is not mentally ill a fact which he said quote colors everything in the case so what is it in his circumstance that might render this to timely file the petition it does not permit that the consideration of one or two factors in isolation requires that full picture approach here it was the combination of the lack of access to the records lockdowns and mr gray's own pro se status that created the extraordinary circumstance and because of him from time to finance who does the record quantify either the extent of the lockdowns or limitations on mr gray's access to law libraries it doesn't or honor the it does or does not it does not give mr gray in his in his briefing to the court explain the lockdowns could last from from a few days two weeks to two months to a few months but the record does not presently reflect how long any specific lockdown applies during the limitations period why should we order to destry judge to hold a hearing on matters that mr gray presumably could surrounding the lockdown heard at the prison but also identify the mr grey was placed in segregation during a portion of the limitations period which also impacted his ability to timely file his petition and it's not just  of course and so should the facts are much more extreme than they are and there are more signs of diligence in social and even if so she is not to the the thing that demarcat standard on and all the circumstances point of view that's important and i would like your response also to your opponents argument that you're focusing it seems more on the hundred eight hundred nine whatever the right number is fail to display the necessary diligence he just kind of asks for the records and sits around and waits for them to come and they come and he's not pushing as the clock is ticking at those earlier times well i  as placement in segregation his lack of access to vital records for much of the limitations period and also his pro se status these are similar to the claims that mr gray is seeking to develop here if the court determines that the record on its current fa does not satisfy equitable but socially that such asks repeatedly though for for the records he says he's practically pestering and which i guess is fine to me and sometimes you have to nag right and i thought that the results so i have a better communication with the court there but i'm really more interested in the fact that during the hundred thirteen days he's waiting for the courts to follow through you know what what's he doing to to advance his case but i think the i think the answer is your honor that he that that the record doesn't as it as a currently stands doesn't fully explain that what he's doing that's that's one of the things we benefit from from further factual proceedings before the rhetoric or that he doesn't make any allegations you know that he's asking the warden every third day or that he's doing anything all week we just have silence not of not on the present record i would say however with respect to reasonable diligence he does file a motion on his own with that with that in the end of course for his records once he received the those records he goes about diligently preparing the petition for state post conviction relief which he files on his own without the assistance of coun federal petition for relief and files did he have those records before the statute ran out did he have the to the post conviction and is focusing on the second  request i believe i believe he did your honor i believe he had those i believe those records right to him before before the expiration of the statute and they were i can't remember the you indicated they were relatively voluminous that's correct first furthermore he upon receiving those records one of the things that we develop though is although i believe he did receive those records before the limitations period one runs out one of the areas that the record  when he's in segregation does he have access to the law library or is he completely excluded my my my my understanding your honor is that there is no access to the law library the materials may be requested but that but that they're very inconsistent and when the person who delivers the materials is not in the prison nothing gets delivered but these these are the types of facts we need to develop further below with the benefit of an evidentiary hearing could we talk for a moment about the had written some cherries to what extent you think the impeachment was otherwise sufficient with out delving into that that history between the t well counsel laid out his strategy for impeachment why did it i if it involved those three things you identified and to some degree he was successful on me twice most notably he was successful in having white testified that he didn't like gray very much without needing to divest delve into the robbery at all in fact he didn't bring that he didn't need to bring up that testimony at all in order to get white to testify that he didn't like gray very much because white white me to take i know but it that you know if he had said  that way i don't believe so your honor because mr white gave a reason for why for why he didn't like mr brett time and that was because he he knew he knew that the victim in this case and so really it really provided its own explanation without going into the details of the robbery but independent from that testimony your honor mr gray's trial counsel was two degrees successful in calling into question the timing of when the alleged conversation between white and mr gray occurred he did wasn't able to have the court pick judicial notice of the time sheets however he was to get to able to get some of that testimony out and he did in when he was able to get some testimony out that white had s consideration from the court before whom he was receiving sentencing although he wasn't able to get the letter in itself so he left he left he had established three different reasons although not to the great degree he may have wanted to b reasons for that for the jury to discount white's testimony his decision however to elicit the the damaging testimony completely torpedoed that the overall strategy huge he had put in place the defense of defen critical for the jury to understand that that mr gray although he might have been interested in purchasing drugs was not a violent person was not the kind of person who would go back to somebody who's residence and arm robbery but he's but he's feeding the worst effects to the witness in addition we know that that although although mr graves trial counsel did not raise this testimony in his closing statement although he later testified the post conviction hearing that this testimony was incredibly important to this case the prosecution prosecution exploited this testimony asking the jury to draw comparisons between the previous crime and the alleged robbery saying that's what mr good morning your honor may it please the court the district court did not abuse its discretion in denying mr gray's titian four and timeliness yet three opportunities to present sufficient allegations evidence to qualify for tolling i think it depends on the circumstances in this case it is completely different from the case presented by socia and in fact mr gray was pursuing the ordinary normal course obtaining the state court records through the court of appeals who then appoints a state public defender to and has ninety days to do so to get the record to copy it and to then give it to the petitioner why hasn't that show that this was utterly beyond his control he's doing what he needs to do he doesn't have counsel so there's no source of the records otherwise and what worries me about the state's position is that you're really encouraging one of two possibilities possibility number one everybody should be advised as soon as their direct appeal is over that they should just throw a twenty to fifty four into the hopper and ask that it be stayed pending the exhaustion of any further stay remedies meigs is to avoid this or possibility number two that people should just file frivolous and substantiated twenty to fifty four petitions because otherwise you're going to be stuck with this  year limitations problem with no ability to show that it's not that they had all the records sitting in their prison cell and they just didn't get around to filing a petition it's that the indiana public authorities the courts themselves we're rather slow in responding to this request it's a bad solution any way you look at it i disagree your honor the solution is a response of course that  clock is ticking in the post conviction review there's another delay after that in getting further records and he's stuck in administrative confinement it's difficult even for a responsible lawyer to wade through all of the records that have accumulated to navigate these issues of what's been properly presented what hasn't been presented what claims can be brought forward i just think you're asking the impossible and the alternative is is these two different types of protective filings that i am imagining no your honor the he has to show that there isn't any additional time for him to come into compliance with the statute of limitation well it was so all he could have done is filed something the minute he gets the records without reading a single one and squeezing in under this judge whatever it was january sixteenth january eleventh tw before he files estate could post conviction you would certainly agree with that and countable days are happening while he's waiting for state courts to send the records to him so he has nothing close to a year he has days and he's not able to access the records because of the administrative confinement so you want him to file a twenty to fifty four petition bases basically in violation of rule eleven with no ability to read through the record and craft the right kind of petition well after he has filed a petition for post conviction relief which he did in this case when he received the record from the state public defender's office and that is completed he has already his claims in order to present it to the federal district court so because he can only present claims that were already presented in the state court but cerritos might he's based in the trial some of those might be based in the state postcondition of course one of his claim to sabbats and claim one of his claims relates back to the effectiveness of counsel and so yes of course you know you've got to present to the post conviction but in your view the record from the state post conviction is either of no relevance whatsoever so you shouldn't even bother to ask or to begin with which strikes me as you're responsible or you think that he should just file something without reviewing it because it was impossible for him to review it you know you really are asking him to fly without a net giffen is pro se status his for the record intensive nature of his claims the relative complexity of some of his claims what i've been wondering about is why he wasn't at least entitled to a hear read on his tolling oric humans he was an anti he was given an opportunity evidentiary hearing is not the only way to present evidence and get it before the district court to support his allegations his allegations were were very general and again were very ordinary to any person which this court has recognize she does not present the extraordinary circumstances that is the basis of an act equitable tolling claim it's a very high pardon and this mr gray's case is very different from that in socha and what this court found to be it i mean if it's nice to tell the court but if nobody's arguing that the delay was in significant part because of the length of time it took the court of appeals to send that record to him which i don't think anyone is contesting what's that extra fact mean nothing in socha says this is the only way to get extra equitable tolling equitable tolling is very fact dependent is hard recognizes socha recognizes that there are very few it shows a lack of diligence which is something that mr gray wasn't going to show not only extraordinary circumstances but also diligence and why are there still no way people get around that some just thinking structurally the only way people get around this is they should just file with no review of the record just like you know just a placeholder jeff who just recorded you know please stay you know this may turn into something or may not but i'm faced with this one your limitations period  that's what people start doing why does that help the state you have to double the amount of trial  lawyers in the district court and it actually would not involve the state because the the district where it went first have to go through the rule for screening function or the the court may decide to appoint somebody to represent the respondent it's not that whether it helps the case in this state or doesn't help the case that's not the question here your honor there mr such as extraordinary circumstances and not being able to get his file for over a year was due to what the court recognized as being misconduct by the attorney because he was not given what so the record which social was entitled to and which he repeated plea and emphatically asked for it that is far from the facts that we have here what we have is mr grey going through the ordinary course of the court being respond responsive to his requesting that the transcript and that was done a petitioner has a full year in order countable days his conviction becomes final january to two thousand and eight he doesn't do anything with state post conviction until july of two thousand eight so those days all count toward the latter but he had then transcript after no i'm just trying to i'm trying to focus on how many days to see have left for for the filing to absorb the records after he gets the post conviction correct there were four months that were taken up and receiving the prime directive after six days left at the time the post conviction relief becomes final but that's when he asks for the records so when did he get the p c r record and then when did the federal filing deadline why right mr gray does not disclose when he received the record for his  it says he pitches in the indiana court of appeals for his records this is the first time so he could file a petition for state post conviction took them over a month to rule on that request another two months to release he gets four months and then after the post conviction appeal he asks for the records and actually i don't see where i'm looking right now how long that takes but it takes some amount of time he just not have any where near eight months after it gets to p c r records if he'd gotten them the next day he only would have had one hundred  fifty some days if if i could just refer you your honor to document eleven which is his supplement to the court's order to show cause paragraph seventeen number of paragraph seventeen and he just simply says that it caused and in fact his first ex reason for being untimely was due to the lack of getting the direct appeal record and start to take him back west because he was changed from facility to passivity he abandoned that reason in his supplement and that's where he relays that he's he was on lockdown that he had a delay in getting his file from the post conviction attorney and he also  goes on though in his traverse to then abandon those reasons and he only he sticks to the fact that there was a delay a four month delay in getting the transcript from the trial so the reasons about lockdown being in segregation he abandons those reasons which is the second time he's fluctuated and why he was not able to  district gray had a longstanding deep rooted hatred for each other and were enemies not only shores up his initial attack on mr white that there was little to no opportunity for this conversation to take place but it in his very short up your closing argument well a prisoner had though again mr white was a vital witness that needed to be impeached an attorney or a but sorry but the judge really handcuffed he had many arrows and his quiver and there were two other areas that he tried to use that were diffused by the trial or and he found it imperative that he had to impeach mr white he had of each mr white he wanted you're saying that he needed to impeach mr white in a way that served the case up on a silver platter to the prosecution no this is the epitome of a strategic decision where he has he knows the risks to block me or leaves that he needs to attack mr white because if they believe mr white then they're going to believe what he said about mr gray and this and being a victim of mr gray's attempted robbery  so whether they're going to believe mr white or not hinges on how much they believe that there was little opportunity for mr gray who is an enemy of mr white to suddenly confessed and so it's very consistent shores with his other reasons for impeaching mr right it shores him up and again it's not about that this actually happened it was never presented to the jury that he was acting i'm sorry that mr white was actually rocked by mr and p c r record in our records i have to answer that yes and no the why dear was never transcribed from the direct appeal so it was never made part of the record so responding to the state's arguments with respect to the question of whether the record discloses that this point how much time the record to the record took to get to him so he could files federal petition he said he stated that it took considerable delay handle this case we appreciate your efforts very much on behalf of your fine and a great thanks as well as state we will take the case