y technically assigned to the in bank courtroom in new orleans but i expect none of us are there we have two cases this morning but we're going to start with this group  both of you in texas as we speak i got some feeling that this killer is yes your honor on this project you're not quite as clear in your location so now i am in austin texas on three issues this morning the court's been fully briefed on the facts and it's a very complicated procedural history it's been up to the court once are already gone back down now we're at the nd time but the three points that i think kind of synthesize the problems with this case is st the district court made a mistake in how it analyzed the diligence element and what it did was it failed to analyze the totality of the circumstances and tried to parcel out each individual action or inaction the nd issue is the district court made a mistake and did not follow the mandate of this court on reman where this court instructed that the district court is to either take is true the allegations made by mr him in this or to hold his evidence for a hearing to challenge the credibility of those allegations the district court did not hold a hearing but also if you read the analysis in the order by the district court it did consistently challenge the credibility and the purab city of mr him in his allegations and then the rd point is that the analysis by the district quirk when analyzing the diligence factor amounts to no a fine the section two thousand two hundred and forty four statutory tolling period and what i mean by that is the congressional mandate is that during the time the state petition is pending so for the twelve however long as a petition is pending that period of time is told but what the district court didn't this case is it with that and looked at and in questioned and criticized mr him in as for what he did or did not do during that congressionally allowed told period and so to harmonize the equitable tolling doctrine with the dollars to forty four dollars statutory tolling doctrine or tolling statute the court should not take the district court's analysis and adopt it instead the court should look at the totality of the if not tell me why now and and if it is addressed that judge southwick it is it is a fair assessment of this court case law that all three so pre hinting and post should all be looked at but with the district court in this case to was really focused on and also use the state tolling period as a truck card and because when you look at the pre rip period and the post rip your id you see nothing but actions by mr in fact i think he was such a pain to his court cancel that that was part of the reason that the counsel quit so but what was the center what was the lynchpin of the district court diligence analysis was the pending writ period and the focus was on what did he do and what could he have done during that and by taking that and saying that is the only and so in the way that the district court chose to analyze the diligence factor has in effect in my opinion usurped that pindi period and made it the sole issue when it now than saying you say that during that nine i don't see how that went well we cannot consider that in terms of diligence because if he had done that and if he had been diligent we assume that he would have been much more on top of this case that he would have had the violence that had been made in the state court that ultimately were not returned to him on till about three days before the the statute to two answers judge jolley to the st the procedural aspect of it it's the district court's complete disregard of the tree and post diligence efforts and using the pending appeal after that that is their only copy and when you are appointed to a case or you're hired on a case i can promise you the st thing you get is a packet of that record with the inmates notations and and then that and that is pretty much all he had asked and during this period of time that the state writ was pending it is under speeded that he had given those records to his state has counsel and he was not giving them that so he w anecdotal answer your honor i would have kept the inmates records throughout the pendency of the period because after at the very end is when i would be sending a packet back to the inmate and what i can attest to is in the pre rip period there is notation after notation and it's all discussed in the briefing of mr him in a saying can you send me my records back can you are you doing this or are you doing that in fact he pester so many if you solved less persistence i think it was for a reason but perhaps we can look at it in a different way and in a more mathematical way all mr him in as is sure is thirty four days so if you look at the  three periods of time the pre writ period the pending repair it and the post for a period for many many months the period of time thirty four days was lost based on his reliance on his counsel telling him i'm working on nothing more than your read your your record is thirty one page is thirty one volumes long there are so many issues there are so many things i need to do for seven and a half months he relied on his  him until three days before the before the fountain if he could have that there would be north shore near circumstance would have precluded his found and wanted that occur occur because he had not one hundred days and didn't do anything kid i think that's how the district court looked at it too your honor because what i read in the opinion in the order was obscure focus on the pinning rip period and what i'm asking the court to do is to consider that he was trying to communicate to you you seem to be accepting guys jali is factual position of lack of much activity what do we know and if you know something about the quote i i went back this justice moore and i went back through the record to try to find specific letters that were written because remember he did attach three hundred pages of exhibits in the supplemental petition so i had to try to find if any of those ringback letters still within the pending period i could not find any but i did find the statement your honor that you're talking about within his petition saying i have asked you several times and written you multiple letters about the writ and you have not responded that if taken is true which it was required to be done by the district court should at least so show some evidence of participation when during the pending period tell me a not quite understanding you what you found you found you didn't find any evidence  statement in his petition that he had sent several letters and communications with his lawyers at the center to show that yes these are yes that but he did not attach like he did on on some of the other situations he attached the letters but he did make a sworn declaration that he had communicated during the pending period it just wasn't didn't appear to be of substantially corroborated by the letters as the pre and the post period so you but the the case law what the government file a supplemental letter of authorities and i believe it was the diggs case of recent case what i'd asked this for to look at instead of the dick's case is to look at the case cited within the diggs case which is the monica case and in the all monica case i think that set of facts is much closer to our case then the digs case the dick's case was the recent letter i don't have the date of the letter the government sent it and it's a recent case that came out judge costa i hope i'm saying your last name right your honor was on that opinion as well as on him in his number one and i think probably knows the facts better than than all of us here because he's handled this case before but the the humanity case that is referenced in the digs case is much more factually consistent with many different factors in the extraordinary he lost seven and a half months but he lost seven and a half months out of three and a half years that's from the final judgment date to the last day in his deadline he furthermore has not shown to be diligent st his sta pending over two and a half years as court noted that's nine hundred and sixty days he had over two years to think ahead and contemplate what his federal attack would be he had over two years to determine at his procedures to calculate its when your limitations believe that the record does have some letters that mr jimenez had and provided to the district court well st his signature is on the state habeas application he had to swear to the truthfulness and accuracy he signed and dated that seven days before it was filed so he knew what his claims were but the letters that he provided to the district court one was dated about a month after the application was filed that's an appellate record nine hundred and nineteen through page one hundred and twenty two he is expressing a discontent with the claims that mr ellison raised and he also complained about not getting notice until a month after the application was filed he then followed that up in august  eleven where he wrote allison and stated i can't find a copy of my file state writ so at some point he did have a copy of his file state writ and then he asked ellison did i send it back from that point in august of two thousand and eleven all the way to february order it allowed mr jimenez to file a reply which he did and he included all of these documents and it took everything specifically alleged not conclusory allegations that he repeatedly asked and then he asked after the c c a denied belief it took  specific allegations that he wrote in august of two thousand and eleven where he alluded to the fact that he had a copy of the status application and didn't specifically ask for another copy he specifically asked for another copy over two years later after the c haven't responded when you make of the well i do know the district court when abused his discretion to disregard conclusory or are vague statements like i'm right you multiple times what it did have a specific statement i ellison didn't respond until about two weeks later he did have multiple letters after the c c a denied relief i believe there are two or three before mr allison was able to respond so we don't know if mr jimenez means that or if he did write multiple letters what we do know is he we have a specific date of august th where he alleges that he has a copy of the state papers application these three documents the state ret and i'm sorry for the state rep and the three letters that he wrote to allison it established for the district court three things st that mr jimenez knew what his state habeas claims were nd that he knew when the state h application was filed because he had a copy at some point and rd if he really did need another copy he should be more diligent than waiting from august two thousand and eleven all the way to february march of two thousand and fourteen over two years later as this court noted  unreasonable to sit around and not ask for another copy it would be reasonable to assume possibly that mr ellison did write back and his mail got lost or you have middleman the t c k it happens quite often it's not  that another way to look at what a reasonable reasonably diligent inmate would be doing a yes or on a but we're also looking at all the stages of the limitations period th that inadequate legal representation may not be enough to overcome a lack of diligence throughout the limitations period place yes for example he he hired to counsel that counsel was incompetent and he was very diligent during that time he wrote a many letters he even filed a grievance with the state court but this court noted that the it took the petitioner seven months to hire counsel and the front end and in the back and he had thirteen days remaining in his limitations period he had thirteen days and he cut off all the state writ or he could have filed a protective federal petition and while this court said that a federal skeletal petition is not required it shouldn't be the only aspect it should be at least one aspect when considering the entire limitations period mr jimenez had nine hundred and sixty days where he did not act during his state a b s application he could have been researching he could have been honor is after the c c a had denied relief and the letters that he provided are absent it he had a letter in june of two thousand and twelve where he asked what the c c a meant when it received a supplemental record he didn't know what that meant he asked allison and he did not mention once that he did not have a copy of his status application he's a year into his application proceeding he supposedly needs another copy and he didn't ask for another one until after the c c a denied relie  that petitioner inquired about eleven months into his limiting his state habeas application and then the limitation period expired and he filed seven days after getting delayed notice mr jackson has also pro se he asked fifteen months into the state proceeding and then five months after that and then when he his limitation period expired and he received late notice he then filed seventeen days later mr jimenez had thirty one and a half months to get all of his records in order to research his claims and then he had two days left to file he had a partially filled out forms petition thanks to mr allison he had another copy of his state habeas application he even has the benefit of the mailbox rule and he does not timely file he even got some suggestion from the district clerk some implied to suggest him because he asked for an extension and the district clerk led him like a horse to water stating we cannot extend a case that is not on file in other words simply take your state habeas claims and transfer them over to that partially filled out form petition take advantage of that mailbox rule and file your federal petition if you need to extend then you can and you can supplement with whatever records you need to later get this or jimenez is to own the only person to blame for his untimely filing he waited thirty six days after getting his state habeas application that's five weeks it's not seven days like hearty it's not seventeen days like mr jackson this case is more like man manning let nineteen months pass before he took action the score it found that that was not diligent this court has also stated like in place yes you need to be diligent despite inadequate legal representation him a partially filled up form petition and again he had two days remaining everything in front of him he just didn't understand when his limitations period was going to expire and that is not enough in closing mr hammond has waited over a month after his deadline the limitations period and he was not diligent it was his own delay i also wanted to states that in the council again was stating that he lost seven and a half months that he he should have really looked at the whole three and a half years this court looked at the total circumstance and it looked at the largest chunk of that three and a half years that is that two and a half year period where the sta proceeding lasted it's more than double the front and the bakken combine two and a half years versus one year the district court did not of the if yes your honor if we assume diligence on this or would you acknowledge that receive in the record from his lawyer three days before the circumstance because it is a causation of this failure that if that were the facts in this case your honor then perhaps but he was not diligent and he was not asking for the in that in the declaration that he had contacted in that all in the lawyer did not respond would indicate to me diligence over that period of the if the if the persisted in contact  within the fact that they will when and respond yes you are looking at the specific allegations we're not sure if he was talking about barone or if he was talking about allison we do know that he did specifically mention that he did not have a state habeas application in august of twenty levon at the very beginning of the state habeas proceeding and he did not specifically ask again until after the c c a did not believe that is why the district court court looking at that huge amount of time or he could have been asking and you could still take that is true and still take us through the statement that he repeatedly asked and allison finally responded that could still be true technically while also having these specific  documents showing that he asked for another copy of the state his application the district court would also have to ignore the fact that mr jimenez knew what his claims were he knew when it was filed he could have calculated the limitations period and he also had a copy of the c b s application and lost it sent it back whatever the case may have been the diligence for example in hardy and jackson was directly related to the impediment itself that was they didn't know the status of his state application here that they impediment itself is the state application not having a copy and not getting it until two days before the impediment was lifted two days before he could have timely filed a skeleton petition as this court noted in place yes especially when it's coupled with the fact that you have nine hundred and sixty days when he was not asking for that impediment to be lifted any sort of diligence during that long period of time the years that that it was pending got can't answer that off the top my head but your honor what i will do is i can look at the returning address that he had on his letters throughout the record and if i see movement i can write a supplemental letter to the court but in the court know if he was moved in your honor touches on a great point close with our number one holland the holland standard is what governs it is reasonable diligence of a pro se litigant not met the quote by the holland who are not maximum feasible diligence and that's what the government is asking of mr herman is maximum feasible diligence he had two days here he had three days here is the reasonable diligence of a pro se litigant that is the standard and secondly the district court was required to take is true all of mr and mrs sworn declarations he had no records he needed his records he had not enough time in the prison library and he was dissuaded over and over again by his state record counsel stop bothering us about getting ringback the records stop bothering us about your issues your record is too big it's too hard for us to do this with you pestering us so please leave us alone and we promise we will handle about i agree i couldn't i did that's why i didn't want to represent to the court i can't tell who he's talking about but the court has to infer if make inferences in favor of mr a menace here remember we're only trying to get our foot in the door to have the