may please the court bench flowers on behalf of joseph part of the main question in this appeal is whether mr lombardo has shown the extraordinary circumstances needed for equitable told he has and i want to address two points that i think are critical to that conclusion but first why the framework appl the second why is satisfied the framework second step on the first point this court in ramirez of the united states held that a twenty to fifty five petitioner can show extraordinary circumstances under rule sixty b by satisfying the martnez tribunal framework  recognizes a twenty to fifty five petitioner gets one and only one chance to raise a sixth amendment ineffective assistance of counsel claim and held that one post conviction counsel ineffectiveness prevents him from raising or taking advantage of that one and only opportunity when the underlying claim is at least some merit that is an extraordinary circumstance that justifies reopening the judgment the exact same logic extends the equitable tolling context when post conviction counsels ineffectiveness prevents a petitioner from timely filing he's private absent tolling of his one and only opportunity so do you think the decision of the sudden circular remembers overrules the supreme court's holdings in all of them lawrence so i think it's perfectly consistent with both with respect to how and the court said that you can show extraordinary circumstances with egregious attorney performance i think ramirez recognizes that one way of doing that is for the martinez tribunal framework well with respect to warrants it says that miscalculation by itself is not grounds for a couple telling that's no doubt true or not contending otherwise what we're saying is there's a very narrow carve out for a precise circumstance in which there is post conviction counsel on timely files because of his ineffectiveness and there's an underlying claim with only that reasonable jurist to debate whether whether he will prevail or whether its claims deserve encouragement to proceed further he has a substantial ineffective assistance of trial counsel claim first because counsel failed to develop the withdrawal of the fence to the conspiracy in the tribune and in two other papers yes so he took out this ad the chief investigator of the chicago crime commission is on record as saying that he read that as a statement that mr lamar was done with a life of crime trouble the trouble is that counsel did coconspirators so for example there was no there was no former outfit member who was called to testify to say how it was received no expert on the outfit or gang activity in general may have been able to shed light on that nothing was done to develop it whatsoever and that's that's that creates a the failure to develop that defense creates an ineffective assistance claim with at least some american we're not saying we have enough to prove that now in fact the absence of the k the whole reason that you get to go back and develop this at the post conviction stage is because you generally illinois when the murder occurred in bentonville money but the problem with that was that the not first the jury was not likely to find mr lamar a credible to begin with they were they knew from earlier testimony that he had been convicted of serious crimes crimes including five of the transcript when they said we agree with mr wynn virus counsel he's he's not truthful and should not be taken seriously so counsel all the counts did was put a witness on who knew that you should have known anyway that the jury was certainly not going to credit and simply rested on that  that would be bad enough on its own but we actually pointed to concrete things the council could have done it page forty four we know that mr embargo told counsel about about witnesses that the council never looked into one of these was a supervisor at the secretary of state's office  had written a letter in mr embargos behalf so that letter was deemed inadmissible in because or potentially because counsel did not attempt to find the individual he was not able to get that corroborating evidence before the jury does despite the efforts to demonstrate in believe you're not acknowledging that what you're asking this court to do is to expand the holdings of martina's a tribunal into the to support equitable tolling of a twenty to fifty five you think that that finding is perfectly explicit  those two decisions no i don't think it's explicit when i say i think it's consistent with those opinions that they don't rule out and they're just silent on the point what ramirez shows is that it extends beyond the procedural default context in which those cases were decided because it because it extended replied to the government's i'm sorry they actually were not they were not they weren't you're right they were not argued before the so the what you're asking us to do i think is to find that the district court judge engaged in of the use of discretion because he did not sue a spon very serious administrative segregation provision since about twenty i think april twenty third teen and because of those he is very limited i tricked and lied to get pre approval in order to speak to me even as it is attorney now i can set up calls and whatnot but it would be very difficult to seek second if we as the court the district court correctly dismissed the defendant's petition in this case is on time we rely upon a long line of supreme court cases which specified that were a petition is found untimely or is filed untimely based on a counsel's error in calculating the deadline for filing the petition that's a garden variety claim of negligence which does not support a claim of that will toll i must say i don't get that all i don't get expect some guy in prison two to be supervising his lawyer getting a new lawyer correcting a lawyer that's just on realistic well i think the point judge of and at the court this this court has actually said that that is in counsel and his post conviction proceedings yeah because the supreme court does not recognize that there's a console the supreme court doesn't recognize everything right now can of course a lower court be innovative and say that a criminal o to be able to have a competent lawyer there is room for innovation when the supreme court is not just going to make any sense though how can you have these incompetent these criminals not having not having the law not having a of lawyers in chicago the young lawyers at the big firms they're very eager to have a shot at representing a defendant right joe just not our there's no problem recruiting young i'd like you to give me a reason why it makes sense forgetting for a moment about the supreme court to deny competent counsel to someone who is a criminal defendant was serious facing serious charges the risk of an error should not be imposed on the government in this case it should be imposed on the defendant the defendant is the one who decides who to hire it's within his decision to hire whichever twenty watts the government should not bear that  risk of having this guy not comply with the statute of limitations that risk falls on the defendant and the counsel he chooses if he didn't have counsel and file that late we would say then well because he didn't have counsel to follow late he gets a pass because if that's the case there is no such a limitations that applies in these situations nowa there is no statue of limitations that apply in these types of cases that's the problem here because if you adopt the rule that's being asked for what you are basically saying is that when it and it defendant brings an ineffective assistance of counsel claim there is no statute of limitations because the tribunal thaler framework says remember that the state procedural bar will not actually be enforced into circumstances where councils ineffective for failing to raise a claim on post collateral review and secondly where the defendant is not represented by counsel and collateral view so if you adopt the framework that's being ported here today what you're saying that if a defendant has no counsel at all or they he knowingly the cutter kind of the lawyer who is who is no good that's then you're right but if the but if the defendant is not implicated in the incompetence of the lawyer then that he doesn't get a defense but he's had his defense in court he actually had a fair trial this is a supplementary proceeding to challenge a trial that was conduct in a fair fashion that trial was subject to a public review direct review many of the claims frankly given race today are based on the record that was already available the time of the trial you heard today that while there should have been an alibi defense raised a surprising argument by counsel that the there was an alibi defense raised in the post conviction titian what was it charles miss ellie a guy that said that barack obama and jesse jackson were witnesses to a murder of a prostitute and that's the reason why misselling knew that mr lamar odom's not involved in the homicide of because he knew that the weapon for the c for homicide had been buried near the body of the prostitute that had been murdered at the direction of president obama this is the defense that supposedly is this was substantial this case which obviously it isn't there wasn't a that when you look at the actual claim that was raised here it wasn't a substantial claim even if this tribunal thaler framework applied this was even close to a substantial claim the idea that oh well somebody should have been called just to talk about the just the  publication or how far how many people read the chicago tribune that that was going to change the tide it obviously wasn't going to change the tide joy lombardo testified in cross examination that he was never a member of the chicago outfit the prosecutor that cross examine him got him to confirm you have to be and you know you're basically saying that you know he was saying that he was never in it to begin with not counsel beyond the sort do you think that the bar for ineffective assistance should be set higher in twenty to fifty five cases because absolutely in part he doesn't have a right to counsel anyone there there is that that's correct judge but the other things too is that what we're suggesting here what's being offered here is of a means to overcome a statue limitations this is not a case of merely a procedural bar that the judge made a procedural bar as in coleman versus thompson when it's applied to a state case what's being advanced here is a claim that the courts should actually make an exception to the statute that was passed by congress judges can make exceptions to judge made rules there are a lot more reticence to make exceptions to a statute which already has four exceptions in it for the tolling of the statute of limitations there's not a single court in the country that has adopt this view this been it's been raised in the eleventh circuit the eleventh circu have said is that ineffective assistance of post conviction counsel is not a grounds upon which to excuse a late filing of a federal petition for federal davis corpus and they have indicated that more teen is and these  trevino the tribunal case does not apply in that context it was narrowly cabin by the supreme court and there are probably probably thirty opinions from the district courts across the country uniformly so ineffective assistant judgment that just doesn't count and any him basically walked away from the representation that would be a grounds upon which why why is that worse than being in company because the supreme court has explained that in that situation it an attorney is supposed to be acting as an agent for defendant and it as an agent the defendant is responsible for the the acts that the agent takes on his behalf but where the attorney effectively stops acting as an agent because he walks away from the case but what's the difference between walking away from the case and handl incompetently your client because of the principle that a defendant that hires an attorney is responsible for the acts of no that apparently is not responsible for keeping him on the job right you said of the lawyer work walks away right that's not the that's not the client's fault because neither is it the client's fault if the lawyers incompetent less he knew he was incompetent when he retained well so what's the difference there is a difference in the snow i don't see the difference well the difference is abandonment or worse than incompetence because when you're a band and you're no longer we're not come on but if you're incompetent it doesn't matter that you're still working for your defended you're not doing them any good agent because he is an agent for the defendant the defendant has to accept whatever act that takes him is in his favor of business so i'm realistic anyway so i'll stop tormenting you appreciate it judge made clear in their applied brief that we were not making that argument it in so far as the argument is frivolous of the government suggest all that doesn't highlight how bad post conviction counsel was below because he he made so much of that we are not arguing here that it's a substantial claim number want the the equable tolling almost certainly does not require abandonment the supreme court has ruled that out holland and in holland the supreme court reversed an eleventh circuit test under which you could show tolling based on gross negligence of attorney only in case of bad faith divided loyalty or mental impairment the supreme court rejected that test it said it was too rigid of course if anything an abandonment only test to be even more rigid so it follows from holland that extraordinary circumstances are not limited to cases of  s conduct here was so egregious by failing to familiar to militarize himself with a critical and complex question of walk and relying entirely on a non lawyers legal analysis he deprived his his client of what was his worst mistake