october twenty fourth thing life and i are going into the ocean wonder why no one else is in the ocean it's beautiful day warm water once we get in there up to our ne feet on the ground we know why because it was a giant high tide and this was a giant low tide we had no chance no chance to ever get back to shore it was six o'clock we started swimming you can be diligent but be inefficient we were saved by some lifeguards who were going off duty and they saw us ok i was i wouldn't be here so the point i'm trying to make is that mr dickerson was diligen just wasn't very efficient he didn't use the diligence when he should well if you know why do you want to go down that water wasn't he won three times that he was over the cubic but your honor when that's a yes or no  i'll answer the question there they didn't take everything they took his legal papers was when he won three so that he was over the good because i according to the record that undisputed that would be it right and he gets for it we know could have consolidated into a consolidated his legal papers into the allowable flee but your honor maybe you don't know about this but there's a ninth circuit case about this about about prisoners prison guards confiscating a pit materials maybe you don't know the meaning of the word building you know we just have it we just i'm just talking about how do you measure the stuff this is not a scientist how do you measure i mean you've got these are you this is like you can ask me the questions if you want to but if you don't answer the ones i ask you you may not i'm happy with the result i told you there about the limitation he he was war without a doubt that record shows and on that same day as you say they acted but before he was asking you on this record didn't he know i'm sure he was warned you know about counseling asking something slightly different then it actually may be helpful to your client as i read fifteen california code regulation three one six one he was actually permitted to have an difference it does because because we're talking about anyway technical very technical violations and courts have dealt in this circuit have dealt with technical violations and pro se people this is pro se person to the max and it says courts have a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements he didn't know what you just read you did neither i didn't either go so boy you can't get any more technical than that kenya lawyer didn't even know me didn't have a lawyer i should have done some more research i credit the court for doing it for me but it's there and this is life this is only chance i mean how more important can you get than that and then don't forget i wrote my brief if this man didn't have bad luck he wouldn't have any luck at all  he didn't he had then he went to court and filed very diligently three months after losing in the california supreme court he filed in federal court now let's get to that because the it just so all right well stay in a bay you got sixty days find yourself a lawyer that i don't understand why that's not an abuse of discretion for saying that but let me focus on the fact that he also said and i wrote it in my brief he said whether or not i get counsel this is page forty three of my simple mental record two forty three whether or not he wrote this to the court whether or not counsel secured the petition or still has no other option but to raise every available ground in collateral tax translated i could go back and raise things that my state appellate judge didn't do distill down and putting aside for a moment the extreme of what i gather your argument is you know this is a pro se guy he acted as quickly as he could under the circumstances once he got the papers back and probably file etc etc you're saying he's entitled to not because it was never brought up the matter here's a here's a prosthetic guy he got six cubic feet he's entitled to one more they took away his stuff that was included in that one more that's not enough that's not his fault isn't it is it is his fault your honor in the sense that he didn't have three months before the council said that the material seized on the day he was warned that's not quite true at excerpts of record one sixteen he was warned in june three months earlier before when it was taken so he had three months between june and september when ultimately was confiscated he had three months to either consolidate his property or frankly all he had to do as a judge as the federal court noted this to court is all he had to do was take out the federal petition out of the box the federal petition is eighty six pages it's the first chunk of material my absence of record you can literally hold that you know with one hand and that's what he should have done had he really wanted to diligently  pursue his rights i think the record earlier the court noted that he did file the federal petition on the day he got his box back that's true and that's to his credit and i think the record shows that he wanted that box with the record doesn't show was that he needed the b x so there's a couple reasons for that number one as i decide he could have taken the previously prepared federal petition out yet three months to think about this pretty simple he could have taken it out and put it someplace else he didn't do that what what what what do you mean what i consider is whether when we review it do we look at what he could have done a daily look at what he was required to do well your honor i think that going to be confiscated and you can't and that he knew he didn't know until they told him that but they were going to do and that he should be reduced did he they did know until he had that conversation diddy on this record they told them in june position is that in this case given the circumstances that because he did not take out this pre prepared paper in the story well that's not quite the end of the story on although i think that's a stop he got sentenced to twenty four years in prison nine years ago and with the prison credits he's actually going to be walking the streets in just a couple years no you want to but the point is that this case it's been nine years since he's been sentenced you know the purpose of the was to speed up p b s reveal as we sit here this morning it's been one year since he was sentenced he had a year under he had a year of tolling he had many months when he had his boxes both before you voluntarily sent them to arkansas and then he had after he got back from arkansas while he was waiting for the california supreme court to rule he had his boxes for many months and he just chose not to file in that time and if the state gives a warning based upon its understanding  file a federal petition he filed three state court petitions without his boxes ok but again we're we're back to holland again it's macas it's not actually feasible diligence if he was focused on these papers that he thought he  needed if you did have the extra one cubic foot we wouldn't be talking about this because you file promptly once you have this right that's true enough but i don't think it's reasonable for him to think that unless i get that one box back with that eighty six page petition i can't do anything that's what i don't think is  what i think is reasonable to organs is not what he did and i don't think i'm trying to impute upon him or force upon him some maximum standard or something that would be any reasonable but we if you know that the train is going to lead to ten o'clock tomorrow morning some people will go to the airport the night before i mean to get it tonight before some people leave home in time to get there at ten o'clock and the question is what will they require to do  extra cubic foot well again the record is really silent on that all the record shows is that there is a regulation that says that but the record is not really clear whether or not bound by the regulation the regulation applies what we don't know is how it applies to the facts of this guy could have filed the petition without his box that's a different court before of the epic ability of the one foot rig what more do we need to know while the regulation is there i think what we need to know is was the for state the state if they thought on the regulation notice on regulation he should have got a back out of the one foot exception shouldn't that's correct and i'm not saying that we're not bound by the regulation the point i'm trying to make is we don't know how that regulation pertain to the facts  case what i don't understand is what we don't know i mean if you do three different ways what more do we need to know in order to know the display well in the regular well maybe we need to know where the federal which box the petition was and why does that make it a different year six feet he was entitled to i think the state's admitted in the record that this extra materials eighty six pages that's not even close to a foot of snow so obviously it fits within the additional funding so there was no don't you know you don't admit that the materials were taken away the materials were taken away what we don't know is what how how much of the materials were taken away we don't know which way i always materials that's in the record i thought that they took away the excess  xcess i thought that they limit him to six feet they took away the excess ok well and that he was entitled an extra foot and are we supposed to presume that he's going to ban the bird as opposed to the state when they took more away more than six feet i think that when you wait a couple years to file a federal petition after being advised by a federal judge or there's a when your stats on the patients i think all reasonable diligence requires you to do that didn't he didn't do yes read legal materials back several time visitor that period if he did an i think that you know to get a little tolling i think he has to be diligent and i think that he asked not to put himself in that position to begin with and i think all he had to do was take out the petition that's all he had to do was take it out or he could have even again i don't know that it was wrongfully taken were simming that was wrongfully taken i don't know that that's true but even if it was true he could have filed another petition got it could've gone to the law library and i don't think i'm going to get i think we have here i think they have your position but i think that when you say he could have taken it out if he had known what was going to happen that would be one set of circumstances he and they gave in the wanting and they took the papers all the same day you know in itself was three months where you know when when when when when