he suffered irrepairable harm and he simply asking that this court use its equitable powers to return him to the district court so that he may have the opportunity to litigate his first federal hades petition on the merits an opportunity that he lost due to the egregious conduct of a member of our profession his attorney did not was not simply negligent his attorney failed to perform competent legal work he failed to advise his client of any of the developments in his case he failed to do anything to protect his client's rights he failed to perform the most basic task that his client task him with doing which was filing a federal hate b s petition on time and without delay he utterly failed to communicate with his client failed to engage with him on his issues his concerns notwithstanding the heroic efforts that mr brook made to try to engage his counsel not only that his counsel negligence that was what the trial court held i think that that was clearly erroneous i think any review of the record shows that this was not excusable neglect this was quite honestly reprehensible conduct which cost this individual who is doing everything that he reasonably should have been doing to preserve his right to federal habeas corpus pro se he proceeded he filed his havey as corpus petitions then he when he got to the california supreme court he was so concerned about presenting himself properly he made the very unfortunate decision of hiring an attorney to take him to the california supreme court and file his federal havey as petition he at the time that he engaged his attorney he gave him a draft of his federal hades petition and more importantly he also calculated the deadlines and said i think this is how this is how we do it this is when it needs to be filed by and his attorney said no you don't know what you're doing you're simply a lay person i'm the expert here i know what i'm doing you need to calm down and butt out and if you don't then i'm going to walk away and you're going to be on your own so he's when he hires a lawyer he's going to if the lawyers negligent then that's that's not going to count for him you have to have more than negligence is that more than negligence of factual finding yes your honor and so what's our task on th your test is if this court believes that it's clearly that mr smith's clearly performed beyond the pale committed agree just misconduct if it's clear to this court and limit your image you're you're making the speech instead of give me the answer yes as it's a factual determination is that the issue with respect to whether there was agree just attorney misconduct that is this court has said it's a factual determination so you have to determine you have to demonstrate that the factual determination was clearly erroneous that's court doesn't have to believe anything while we have to determine is whether you have measured up to your burden and so that's what you need probe prove correct correct your honor and i believe what i have shown here i think under no circumstance was this conduct excusable and i think that it is appropriate for this court to use its acapulco powers in order to rectify that i don't think the district court could or anybody considering the tally of the circumstance could come to the conclusion that this attorney performed within the bounds of professional conduct that's not the question the question is whether he was negligent what you are on are simple negligence is not enough and what i am showing here that just like in holland and and in gives this is far beyond simple negligence are you are you saying you have demonstrated negligence i think absolutely there is negligence but it's far beyond negligence negligence in and of itself is not enough agree just misconduct is what i believe that this record clearly demonstrates when we have an attorney who does not apprised his client that there was a that he even filed a federal hate his petition and that petition in up itself was grossly inadequate  the petition six months late not withstanding he affirmatively stated he knew when the deadline was that he failed to advise his client that there was an order to show cause he failed to respond to the order to show cause he then failed to inform his client that there was a finding in a recommendation from the magistrate judge there was twenty days to object to that he failed to not own notify his client he failed to object he failed to notify his client that the petition had been dismissed he failed to file  a notice of appeal he did absolutely nothing to protect his client's rights and that is agree just that under no circumstances that acceptable in this court should use its equitable powers to remedy that mr brooks acted with tremendous diligence similar to the individuals in gives and so he wrote to his attorney and said as soon as he got the findings and recommendations of the magistrate judge he wrote to his attorney and said this is horrible you need to fix this and by the way here i'm going to give you some help even i'm going to explain there's an equitable exception you are my attorney of record you have my file you have my money i'm asking you to fix this problem that you've created and i think that was imminently reasonable in this court has said as much and so and gives and just like in gives after approximately two months after mr brooks wrote to his attorney he figured out hey this guy actually is going to take my money and run and i'm on my own here and i better figure out what to do and that's exactly what he did he had to research the rules of federal civil procedure figure out what rule sixty b was draft a rule sixty b he not only drafted that he drafted a whole nother federal hey b s petition all of this without his file and he did that within approximately four months of finding out that he was abandoned which is exactly the facts that line up with with the gives and haul and indo the individual took actually three years before he realized his attorney had walked away and wasn't going to fix the mistake so mr brooks this conduct falls well within i do not believe he filed with the bar if i'm correct i don't believe he did he basically what he wanted to do was get his file back which took some time until the until the i if mr minutes had been correct on the legal question of when to file none none of us would be here and there would be nothing to talk about in terms of failure to communicate failure to advise etc really this just boils down to the fact that mr mintz didn't get the law right he didn't know when to follow up properly well there's a little more to it than that well it's no fun what his client is is is pressing him to move forward he's telling me i know what i'm doing granted it isn't as tough as holland but isn't there enough when when they we have a situation where the attorney is hired and the client is telling him what he needs to do and he's telling him no i know what i'm doing and doesn't do it that his client was right and he was wrong what is actually what is a just a simple negligence you can really use because if you do not listen to your client and you're correct no one says you're acting egregiously he can't be there just because you were wrong say it would be an abuse of discretion for the district court to find this was no more than pure never was and how would you distinguish h well how long didn't itself find that should exist in that case rather they corrected the eleventh circuit as i recall which had said that it never can be so i i don't believe hone actually said this will in fact  well there was not this is not a case where you and the and how and there was a complete lack of communication there was an inability even to know when things were being done and as soon as if in the i'm sorry when you talk in the past of i have no idea who you're talking about the petitioner in holland did not know particular date and as soon as he did know a date he promptly filed phone thing he could not get her birth different from here well in this case we do know there was some contact for  complaints is that is made is that mr that mr millet did not tell petitioner when the court of law in the california supreme court denied the hades which isn't but in fact in case that he didn't know the relevant data he also knew petitioner in this case also knew what mr mintz theory of the law was so he did indeed have the opportunity if he wanted to say for having his own view of the law he made a mistake and the law the real insurance against an attorney making mistake is to fall yourself unless you have a right to counsel and he doesn't so this is a problem not of diligence but he did say he chose to have his petition filed by an attorney and he is responsible for twenty years simply negligent think i'm just a moment please recommendations were in the two thousand and eleven case on the petition sixty b motion which was followed in two thousand and twelve was handled apparently entirely by the district judge ok i'm i just we were we this case came to our attention only on appeal from the sixty the motion was there an objection made to the findings and recommendations of the magistrate judge i don't believe there was a finding of your conditions in two thousand and eleven to dismiss a position is untimely and i do not believe anyone i don't believe mr mintz filed a final recommendations i mean an objection to  october nineteenth twenty a level yes it was misrepresenting him at that time yes he admits make any objection to the findings and recommendations and you say that was simple negligence well actually i don't think i don't think that was negligence the law rather what was he to say the reason he didn't reply to the  research and realize it was so he didn't follow responsibly or c he did not then say and that's also why i didn't file a response to the finder and recommendations but i think that's fairly inferrable that he thought it was correct he still i don't understand minutes i i guess i only practice law fifteen years and i've never seen anything like this before where where the person makes this determination and doesn't file anything representing his client when it was pretty obvious reading this that there was a grounds for him to make it and my only question is whether this is simple negligence when you say there were grounds to make it i'm afraid i don't quite understand that because if you're saying there were grounds for argue that despite the fact it was untimely filed there were reasons to excusing on time in the us i haven't seen first  i don't agree with that and neither the district judge when it resolved the sixty b motion whatever happened before that there was no dispute it actually wasn't timely file and there  hearings so that there's more adequate record upon which to make a decision i don't think so because i don't think it's the district court's job to make sure you understand that the district court was doing its job the district court considered the evidence presented the dischord even called for new ever called evidence from mr mintz whatever inadequacy there is in the record if the problem of the person who had to prevail below fisher didn't provide anything more than he provided the idea that well let's do it  over it's not your function to actually be his lawyer on the sixty motion he simply didn't make a record that produced sixty b claim for relief which by the way again was not simply that the prior court the court was wrong in two thousand live and he had to show that he was on and he was only able to actually make out his claim before and he did not  ok thank you thank you i would draw the court to what the supreme court said in holland which is there the attorney missed the deadline but he also he the tourney was agreed just because he the client sent multiple letters emphasizing the importance of a timely filing even identifying the applicable legal rules the attorney did not timely informed of the denial the state supreme court the attorney failed to communicate with the client over years despite repeated requests we have all of those facts here and much more now when mr mit's tells the district court i didn't do anything because i thought that there was nothing to do because it was jurisdictional so that i couldn't be bothered to do anything else that that just belies  the fact that he didn't do the research because if he had he would have seen that there was a basis for equitable toll in the magistrate court told him as much to look at that at the very least he would have seen there was a potential conflict of interest and withdrawn and certainly he should have told his client about the issue he did none of that his client even told him about an equitable exception and clearly didn't research that because still in twenty twelve he's saying i think it's jurisdictional and there's nothing that can be done if that simple excusable neglect that's a very sad state on on our legal profession what about diligence pursuit by your client mr brooks the minute that his a strange wife and i would note that it's a strange wife and that he had specifically informed his client not to communicate with her as of august twentieth eleven but when his a strange wife sent him the facts and findings of the magistrate he immediately wrote to his counsel and said this is a serious problem you need to fix this and he and the attorney was attorney of record he had his money he had his file and mr miss kate mr brooks gave him approximately two months which is exactly what the attorney which exactly what the petition gibbs he then diligently researched how to fix the problem on his own with limited access to the law library with no access to his file he figured out there was a rule sixty b figured out what it was how to draft it he did that he turned that around within four months and disha only filed his own brand of paper it's corpus so i get this this is this case is not a close call this court he should use its equitable powers to give brooks back to the federal hate b s petition that he has fought so diligently this is his one chance to have federal review of the constitutionality of his confinement and he has done everything that would be reasonable for him to protect and preserve that right and we ask that this court give him back that right through its equitable powers thank you you keep using equitable powers usually we just reversed people or we affirm them and there's something more than that here will sixty b is applicable so it's in the interest of justice so we're seeking relief from the judge from the judgment so you're taking the position the district judge was right but we want to correct the record no your honor i think the district court clearly and obviously erred in saying that this was simple excusable neglect and i'm asking that this court reversed the district court's denial of the rule sixty b correct your honor absolutely and i believe the supreme court has said has said where it is clear but it's clear to this court that that the neglect here is is not just simple neglect it's agree just and it's