court saying look can you hold on can you please hold on to my it's my matter while i go and file something in state court can you give me sixty days he made a very specific request the court never responded to that request in any way and it's clear from experience filings with the california supreme court and and his language to the district court that he really believed that the district court was ordering him to go to state court was going to hold onto his case when he came back it was going to be part of the same case he had put the district court after i go to state court and i'm i'm asking you to just give me sixty days to take this off calendar for sixty days and and and i'm in the meantime i have filed in state court as soon as he heard about the exhaustion he didn't even wait till his f federal petition was decided he went right away to state court he filed this that just take this off calendar for sixty days meaning to him give me that extra sixty days then i'm going to come back here after i filed in state court now and it's going to be part of the same case that was so clearly concerned standing he said to the california supreme court the federal court has ordered me to come back on a direct appeal and exhaust all states and the city sees everything as part of the same transaction i mean his language is not a lawyers language understandably he's a real young kid and  dismissed without prejudice on april seventeenth right so that's the affirmative from part of the court well imagine if if it had been counsel who had filed some kind of request like do something for sixty days the court would actually answer saying no we can't grant the sixty day request they didn't answer his his request at all i mean he's not a lawyer but he deserves an a please the court deputy attorney general bill builder back for respondent the question that was originally certified by this court actually addresses the lack of diligence by petitioner in filing his state petition in waiting to five is the issue until the last day of the limitations period and that was really the question that was i guess from the front of the district court's mind and in the front of this court's mind when it granted review the relevant inquiry is not necessarily how this locked down it may have the name a couple of days after the state petition was filed rather it seemed at least my interpretation of this court's grant of review was concerned with why he waited until the last day of the limitations period before he first filed any petition in state court requesting review of these claims the it's absolutely his right to wait until the three hundred sixty fifth day to files petition however as this court and other courts have indicated if you choose to exercise your right in that manner certain consequences may result and one of the consequences that may result as this court now the courts have stated is that if you if you wait and use a substantial portion of time before you get into state court in the first instance you may run the risk of being out of court after after the state court results your question if you don't act in a reasonably prompt manner so yes absolutely that's his right but he only had one day left after that and he waited substantially more than one day after the state court resolved his claim before he brought his action to the district court he was only two  to make certain assumptions which the district court made which i don't think are necessarily supported by the facts for example we are going to have to as literally as possible posit application of the mailbox rule and we're going to have to posit application  mailbox rule assuming which again this is unsupported on the record but assuming the pendant presented his petitions for mailing on the date that he says that he signed them the petitions are dated certain dates and in order for the two supported by the record and so it would be our position in the first instance that in fact the first is the state petition that he filed in the california supreme court was actually filed not on the last day but after the expiration of the period of limitations and this is as i said in my and that accordingly any petitions that were filed there after were necessarily untimely however i and the district court and it apparently this court to some extent if we are willing to to presume for the purposes of argument that the defendant the time that's indicated by the date of petitions of course the mailbox will necessarily applies and i thank you for that correction but my point is we don't know what day to start counting from we don't know if the defendant necessarily handed those petitions over on the date that they w presently if we thinking about what evidence might come in then yes it's like when we say that i would assume that he would say that and of course then i i would be in a position where i would have to go and get the mail records from prison and we could have a his i believe it was in the context of his certificate for appeal ability he said that he did present it for mailing on that date we know that that's not true we know that when he said he presented it for mailing on september twenty sixth he was lying because the petition itself was not signed in tel october third now we can talk about perhaps whether or not there was some delay in the copying that might have prevented it from him from signing it and sending it for mailing on the twenty sixth but right now i have to state i think a district court i could be mistaken about whether it was the twenty six the twenty eight as well your honor i think that that are both i think i don't know that it's significant for the purpose of this discussion because in any of that we're agreed that they she gave something to i don't know that he could not have obtained a copy or as well as you think that's something that's because you can find no i don't believe so your honor because again the question for equitable tolling purposes is whether or not extraordinary circumstances beyond the extent that it's that he believes that it's necessary for him to have a copy it's incumbent upon him to request the copy in a in a timely manner such that he can get them back with more we couldn't we i mean we have no idea what the freedom without a single copy that's unreasonable i don't know that it isn't reasonable to require that a defendant who is it in a state prison to ask for his copies in less than a three day turnaround contemplating as we must the passage of the weekend i don't know that that is an extraordinary circumstance and i don't know that the court i don't i don't know that i agree with the court that this is a fact which rendered it impossible for for example in this particular case the district court found that this defendant did have adequate or at least there was no quite contrary allegation that this defendant had more than adequate access to all of his legal arguing whether or not the defendant had a photocopy of his federal petition would be relevant to some some issue and i'm i'm not trying i'm not trying to be a truce with the court i'm just not sure that i understand how that fits into the relevant legal standard that's been remember the dates period my own but it was from september twenty eighth until october third a period of five days that's the amount of time it took for him to get the copy so it's not as if there was some it was impossible for him to get a copy and a reason in this case if the defendant had requested us copies in a reasonably timely manner rather than waiting until this case dave last one before the period of x limitations had expired before he asked for his copies  's coming from and then i want to talk about the magistrate judge magistrate judge really didn't get a chance to deal with this with this issue of what happened on the lockdown so i think that the emphasis on that th nothing was going to be told that's the real issue and the real issue is that he asked for that sixty day stay he didn't get any kind of response and i think we would be very useful to develop further into her findings with council if we really we now understand we get an appointment of counsel so that we don't have the teenager trying to represent himself in the district court and trying to develop the record himself if he if we can get somebody to do that for him that would be really great we could find out what really happened t