please the court deputy federal public defender michael print a on behalf of the petitioner one balance well i'll try to reserve one minute for rebuttal equitable tolling is warranted where a petitioner faces an extraordinary circumstance and is reasonably diligent in protecting their rights this doctor naturally applies to a circumstance such as we have here where an extraordinary circumstance interferes with the petitioners ri statutory calling which is why the allens by the laast is why his petition was untimely here well as well as a petition was filed more than eight years after his conviction due to an established period of attorney misconduct that respondent it's told because of something that's going on this preventing you from doing i don't understand how in a period when you can do it and when you admit i mean i don't think any choice to him that he could have that how can that possibly be subject to a couple tone well because i want to qualify my answer he could have in the sense that you could have physically filed a federal case and that was my question yes that was my by counsel courts sometimes want to accept your stuff usually don't accept your stuff if you're represented by counsel so you try to send something in your was a my counsel  at least in the same court i don't know of any way but ok so he so after the period of the lawyers over you say he physically good have somehow impaired or or deterred well he was impaired because paula asked us to look to where the extraordinary circumstance stood in the way of a timely federal petition and he was not able to file any federal petition that would have remained on the court docket for more than a minute because it was he had no exhaustive claims nothing had been exhausted by his counsel so anything that he would have submitted would have just been immediately dismissed and beyond that he was eight years beyond the deadline so he needed equitable tolling anyway this is not a situation where he could have filed a petition and actually preserved any time remaining on his statutory clock and so he was in effect prohibited from filing a timely federal habeas petition at the time and he did what the supreme court has given the very simple and clear instructions for petition has to do which is to first present each and every claim to the state court and so in order to protect his rights and to attempt to have a federal petition on file he did exactly that and went directly to the state courts first the first petition he filed was no more than the draft petition that had been prepared by his counsel and then when he had help from a jailhouse lawyer he developed that petition more for more for fully during the california court of appeal and that's the ninety nine day period that the other side relies on to suggest that it's his fault that he was on time leave because evans each office says that after sixty days your you have to explain your substantial delay but he did do that he explained his substantial delay to the state court fully he said my attorney abandoned me he provided a letter from the state bar showing that that misconduct had occurred saying that he was litigating it his petition had two hundred sixty five pages of exhibits all of which were compiled per se fifty nine pages of pro se briefing he was trying to present his claims as best he could as diligence isn't really a question here is it i well it is a question in that for equitable tolling he has to show both the extraordinary circumstance and the militants i think that the extraordinary circumstance it's here goes to it's a matter of causation why was his petition fundamentally untimely in this case it's because of the attorney misconduct that eight and a half year period that put him in a position that other petitioners are not in which is that he had to start from scratch in a half years after his conviction and getting a petition through the state courts within that time and no petitioner can do that it's virtually it's an impediment to filing a timely federal petition that at least meets the requirement we can counsel just so i understand your argument are you do you have any authority that says there's an effect a hangover we can look to what i mean by that is that those assume this guy was a really bad i think records been establish this guy was very very bad but i'm not aware of any case law as his because he was so bad in march and he was out of there by the end of march therefore we can still be told for april may in june or in this case it would be august september and october are there any cases you can see that say there's a hangover a fact for ineffective counsel well there aren't many cases directing you know in the sense that there aren't cases squarely on point  where there is this ineffective assistance of counsel on the state he'd be aside the closest one is puerto v all this and where there certainly is a hangover there because the petitioner filed a pro se petition in the california supreme court after learning that his  had resigned from the state bar and then more than a year after that also filed the pro se federal habeas petition and the court still remanded for the district court to conclude whether equitable polling was warranted and expressly stated that it could another example where you have an extraordinary circumstance occurring earlier in the stay proceeding there it was the superior court which had misled her into believing that her petition was timely and then she only found out at the end when the nevada supreme court reversed that determination and said no it's untimely as a result the entirety of the state proceedings were untimely and the court still excused that period of time even though in effect the extraordinary circumstance was over after she was misled and she was  excused later on for the untimely state petitions so there is a least authority that says what we're really looking to is what the supreme court asked us to look to which is whether the extraordinary circumstance prevented the filing and i think so long as the focus is on that fundamental question then it's kind of use your to analyze these situations as opposed to trying to just count up how many days was the person represented or more mechanical approaches to determining whether equitable polling is warranted felons will also actually i see that i am running out of time for like to reserve my time if there is no further questions impediment to federal filing is lifted or there is a lack of diligence whichever comes first and hear any obstacle to timely federal filing ended when mr melton's representation terminat statements here he was unable to file in the federal court because he had fully on exhausted his state relief now the words he he went to the state spirit court court of appeals and even though it wasn't cunningly he still had to do that did he not he still had to to take it to the court of appeals and then attempt to take it to the california supreme court well he did and he actually did that in this case and i'll get to that in a moment but your honor is absolutely right he's asking for a hangover essentially from nelson's misconduct which is unprecedented if this court were to adopt such a rule that would be new that would be a morpheus and it would be different because this court's president under gas can be palmer and sanders the tilton says that a petitioner who is capable of filing a state petition is deemed equally capable filing a federal petition a well number one he knew that he had a one year limitations period for my question are these results did you hear my question i did and excuse me let me try to answer what he could have done is to file simultaneously in state court in federal court and then ask to state his petition and this of every state a federal petition to exhaust the state remedies the u s supreme court and paste specifically endorse that approach as early as two thousand and five more brief so we have that option his other option was to go to the california supreme court within that one year limitations period and then proceed to federal court but what i'd like to get out is something that i don't think was really address well let me go back to the end of it because in two thousand and six this court to decide rez weary versus garcia which is said once a district court determines it haiti's petition contains only on exhausted claims that need not inquire further as to the bush petitioners intentions that's correct there are three points on that if i may number one they basically said that this court may dismiss it but number two this have the discretion to stay a wholly an exhaustive petition doesn't mean a two thousand six hundred that's correct but i'll remind the court that as early as two thousand and five the united states supreme court in pace specifically said this is an option to prevent untimely federal funding you file a protective petition but if i may get some of my the crux here is that the parties agree that mr balance will have until july thirtieth two thousand nine to file a federal petition during that time he did go all the way up to the cal supreme and he got the denial on july fourteenth and that's in what's his day in his brief so at that point he had at least six exhausted claims and two weeks left on the clock without any additional tolling so what did mr bounce away to do with his at least six exhausted claims and two weeks left on the clock and he still didn't go to federal court even though he had time instead he waited another sixty six days again beyond the state's reasonable window and went back to the california supreme court to raise new claims that is not an extraordinary circumstance that prevented  based on his ninety nine to the way based on nelson's misconduct or some other reason is beside the point because he still had time on the clock the one year extended deadline that we all agree on and exhausted claims the fact that he chose to pursue relief elsewhere including the fact that he chose to return to the california supreme court and raise two more claims it's not nelson's doing nelson has been in the picture the federal court for not making a finding as to why the state court ruled as it did but i don't know how that would work i don't know how a federal unexplained denial is reasonable under state law but when you have an indication like we have here that's the end of the matter now as for porter v olson i would dispute that that's authority that supports misconduct the ninth circuit assumed that the petitioner might be entitled to equitable tolling throughout the duration of the representation up until the day that ended not beyond it so even in that dicta doesn't support this bleed over effect where attorney misconduct is an extraordinary circumstance that can somehow just linger or last forever  and i think what mr vallance whalen is proposing is a rule that says that extraordinary circumstance never ends as long as i could blame my counsel for the on timeliness of state petitions so presumably your honor in terms of the the rule here the rule that we're asking to adopt is is one that the court would traditionally adopt which is just one of the extraordinary circumstance caused the petitioner to lose time that they otherwise would have had b well wants to be back in the position that he would have been in the absence of the misconduct this is not a he's not asking for an indefinite period of time to file his state petitions as though you concede that the cause you're arguing is mel n ineffective assistance that is the cause and the opening brief makes clear that after vallance well they had one exhausted claim after that first california supreme court denial he's not asking for any equitable or statutory tolling when he went back to the california supreme court and he doesn't even need that because he was so diligent it's only because he was so diligent that when you do the gap polling analysis and just give him back what was in fact caused by the attorney misconduct he has enough time on the clock that he on his own clock that he doesn't need further equitable or status or tolling for that so valens whale is asking for his clock ended one year from the date of the first california supreme court denial no more than that that was the end were not conceding that he didn't remain diligent when he was through the point of filing when he was continuing to try to exhaust his claims but he does not he's not attributing any a credible polling to his attorney misconduct beyond that once he had that exhausted claim it's done and in terms of the protective petition and paste this is not a case where that could apply as i said because there's nothing to protect and ruben has already said that that's not required of petitioners to file a protective federal hate petition it would essentially encourage his petitioners in every case to file such a petition because it would be the only way to ensure against extraordinary circumstances that might otherwise interfere with the state proceeding