case and it involves whether or not there was tolling from the first round to the second round of petition of corpus petitions i think the critical factor in this case comes down to whether or not i was told between mr lucio filing with the supreme court of california and then the filing of his next round in the superior court of the state of california and in the spirit court of the state of california that superior court did determine the petition on the merits it did not deem it to be untimely so under the king ok student like the supposed at the same day or i mean i have to admit i'm not familiar with the california practice but it hit it least and i may be confusing the two cases but at least one of these as a pyrrhic or deny the vision thing that was filed yes i believe it was the same day or the day after but they specifically denied it on the merits they did not find it to be untimely filed and therefore under king and under on case gassed on versus palmer three eighty seven the third one or all four decided by the score in two thousand and four the time between the filing of the denial by the california supreme court and the deny all or the denial by the spurious court in the second round that whole time would be would be told and therefore  the statute of limitations would not have started to run until the denial by the security court and upon rolling suctioned the petition for writ of habeas corpus was filed in the district court timely it would have been filed approximately with various schoolings while the second round of titian's were actually  perrier court is different from the subject matter of the petitions previously filed well there were some there were some claims that were the same in which certificate of appeal delivery so you could appeal yes and you ran out of luck there because you got turned down each time and the application after that although it might sought have sought to raise the same underlying issues was no longer or that if you had gotten review in california supreme court would have had to made some determination as to whether or not at least those issues were at least arguably meritorious so i don't believe i believe that that those issues w thirty twelve forty three states that the petition is looked to as a whole in terms of statute of limitations you don't well and i don't for a fact challenge everywhere else so the question is whether when you're pursuing all these other claims which are raised for the first time really in two thousand crosby answers that question  because there there would have been at least one of one of the claims that was contained in the original round that was also included in the second round so  well i believe that it would have done i believe he was in the first round challenging also  and then there's an attack believe at least the first planes i believe will continued on into the second round on at least in part at least the rationale for the relief yeah you yes your honor if you didn't you didn't ask for a certificate after the first three filings are correct for your client i believe that the search if it was merely asked for in the first round up through the california  and i believe that at least one of the claims was continued into the second round well after the denial by the california supreme court and the new round and the superior court i believe there was at least some of the for exhaustion purposes yes it was because there can be no exhaustion first seeking review by the california supreme court and that requirement extended stupid of appeal ability or i believe it is your honor because believe that's what he did on the second round and under kerry versus saffold says we don't you know in terms of exhaustion and cetera we don't look to the statute of limitations we don't look to whether it's correct curfew or collateral relief but if they're treated the same so i believe for the collateral review issue we would have had to have sought review for that in the california supreme court but it could have been through either vehicle i mean for federal purposes because i think could have been accomplished by raising the issue either through appeal or through k b s in the south is that in the state system there is no direct review of and the next round of petitions does not qualify for tolling there was no claim in the california supreme court then the first calif supported supreme court t v s petition that was necessary for exhaustion of any of the claims raised in the federal petition and none of would like to point out something that's of relative importance with the mandate petitions while a petitioner needs to allege that non for of a list claim exists for appeal in trying to get a certificate of probable cause he is not bound by any of those potential claims when he actually if the court grants him the right to appeal he does not need to raise any of those claims later he can abandon all of the claims that supported his original request for a certificate of probable cause and raised entirely new claims the purpose of the certificate of probable cause procedure is to simply weed out frivolous appeals following fealty pleas therefore no exhaustion c attempt to perfect an appeal following a guilty plea and as i said it cannot result in substantive relief as to the issues raised and therefore cannot result in the exhaustion of claims because all it allows a petitioner to do is file a a probable cause from that's the court of appeal or to the trial court to issue him a certificate of probable cause so that he could appeal and in doing so as required by law california rule of court in the statute that governs that procedure he identified what he believed his potentially is that in stacked when you're looking for a certificate of probable cause in the court of appeal that has to be a mandate petition and in fact under the california cases the only avenue of review following the  not your honor that i could find no case or rule that says following a guilty plea at the titian or must proceed with the petition for writ of mandate first in the court of appeal before he can initiate his savior petitions i don't believe that there's any state bar or simply saying ok i was not able to to get a direct appeal via the trial court therefore i'm going to start filing my heaviest petitions in the court of appeal or the superior court and california supreme court and in fact that is what he did later but in view way too late because he had already waited more than three years after his conviction became final to really initiate a proper round of review starting in superior court and then proceeding to the court of appeal and then the supreme court because the three strikes law violates the equal protection clause a similar claim based on an allegation that the street strikes law violates the double jeopardy clause and finally a claim that his guilty plea was invalid because he accepted the plea under the threat of the three strikes law none petition doesn't qualify for tolling because he did not rely on any of those claims in his federal habeas petition however even if the court were to give him tolling during the pendency of that petition there are two very large gaps either one of which is going to render the federal petition on timely there's a two hundred twenty four day gap immediately preceding that petition which is not an which is not entitled to telling an a three hundred thirty to take out immediately following  was complete up until the denial by the superior court in the second round and that would bring on the case within the statute of limitations