstance that's exactly what judge brody found and if that's the case then  get past january tenth when the reagans knew that the deadline was over and i know you concerned about this case but i would suspect that you're also concerned about what principle the outcome of this case m of life sentence prisoners this is the deadline and have been precluded from federal review brown versus shannon is one of them this and my point if every habe use petitioner can say it's too hard to get my claims we're undercutting it but i would point out that the the the case before this court is important because it serves as an aggravating circumstance but it's in the it's important independently because our view is he's innocent the crew statement or so that was not something that came from the from the commonwealth judge fisher i think your sense of the point of your questions finally sunk in while i was listening to your question miss kane and i think there the answer to your question may be found in the which which said that when a district court makes an error in a calculation that's relied on violate again the fact that there was an erroneous calculation by the court shouldn't be held against the petitioner so i think that's pretty close to what are wh i just want to correct one one concept here that miss kane was referring to discovery our view is what we asked for from judge brodie and ultimately see if it was not discover it was the the what i like to pull the historical record of the case hideous