[00:00:03] Speaker 02:
Good morning and welcome to the Ninth Circuit sitting in Phoenix.

[00:00:08] Speaker 02:
I'm Bridget Beatty.

[00:00:09] Speaker 02:
I have my chambers here in Phoenix.

[00:00:10] Speaker 02:
I'm very pleased today to be joined by Judge J. Bybee and Judge Richard Clifton who are from Las Vegas and Honolulu respectively.

[00:00:21] Speaker 02:
This morning our first case is submitted on the briefs.

[00:00:24] Speaker 02:
The second case is Gladys Perez versus Dwight Nevin.

[00:00:30] Speaker 02:
Counsel, when you're ready.

[00:00:32] Speaker 00:
Thank you, Your Honor.

[00:00:34] Speaker 00:
Good morning and may it please the court.

[00:00:35] Speaker 00:
My name is Amelia Bizarro and I represent the appellant Gladys Perez.

[00:00:40] Speaker 00:
I intend to reserve two minutes for rebuttal.

[00:00:43] Speaker 00:
Gladys Perez filed her petition late as a result of attorney, I'm sorry, her attorney's abandonment and prison interference.

[00:00:52] Speaker 00:
Throughout her ordeal, she was diligent.

[00:00:54] Speaker 00:
As a result, she's entitled to equitable tolling.

[00:00:57] Speaker 00:
We are asking this court to reverse the lower court's decision dismissing her case on timeliness grounds and remanding for further proceedings.

[00:01:06] Speaker 00:
Alternatively, we're asking this court to remand for an evidentiary hearing so that there may be factual development.

[00:01:12] Speaker 04:
Well, the latter request, I saw it mentioned a few times in the briefs, but I don't see anything identified as an issue that the denial of an evidentiary, excuse me, my voice is rocky today.

[00:01:24] Speaker 04:
that there was an abuse of discretion in denying you an evidentiary hearing.

[00:01:28] Speaker 04:
So how is that issue before us?

[00:01:30] Speaker 00:
Your Honor, in the answering brief, the state alleged factual disputes and in the reply brief, we discussed that if those factual disputes are in existence, then an evidentiary hearing is warranted.

[00:01:40] Speaker 00:
It's our position that on the briefs here today, this court can find that Gladys meets the test for equitable tolling and can simply remand the matter for further proceedings.

[00:01:49] Speaker 00:
At the motion to dismiss stage, the case was litigated on several different grounds, but the court resolved the entire case only on timeliness, leaving other issues left to be resolved.

[00:02:02] Speaker 02:
So for an evidentiary hearing, it seems like the facts that you may wish to develop are with respect to the timing of the financial statement, is that correct?

[00:02:12] Speaker 00:
That's correct, Your Honor.

[00:02:13] Speaker 00:
And there is documentary evidence in this record in support of Gladys's position, but

[00:02:18] Speaker 00:
It would be related, I think, to the law library generally.

[00:02:21] Speaker 00:
We provided decks from two people who helped her.

[00:02:26] Speaker 00:
It would be related to the, I think the state made a dispute about if she received notice of the decision and when, things of that nature.

[00:02:34] Speaker 02:
Okay.

[00:02:34] Speaker 02:
So with the financial statement though, I believe it's undisputed that she did file her petition on December 8th, which was a week late without tolling.

[00:02:45] Speaker 02:
and did not include the financial statement at that time, but instead submitted it about six months later the following June.

[00:02:51] Speaker 02:
Is that correct?

[00:02:52] Speaker 00:
That's correct, Your Honor.

[00:02:53] Speaker 02:
So why would discovery and developing a record on the timing of the financial statement make a difference?

[00:02:59] Speaker 00:
The financial statement, the delay that the prison caused in obtaining that documentation delayed her ability to file on timeout.

[00:03:06] Speaker 04:
But she filed.

[00:03:07] Speaker 04:
When she filed, she didn't submit a financial statement.

[00:03:09] Speaker 00:
That's right, Your Honor, because she requested it on November 12

[00:03:13] Speaker 00:
On November 20, she's told it was done.

[00:03:17] Speaker 04:
You're not focusing on the concern that I think Judge Beatty has expressed and I'm expressing, which is that she says she had to have it to file her federal habeas petition, but she filed her federal habeas petition without it and didn't submit a financial certificate for six months.

[00:03:34] Speaker 04:
I guess she didn't really need it to file the habeas petition after all, did she?

[00:03:38] Speaker 00:
She thought that she did need it.

[00:03:39] Speaker 00:
And when she didn't get it on December 1st, she decided not to wait for it.

[00:03:43] Speaker 00:
And she asked for an appointment at the law library to have an appointment to mail her petition.

[00:03:48] Speaker 00:
And she didn't have it by then.

[00:03:49] Speaker 00:
So she submitted her petition without it.

[00:03:51] Speaker 00:
I believe she filed a document in addition to the petition that explained she didn't have it.

[00:03:58] Speaker 00:
She had requested it.

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And once she received it, she would send it.

[00:04:00] Speaker 04:
So is there a reason she couldn't have sent that a week earlier?

[00:04:03] Speaker 00:
Because at the time she was under the understanding that she had to have it because if she didn't, her case would be dismissed.

[00:04:10] Speaker 04:
And her understanding had reason to change during that week?

[00:04:13] Speaker 04:
I mean, she said she had what you just told us is that she didn't have it so decided to send it anyway.

[00:04:20] Speaker 04:
And I don't know why that couldn't have been exactly what she did a week earlier.

[00:04:25] Speaker 00:
Your Honor, she was just following the steps that she thought she needed.

[00:04:28] Speaker 00:
So the request for the financial certificate she did before she requested the appointment

[00:04:33] Speaker 00:
mail her petition.

[00:04:35] Speaker 02:
But is her mistaken belief about requirements a basis for tolling?

[00:04:40] Speaker 00:
Yes, because this court... But why?

[00:04:42] Speaker 02:
I mean, so we've got to... There's got to be diligence, and she could have investigated whether the financial declaration was required and determined that earlier.

[00:04:52] Speaker 02:
And it has to affect her ability to file, and here it clearly does not... It doesn't seem that it did so.

[00:04:58] Speaker 00:
She did investigate it, and her determination was that she needed it.

[00:05:01] Speaker 00:
So that's the premise that she started from.

[00:05:04] Speaker 02:
OK, I understand that.

[00:05:05] Speaker 02:
But so what you're asking us to conclude is that if a person mistakenly reaches a conclusion about a filing requirement, that that is sufficient for tolling.

[00:05:14] Speaker 00:
I'm asking the court to consider the reasonableness of her actions and whether she was diligent and whether or not it was reasonable for her to request the financial certificate for that delay to be an impediment and cause her delayed filing.

[00:05:28] Speaker 03:
Counsel, you had a hearing at which Mr. Whipple testified.

[00:05:32] Speaker 03:
Did the district court make any findings of fact against your client?

[00:05:36] Speaker 00:
He did not, Your Honor.

[00:05:37] Speaker 03:
So he gave her the benefit of the doubt as to everything.

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And I will just clarify that yes, he did.

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And that hearing was about Mr. Whipple's failure to comply with several court orders and subpoenas.

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The primary discussion was related to

[00:05:52] Speaker 00:
what was in his file and how we could gather information and support to the limited discovery we had been granted.

[00:05:57] Speaker 00:
Mr. Whipple did speak, however, on whether or not he filed a notice of appeal, which he could not recall.

[00:06:03] Speaker 00:
That makes Gladys's contention uncontested that she asked him to file a notice of appeal.

[00:06:09] Speaker 03:
He suggested at one point that he wasn't sure that she wanted to appeal.

[00:06:13] Speaker 00:
That's right, Your Honor.

[00:06:14] Speaker 03:
Does that make any sense?

[00:06:16] Speaker 00:
It doesn't make any sense, Your Honor, thank you.

[00:06:17] Speaker 03:
It didn't to me.

[00:06:19] Speaker 00:
Particularly in state post-conviction proceedings, to have a denial of a state post-conviction petition and then not appeal is extremely rare.

[00:06:28] Speaker 00:
If there were legitimate claims to litigate in a post-conviction, there would be claims to litigate on appeal.

[00:06:33] Speaker 00:
And Gladys told him before the petition was denied that she wished to appeal.

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And we know it was before it was denied because she never spoke to him after.

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And he had a duty there.

[00:06:44] Speaker 02:
So what happened was they didn't file the appeal.

[00:06:47] Speaker 02:
And so the time for her federal habeas petition began to run sooner.

[00:06:52] Speaker 00:
That's correct, Your Honor.

[00:06:55] Speaker 02:
OK.

[00:06:56] Speaker 02:
four months or so after she determined that Mr. Whipple wasn't going to file the petition she wanted him to file to prepare her petition?

[00:07:03] Speaker 00:
She filed her federal petition within four months of finding out or at least not waiting to find out if Mr. Whipple had in fact appealed or not.

[00:07:12] Speaker 00:
The last time she spoke to anyone at Mr. Whipple's office was August 6th and she filed her petition by December 8th as it were, but it was ready to go in

[00:07:22] Speaker 00:
mid-November, that's where the financial certificate delay, I think, plays a role in the prison interference there.

[00:07:29] Speaker 00:
Had she also, I would point out, filed her state post-conviction petition within three months of the conclusion of her direct appeal.

[00:07:35] Speaker 00:
So she was on it, Your Honor.

[00:07:37] Speaker 00:
She filed that within three months.

[00:07:38] Speaker 00:
She got this petition filed within four months.

[00:07:41] Speaker 00:
If she had any notice earlier, she would have also filed her federal petition earlier, and it would have been on time.

[00:07:48] Speaker 04:
What was her understanding about the deadline?

[00:07:51] Speaker 04:
Did she know that December 1st was a significant date?

[00:07:55] Speaker 00:
She did not, Your Honor.

[00:07:56] Speaker 00:
She, I don't think, knew exactly what the deadline was, just that she needed to get it in as soon as possible.

[00:08:02] Speaker 00:
There's no information in this record about what her understanding of her timeline or what her deadline was.

[00:08:07] Speaker 03:
So the actual data, the data actually was due, it was December 1st.

[00:08:11] Speaker 00:
That's right, Your Honor.

[00:08:11] Speaker 03:
She files it on the 8th.

[00:08:12] Speaker 00:
That's correct.

[00:08:14] Speaker 00:
And if I may, I'm right at the two-minute time.

[00:08:17] Speaker 00:
I will reserve the remainder for rebuttal, unless there are more questions at this time.

[00:08:21] Speaker 00:
No, thank you.

[00:08:22] Speaker 00:
Thank you.

[00:08:39] Speaker 01:
Good morning, Your Honors, and may it please the Court, Jamie Stills, Senior Deputy Attorney General on behalf of respondents that believes in this matter.

[00:08:46] Speaker 01:
Respondents asked this court to affirm the decision of the district court and hold that Perez is not entitled to habeas relief due to her untimely petition.

[00:08:54] Speaker 01:
In 2006, Perez allowed the murder of her three-year-old daughter CF.

[00:08:58] Speaker 01:
After tossing CF's body in a dumpster, Perez and her boyfriend fled Las Vegas with their other children.

[00:09:03] Speaker 04:
The facts are surely horrendous, but that doesn't really speak to the issue before us, does it?

[00:09:08] Speaker 04:
The timeliness of her filing?

[00:09:11] Speaker 01:
Just set in the stage, Your Honor.

[00:09:12] Speaker 01:
I'll move on to the pertinent timing.

[00:09:15] Speaker 04:
question here because she files what turns out to be seven days late in a context where she, there's nothing in the record that indicates she knew that December 1 was a magic date.

[00:09:27] Speaker 04:
Why wasn't her effort sufficient to qualify for equitable tolling?

[00:09:33] Speaker 01:
Well, Your Honor, just to set this in context, so after her conviction and her direct appeal, she had sought state habeas relief.

[00:09:40] Speaker 01:
As this court knows from the record, the state court denied her petition on December 5, 2013.

[00:09:45] Speaker 01:
Her Edput clock resumed running on February 25th, 2014.

[00:09:50] Speaker 01:
So she actually had a grand total of 200... Did she know that?

[00:09:54] Speaker 01:
The record's not clear when she knew exactly, but she was aware that the state district court had denied her petition.

[00:10:02] Speaker 04:
She was present at the... But she was not aware that Mr. Whipple had not filed an appeal to the Nevada Supreme Court.

[00:10:08] Speaker 04:
Is that correct?

[00:10:10] Speaker 01:
Your Honor, the record's not clear when she knew or did not know about Mr. Whipple's filing or lack of filing.

[00:10:17] Speaker 01:
What the record does reflect is that she was present for that hearing, and then the state district court sent her a notice of the entry of the order advising her that she had 33 days remaining.

[00:10:28] Speaker 03:
But the oral denial was on December 5th, 2013.

[00:10:31] Speaker 03:
So she might reasonably have thought that she had a year, which would take her to December 5th of 2014, which means that this would have only been three days late.

[00:10:39] Speaker 01:
That would not have been a reasonable assumption because Ms.

[00:10:42] Speaker 01:
Perez waited three months before filing her state habeas petition.

[00:10:46] Speaker 01:
So she knew that some portion of her clock had already begun to run before.

[00:10:50] Speaker 01:
That would not have given her a full year after her denial of her state habeas petition.

[00:10:54] Speaker 03:
She also doesn't get the written order until January.

[00:10:58] Speaker 01:
Correct, Your Honor.

[00:10:58] Speaker 03:
The written order came in and then she... These rules are very, very difficult to follow.

[00:11:03] Speaker 03:
And they're difficult even for those of us who've worked in this system for a while.

[00:11:07] Speaker 03:
So trying to figure out precisely when your clock starts and when your clock stops is not an exact science.

[00:11:15] Speaker 01:
Absolutely, Your Honor.

[00:11:16] Speaker 01:
It's not.

[00:11:17] Speaker 01:
But the problem is that the case law says that a miscalculation or an error on the part of either counsel or the petitioner herself

[00:11:26] Speaker 01:
as far as her timing, her deadlines, what she needs to file when.

[00:11:30] Speaker 03:
But the cases also say that you're entitled to equitable tolling if you've been abandoned by your attorney.

[00:11:35] Speaker 03:
Is there anything here that suggests that Mr. Whipple did not abandon her?

[00:11:40] Speaker 03:
Diligence is a different question.

[00:11:42] Speaker 03:
But at least as to abandonment, is the state going to concede that she was abandoned?

[00:11:45] Speaker 01:
No, Your Honor.

[00:11:46] Speaker 01:
The state doesn't feel that Mr. Whipple abandoned her.

[00:11:49] Speaker 01:
The record does reflect that Mr. Whipple did send her some sort of mail in January.

[00:11:53] Speaker 01:
Obviously, Ms.

[00:11:54] Speaker 03:
Perez contends that... There's no record, though, of him sending her anything that would say, I'm not going to represent you, or I have filed this on your behalf, or I'm not going to file this on your behalf, or I'm not filing this on your behalf, and here's the deadlines you have to satisfy.

[00:12:10] Speaker 03:
There isn't anything in this record, is there?

[00:12:12] Speaker 01:
No, you're right.

[00:12:13] Speaker 01:
Mr. Whipple did testify that he believed he had had a conversation with Ms.

[00:12:16] Speaker 01:
Perez

[00:12:17] Speaker 01:
that she had not indicated whether or not she actually wanted him to file an appeal.

[00:12:21] Speaker 03:
Yeah, although the claim that he doesn't know whether she wants to appeal just strikes me as utterly absurd.

[00:12:26] Speaker 04:
Understandable, Your Honor, and the problem with that... Well, if she appeals, then the federal clock doesn't start running, does it?

[00:12:34] Speaker 01:
It doesn't, but what this Court has found before is that there's not actually a causal connection, because there's asked to be a causal connection between the attorney's so-called abandonment and the actual

[00:12:47] Speaker 01:
deprivation of ability to file a federal habeas petition.

[00:12:50] Speaker 01:
And there's just no causal connection between those two things.

[00:12:53] Speaker 03:
Is that because she figured out by about August that he wasn't going to do anything for her, so she still had a couple of months?

[00:13:00] Speaker 01:
Well, that's one of the reasons.

[00:13:01] Speaker 01:
The first reason really is just that there is no right to state habeas, to post-conviction state habeas counsel, right?

[00:13:08] Speaker 01:
So any kind of mistake or neglect or issue on behalf of state post-conviction counsel, it simply doesn't amount to

[00:13:17] Speaker 01:
a mistake, warranting equitable tolling because you're not entitled.

[00:13:21] Speaker 01:
If you're not entitled, if you don't have a constitutional right.

[00:13:23] Speaker 04:
You just agreed with me that if Mr. Whipple had filed the appeal, the federal clock wouldn't start running.

[00:13:32] Speaker 01:
Yes.

[00:13:32] Speaker 04:
To tell me that she didn't have a right to him as an appointed counsel, but Nevada provided anyway.

[00:13:43] Speaker 04:
Well, that doesn't tell me that the clock should start running anyway, because you just acknowledge if he'd filed an appeal, the clock wouldn't have started ticking.

[00:13:52] Speaker 04:
So I'm having trouble understanding what the point of this argument is.

[00:13:55] Speaker 04:
I understand perhaps she doesn't have a right to post-conviction counsel appointment, but if Nevada did appoint somebody and that somebody doesn't file the appeal she anticipated, how is she to blame for that?

[00:14:10] Speaker 01:
So what I'm trying to explain is that there's no post-conviction right to counsel.

[00:14:14] Speaker 01:
So even though there is a theoretical delay to the EDPA clock resuming, what this court has found, and if we look at Miranda v. Castro, this court has found that there's not a causal connection between the

[00:14:28] Speaker 01:
issues associated with an appeal, with counsel filing an appeal or not filing an appeal, and the actual EDPA clock.

[00:14:37] Speaker 01:
So the state court proceedings are separate from the federal court proceedings.

[00:14:41] Speaker 01:
So if an attorney doesn't file... Except the clocks are connected.

[00:14:45] Speaker 01:
In theory, yes, but what this court has found is they're not actually connected.

[00:14:49] Speaker 01:
There's not a causal connection because Perez was not prevented from filing her federal habeas petition.

[00:14:55] Speaker 03:
If Perez was confused about what was going on with her state appeal, she could have filed a protective... If she's been misled by her attorney, if the state has provided her an attorney and she's calling the attorney and trying to get his office to respond,

[00:15:07] Speaker 03:
If he were telling her during this period, oh, I'll file it, I'll file it, I'll file it, your argument is, well, she can't rely to her detriment because she's not entitled to the counsel in the first place.

[00:15:19] Speaker 01:
If Mr. Whipple had been telling her that he was filing the appeal, that would be an entirely... She can't get any communication at all from him.

[00:15:27] Speaker 03:
And she has difficulty getting her records from him.

[00:15:29] Speaker 01:
So at that point, it's incumbent upon Ms.

[00:15:31] Speaker 01:
Perez to then diligently attempt to ensure that her federal rights are being protected.

[00:15:36] Speaker 01:
And there's simply no record that Ms.

[00:15:38] Speaker 01:
Perez wasn't trying to ensure that her federal rights were being protected.

[00:15:42] Speaker 01:
There's no record that Ms.

[00:15:43] Speaker 01:
Perez was contacting the state court regarding the status, the state district court regarding the status of her appeal or lack thereof.

[00:15:51] Speaker 01:
She did not contact the Nevada Supreme Court to try and ascertain the status of this supposed appeal.

[00:15:58] Speaker 01:
There's no record of any letters being sent to Mr. Whipple's office.

[00:16:02] Speaker 01:
There's simply a lack, and there's not even any request for an appointment with the law library to do any research about the status of any of this.

[00:16:09] Speaker 01:
So the problem is that Ms.

[00:16:10] Speaker 01:
Perez just wasn't acting diligently to find out what the status was if she really did believe that an appeal had been filed on her behalf.

[00:16:18] Speaker 01:
So you just mentioned the library.

[00:16:20] Speaker 02:
So that raises a question for me.

[00:16:22] Speaker 02:
In your briefing, you argue that

[00:16:25] Speaker 02:
The reason the financial declaration or statement was delayed is because it was returned to Ms.

[00:16:31] Speaker 02:
Perez because she did not sign and date it.

[00:16:34] Speaker 02:
But the copy that's in the record is actually signed and dated.

[00:16:37] Speaker 02:
And the citation to support that statement is your brief in the district court.

[00:16:42] Speaker 02:
So what basis does the state have to tell us that that request for the financial declaration was not in fact signed and dated?

[00:16:51] Speaker 01:
Your Honor, there was an extra

[00:16:54] Speaker 01:
exhibit that was submitted at the district court level.

[00:16:57] Speaker 01:
And I apologize that it didn't make it into the records.

[00:16:59] Speaker 01:
I'd be happy to submit a 28J letter if that would be helpful.

[00:17:03] Speaker 02:
So what you're saying, you're asserting that this other document supports the notion that she didn't sign a date, the request?

[00:17:12] Speaker 01:
That's correct, Your Honor.

[00:17:12] Speaker 01:
And that was submitted to the district court.

[00:17:14] Speaker 02:
But you didn't notice that when you were filing your brief and you were just citing to your own earlier brief?

[00:17:19] Speaker 01:
I apologize, Your Honor.

[00:17:20] Speaker 01:
That was an inadvertent mistake that

[00:17:24] Speaker 01:
just seemed to slip through the cracks.

[00:17:26] Speaker 01:
But the more important issue really is just, regardless of whether or not she filled out that financial certificate, Ms.

[00:17:34] Speaker 01:
Perez is simply incorrect that she would have submitted her federal petition earlier if she had received that financial certificate in time, because what the record shows is that she requested an appointment, legal copies, and a brass slip

[00:17:48] Speaker 01:
because she wanted her petition to be sent out no later than December 5th.

[00:17:53] Speaker 01:
So Ms.

[00:17:54] Speaker 01:
Perez actually was the one who miscalculated her federal epic deadline.

[00:17:58] Speaker 04:
She would not... Well, how could she have known?

[00:18:00] Speaker 04:
I mean, I'm trying to figure out how somebody at her position could have figured out what that deadline would have been.

[00:18:07] Speaker 04:
I didn't find anything in the record that so she had calculated.

[00:18:12] Speaker 04:
She did seem to be moving quickly.

[00:18:16] Speaker 04:
But I'm not sure she knew what she was moving against.

[00:18:19] Speaker 04:
Is there anything in the record that does give us a better indication of what she thought the deadline was?

[00:18:24] Speaker 01:
Your honor, that's the most clear signal of what Ms.

[00:18:27] Speaker 01:
Perez knew the deadline was because she said she wanted it sent by December 5th.

[00:18:32] Speaker 01:
Unfortunately, she didn't request that until December 1st, and that's maybe late December 1st, since that wasn't, I see my time is up.

[00:18:40] Speaker 04:
We can keep you going.

[00:18:41] Speaker 04:
We can make you work overtime.

[00:18:43] Speaker 01:
Thank you, your honor.

[00:18:44] Speaker 01:
I appreciate that.

[00:18:45] Speaker 01:
So that that inmate request form December 1st was not even received by the prison until December 2nd, which indicates she probably submitted this late on December 1st.

[00:18:54] Speaker 01:
If she wasn't even requesting her petition be sent out until December 5th and she didn't submit that request until December 1st, that would indicate she did not think that her deadline was December 1st.

[00:19:06] Speaker 01:
And again, obviously, the EDPA deadline can be complicated, but what the court has said over and over again is that a miscalculation on petitioner's part

[00:19:15] Speaker 01:
is a bar to relief in the form of equitable tolling or statutory tolling.

[00:19:20] Speaker 01:
And there's just no indication here that Ms.

[00:19:23] Speaker 01:
Perez acted diligently when she at minimum found out September 14th of 2014 that an appeal had probably not been filed and then did not end up submitting or requesting her mail out of her federal petition until months later.

[00:19:39] Speaker 01:
And this court has said that in those kind of situations where a petitioner is concerned about their deadline,

[00:19:45] Speaker 01:
They need to move quickly.

[00:19:46] Speaker 01:
One of the cases that the court has seen, a petitioner found out that he may be at risk of losing his EDPA, his federal habeas rights, and moved to file a federal habeas petition the very next day after learning this.

[00:20:03] Speaker 01:
That was an example the court held of diligence.

[00:20:05] Speaker 01:
Here from September 14th of 2014,

[00:20:09] Speaker 01:
all the way until December 8th of 2014, that's simply not a case of diligence, even if this court were only to look at that timeframe, rather than the 280 days that Perez had in total in order to actually submit a federal habeas petition.

[00:20:25] Speaker 01:
Pardon?

[00:20:26] Speaker 02:
You're fairly far over your time, so if you want to just wrap it up, please.

[00:20:31] Speaker 01:
Yes, Your Honor, thank you.

[00:20:32] Speaker 01:
Just briefly, Perez did fail to meet the requirements for equitable or statutory tolling.

[00:20:37] Speaker 01:
to overcome this untimely filing that was caused by her own miscalculation of the deadline.

[00:20:43] Speaker 01:
Accordingly, respondents respectfully request this court affirm.

[00:20:46] Speaker 01:
Thank you, Your Honors.

[00:20:55] Speaker 00:
Thank you, Your Honor.

[00:20:56] Speaker 00:
Just briefly, she's entitled to rely on her lawyer.

[00:20:59] Speaker 00:
She had a lawyer.

[00:21:00] Speaker 00:
She's entitled to rely on her lawyer.

[00:21:02] Speaker 00:
She told her lawyer to appeal, and he didn't.

[00:21:06] Speaker 00:
From September to December is three months.

[00:21:08] Speaker 00:
That's diligence.

[00:21:09] Speaker 00:
That's reasonableness.

[00:21:11] Speaker 00:
That's her acting as quickly as possible.

[00:21:13] Speaker 00:
And she did make a lot of effort to find out what was going on in her case.

[00:21:18] Speaker 00:
She tried calling her attorney.

[00:21:19] Speaker 00:
She requested records.

[00:21:21] Speaker 00:
She filed a late notice of appeal in the state district court, which the district court decided just not to file at all.

[00:21:27] Speaker 00:
And it never made it to the Nevada Supreme Court so that that court could intervene.

[00:21:31] Speaker 00:
This isn't about a theoretical delay, it's about actual delay that was caused by her attorney's abandonment.

[00:21:38] Speaker 00:
Accordingly, we think that there is plenty of evidence in this record to demonstrate her equitable tolling.

[00:21:46] Speaker 00:
I also just want to touch briefly on the fact that a dispute the state's claim that the court sent her the state post-conviction decision.

[00:21:55] Speaker 00:
There is no evidence of that in this record.

[00:21:58] Speaker 00:
But again, she was there at the hearing.

[00:21:59] Speaker 00:
It's not about whether her state post-conviction petition was denied.

[00:22:03] Speaker 00:
It's about whether her attorney appealed as she had instructed him to appeal.

[00:22:07] Speaker 00:
And this is about reasonableness.

[00:22:10] Speaker 00:
It's not about impossibility and being perfect.

[00:22:13] Speaker 00:
And three months is reasonable.

[00:22:15] Speaker 00:
We ask, Your Honor, to reverse and to remand.

[00:22:18] Speaker 00:
Thank you.

[00:22:19] Speaker 00:
Thank you.

[00:22:20] Speaker 00:
Thank you both, counsel, for your arguments this morning.

[00:22:22] Speaker 02:
They were very helpful.