is that the california court of appeal overruled the superior court as time in this ruling when they decided that mr sarah's can go back in fact encourage mr service to go back and submit another petition with additional information regarding his ineffective assistance of counsel quick now the state has already conceded that the california court of appeal has overturned the supreme court but the state is trying to do it trying to parse out periods of time when we all know based on discourse on bank decision in corio you don't do that anymore you simply if the court of appeal overturned a time this ruling that's you end of the matter that would be the clear than telling someone go back and refile that petition with as with additional information now if it if you're arguing that but correct me if i'm wrong but you were in the breeze you on the  respondent seem to disagree on when sarah's actually filed his petition in the court of appeal so when you're going through all that if we were to find that the california court of appeal failed to make the requisite determination as to time and yes must we were  man to the district court for additional fact finding to establish the time between the superior court's decision and sarah says filing of his petition with the court of appeal your honor you would if if the if in fact a benchmark if there was a if there was a rule out there that said sixty day is the limit because he's he's over the sixty days by two and he's actually he's two days short of the one year staci limitation even if we take september twentieth date which is you know the date that the state is saying that he filed his petition i don't know what that evidence looks like but i can tell you that in his in the record before the court and i know your honor is aware of that august fifteenth is when he submitted his petition which would have been distance of three days and then he says i submitted that august twenty sixth in the district court either of those dates would make a timely even if we assume there is the sixty day rule there's plenty of cases that say if the california court of appeal overturns or the california supreme court for that matter overturns this ruling by the law or a court as to time lives that imagine but if you don't dispute the court of appeals recitation of the facts that are there why does that why does the court have to order the record i mean you're creating a whole i mean basically that recitation was doubt in doubt why can't the court just put it up against that take your morality and put it up against that instead of pulling the entire record up in your suspension to asking for them to do a no vote do the whole thing again because that's what the law requires ro and has to be a narrow gate way and i don't see that anywhere i don't see anywhere near briefing that you're disputing the californias recitation of the facts so why can't we accept that and then look at the morale is by s suppose you are you could i don't have any problem with that but if i were briefing the as it as an ad the kid i probably would be able to give you a different spin on the facts well as the court of appeal has given a spin on the facts as well their view of the facts part good morning good morning honors deputy attorney general julie harris respondent may please the court there are two reasons that the district court's judgment should be affirmed in this case first the petition is untimely and second all of the procedural bars except for the and so doesn't the fact you know under curial doesn't the fact that the california court of appeal ordered sarahs to make filings to shore up his ineffective assistance of counsel claim mean his state petition was timely it means that they found the ineffective assistance of counsel claim to be timely so on that i see you would you say that curial so he's ok i think that that the petitioner's ok the i c claim after curial no because what that means is that he's entitled to tolling for the superior court petition and the court of appeal petition but that's not enough to make him timely so we've we've conceded that kerry yell helps petitioner it just doesn't help him enough to make this petition timely and that's because he's not entitled to a constructive filing date for his california court of appeal petition because as the district court noted there was a suspect thirty five day delay between the time that he says he handed the petition over to prison officials in the time that it was actually filed in the court and when the court petitioner the opportunity to explain or justify that delay when he issued the order when the court issued the order to show cause and when the court also gave petitioner examples of the type of evidence that it was looking for whether that be male or a copy of the envelope that the petition was sent and or any other evidence that might substantiate the date petitioners bonded by doing nothing he did file a response to the order to show cause it's just that he didn't say provide any substantiation of the august twenty sixth he simply repeated what he had already said in his federal habeas petition if we disagree with you on timeliness what comes back if you disagree with me on timeline if you find that it was timely filed yes than his ineffective assistance of counsel claim would go back and then what about the issue well the shlub issue only comes into play to overcome a timeli let's say we accept the state's argument that there's a procedural bar on the remaining claims so now he has to basically meet the gateway which i shushed callahan points out is narrow but normally that is made by comparing the new evidence that's presented to the totality of the record with the district court do that here know the district court and not do that here and while that's generally a good rule obviously to have more information before the court when it's making a decision about actual innocence in this case the court needed discretion to be able to reject petitioners showing because it was so weak in this case well do you have an instance where the district court summarily rejected without an appearance by the state and without benefit of the record because you've got a pro se petitioner who's because it's across a filing it's incomplete and by its nature of the arguments aren't really fleshed out so at what point in the district court would be full record have to be lodged with the state lodge that when the state makes an appearance normally under the local rules the state lodges the full record when the state files an answer right so normally when the state appears the court has the benefit of the lodge record of the state have to do that but because here the dismissal was in such an early stage the district court didn't have the benefit of the record so can you explain to me what the rationale would be to have the district court dismiss at this early on a pro se filing without the benefit of the record particularly in this case where if you lose on the other arguments as i indicated the issues would have to go back anyway so what the state's position on the issue that when the showing by petitioner is so weak and so paltry as it was in this case compared to what the court could already see in the state court record was a very strong case against petitioner that was that was the court of appeals recitation of the facts ever disputed you understanding it is that obviously the district court passed away the affidavit against something but are you saying where the affidavit is so facially and reasonable that what the court had at that time whether it's the recent decision of the court of appeal or whatever that was enough and it didn't assess to take order in the whole record but there would be some instances where the whole record might be necessary ye probably in a lot of cases the full record would be necessary but in this instance where the declaration provided by petitioner is so facially weak that it couldn't possibly counteract the evidence that the court of appeal found in a reasoned decision and in this case as i'm sure the court is aware this is a case where petitioner was convicted of attempted murder of his wife and she survives so she identified him as the shooter in this case in addition to multiple family members who were at the scene as well who were familiar with petitioner and identified him and i have an affidavit is from a person that's in mexico and it's what five years later right ten years ten years after the crime occurred and five years after trial when that said there's something in the record and i'm not sure where comes from that the petitioner knew of that this person knew of this statement and waited five years right and they didn't presented at trial the trial defense wasn't some other dude did it well they attempted to raise third party culpability claim at trial but the trial court found the evidence that they presented to be too weak for that he did he was the shooter the day of the crime ok and that name never came up at the trial that name never came up at the time i believe petitioners allegation is that he out all of his various counsel about this person and that they didn't follow up on it that's tied into the ineffective assistance of counsel claim right right is there were witnesses who indicated that there were two people at the scene and so the question is was the shooter the defendant the petitioner or was at this other person right but the reason that the third party called ability claim was rejected at trial was because there was only one witness who was further away from the house where the shooting took place who thought that they saw two shadows in a car and so in light of none and none of the other witnesses there thought that there were two people there they only thought that there was  they didn't see any other people so i have only one question so based on your experience and habeas corpus cases how many of these cases on a percentage basis or number of cases do you see where there is perhaps maybe even a half a percent or do you have any i don't really have statistics but it's a low number that's why i'm a little puzzled by the state's position regarding ordering the full record because if e that the shooters this other person that nobody followed up on it so that's the basis of the in the fact of this but that's also the basis that he's relying on to try to get past the gateway on the remaining claims right it's seems very in a related and the district court has the benefit of the record if you were to go back on the ineffective assistance of counsel that's true your honor our position here though is that because the the court did have the benefit of the state court opinion we know that because petitioner included it and his filings and also because it was clear that the court looked up the opinion independently on westlaw so we know that you have the statement of facts from the court of appeal which are accorded deference by the court and in this situation where we have a declaration who is a citizen of mexico who is not clearly subject to the jurisdiction of these court of the courts here and who is making a claim that flies in the face of what the summary of the evidence was a trial in that situation it was reasonable for the court to deny this claim without getting the benefit of the full record right i think questions are answered thank you on your own over time so thank you for your argument night time mind you this conflicting evidence about whether or not the light was on or wasn't on she saw two shadows in this shooting up in the neighbor down the street critically your honor the neighbor down a street told the police there were two people in the car when the first one walked over with a cell phone in his hand and then the other guy walks over follows on about a few minutes later so we have to do is two things going on here and then you don't even need to get to show your honor why because there is no procedure with the fault the superior court order did not specify which applies to what and we know from clearly established california law that and i see claim cannot be barred based on dixon we know that so we don't know which was applied to what so instead of spending time and going through the shop inquiry you honor i think this should be just based on the merits doesn't meet the merits and he's got other claims i don't think they're as strong a claimed not nearly as strong perhaps he does have one claim however which is destruction of evidence and that claim well that conceivably this court could find i see is not that the others are barred and then he would need to slap from that your honor the others would be but i want to be clear about that though because he did raise some substantial claims on direct review so we're not talking about those we're only talking about what he raised on his call out review if you inclined to say that they were procedurally defaulters even though even though the superior court did not specify which the father applies to what which kills it right there then if you don't have to go to shop then either because you could do caus