because of that criminal conviction i'd like to have ten minutes i'd like to partition my time or serve five minutes so briefly touch on what it is him i don't believe so i think the scope of the representation is just in the state appellate court matter i don't even know if that attorneys licensed to practice in federal court and that's a state of  there are i think it's simply the fact that that attorney is a state employee that is their representation is in state courts their care of the scope of the representations in state court that's their is that before us yes it was appealed on a yes i mean that's that's why i'm here i was appointed and contacted by the court because the appeal is pending but well what is it exactly that you're appealing than what order of the district court are you appealing the there i'm i'm sorry that that question is is obviously caught me off guard  the the order of the district court then with respect to the possibility of a protective petition being filed i'm not aware of any authority is something that i research as in find any any authority for the existence of protective petition  a mix protection that contains exhausted and exhausted remedies is disfavored and that that a petition that's been filed whether or not i stay can be granted and that that actually is disfavored and i just want to clarify he was not represented by counsel in post conviction at the trial level he requested counsel in conjunction with filing his prostate petition that counsel of not appointed  short line was that's correct that's correct and i certainly recognize that he's made some tolling arguments in relation to why he waited so long but it then the federal statute of limitations expired before he even did anything and of course under the case law he cannot revive an already expired statue of limitations based upon an polling argument with respect to your question just count one that there was no notice of appeal filed in response to the district court's order denying the motion to turn that right and what are the implications of that anything i think that's presented or any thing that's presented here i think the actual evidence that was offered in support of the motion to alter our men was the operator of the state appellate public defender regarding the the narrow question of the equitable tolling from december ninth december twentieth is not preserved is not in front of arguments mean the motion to alter or amend i think went in support of tolling between the summer ninth and december twentieth two thousand and eleven but that argument and the court's decision on that argument was not appealed and is not in front of us that that period is simply that the december ninth two thousand levin was the date of the remit or so that's the point at which he has one day and then what he did between december ninth and december twentieth when he actually filed his federal petition so that that period of time that he's trying to account for but frankly at the end of the day that period of time is really the least of his troubles and in terms of the three myself it would be notice of appeal from the district courts the federal district court's order denying his motion to reconsider and that's where he presented that argument and evidence on the acquittal toll in question your hon lastly i just want to touch on the issue of the protective petition certainly the state appellate public defender does is not authorized to practice in federal court does not file federal petitions have no obligation to submit there's no indication in the record that there was ever any communication with those attorneys that mr cardona needed for that to be done that that was an issue for him that he only had one day left counsel would figure out how much time is left on that and figure out what needs to be done and figure out that the client can't possibly fos i mean a timely fashion and conscientious counsel would file a piece of paper in federal because the claim said been fairly presented at that point it's not the situation where they're not ripe for example and this court's opinion in rudin vs miles where there was a discussion of rightness because the petitioner had actually been granted relief in the state court so it wasn't you know if there's no right there's nothing right for him to present to the federal court because at that juncture he's got relief and so it's not unreasonable for him not to anticipate that it's going to get reversed this i think presents very different situation he has an order denying relief or opinion from the court of appeals dealing next step for exhaustion is fair presentation to the idaho supreme court and that is done in the br me today all right so you just were talking about the same thing i show that the judgment of dismissal was february twelfth two thousand and thirteen whereas the denial of the motion for reconsideration on  the ninety was in the sumber of twenty thirteen i see that there was a timely notice of appeal of the dismissal but i don't see any notice of appeal with respect to the rule fifty nine emotion help me out there if you know what i have available to me is that that mr cardona appealed the february twelfth judgement dismissing the case with prejudice and that page he did appeal thirteen maybe i should rephrase the question is there any other notice of appeal in this case other than the march tenth notice of appeal from the dismissal know that that is if he or i have that february twelfth two thousand and thirteen memorandum decision in order and it i'm reviewing it now it discusses that ripple tolling and discusses the on the fifth page of that the december ninth two thousand and eleven to december twenty first two thousand and eleven that you have a record site for that memorandum in order and i have it as it's a document twenty two in the district court register