seven months of the one one year limitations period that leaves just two issues in this case the first is whether those concededly extraordinary circumstances caused mr humanities to miss his filing deadline the second is whether a later set of circumstances would all refer to for shorthand as opposed to rich circumstances are properly considered as part of the extraordinary circumstances in this case i'll begin by addressing that second question first and establish why the poster it circumstances should be considered part of the extraordinary circumstances in this case and then i'll return to the first question about causation the context leading up to post right circumstances is critical in understanding why they should be properly considered part of the extraordinary seven months of mistreatment is clock had been burned up by previous extraordinary circumstances and by the time the state writ had been filed only forty three days left were lost on his hades limitations clock his state writ counsel who prepared his eleven o seven file that with the state court was under a duty under the texas rules of professional conduct to wrap up his representation in a timely fashion by both giving the stream as timely notice and providing  with his files in a timely fashion the rules of professional conduct say he was to take steps to the extent reasonably practical practicable to protect his client's interests yet it wasn't until the forty first day of the forty three days that were left that m y manager received his file in order to begin preparing his federal hate b s petition indeed it wasn't even twenty six days until mr you man his previous counsel had informed him that the state rate had been denied those types of delays in the abstract and in other circumstances may seem like a short amount of time but with what was at stake and with what little time mystery man has had they rose to the level of extraordinary circumstances they bore the badges of  what had been permitted to be considered extraordinary circumstances in other circumstances which was they were external to mr human as and they were something that he could not overcome himself in order to timely  file the those circumstances were capped off with a the fact that mr human is was subject to a research restriction that only permitted him to research three cases to have three in the paper on the forty first day he did he didn't have them previous to that date so when he received them on that date he still had an independent duty as someone who's going to be filing with the court to make sure that he wasn't raising any frivolous vet those cases to make sure that they were still good law state right had been filed few years before involved mainly state law cases he had to raise other federal issues in order to properly create a federal  different procedural standards all of that a factual error of the the district court seem to just say he was missing the whole file however many volumes not that he was missing the actual state court petition page three ninety five to three ninety six of the record and it's also record except ten he indicates that he had no part of his file and he specifically calls out his state is eleven o seven that was filed that something he didn't have but needed to have in order to file in the honor there's no indication in the record that he had had what was filed in terms of what he needed to be doing during that time period that goes to a causation question with the first set of extraordinary circumstances whether or not those first that that conceivably extraordinary extraordinary circumstances actually caused in this is filing deadline the government's argued that because there was that time that the state where it was pending that that breaks any sort of causal connection he should have been doing things during that time to prepare his state rep that argument is incorrect for one global reason him for three supporting reasons the global reason is that congress is embodied in intent to give prisoner petitioners an opportunity to rest and focus on their state writ while their sacred is pending the limitations period is told under twenty two forty forty two during the time that state writ is pending and none of that time shall be counted toward any period  limitation in the haiti a statute so congress has a actual intent in the statute to give petitioners an opportunity to rest and that makes sense for three reasons first is because congress is also required petitioners to tailor their federal petitions to the factual conclusions and legal legal opinions that are produced as a result of the statement process without being able to see the resolution of that mr human is would be shadowboxing at best for figuring out what he needed to prepare in a federal petition the second reason that that intent by congress makes sense is that he gives petitioner and his counsel an opportunity to focus on the state rick proceedings rather than diverting their attention to the federal proceeding and having to fight battles on two fronts congress wants individuals to focus on what's happening in the state right before they go to the federal court so the state has the best opportunity to address those issues and then finally the other reason that  congress intent makes sense is it matches it comports with the guidance in the hall and that for equitable tolling purposes when we're looking at reasonable diligence we look at reasonable diligence not maximum feasible diligence you don't petitioner does not have to create a petition in for every iteration of the world that might happen in order to be considered reasonably diligent so it makes sense for mr human is to have there was a the court had called for additional factual development at the trial court and by alternately summarily denied the right so  in keeping with this this causation even if we assume that the post route circumstances were not extraordinary that those are considered extraordinary circumstances causation still existed i've addressed why the state writ doesn't break the causal chain the poster it circumstances you can see that mr human is being diligent the entire time there's constant contact with his previous counsel he works as soon as he can in order to get a good petition filed before the court he tries to seek a motion for extension of time even though he's unaware that that's something that he could not do at that time i suppose or it circumstances i don't think there's any real real argument that he wasn't being reasonably diligent during that time  honor then that leaves only the time period from the time that he discovered the previously extraordinary circumstances to the time the statement was filed that was a three and a half month period of time you can infer from the record that mr minutes took about two weeks to find counsel and that his counsel took three months to file the state right this is a state writ which mystery man is his previous his original counsel the ones who had misrepresented the circumstances to him had said would take months for a person  behind him to just barely get caught up rather than to even actually produce the writ so that the half month time period seems very reasonable given the circumstances of the case and the fact that that was the first i anticipate that the government will say that he should have filed a protective motion in their response to our supplemental letter they indicated that they cited looking bilby cockerel which is a two thousand and two opinion from the score in which the co indicated petitioner could have filed a skeletal opinion or had enough time to file a skeletal opinion the citation the looking bell overlooks the fact that the court the supreme court addressed protective petitions in pa in two thousand and five so whatever the court thought about it in two thousand and two is irrelevant since the supreme court limited the circumstances in which a person can file a protective petition after that and even if this court does end up considering whether a protective petition should have been counted against mr menace i think that it's also fair for this court to address whether his motion for an extension of time that he filed before the deadline should have been treated as a protective titian it had the same that protective petition would have which is that he indicated he wanted to challenge his state court conviction and that he needed more time to prepare something to file so the government's raise this protective petition argument for the first time on appeal if this court feels that it is relevant to the issue i think that it ought also ought to address whether his motion for extension of time should be counted as a protective petition you want to dress the holland and mabel's issue and that's number one and then two if if holland is no longer good law on that point can you still prevail so yes your honor so i'll just separately i think as a matter of reading precedent as a matter of reading maples and a matter of first principles it makes sense that the controlling case over mabel's halling goes to great lengths to distinguish procedural de paul cases mabel's as a procedural default case whatever maple's may have said about may have said about hollings the supreme court's made absolutely clear that unless it explicitly overrules itself in something that isn't dicta then this court has to follow the controlling case which is in this case hall and we still prevail even if even if holland is not good law for two reasons one is that as the seventh circuit recognized in socha the case that we referenced in our supplemental letter when a council is ending representation the agency principles that illuminates they did not address mable's but the it indicates that the agency relationship is separate and so that you cannot attribute those way its reasoning is in a political here because there is no agency relationship following the the end of the state representation and then the other reason that even if maple's controls we still deserve or are sol is that mystery man is has raised at the very least colorable claim of abandonment in those last in that last period the record indicates he made numerous requests to have his file sent to him that hasn't been controverted by the government and there's been no other evidence on it that's at record cite three ninety six in an excerpt ten instead at the very minimum the district court should have been holding a hearing to determine whether that there was an effect of abandonment and that in that last period and again even if this court doesn't consider the post right circumstances this court can avoid the hall and mabel's issue altogether by just finding that the earlier conceivably extraordinary circumstances caused the fault if those even if those events were just typical routine of the ends that happen in every case that only strengthens the claim that there causation here because that means that the amount of time that and petitioner is going to need at the end of his after statement is filed is going to be fairly substantial there's going to be at least it appears on this record about a month buffer for a petitioner to be able to properly fire with his federal a v s petition so for all those reasons even even if the hall and maypoles issue doesn't come out in our favor which we believe it dies we still that this needs to you may proceed thank you good morning may please the court erik white for the apple e's i'd like to begin by addressing a couple of things that came up in questioning first the the issue of the district court's factual finding on humanises access to his state writ the district court did not find that jiminez had the state writ in his possession at any particular time but the district court said in this is available at tab three of the that appendix that jimenez should have had access to his state writ and so that actually does hills into our larger point about this about the important lack of causation here we say in our brief that attorney deception attorney misstatements can constitute this court is found can constitute extraordinary circumstances but importantly the second part of that is that the petitioner has the burden to show that those extraordinary circumstances stood in his way and prevented a timely filing this court addressed this many times most recently last year in united states versus wheaton and where the court said that extraordinary circumstances the happened at the beginning of the period don't necessarily mean that that causes the actual missed filing deadline in fisher versus johnson this court dealt with a situation where there was still six months left before the filing deadline before the federal habeas petition had to be filed and importantly there at the court made clear that this causation the issue is not just a matter of but for causation the court explicitly says that the extraordinary circumstances point to there i believe it was seventeen days of being hospitalized in a mental hospital would have been outcome determinative that is to say that the petition when it was filed was apparently filed less than seventeen days after the deadline but the court said that's not the issue when addressing the causation element of extraordinary circumstances it really is whether it sort of incorporates the diligence aspect of the inquiry within the extraordinary circumstances by asking whether a reasonably diligent petitioner despite the extraordinary circumstances still could have met that deadline and this is true in cases for other circuits to and you know there's there are lots of different sort of timelines mentioned in brown versus shannon which was discussed in the briefs the third circuit said that the fact that there was nearly one month left before the deadline that was enough time  o to i guess break sort of the causal chain and in that case you actually had the situation where the petitioner still had to file his state petitions the court there said you could do all of that within a month and the court recognized you know maybe it's not the most comprehensive petition ever file that you could do that but they said that the petitioner could still file a basic pro se be a petition by that deadline and i think one important thing i would like the court to keep in mind here and i have a couple record cites the federal habeas petition that jimenez filed in this case is available on the record from pages seven to twenty if this court takes a look at that petition it's not a yes but it's not i mean i just i just wanted to you know on a break for that yes and i think one thing there's there's there's talk in the briefing about him and his access to case law from the library there are no cases cited in the federal h petition that jiminez filed there are no records cites included in there i guess i should qualify the cases cited one of the claims that he wanted to bring is a brady claim so it does reference brady in the title of it but there's toll the deadline here but one thing that's important to do as well is to and i have another record cited for you here at page six thousand seven hundred twenty eight of the record through page six seven four three you can see the state writ that jiminez filed and if you compare that document to the federal hate b s petition that man has filed you will find that they are virtually identical i didn't do sort of a red line analysis so there might be a word here in there in the subset of allegations that might be different but basically line by line the three substantive claims that jimenez wants to bring in federal court the discussion of them every detail including them is the same as three days before yes he does say that one point on that and i think this came up in questioning earlier is that the record does indicate that jimenez previously had access to these types of documents he mentions in his march third two thousand and fourteen letter to ellison that he wanted when he's referencing the stuff that he wanted he said you know he had begun drafting a state brief for the state a b s petition and he said he wanted that draft  back which indicates that he was shuttling documents back and forth between himself and ellison it's not clear why he didn't make copies of this whether he can make up is all we know is the fact that he's filing all these other letters means he has some some means of  capacity to keep documents well i mean that he the citation of the record that i had where he asked for a document back were saying that the reasonable inference is that implies he had that document at some point because he was asking for it  k so it implies that one point he is working on materials for his state sends them to his state a b s counsel and now later on now that the state has his state writ was denied he's asking for some documents this broader issue it's often abbreviated extraordinary circumstance but it really is extraordinary circumstances that stood in the way and prevent a timely filing so we never conceded that the causation issue or but anything in the record i anything else that suggests that he did this and i think that is an important issue that you know we're talking about two weeks here thirty days here and one think the state written was pending for nine hundred sixty days and there is something notably absent in the petitioners brief that and the timeline includes which was incredibly helpful in the appendix that there's just this moment where just over two and a half years just kind of drops off the face of the earth it's not the case although there is a tolling provision and at any of that is not time that is cut against his his time to file a federal his petition it is not the case that that time period is just can just be totally ignored for instance the supreme court in holland   the fact that it's not the case that work has to stop on the federal habeas petition while something is pending in state court particularly for that long of amount of time these practical concerns about having divided attention and things like that that the opposing counsel raised might be seen more applicable to a scenario where it's written might be pending for you know a few months or something like that but it seems very unlikely that in a period of over two and a half years there was not time to take steps no way that there are only a few months remaining on the the ability to file a remaining in your on your end put clock but you should necessarily file for instance a protective havey as petition during that time but that doesn't mean that you can't be doing work like and i don't know asking for and receiving copies of your state writs so that you can be in a position where you can essentially copy and paste your state claims which is what ended up happening here just in them at a slightly different time maybe more at your leisure go to his diligence and i guess there is some overlap especially on the causation of extraordinary circumstances and diligence with the courts of treated those as as separate inquiries and here there was no diligence finding because the court found no extraordinary circumstances yes some of the factors with seem to apply to i mean it seems like from this from the court's discussion in wheaton and in fisher and if you look in particular at the second circuit's discussion of the causation element in harper versus  cole it almost looks like what the causation element is doing is it's kind of an objective diligence analysis versus the something more subjective diligence analysis that is sort of the separate process that's that's i don't think any court has explained explicitly label as such that's how i have understood the difference that it really is you go to the causation analysis when you have an extraordinary circumstance whatever that is and then you have to do it is kind of like a sort of like a diligence analysis analysis within the exporters circumstances because it's not enough for instance you might have a scenario where for the first week you could have attorney deception or you could have a letter from a court clerk indicating a different time and that's corrected very quickly then you still have to analyze well could a eight a petitioner have used the remaining eleven months eleven and a half months something like that or the remaining months to file a petition and you have lots of courts discussing those particular times  want to briefly address although i don't i don't think there's a need to to belabor it that much there's a lot of talk in the briefing about how holland requires this sort of this analysis that would sort of mash everything together to determine what's an extraordinary circumstance i think it is sometimes unclear in the briefing whether jimenez is arguing that the attorney the attorney misstatements and deception is the extraordinary circumstance and that is that is somehow modified by or expanded by the actions of his state hippias counsel or whether all of this together is an extraordinary circumstance he says essentially that the court has to take into account everything even if they are otherwise garden variety negligence issues a couple things on that hole and doesn't doesn't really say that courts have to do that holland essentially reverses the eleventh circuit because it says it applied overly rigid test because it had a couple categories it was trying to cram everything into and said that you know if something is it was a question of kind of gross negligence versus negligence and the the whole in court did look at all of the the factors related to what the attorney misconduct there which made a bit more sense there was a column was represented by one lawyer during this time and so the sense of what they did was they looked at lots of things that in and of themselves may not have been may not have risen to the level of an extraordinary circumstance but they consider them together because they were addressing the issue of egregious attorney conduct if they had one attorney and so they could they could do that here it would really be quite extraordinary to under the  because they are being considered part and parcel with or in combination with actions taken by him and as a separate state appellate counsel but shouldn't counsel be aware of the impending deadline in other words maybe waiting ten days to send the files not unreasonable if you've got ten months to file but when you're up against a really tight deadline you better get that file to your client quick and it's not it's not because i don't see it so much as an issue because you look at all the extraordinary circumstances together but you judge the appropriateness of the conduct given the constraints that were being faced yes i think that that the  difference is that i mean for one thing this court has held many times if there are myriad instances where attorneys should know the deadline is coming up don't know the deadline is coming up for whatever reason and missed the deadline and it's you know it's an unfortunate thing when it happens but it's not an extraordinary circumstance and whether that's for agency reasons because the attorney is is charged with making those types of decisions on behalf of the petitioner or whatever else they are i mean this this court has really made that there's that's it area of law where there are some lack of clarity that is one of the few things that is quite clear from all the previous cases that simply ignorance of the law or mistakes of law whether it's by the petitioners counsel or the petitioner proceeding pro se do not rise to the level of an extraordinary circumstance constitute a totally and  down we don't know there are references in the record it seems like a man is knew there was a deadline that he had he you know a limited amount of time to file in federal court but it appears he did not know  record that indicates any kind of conversation back and forth about this federal k b s petition deadline between him and us and ellison i think at one point jimenez asked ellison when he's requesting the state state documents back he says he wants him back because he knows he has thirty days to file an appeal in federal court which is wrong and so there's there's no explicit reference to that this deadline and so it's not clear who knows  what's going on but again i mean this court is head held multiple times but you know it's i think that it would it would not be in line with case law to say that it is not an extraordinary circumstance more typical tolly if you have the wrong deadline your head in the new knesset versus not being aware of the deadline or just not thinking about it all and missing it i mean both of those fall into the same general category of you know it think any judge any lawyer knows that the amount of legal research and work you do on something is like an iceberg where what you deliver to the core the very tip of it is what seeing and there's a whole breath underneath that that's done in the background that you don't see and so i think that it's fair to assume that mr human as was using that there's also indications in the record he was doing legal research indicates three ninety six of the record that he was shepherd i z and it tiriel us to actually file his petition so there's actual evidence that he's doing research in preparation for this also wondered responded to counsel's indication of fisher case that sets out the causation standard for connection reasonable diligence with a causation standard the  extraordinary circumstances in that case were a total of seventeen days in the middle of the period not as here more than seventy percent of the total total search total time for the limitations period so there's a very significant quantitative difference going on between the two cases counsel also indicated that in holland the court referenced what was going on during the state actions that the prisoner petition took during the pendency of his state writ that is irrelevant to whether or not needs to be considered because an individual doing something during a state writ may show that they are being extraordinarily diligent but that doesn't mean that it requires everyone else to be diligent in that fashion just because some prisoner one did do something in a particular case doesn't mean it's required of all other prisoner petitioners  i think the last thing the last two things i like the one the diligence and the causation overlap to be frank this is a mess in terms of how cases deal with this across the circuits within this circuit i think that the second in the ninth circuit have probably spoken about it most clearly which is the reasonable diligence prong address is what the petitioner was doing during the existence of the extraordinary circumstances and the causation prong or the diligence through filing causation as the ninth circuit calls it deals with what happens when the extraordinary circumstances have ceased so if this court wants to provide analytical clarity to that i found that two and a half months to file a federal habeas petition was reasonably diligent they found that in brown b johnson which was cited in our supplemental letter and then other courts has also found that spending about one month drafting a federal habeas petition was reasonably diligent and that's about how much time mr humanity spent drafting his federal petition in this case so there's ample precedent to draw on to find that that he was being reasonably diligent during that last period