please the court my name is amy know when and i represent the a talent joel patrick kenny and i would like to reserve two minutes for rebuttal first contrary to lower court's ruling mr kenny did petition in a timely manner and within the one year statute of limitations imposed by the a t p a and asked that the lower court should have breached the merits of his claims tell me if i've got something right about the time that period of the three and a half years is out his final conviction his conviction had become final forbore three of one thousand nine hundred seventy my right so far correct and it looks like it's federal petition was not filed until february seventh two thousand and two almost a year one week short of a year after his state petition and that is in accord with the arizona rules of criminal procedure rule thirty two point four which says that you have to first file a notice of post conviction relief and that notice was filed several times by appellant in this case but that ninety six one matter because he hadn't he didn't have a final conviction yet well your honor is our position that when that is filed the tolling period technically will not start that is correct intil actually the conviction and sentence became final on february third so when that became final on february third there was already petition for post conviction proceed ings initiated which under arizona law does not prevent both having a direct appeal and a petition for post conviction really file at the same time so that was already filed so when his conviction and sentence became final on february third of one thousand nine hundred seven then there was no tolling seven in fact in the lower court although it did not specifically rule whether it was the notice or the actual petition that starts the tolling period under the p a it went ahead and went with the notice and assume it's the notice and i think that is  accord with the case because you do look at the state perceived years so really the period that we're looking at is from the time that his conviction and sentence became final on february third of one thousand nine hundred seven up until the notice was filed so the issue is when the to wait for his appeal to be finished and that was actually just missed in february one thousand nine hundred six by the court well presume then the post conviction proceedings were reinstated on by the court on november fourteenth  seven at that time presumably the state did not receive notice of the dismissal because the state filed a subsequent supplement to their motion to dismiss even though the court had already dismissed the previous one and reinstated it so what the court did in that order is denied and this is the november fourteenth one thousand nine hundred six order denied the state's motion as milt saying i already dismissed this one i green staging post conviction proceedings but after that order of the state filed a supplement and the state in that supplement the state specifically said states most and this is you are thirty seven in the record the state notice of february sixth one thousand nine hundred six which had already been dismissed so the only thing we can assume from that is that the state hadn't received notice of that dismissal i don't see why that's the only thing that we can assume to me the more obvious to explanation is court did everything fine everything went out fine and some file clerk guy didn't put it in the right file and the state attorney general's office or the assistant working on the case didn't look carefully at the file there are all kinds of explanations well correct here i stand corrected it what is reasonable to presume from that is the state if the state had received the notice and known that the previous notice the post conviction relief had in dismissed already it would not have filed a supplement asking the court to tell you that's what i was just dealing with they would indeed file a supplement if the person who was assigned to write the supplement  that's what the court was responding to in its january thirtieth order in one thousand nine hundred seven the court order says in response to the state's supplement a motion to dismiss we are just missing the petition the notice of post conviction relief but on january thirtieth it says the defendant may file another noticed within thirty days of the order and mandate in his pitch and mandate in his pending direct appeal in other words after the mandate issue the thirty days they could file and that's all another notice which is what monday had already issued back in november of one thousand nine hundred six so when this when the court was ruling on this in january thirtieth the court is looking at this supplement which does not have accurate information presented by the state to order mandate had already issued at that time and the court was looking at information dismissed in the february sixth one thousand nine hundred six notice so it boils down to the fact that at the time that this order came down on january thirtieth of ninety seven the court is assuming that the order mandate hadn't been or issued already which it had and it's also referring in response to the state supplement which is a completely different notice so at that time addressing that one the other reasons the other reasons that that gordon wind up with your time just ran out thank you judge for those reasons we would ask that you reverse the lower court's ruling please the court my name as any kane i am i represent the arizona attorney general's office for the respondents in this case mr kenny here filed his petition outside the statute of limitations and he's not entitled to any equitable tolling to make this very simple for the court i'm going to start with the easiest statute of limitation dates and that those dates on february fifteenth of two thousand and one when arizona supreme court denied review of mr kennedy with thirty two proceedings i couldn't hear  on february eighth two thousand and one and then your voice trailed off i just couldn't hear i'm sorry two thousand and one when the arizona supreme court denied mr kenney's rule thirty two proceedings and february seventh of two thousand and two  those dates equal three hundred fifty seven days leaving mr kenny only eight additional days in which to file his his petition in this case what happened was mr kenny was re but if that confusion existed why wait so long on the back end to file a petition instead take those twenty two confusing dates as mr kenny calls them away from the calculation and file the petition with three hundred forty three days left to file and that way you say mr kenny's petition is timely filed and you don't even have to go into any kind of confusion of the issues or the states and that's there is absolutely no confusion here