honor by turning to the issue of tolling and i'd like to direct my comments initially to the issue of statutory tolling it is the position of the appellant's that the most recent case of modern vs carry has applied paced clearly to california and has applied the timeliness principles as enunciated in pace to california the appropriate place i believe to start in that regard is to point out that both pace and the ponder case observed that it is necessary to look at the state rules regarding timeliness to determine whether the petition was final timely file been i believe the term that they use was imply a plea repealed but i think that it's quite clear from the bought her case that the voter court treated both saffold and the chavis case which i believe was argued on tuesday  wednesday of this past week before the united states supreme court as matters that were no longer appropriate from the standpoint of being binding precedent in this district well now on that point don't we have to wait it i would suggest however to the court that regardless of the outcome in chavis i believe as the court would note from the papers that i submitted which were submitted before the chavis case had been taken before the united states  supreme court that it's my view that the position will be the same regardless of the outcome and i'm going to ask opposing counsel the same question should we defer submission in this case until we hear from the supreme court and chavis or not what's your view oh darn i hate questions like that your honor i think the prudent thing obviously would be to defer but i don't believe the court needs to i would submit to the court that if the court wishes to be one hundred percent sure then perhaps farang might be more appropriate but i would again submit to the court that the court can go forward at this time on the strength of the banner case to decide this case but the chavis case is not precisely the same issue as no it is not your honor and i believe further that this particular case as i've indicated in my papers is unique and it's unique on some of the substantive issues rather than procedural issues but i think it also has certain uniqueness with regard to the procedural issues as this court knows the position that i have taken in this case is that pope which is cited in the footnote that was referred to in the harris decision and referred to by the superior court  time of its finding of an timeliness of the petition in this case that pope makes this particular case clearly untimely under the state rules and given that pope makes this case clearly untimely under the state rules i would submit to this course that it need go no further than pace and pace takes the position as the court well knows of saying that if cases untimely under state rules that quote is the end of the matter c me i have to confess we have a number of these cases on the calendar this weekend and there's a similar issue raised in another case that we're going to hear later in the week so if i've now got the two ca confused you'll have to excuse me but my question for you as what do we do with the ninth circuit authority that i dressed is the question of whether or not the rule has been consistently applied and in  non capital cases i would submit your honor that the the history of pope as applied by the state courts if one examines for example and i would be the first to admit that i did not give the court all of the state cases that i believe are supportive there are literally one hundred or more of them but in the cases that i have cited and in the procedure that has been followed in state courts consistently it has been the understanding of state practitioners since pope or before pope that it was necessary and in effective assistance of counsel cases to make a choice and that the choice to be made was made at the time of the filing of the direct appeal if the facts were outside the record but known to counsel at the time that the appeal was filed that did not happen in this case in this case the petitioner was faced with a clear choice he could either raise the end effect of assistance of counsel as part of the direct appeal relying on the facts then known in the record or he could file his petition simultaneously with the direct appeal because the facts were outside of the record thereby preserving the issue or he could do neither so let me make sure i understand your answer if the petitioner knows or through the exercise of diligence should know at the time that he is pursuing or should be pursuing his direct appeal that he might have an ineffective assistance of counsel claim it is incumbent upon him to either raise that on direct appeal or simultaneously file  facts that are outside the record of the direct appeal and he should prosecute it then rather than waiting to do it in a piecemeal fashion is is that your answer the answer is correct was one minor addition to what the court has articulated judged on and the pope rule is a i've used the term i believe highly specific in my papers the pope rule assumes that the facts are known to counsel even though they are outside of the record at the time of the filing of the direct appeal it is that which distinguishes it from the magistrates judge pardon me the magistrate judges reading of harris the magistrate judge in his findings recommendations reads only part of harris and does not read into his findings and recommendation that what that which pope makes clear and which harris clearly understands that pope makes clear and is this court noted in turn of the verses camp away what again the petitioner here was faced with was a clear choice the choice was either as the court has articulated making it part of the direct appeal or given the facts were known and there's no dispute about that in this case raising it by way of a petition filed in conjunction with the direct appeal petitioner here did neither and for that reason petitioner here should be allowed tolling under neither theory that is to say either statutory nor equitable telling and i'll address the equitable briefing in a moment your honor but i think that there are two other points that i would like to stringent limitation than the coat rule i don't think cycle which is the rule i think pope continues to be the rule but i simply point that out to the court to suggest that the idea of tolling is to go into a timely mode of the other point that i wish to make is that the pope rule is not significantly different than nor is the thinking behind the pope rule significantly different than the sta procedure that is suggested both by pace and adopted i would suggest by this court in bottom the idea being that if you believe that there is a possibility that you may be faced with a change of law or there is quote some uncertainty in the law the idea of a preventative havey is filing with a stand of bans a procedure that allows you to exhaust and that allows you to preserve in effect the time praying should be done i would suggest to you that pope which gets back to the idea of an orderly and prompt manner of raising and bunching for lack of a better word these issues is precisely the same as suggested by the court the supreme court in pace and this court in bonn or if i may or i'd like to move briefly to the issue of whether equitable tolling is available in this case i would suggest that is not the reason that i believe equitable tolling is unavailable in this particular case your honor is that we are looking at several questions first as the court knows at footnote eight page eight hundred fourteen of the supreme court advance opinions in the pace case the united states supreme court observes that it has not yet determined the issue whether equitable that that issue does seem to be out there somewhere in the ozone i guess would your position be that that well that may be well and good for the ninth circuit to declare that but it would not be unreasonable for california courts to refuse to extend the doctrine so in the absence of supreme court i think terminations of that issue i think the judge tolman that a very good argument could be made based on that portion of pace that i've just finished speaking about con in the context of  example the paste suggestion that you filed what i'm going to refer to is the defensive pay vs corpus read or protective or protective if that procedure were filed followed if the pope procedure were followed in the state court there would never be an equitable tolling issue so i think that you could make a clear argument that a logical extension of pace when faced with an appropriate case by the united states supreme court would be to conclude that if  as the court has strongly hinted that protective filing is made there would be no need for equitable tolling principles to be applied i of course would be the last person to disagree with the  i think the equitable tolling here is not available i appreciate that counsel have cited those cases that talk about if you know if it was available on some theory that was directly or squarely raised in the court below but not relied upon that it could be used by this court i think realist answers that question i think rios is quite clear in suggesting that if it was not a ground upon which the district court relied it is not a ground that this court might rely on and i would suggest further that if one examines this particular case and examines the findings of the recommend and recommendations of the magistrate judge with regard to the motion to dismiss what the court will find is that the magistrate judge focused exactly on that period of time that as a result of sappho old as recognized by bonn or isn't the germane period of time that your main period of time would be the period of time that the state court focus on which is the period of time before the filing of the state petition in the state court not on the filing of the state hey vs i'm sorry the time between the the finding the judgment and the filing of the state b s not just on the time the state habeas was pending and i think that rios is clear in that regard your honor oh i'm sorry you indicated you were going to reserve some time for i did love this may be a good time for you to to do that an excellent point your honor thank you very much pace clearly applies to the ninth circuit and specifically california timeliness rules now we're all aware that wagner v kerry which was recently decided by this court  applied pace but there are a few problems with that decision which need to be made clear in this case when pace was  or requested supplemental briefing on pace the counsel for the petitioner in that case submitted to letter briefs which were about three pages of piece submitted are not the clear cut clearly defined statutory jurisdictional time limits which were present in the pace case we just second i mean that the principle of peace unless i'm missing something is the declaration by the supreme court that timeliness is a condition to a properly filed hey b s application is that not that's exactly right and so why wouldn't it apply i mean i understand the particular problem with california having  little original jurisdiction at each level of its court system for filing original hideous corpus petitions but i'm not sure i'm following your argument as to why that pronouncement by the supreme court would not be a political will in the ninth circuit as well as every other circuit in the country well and again i just say i have the same concern and i don't understand your banner argument pace is there a supreme court of the u s voter simply apply place to that case and i mean are you asking us to revisit baan or and overrule a prior decision of the no actually your core before i get to the other point specifically to that point we're not asking that you  revisit boehner but so this court knows it was never briefed whether the issue that we're discussing whether pay should actually apply and our position is that it is not as clear cut as it certain agencies will be asking leave the court to file amicus brief thing which is what should have been done in the first place and bother the court was ruling upon an issue which it had really no  briefing and so they can be so maybe we will grant rehearing either panel or en banc rehearing and maybe you'll get some relief there but what do you do with the state of the record with richardson you've got a plymouth county superior court finding relying upon the supreme court that says i find this petition was untimely that and why shouldn't we apply that factual finding and then look at the supreme court decision and say untimely not properly filed dismissed well that's that if that were the case if those were the facts that we're dealing with it would be a much easier and more clear cut decision but that's not what we're dealing with the pope rule that respondent has been relying upon is clearly there is no rule there  he referred to over one hundred cases which cite two people the pope well let me ask you this is your concern more with the fact that california has this general reasonableness requirement as opposed to a three hundred  sixty five day deadline like congress said that's that's problem that's clearly one of the problems there is no statutory jurisdictional time limit as they had in pennsylvania in pace which said you know you have one year from the date of the finality of your conviction to file hideous corpus or post conviction petition we do not have that especially in non capital havey is just so what is your position then that unless the legislature or i guess you could have it judicially created although that probably that that's a separate problem but amorphous reasonable diligence standard you're not dealing with something that the petitioner has notice of ahead of time that i have one year from this date to file a petition it's rather i have to be reasonably diligent and i may be found to be timely i may be found to be untimely and what we get to is that there's no safety valve protecting a petitioners right to federal review of his conviction as  shaver's followed in declaring that what we can't say that it's not properly filed if it hasn't been adjudicated as untimely at the time that it's filed and therefore it's pinned within the meaning of  to wait for the supreme court to decide chavis because we don't have a clear cut application of paste or banner because we don't have a timeliness ruling in the we should wait for a banner to be considered in terms of the petition for rehearing well again might my position or our our position is that there is no application of monitor or pace to our situation because there was no clear ruling in the trial court the only reason to opinion that we have to look at because both the california supreme court and the court of appeal just denied the petition on the merits the trial court simply denied on you know ray harris saying that and i see claim finding and one that we assert is neither adequate nor independent to bar federal havens corpus review but that's a separate issue but that gets back to the problem the supreme that is implicit in that in the superior court decision though is a determination that your client was not diligent in pursuing his eye he claimed that that he knew enough facts to have included the claim in a direct appeal and for whatever reason failed to do so and apparently did not give the superior court just cause for why he waited why in turn sent an untimely notice the term about the careful word that you chose there is  timely what's the reason for the court's ruling pace did not overrule our tuesday bennett which are tuesday bennett said a procedural bar is something that's applied claim by claim that something that does not  are conditions to filing in california when you are time barred that's something that is applied claim by claim why would piss need to overrule our tos versus bennett is i remember the rule and then if the question was whether or not the heaviest application is properly file that's what the supreme court was deciding in bennett and in pace it declared that an untimely petition is not properly filed that's the same thing as failing to deliver the papers to the court clerk on time or failing to pay the necessary filing fee it's a condition to a properly filed habeas petition so why are you surprised that the supreme court didn't overrule our tos versus bennett when all it seemed to be doing was explaining further what the term properly filed me because some are arguing that the procedural bar the time bar that is  common in california hey b s petitions should be perceived as a time limit or a conditions of filing as was decided about the pennsylvania time when the statute in pace are to use the bennett spoke of procedural bars being conditions to obtaining relief as opposed to conditions to filing a petition so is there any theory at all under which there was i mean there are no hard and fast rules of the type that were discussed in pace and that's why pace should not apply and that's why we believe bonner did not have the you know the proper briefing before to really measure the issue and then what law are the california state courts applying when they determine that the petition was too late diligence requirements are what they are going back to in raceway in and more recently in clark and robin's which of course were capital cases but they look at whether or not you were diligent in pursuing the investigation presentation of your claims but that's a wholly separate from what court was dealing with and when a court a state court so determines as a deal here what is the role of the heaviest petition at that point as the state court decided claim as opposed to an untimely death bar and other words he should have raised that on direct appeal because he had sufficient facts to know we had a claim but because he didn't he's waived the claim it's essentially a procedural bar that can be looked at as as a waiver but it does not act as a it's not untimely what is it i mean it seems to me it has to be one or the other if and i think your position is that the court must have simply declared that he did that he just to have complied with them terrorists came down i believe two months following the filing of his opening brief and then duvall and romero were two and three years later so clearly the and i believe  what happened was the respondent was relying upon that in its briefing as why the claim should be procedurally barred and the trial court just adopted those cases as the procedural bar but again our argument is that that's not going to a time limit that's going to whether or not you can obtain relief under a state procedural bar does it make a difference as to whether one may be an affirmative defense that the state has an obligation to raise versus a jurisdictional bar which i think that is an important point and again comparing the pennsylvania statute to the california  sort of judge made rules about diligence you know i think that is a distinction and just as an aside we are aware that in if you review the briefs  were filed in the supreme court apparently the office of the attorney general has requested that the california supreme court come up with a more defined timeliness rules so that we don't have these problems but it would certainly make our life a whole lot easier if we had i think maybe add but i will leave that to you i think you would make everyone's life easier but apparently they've responded that that's something for the legislat of course will be brought up in the petition for rehearing in that case but varner violates the ninth circuit precedent because it's a three judge panel opinion which overrules prior ninth circuit precedents such as what do you say it overrule return to the ninth circuit and opinion i believe you authored now i think the each of those opinions dealt with  whether or not the lack of diligence finding from the state court is an explicit whether or not that's a procedural bar a condition to obtain relief or a a condition to filing and all of those will now go out the window from a nother three judge panel decision in which there is no direct explicit ruling from the u s supreme court which undermines those decisions and that's something that th and i believe they asked for more time and it's due in about a month so that that's one of the points i believe they'll be making besides that i believe it was barner was both factually and legally wrong ruling that it was untimely which is what pace requires but again it was more of a successive procedural bar which under our tuesday then it wouldn't affect the tolling but aside from the  the misinterpretation of the bar at issue is the fact that there was this other petition that was never procedurally barred or considered to be improperly filed so under under the facts pace never should have been considered at all in bonn or in addition i believe binder because there was no briefing on  california's timeliness rules or diligence requirements i think that's really what needs to be examined carefully before this court can make a decision about whether or not pace could apply to such a more of  against right to federal hate that he views corpus review you could file a protective petition with the district court concurrently with your filing in the state court that way if you're unclear about whether or not you'll be eventually rule to be untimely in the state court then you've got this protective petition that is holding your place in federal court that doesn't work in mr richardson's case neither would it have in mr bonders case because all that we know from the supreme court under ryan's v weber is that now we are petitioners are allowed to file a mix protection in federal court which can be held in abeyance something that has been available in the ninth circuit for some time although the ninth circuit precedent always allowed holding a fully exhausted petition in abeyance and the difference is in runs we were they allowed for the mix petition to be held in abeyance i'd like to begin if i may with the last point that counsel made i believe counsel with all due respect misapprehend what i was suggesting to this court counsel suggest that in mr richardson's case there was no way that he could have protected himself because he would have had to have filed a federal hate because that's not correct mr richardson had the ability to do precisely what is suggested in pope and that is to at the same time he filed his direct appeal file a state hey b s petition that is the appropriate procedure mentioned in polk for the very good reasons policy wise as i suggested in my initial comments to this court that the protective procedure is mentioned both in pace and in bonn or i would also like to talk if i may briefly about the what i'm going to call the non existence theory the idea that pace is out there in the ozone that monitor really talked about it but because they're going to file a petition for rehearing my gosh pace doesn't really count i'm sorry i can't subscribe to that the simple fact is that when one talks about the monitor decision i don't have before me anything that talks about this rehearing that is going to be filed the bought a decision on its face seems quite clear to me the monitor decision on its face says as does pays that a time limit regardless of its form whether it is statutory whether it is procedural that is to say has grown up because a judicially made law and an understanding by counsel practicing in front of the particular court system at issue whether that is an appropriate rule to apply counsel suggest that the pope rule was first didn't harris the court examines the record of this matter and i will supply the particulars citation from the clerk's record to the court the court will find that in the briefing before the superior court i offered hope to the court on a timeliness ground the court chose to cite harris which cites both the court in the superior court that is to say made it abundantly clear that it was s cited by counsel in their supplemental authorities and by the way i would deserve for the record counsel deserves credit for notifying me of the supplemental filing i was able to look at the cases last evening i appreciate councils courtesy of the court should know rita the issue i think was correctly laid out and that is that if one panel is faced with a set of facts or legal principles and there has been no intervening united states supreme court authority that changes or modifies then indeed one panel may not overrule another i would submit that that is really the nub of the issue that counsel for app with regard to pace that is the nub of their problem pace is an intervening united states supreme court opinion dealing expressively with timeliness and finding that any timeliness rule regardless of its form and the pope form has been around to address the last point that i wish to address that hell he made pope has been around for a long time all of the cases i have cited in the briefing the numerous other cases come from the time period of po dates i never can keep that straight i have politest of the court which predates this court's ruling in the superior court it is clear that all of the cases that i have suggested to this court offer to this court in which it says time and again counsel filed a petition in conjunction with or at the same time as he or she filed their direct appeal clearly indicates that the understood rule of practice in the state of california was that the two would be filed in conjunction with one another as pope indicated when the facts were known when they were outside the record and when the issue  ineffective assistance of counsel i think that the turner case is clearly the compelling authority in this regard as this court noted there are two options one of the two must be exercised by the litigant if neither exercised the lit t has exposed himself as was the case here with mr richardson to a finding that his filing later is not timely or appropriate and that lady that your honour's is the nub of the case and i would submit it to counsel as a practical matter what approach is to stay pending the outcome of the direct appeal i cannot represent and would not represent to the court that i am one hundred percent sure that all of the cases would reflect that but i would tell the court that i believe that is the overwhelming prevailing rule ok thank you counsel for the questions thank you case just argued will be submitted for decision