Let's versus Burrano. I raised my... All right, thank you all. Mr. Mills. May it please the court, Zachary Mills, for the Commonwealth of Pennsylvania. I would like to reserve three minutes for a bottle. Yes, sir. That's granted. Go ahead. As a preliminary matter, I'd like to address the standard of review. This court should be adopt when reviewing a district court signing of due diligence for equitable tolling of a ABS Corpus claim. So you've obviously taken a look at Macchinsky. And is that dispositive on this issue? Your Honor, I would say that it's not the mutian- mutian-ski court does not decide what standard of review to adopt because in large part, it wasn't necessary or dispositive to the outcome of that case. They ducked the issue, in effect
. Yes, Your Honor. Why should we duck it, too? I agree, Your Honor. I don't believe that the standard of review would be dispositive to the outcome of this case, even if this court had adopted a clear error standard, the district court should be reversed under that standard or under the no vote of the view. Well, let's answer this one. Why do you say even under a plenary standard that the district court should be reversed? That's easy to say, but what facts to have that are. As a matter of law, his conduct was not sufficient to show diligence. Your Honor, it's not so much the fact that we have as the fact that the appellate doesn't have. It was his burden to show due diligence, and for the period of time at issue, the facts are lacking. This guy, he was, you know, it's easy for us sitting here to say, well, you should do this and that. He was an isolated, he was in prison. He's a person of low water, apparently low mental capacity. And he got a jerking around the likes of which I've been in a attorney since August of 1958. There's almost a unique and well experienced. I've been waiting to ask this question, whether disciplinary proceedings filed against attorneys out of what has happened? You're on the news. You're on the news. They would they'd lift your ticket
. Your Honor, I'm not sure how directly I can answer that question because of the the secretive nature of the proceedings of the disciplinary board. What what I can say is the magistrate judge made a recommendation in a footnote as to what should happen with that attorney and the Commonwealth has followed through with that recommendation. Do you know, did anyone turn over the attorney's conduct to the Pennsylvania Discipline Board to answer that question directly, Your Honor? Yes. It's a common word. Oh, it has been turned over. Well, the other question I had, I had another question here. The magistrate judge will not, well, ultimately, of course, the order we look at, ultimately, we're reviewing is what a district judge does, although it could be adopting a magistrate judge's report. But the second order of the district court said, okay, I'm ordering you to allow him to appeal the underlying conviction going way back in effect to the beginning. Is that correct? I believe so, Your Honor. Is could the, now in fact, that did happen, didn't it? There wasn't appeal filed. Yes, Your Honor. And it's been stayed? Yes, Your Honor. The superior court upon the Commonwealth's motion stayed that in the interest of judicial economy pending out there. But I wonder when I read that, whether the district court could actually order the commonwealth to allow him to appeal. The reason I say it is this. In a traditional, habeas corpus case, if the petitioner convinces that magistrate judge or reference and then the district judge, or the district judge directly, that there's been a constitutional violation so that the conviction was unconstitutional, and that that person want not to be imprisoned by reason of the conviction
. The magistrate, the district judge does not order a new trial. What the district judge orders is that the defendant be given a new trial, the defendant be released unless he's given a new trial, usually in some period they sat maybe 180 days, whatever it may be. And sometimes then that gets stayed if there's an appeal. I understand that. But in other words, the court never orders a new trial. Doesn't it? Doesn't it order the release of the defendant? And if that's true, shouldn't the court have ordered his release on a theory that since he was unconstitutionally being held that any had a constant, now I know there are cases that say you don't have a constitutional right to appeal, but then there are cases that also say that if you appeals are allowed, then you would have that right. But shouldn't the judge have said, look, you have to release him unless you allow him to appeal. And they might not, they might say, okay, we'll release him. That does happen, by the way, in a new trial situation, person served, you know, practically the whole thing and they just drop it. But isn't the order wrong then? I'm not opposing the order on the matter. No matter, because in fact, he did appeal. Yes, Your Honor, he did appeal the Commonwealth complot, the order of the, the district judge and the relief granted was complied with. But in this case, nothing, no allegations there have, have better gone to the underlying conviction. Maybe I'm just saying. It's before, it's the end of the, the salient question is whether, whether there was diligence here. Let me ask you, the magistrate judge in the district court credited the petitioner with the, with those diligence
. Even under a plenary standard review, why should we, I mean, why should we think differently that he exercised? He, he testifying, he made all these efforts. Some people could, would believe them and some wouldn't. The district judge believed in, why shouldn't we believe in that he made these efforts? Your Honor, the credibility of the, the Pelleeps testimony is not in dispute. The Commonwealth is not disputing the efforts that he testified to. However, the exact issue is between February 2004 and April 2008, between the two letters that the Pelley wrote to the clerk of force office, asking about his case. Yeah, but, but, but, but, there's not been a chance to be. The petitioner says that although in between 2004 and April, although he had, did write any letters, there's nothing physical, he stated he made these efforts. He, he testified that between those two days he, uh, tried to get his dad in the wall. The, the district court credited that testimony. What do you have if this is a plenary standard of view? I'm not sure it's plenary or clear book record, but take it at, in a light most favorable to your position. You don't have a plenary standard of view. What do you have to gain say the truth of what the petitioner testified to? We aren't trying to pose what the petitioner testified to. So you acknowledge what he says is true? Yes, it's what he says is true, then has the proven due diligence. I would start you now. Uh, the due diligence is defined as reasonable diligence and reasonable diligence in this case for that four year period should be defined by what the petitioner was doing in his case before that period of time and after that period of time. What, what, what case with what? Just because he paid, he had physical evidence very preceding that period of time
. Doesn't mean he has to have the same evidence subsequent to that period of time. As long as he was making due diligence and we have to take a consideration that he, uh, he didn't have a hundred and eighty IQ. Uh, and he was not exactly sophisticated or well educated. I agree, Your Honor, and that was his status throughout the course of these proceedings. But in 2008, he filed a, he managed to file a pro-SAPC or at. Uh, and the question is why that didn't occur early, four years earlier in 2004. Why four years elapsed? Well, that's not the question. The question isn't why, why did it take him until 2008? The question is, is there evidence of reasonable diligence between 2004 and 2008? And if you look at the record, it seems to me. Um, number one, if you look at the lawyers testimony, the lawyer admits that he failed to keep records between 2004 and 2008. But he says he recalls that he called into 2005. The petitioner says he called throughout the period of time. He says that he was inhibited because he had moved three times to three different facilities during that 2004. 2008 period of time. He says that it was difficult to get a lawyer, so he's trying to get jailhouse lawyers during that time. He says he tries, he tried to get his father to visit the lawyer. So the lawyers testifying that during that period of time, uh, petitioners been in contact with him
. Doesn't have records, but that's consistent with the 2000 to 2004 period of time. Uh, the petitioner has mentioned many things that he's engaged in. I hesitate to say, but, you know, given his intelligence that's been alluded to and his other difficulties in moving around to different facilities, what, what more would we have wanted? You're on the actions, my position basically is the actions of the appellee during that period of time are not reasonable diligence because reasonable diligence should be viewed by what he was doing before. Well, remember, thanks. Thanks. Shouldn't we take into account that he's been lied to by his attorney and his attorney's lies in the period of time from 2000 to 2004, inform his actions between 2004 and 2008 and what I mean specifically is, if he's been told that everything is copacetic, well, probably the Newscope is static, but everything is good, so to speak, with your appeal. I filed it and so forth and he's been given other what we now know to be false assurances. Doesn't that speak to how often he'd be in touch with him and the kind of diligence that in other circumstances might seem wanting, but in this circumstance would not. Your honor in the letters from 2003, there is displayed an increasing suspicion of his attorney's assurances. And then in 2004, the appellee writes the letter to the clerk's office requesting a docket in order to see if his lawyer has in fact done what he had been promising. There's a note on that file saying that the docket was mailed and it was appellee's testimony that he did in fact receive that docket. And that docket is part of the record and that docket shows that after the petition was withdrawn in 2001, there had been no action in appellee's case at all. So the record shows, based on appellee's own testimony, that in 2004, it was brought to his attention that his lawyer had been lying to. How come you're arguing to us due diligence this year when this action originally was filed in the state court, DCRA, you'd ever raise that as it presents at all? It wasn't until the superior court raised it on the road and the court, but you'd ever even thought it was a defense. Your honor that was an oversight on the Commonwealth's part, under state law. Well, it's your main argument in front of us
. How could we say it's an oversight when this is your, this is your several argument here? And your honor, if that had been brought to our attention, that jurisdictional question of whether there was due diligence, the Commonwealth should have taken the position. It's the only issue in the case as to whether or not you get to appeal. And it's so significant at this time, it was, how come you'd ever even dreamt of it when it was in the DCRA mode? I can't answer that question because I wasn't involved with the case. Well, it would not be indicative of the fact that the had to have some feeling that what this guy did was, he was making a try for it, even though it was a very successful try, but he certainly was trying. What I can say, your honor, is that at all points in time, the Commonwealth has felt that the actions of a public council and his misrepresentations were indefensible and reprehensible and have never attempted to do this. Yeah, but that's an afterthought. Your original thought was to defend it on the merits and it was only when the superior court and state proceedings brought into your attention that you thought I'll adopt that idea. That's what it appears to be. You know, I wondered why you even appealed this case. If the facts were anything like you say they are in your brief, that is the facts of the offense. It looked like it was like more witnesses there than there were in this room as to what happened. It was a bar full of people, so I'm shooting kill them. Is that right? Yes, Your Honor, and I believe the defendant actually testified at trial that he was the shooter. However, because of the passage of time, if there would be some defect and I don't know of any that has been identified, but if this case were..
. It might be hard to try again. Yes. I understand that, but I mean on the record, but there won't be a trial again unless you get somewhere. I mean, none of this has anything to do with the merits of the habeas proceeding. It's only whether it should be heard. It was only whether or not he's entitled to an appeal in this proceeding that is not based as to the conviction and the slightest. I agree, Your Honor, but after the appeal is completed, his period of time for violent state, PCRA, will have been reset by the Nunkbrooktank appeal. Right. And then we'll end up litigating ineffectiveness of council claims more than 10 years after the trial. Well, I guess you're right. I can understand that. It just looks like a case that you usually don't get a murder with somebody with witnesses. Thank you very much. Mr. Ulrich, the act of crime is a court. Yes
. I'll just curious, Mr. Ulrich, what is the underlying basis for a habeas here? What are you going to do? If you ever, I mean, of course, you're going to try to win the appeal on the state court if we affirm. I assume. Well, I want to do that. What, what, what, hopefully somebody would. Yeah. Well, I don't know what to do. Somebody's going to try it. But of course, you might have no federal issue at all and still want to press the appeal. Could be some state issue for all we know. In state court, that would probably be correct. We don't really know. We don't know as we sit here today what the appellant issue would be on the merits. Correct. The breach has not been filed because of the state. That's correct
. That is an interesting point I hadn't thought of until your question that there might actually be a federalism issue in terms of the nature of the relief granted. But his petition for renovated his corpus did request the reinstatement of the appeal. So this is not the kind of a case where they say, okay, we were ordered to release him or grant a new trial. He got a four-year sentence. He's done three years. Let's just drop the whole thing. He got life. And he's fairly young, isn't he? He was. He's still by my standards. He's still pretty young. I'm very interested in the standard review. Since the, I don't know if I'm pronouncing it, the Chisky case, they kicked the can down the road. Don't tell a prior pal. I said that. Now, why shouldn't we give it another kick? Are we confronted with the necessity to resolve that question of law? Well, based upon the appellance challenge, I think the court is, it's our position that appellance are challenging the factual findings and footnote six of the report and recommendation. In other words, whether there was adequate documentation to support a finding of reasonable diligence. As a challenge to the adequacy of factual findings, typically the standard is clear error. I think Judge Smith's reasoning in the, in the human Chisky case, albeit in dicta, is correct. That's typically how these, these issues are handled. It's not certain it's going the other way. It is true that some go the other way, but it's also a little bit unclear. The second circuit case in the lot versus a birch contains a fairly thoughtful analysis of this area. And they point out that the standard review may change depending upon what aspect of the decisions being challenged. Wouldn't the correct review be that a finding of pure historical fact gets a deferential review, whereas a finding of due diligence is a mixed question of law, in fact, and that might get a more plenary review. In other words, if a district judge or a magistrate judge in a finding adopted by a district judge said, I find this letter was sent. He said it was, it was denied, I don't believe that denial, that we would have to give that a deferential standard review. But if he said, okay, I find it was sent, and he didn't follow up when he didn't get an answer, that might be a, and he was there for not diligent. That might be a legal question. I would agree, I think it can become more of a legal issue. If the diligence, let's say, was one letter or one phone call, and a court simply concluded as a matter of law, that's sufficient or insufficient, then I think this court would be in a position of engaging in to know. I was only trying to simplify the hypothetical. That's what could be more of finding
. As a challenge to the adequacy of factual findings, typically the standard is clear error. I think Judge Smith's reasoning in the, in the human Chisky case, albeit in dicta, is correct. That's typically how these, these issues are handled. It's not certain it's going the other way. It is true that some go the other way, but it's also a little bit unclear. The second circuit case in the lot versus a birch contains a fairly thoughtful analysis of this area. And they point out that the standard review may change depending upon what aspect of the decisions being challenged. Wouldn't the correct review be that a finding of pure historical fact gets a deferential review, whereas a finding of due diligence is a mixed question of law, in fact, and that might get a more plenary review. In other words, if a district judge or a magistrate judge in a finding adopted by a district judge said, I find this letter was sent. He said it was, it was denied, I don't believe that denial, that we would have to give that a deferential standard review. But if he said, okay, I find it was sent, and he didn't follow up when he didn't get an answer, that might be a, and he was there for not diligent. That might be a legal question. I would agree, I think it can become more of a legal issue. If the diligence, let's say, was one letter or one phone call, and a court simply concluded as a matter of law, that's sufficient or insufficient, then I think this court would be in a position of engaging in to know. I was only trying to simplify the hypothetical. That's what could be more of finding. And I would agree, in this case, I would suggest that the facts are inherently bound with the legal conclusion, because what we have here is not just a number of factual findings, but actually implicit in them, the credibility assessment. The judge accepted Mr. Ross's testimony, and having done so, a more deferential standard ought to apply, indeed, some of the court's cases suggest that the credibility assessment is not really subject to it. Under the plenary review, we could accept the factual findings of the district court, and still say that the fact that the district court, except the factual findings, should not have found that there was sufficient effort made to appeal this case. So I don't see how we can resolve this case without resolving the standard review under, which seems to be an all-but-question in the third circuit. And I would agree, our position as a standard review is important in the case of the Munchinsky lays out its importance relative to resolving these kinds of issues in whatever fact paradigm happens to end up in front of the court. Our position here regarding the attic, we'll see the record, as Mr. Ross has pointed out, testified without contradiction from the State Court Council that he continued to cause a lawyer, continued to write his attorney, and indeed, guys family involved to the extent that they could make contact with the lawyer. But you have to acknowledge that there was a positive of efforts that he made between the 04 and 08. And so why did you provide, but were evidence that our testimony relevant to efforts that he made when it was for the match straight judge? Well, we wouldn't agree that there was a positive of effort, there's certainly a positive documentation. Why didn't we provide more testimony while the documents tended to refresh everybody's recollection as to exactly what the timeline was? But which we'd 04 and 08, except for what he said, and it wasn't a heck of a lot. That's all you got. Just his testimony, that's correct. But you know, I wondered when I read this case, the following question, suppose, for example, a petitioner showed that the petitioner was doing everything that a petitioner could possibly do to get his appeal heard, writing letters, making phone calls, getting a whole of relatives doing everything in the court. So the whole world, and one on for three or four years, and the appeal was never prosecuted by the attorney. At that point, the petitioner did nothing, finally got disgusted and just didn't do anything
. And I would agree, in this case, I would suggest that the facts are inherently bound with the legal conclusion, because what we have here is not just a number of factual findings, but actually implicit in them, the credibility assessment. The judge accepted Mr. Ross's testimony, and having done so, a more deferential standard ought to apply, indeed, some of the court's cases suggest that the credibility assessment is not really subject to it. Under the plenary review, we could accept the factual findings of the district court, and still say that the fact that the district court, except the factual findings, should not have found that there was sufficient effort made to appeal this case. So I don't see how we can resolve this case without resolving the standard review under, which seems to be an all-but-question in the third circuit. And I would agree, our position as a standard review is important in the case of the Munchinsky lays out its importance relative to resolving these kinds of issues in whatever fact paradigm happens to end up in front of the court. Our position here regarding the attic, we'll see the record, as Mr. Ross has pointed out, testified without contradiction from the State Court Council that he continued to cause a lawyer, continued to write his attorney, and indeed, guys family involved to the extent that they could make contact with the lawyer. But you have to acknowledge that there was a positive of efforts that he made between the 04 and 08. And so why did you provide, but were evidence that our testimony relevant to efforts that he made when it was for the match straight judge? Well, we wouldn't agree that there was a positive of effort, there's certainly a positive documentation. Why didn't we provide more testimony while the documents tended to refresh everybody's recollection as to exactly what the timeline was? But which we'd 04 and 08, except for what he said, and it wasn't a heck of a lot. That's all you got. Just his testimony, that's correct. But you know, I wondered when I read this case, the following question, suppose, for example, a petitioner showed that the petitioner was doing everything that a petitioner could possibly do to get his appeal heard, writing letters, making phone calls, getting a whole of relatives doing everything in the court. So the whole world, and one on for three or four years, and the appeal was never prosecuted by the attorney. At that point, the petitioner did nothing, finally got disgusted and just didn't do anything. Now, would the cause of action, if I can characterize it as that, have ripened so that it really didn't matter at that point. In other words, you wouldn't wipe out the diligence that had been shown by a lack of later diligence. Or you see what I mean, could that? I do and I would agree with that. I think that every case turns on its own particular facts. I think that's why they give the courts discretion in this area because not everybody's the same. And certainly a guy that's being disled and lied to by his attorneys in a little bit of a different position than somebody who's simply ignoring him. And we would suggest that the district court properly balanced that consideration. I'm looking at this case in the context of a guy with limited intellectual functioning, significant mental health issues, indeed on psychotropic medication, a fact that his lawyer not just ignored him or abandoned him, but actually disled him. And on top of that, he'd actually went to the district or to the common police court requested new counsel and it was denied. You heard Mr. Mills discuss the question of disciplinary proceedings in Pennsylvania we raised the issue. Do you have any further information on that that you can impart as to whether or not anything ever happened? Other than I believe there was a referral and there's likely some sort of investigative aspect taking place. But do you know of any consequence? Oh, I do not your honor. Well, if it was a consequence, wouldn't that become a matter of public knowledge in Pennsylvania? I believe it would and I regularly get a newsletter that has the results of those findings. You don't recall anything about this case. I do not
. Now, would the cause of action, if I can characterize it as that, have ripened so that it really didn't matter at that point. In other words, you wouldn't wipe out the diligence that had been shown by a lack of later diligence. Or you see what I mean, could that? I do and I would agree with that. I think that every case turns on its own particular facts. I think that's why they give the courts discretion in this area because not everybody's the same. And certainly a guy that's being disled and lied to by his attorneys in a little bit of a different position than somebody who's simply ignoring him. And we would suggest that the district court properly balanced that consideration. I'm looking at this case in the context of a guy with limited intellectual functioning, significant mental health issues, indeed on psychotropic medication, a fact that his lawyer not just ignored him or abandoned him, but actually disled him. And on top of that, he'd actually went to the district or to the common police court requested new counsel and it was denied. You heard Mr. Mills discuss the question of disciplinary proceedings in Pennsylvania we raised the issue. Do you have any further information on that that you can impart as to whether or not anything ever happened? Other than I believe there was a referral and there's likely some sort of investigative aspect taking place. But do you know of any consequence? Oh, I do not your honor. Well, if it was a consequence, wouldn't that become a matter of public knowledge in Pennsylvania? I believe it would and I regularly get a newsletter that has the results of those findings. You don't recall anything about this case. I do not. I think I probably would have noticed that. Let me ask you this question. You're at this very broad up one point that I'd like to hear your response to. He mentioned that it's improper to draw any inferences from the fact that Mr. Ross has been lied to between 0-00-2004. Because in 0-04 he learned for sure that he had been lied to so that any action or inaction that one couldn't for after that to be attributable to the fact that he had been lied to really isn't reasonable. Because he knows that Jake is up so to speak in 2004 because the DACA sheets have been sent to him and he realizes at that point that his lawyers, Cheffield, is lied to him because it hasn't been filed out. We know that the court have come and pleased the DACA sheet was sent to him. We also know that Cheffield told him, I'm going to file this appeal for you. He filed a heating copy Mr. Ross on that filing. In order to copy him on the withdrawal of that appeal, in order to copy him on anything that was filed in the Common Police Court. So yes, you got a DACA sheet from the Franklin County Court of Common Police. I'm not sure whether Mr. Ross understood what it necessarily reflected and maybe a different individual might have been on inquiry notice or at least constructive notice that he had to do something more. But tell him not to feel bad about that sometimes when I read a DACA sheet, I have a little trouble understanding it too
. I think I probably would have noticed that. Let me ask you this question. You're at this very broad up one point that I'd like to hear your response to. He mentioned that it's improper to draw any inferences from the fact that Mr. Ross has been lied to between 0-00-2004. Because in 0-04 he learned for sure that he had been lied to so that any action or inaction that one couldn't for after that to be attributable to the fact that he had been lied to really isn't reasonable. Because he knows that Jake is up so to speak in 2004 because the DACA sheets have been sent to him and he realizes at that point that his lawyers, Cheffield, is lied to him because it hasn't been filed out. We know that the court have come and pleased the DACA sheet was sent to him. We also know that Cheffield told him, I'm going to file this appeal for you. He filed a heating copy Mr. Ross on that filing. In order to copy him on the withdrawal of that appeal, in order to copy him on anything that was filed in the Common Police Court. So yes, you got a DACA sheet from the Franklin County Court of Common Police. I'm not sure whether Mr. Ross understood what it necessarily reflected and maybe a different individual might have been on inquiry notice or at least constructive notice that he had to do something more. But tell him not to feel bad about that sometimes when I read a DACA sheet, I have a little trouble understanding it too. In any of that, we believe that there was adequate record-based support for the magistrate judges fairly detailed findings and that the reason to cause to disturb them at this juncture. Thank you. I don't have anything else. Thank you so much. How much time did you reserve? Three minutes. Go ahead. Your honours, the testimony as to what the efforts Mr. Ross made between 2004 and 2008 amount to basically one page of the transcript. That would be page roughly 231 of the reproduced record. But how about that point I raised? I was beaten as head against the wall for years getting nowhere. I mean, would the right to habeas relief sort of ripen at some point and even if he didn't continue the diligence, or would it be eliminated or wiped out? I would argue that it doesn't ripen your honor that the requirement of due diligence is ongoing because equitable tolling at least in this instance is an equitable remedy. It requires that a position or not sleep on his rights and from 2004 to 2008, that is what the record shows that Mr. Ross was doing. With respect to the point that was raised about the attempt to have new council obtained that was made in 2001 before Mr. Sheffield even had any contact with Mr. Ross
. In any of that, we believe that there was adequate record-based support for the magistrate judges fairly detailed findings and that the reason to cause to disturb them at this juncture. Thank you. I don't have anything else. Thank you so much. How much time did you reserve? Three minutes. Go ahead. Your honours, the testimony as to what the efforts Mr. Ross made between 2004 and 2008 amount to basically one page of the transcript. That would be page roughly 231 of the reproduced record. But how about that point I raised? I was beaten as head against the wall for years getting nowhere. I mean, would the right to habeas relief sort of ripen at some point and even if he didn't continue the diligence, or would it be eliminated or wiped out? I would argue that it doesn't ripen your honor that the requirement of due diligence is ongoing because equitable tolling at least in this instance is an equitable remedy. It requires that a position or not sleep on his rights and from 2004 to 2008, that is what the record shows that Mr. Ross was doing. With respect to the point that was raised about the attempt to have new council obtained that was made in 2001 before Mr. Sheffield even had any contact with Mr. Ross. It was a rather pricient effort to give it to Mr. Sheffield. But in 2003, Mr. Sheffield said you have to say a pricient effort? Pricient. I'm going to look forward to it. In 2003, Mr. Sheffield wrote a letter to Mr. Ross suggesting that Sheffield withdraw and that new council will be appointed. So that option would still have been fresh in Mr. Ross's mind. It's not that the door was closed forever or that he would have any reason to believe that the door was closed forever when his own appellate council was trying to talk and indicating him out of the case. I'll send you that. Many times year after year is ticking off these in jail. I once heard an appeal, met in a brief by a pro-sealed advocate and he said, you know, to experience judges, I think the sentence should have been two years, about two years, six months. That might not seem much to an experienced judge that will read this brief. But let me tell you, he said when you're doing the time, the six months is a lot
. It was a rather pricient effort to give it to Mr. Sheffield. But in 2003, Mr. Sheffield said you have to say a pricient effort? Pricient. I'm going to look forward to it. In 2003, Mr. Sheffield wrote a letter to Mr. Ross suggesting that Sheffield withdraw and that new council will be appointed. So that option would still have been fresh in Mr. Ross's mind. It's not that the door was closed forever or that he would have any reason to believe that the door was closed forever when his own appellate council was trying to talk and indicating him out of the case. I'll send you that. Many times year after year is ticking off these in jail. I once heard an appeal, met in a brief by a pro-sealed advocate and he said, you know, to experience judges, I think the sentence should have been two years, about two years, six months. That might not seem much to an experienced judge that will read this brief. But let me tell you, he said when you're doing the time, the six months is a lot. So let's not forget that. I'll never forget that. In fact, I put it in the opinion what he said. He lost. I put it in the opinion. It wasn't because it was six months. Mr. Bill, your adversary makes a strong argument that this reasonable diligence is inherently a factual determination and that we should then on standard review exercise. It's a clear error and not a plenary review. What is your best argument that this is a plenary review as to the reasonable diligence since it's clear error. You know, the district court credited everything he said and made efforts, maybe not as good as he should have, but given his mental state, we would pretty much have to go along. I think with reasonable diligence. So what is your best argument on that this is a plenary question before, is not a clear error question. Your Honor, the muni, muni chiinsky case, when talking about the standard review for extraordinary circumstances, states that the review is de novo when the facts are not in dispute. And I would argue that that should carry over to the due diligence problem when the facts of which the finding of due diligence is made are not in dispute. And they aren't in dispute here
. So let's not forget that. I'll never forget that. In fact, I put it in the opinion what he said. He lost. I put it in the opinion. It wasn't because it was six months. Mr. Bill, your adversary makes a strong argument that this reasonable diligence is inherently a factual determination and that we should then on standard review exercise. It's a clear error and not a plenary review. What is your best argument that this is a plenary review as to the reasonable diligence since it's clear error. You know, the district court credited everything he said and made efforts, maybe not as good as he should have, but given his mental state, we would pretty much have to go along. I think with reasonable diligence. So what is your best argument on that this is a plenary question before, is not a clear error question. Your Honor, the muni, muni chiinsky case, when talking about the standard review for extraordinary circumstances, states that the review is de novo when the facts are not in dispute. And I would argue that that should carry over to the due diligence problem when the facts of which the finding of due diligence is made are not in dispute. And they aren't in dispute here. We don't contest the testimony of Mr. Ross. We just say that it doesn't rise to the level of reasonable diligence for this for your period. But when the facts are not in dispute, the standard review should be de novo for due diligence just as it is. That's avoiding the standard review. If the standard review is clear error and we credit what he said, the standard review is whether there's any error in his findings as he, and he credited as reasonable diligence. We can't revisit the reasonable diligence if he found it to be within those facts. We might look at the same facts and say it's not reasonable diligence. But if we, the standard review is clear error and he found on those facts reasonable diligence, even though we would have on the exact same facts, we can't reverse them unless we can conclude that no reasonable fact finder looking at those facts could say that there was diligence. So that it's avoided something standard review. And you're on, I would say that due diligence is a mixed question of law and fact and when the facts are plentiful. That's a, that's a, that's a, that's a, that's a, that's a, that you're, they're saying it's a plentiful standard review. But why is it, I mean, it seems to be quintessentially fact-laden as to whether someone made these efforts, even if this facts are not in review, you know, some people would say yes. Some people would say it is not a quintessential factual determination as to whether those efforts were reasonable. I would argue that it's a real determination now. You might be better off, it's usually very rare
. We don't contest the testimony of Mr. Ross. We just say that it doesn't rise to the level of reasonable diligence for this for your period. But when the facts are not in dispute, the standard review should be de novo for due diligence just as it is. That's avoiding the standard review. If the standard review is clear error and we credit what he said, the standard review is whether there's any error in his findings as he, and he credited as reasonable diligence. We can't revisit the reasonable diligence if he found it to be within those facts. We might look at the same facts and say it's not reasonable diligence. But if we, the standard review is clear error and he found on those facts reasonable diligence, even though we would have on the exact same facts, we can't reverse them unless we can conclude that no reasonable fact finder looking at those facts could say that there was diligence. So that it's avoided something standard review. And you're on, I would say that due diligence is a mixed question of law and fact and when the facts are plentiful. That's a, that's a, that's a, that's a, that's a, that's a, that you're, they're saying it's a plentiful standard review. But why is it, I mean, it seems to be quintessentially fact-laden as to whether someone made these efforts, even if this facts are not in review, you know, some people would say yes. Some people would say it is not a quintessential factual determination as to whether those efforts were reasonable. I would argue that it's a real determination now. You might be better off, it's usually very rare. You might be better off with the, with the rest of the standard review, than a plentiful standard review in this case. You're paying you might read better. Well, the same issue as comes up all the time before it's in etna cases. And in etna, I think, you know, that's for sure. Yeah, no, on the other end, they say that it's, it's a, it's a, it's a clear error standard review as to whether or not the factual limitations is equitably told. So why should it be different in etna, from here that we have an etna, which comes up all the time here? I'm not familiar with that class of case, Your Honor, but I would point out that in graph versus more an unpublished opinion from the circuit, the court previously said that the standard review for equitable. We don't, we don't, we don't consider unpublished opinions presidential. So I would argue the court should find that persuasive. All right. Thank you so much. Thank you.
Let's versus Burrano. I raised my... All right, thank you all. Mr. Mills. May it please the court, Zachary Mills, for the Commonwealth of Pennsylvania. I would like to reserve three minutes for a bottle. Yes, sir. That's granted. Go ahead. As a preliminary matter, I'd like to address the standard of review. This court should be adopt when reviewing a district court signing of due diligence for equitable tolling of a ABS Corpus claim. So you've obviously taken a look at Macchinsky. And is that dispositive on this issue? Your Honor, I would say that it's not the mutian- mutian-ski court does not decide what standard of review to adopt because in large part, it wasn't necessary or dispositive to the outcome of that case. They ducked the issue, in effect. Yes, Your Honor. Why should we duck it, too? I agree, Your Honor. I don't believe that the standard of review would be dispositive to the outcome of this case, even if this court had adopted a clear error standard, the district court should be reversed under that standard or under the no vote of the view. Well, let's answer this one. Why do you say even under a plenary standard that the district court should be reversed? That's easy to say, but what facts to have that are. As a matter of law, his conduct was not sufficient to show diligence. Your Honor, it's not so much the fact that we have as the fact that the appellate doesn't have. It was his burden to show due diligence, and for the period of time at issue, the facts are lacking. This guy, he was, you know, it's easy for us sitting here to say, well, you should do this and that. He was an isolated, he was in prison. He's a person of low water, apparently low mental capacity. And he got a jerking around the likes of which I've been in a attorney since August of 1958. There's almost a unique and well experienced. I've been waiting to ask this question, whether disciplinary proceedings filed against attorneys out of what has happened? You're on the news. You're on the news. They would they'd lift your ticket. Your Honor, I'm not sure how directly I can answer that question because of the the secretive nature of the proceedings of the disciplinary board. What what I can say is the magistrate judge made a recommendation in a footnote as to what should happen with that attorney and the Commonwealth has followed through with that recommendation. Do you know, did anyone turn over the attorney's conduct to the Pennsylvania Discipline Board to answer that question directly, Your Honor? Yes. It's a common word. Oh, it has been turned over. Well, the other question I had, I had another question here. The magistrate judge will not, well, ultimately, of course, the order we look at, ultimately, we're reviewing is what a district judge does, although it could be adopting a magistrate judge's report. But the second order of the district court said, okay, I'm ordering you to allow him to appeal the underlying conviction going way back in effect to the beginning. Is that correct? I believe so, Your Honor. Is could the, now in fact, that did happen, didn't it? There wasn't appeal filed. Yes, Your Honor. And it's been stayed? Yes, Your Honor. The superior court upon the Commonwealth's motion stayed that in the interest of judicial economy pending out there. But I wonder when I read that, whether the district court could actually order the commonwealth to allow him to appeal. The reason I say it is this. In a traditional, habeas corpus case, if the petitioner convinces that magistrate judge or reference and then the district judge, or the district judge directly, that there's been a constitutional violation so that the conviction was unconstitutional, and that that person want not to be imprisoned by reason of the conviction. The magistrate, the district judge does not order a new trial. What the district judge orders is that the defendant be given a new trial, the defendant be released unless he's given a new trial, usually in some period they sat maybe 180 days, whatever it may be. And sometimes then that gets stayed if there's an appeal. I understand that. But in other words, the court never orders a new trial. Doesn't it? Doesn't it order the release of the defendant? And if that's true, shouldn't the court have ordered his release on a theory that since he was unconstitutionally being held that any had a constant, now I know there are cases that say you don't have a constitutional right to appeal, but then there are cases that also say that if you appeals are allowed, then you would have that right. But shouldn't the judge have said, look, you have to release him unless you allow him to appeal. And they might not, they might say, okay, we'll release him. That does happen, by the way, in a new trial situation, person served, you know, practically the whole thing and they just drop it. But isn't the order wrong then? I'm not opposing the order on the matter. No matter, because in fact, he did appeal. Yes, Your Honor, he did appeal the Commonwealth complot, the order of the, the district judge and the relief granted was complied with. But in this case, nothing, no allegations there have, have better gone to the underlying conviction. Maybe I'm just saying. It's before, it's the end of the, the salient question is whether, whether there was diligence here. Let me ask you, the magistrate judge in the district court credited the petitioner with the, with those diligence. Even under a plenary standard review, why should we, I mean, why should we think differently that he exercised? He, he testifying, he made all these efforts. Some people could, would believe them and some wouldn't. The district judge believed in, why shouldn't we believe in that he made these efforts? Your Honor, the credibility of the, the Pelleeps testimony is not in dispute. The Commonwealth is not disputing the efforts that he testified to. However, the exact issue is between February 2004 and April 2008, between the two letters that the Pelley wrote to the clerk of force office, asking about his case. Yeah, but, but, but, but, there's not been a chance to be. The petitioner says that although in between 2004 and April, although he had, did write any letters, there's nothing physical, he stated he made these efforts. He, he testified that between those two days he, uh, tried to get his dad in the wall. The, the district court credited that testimony. What do you have if this is a plenary standard of view? I'm not sure it's plenary or clear book record, but take it at, in a light most favorable to your position. You don't have a plenary standard of view. What do you have to gain say the truth of what the petitioner testified to? We aren't trying to pose what the petitioner testified to. So you acknowledge what he says is true? Yes, it's what he says is true, then has the proven due diligence. I would start you now. Uh, the due diligence is defined as reasonable diligence and reasonable diligence in this case for that four year period should be defined by what the petitioner was doing in his case before that period of time and after that period of time. What, what, what case with what? Just because he paid, he had physical evidence very preceding that period of time. Doesn't mean he has to have the same evidence subsequent to that period of time. As long as he was making due diligence and we have to take a consideration that he, uh, he didn't have a hundred and eighty IQ. Uh, and he was not exactly sophisticated or well educated. I agree, Your Honor, and that was his status throughout the course of these proceedings. But in 2008, he filed a, he managed to file a pro-SAPC or at. Uh, and the question is why that didn't occur early, four years earlier in 2004. Why four years elapsed? Well, that's not the question. The question isn't why, why did it take him until 2008? The question is, is there evidence of reasonable diligence between 2004 and 2008? And if you look at the record, it seems to me. Um, number one, if you look at the lawyers testimony, the lawyer admits that he failed to keep records between 2004 and 2008. But he says he recalls that he called into 2005. The petitioner says he called throughout the period of time. He says that he was inhibited because he had moved three times to three different facilities during that 2004. 2008 period of time. He says that it was difficult to get a lawyer, so he's trying to get jailhouse lawyers during that time. He says he tries, he tried to get his father to visit the lawyer. So the lawyers testifying that during that period of time, uh, petitioners been in contact with him. Doesn't have records, but that's consistent with the 2000 to 2004 period of time. Uh, the petitioner has mentioned many things that he's engaged in. I hesitate to say, but, you know, given his intelligence that's been alluded to and his other difficulties in moving around to different facilities, what, what more would we have wanted? You're on the actions, my position basically is the actions of the appellee during that period of time are not reasonable diligence because reasonable diligence should be viewed by what he was doing before. Well, remember, thanks. Thanks. Shouldn't we take into account that he's been lied to by his attorney and his attorney's lies in the period of time from 2000 to 2004, inform his actions between 2004 and 2008 and what I mean specifically is, if he's been told that everything is copacetic, well, probably the Newscope is static, but everything is good, so to speak, with your appeal. I filed it and so forth and he's been given other what we now know to be false assurances. Doesn't that speak to how often he'd be in touch with him and the kind of diligence that in other circumstances might seem wanting, but in this circumstance would not. Your honor in the letters from 2003, there is displayed an increasing suspicion of his attorney's assurances. And then in 2004, the appellee writes the letter to the clerk's office requesting a docket in order to see if his lawyer has in fact done what he had been promising. There's a note on that file saying that the docket was mailed and it was appellee's testimony that he did in fact receive that docket. And that docket is part of the record and that docket shows that after the petition was withdrawn in 2001, there had been no action in appellee's case at all. So the record shows, based on appellee's own testimony, that in 2004, it was brought to his attention that his lawyer had been lying to. How come you're arguing to us due diligence this year when this action originally was filed in the state court, DCRA, you'd ever raise that as it presents at all? It wasn't until the superior court raised it on the road and the court, but you'd ever even thought it was a defense. Your honor that was an oversight on the Commonwealth's part, under state law. Well, it's your main argument in front of us. How could we say it's an oversight when this is your, this is your several argument here? And your honor, if that had been brought to our attention, that jurisdictional question of whether there was due diligence, the Commonwealth should have taken the position. It's the only issue in the case as to whether or not you get to appeal. And it's so significant at this time, it was, how come you'd ever even dreamt of it when it was in the DCRA mode? I can't answer that question because I wasn't involved with the case. Well, it would not be indicative of the fact that the had to have some feeling that what this guy did was, he was making a try for it, even though it was a very successful try, but he certainly was trying. What I can say, your honor, is that at all points in time, the Commonwealth has felt that the actions of a public council and his misrepresentations were indefensible and reprehensible and have never attempted to do this. Yeah, but that's an afterthought. Your original thought was to defend it on the merits and it was only when the superior court and state proceedings brought into your attention that you thought I'll adopt that idea. That's what it appears to be. You know, I wondered why you even appealed this case. If the facts were anything like you say they are in your brief, that is the facts of the offense. It looked like it was like more witnesses there than there were in this room as to what happened. It was a bar full of people, so I'm shooting kill them. Is that right? Yes, Your Honor, and I believe the defendant actually testified at trial that he was the shooter. However, because of the passage of time, if there would be some defect and I don't know of any that has been identified, but if this case were... It might be hard to try again. Yes. I understand that, but I mean on the record, but there won't be a trial again unless you get somewhere. I mean, none of this has anything to do with the merits of the habeas proceeding. It's only whether it should be heard. It was only whether or not he's entitled to an appeal in this proceeding that is not based as to the conviction and the slightest. I agree, Your Honor, but after the appeal is completed, his period of time for violent state, PCRA, will have been reset by the Nunkbrooktank appeal. Right. And then we'll end up litigating ineffectiveness of council claims more than 10 years after the trial. Well, I guess you're right. I can understand that. It just looks like a case that you usually don't get a murder with somebody with witnesses. Thank you very much. Mr. Ulrich, the act of crime is a court. Yes. I'll just curious, Mr. Ulrich, what is the underlying basis for a habeas here? What are you going to do? If you ever, I mean, of course, you're going to try to win the appeal on the state court if we affirm. I assume. Well, I want to do that. What, what, what, hopefully somebody would. Yeah. Well, I don't know what to do. Somebody's going to try it. But of course, you might have no federal issue at all and still want to press the appeal. Could be some state issue for all we know. In state court, that would probably be correct. We don't really know. We don't know as we sit here today what the appellant issue would be on the merits. Correct. The breach has not been filed because of the state. That's correct. That is an interesting point I hadn't thought of until your question that there might actually be a federalism issue in terms of the nature of the relief granted. But his petition for renovated his corpus did request the reinstatement of the appeal. So this is not the kind of a case where they say, okay, we were ordered to release him or grant a new trial. He got a four-year sentence. He's done three years. Let's just drop the whole thing. He got life. And he's fairly young, isn't he? He was. He's still by my standards. He's still pretty young. I'm very interested in the standard review. Since the, I don't know if I'm pronouncing it, the Chisky case, they kicked the can down the road. Don't tell a prior pal. I said that. Now, why shouldn't we give it another kick? Are we confronted with the necessity to resolve that question of law? Well, based upon the appellance challenge, I think the court is, it's our position that appellance are challenging the factual findings and footnote six of the report and recommendation. In other words, whether there was adequate documentation to support a finding of reasonable diligence. As a challenge to the adequacy of factual findings, typically the standard is clear error. I think Judge Smith's reasoning in the, in the human Chisky case, albeit in dicta, is correct. That's typically how these, these issues are handled. It's not certain it's going the other way. It is true that some go the other way, but it's also a little bit unclear. The second circuit case in the lot versus a birch contains a fairly thoughtful analysis of this area. And they point out that the standard review may change depending upon what aspect of the decisions being challenged. Wouldn't the correct review be that a finding of pure historical fact gets a deferential review, whereas a finding of due diligence is a mixed question of law, in fact, and that might get a more plenary review. In other words, if a district judge or a magistrate judge in a finding adopted by a district judge said, I find this letter was sent. He said it was, it was denied, I don't believe that denial, that we would have to give that a deferential standard review. But if he said, okay, I find it was sent, and he didn't follow up when he didn't get an answer, that might be a, and he was there for not diligent. That might be a legal question. I would agree, I think it can become more of a legal issue. If the diligence, let's say, was one letter or one phone call, and a court simply concluded as a matter of law, that's sufficient or insufficient, then I think this court would be in a position of engaging in to know. I was only trying to simplify the hypothetical. That's what could be more of finding. And I would agree, in this case, I would suggest that the facts are inherently bound with the legal conclusion, because what we have here is not just a number of factual findings, but actually implicit in them, the credibility assessment. The judge accepted Mr. Ross's testimony, and having done so, a more deferential standard ought to apply, indeed, some of the court's cases suggest that the credibility assessment is not really subject to it. Under the plenary review, we could accept the factual findings of the district court, and still say that the fact that the district court, except the factual findings, should not have found that there was sufficient effort made to appeal this case. So I don't see how we can resolve this case without resolving the standard review under, which seems to be an all-but-question in the third circuit. And I would agree, our position as a standard review is important in the case of the Munchinsky lays out its importance relative to resolving these kinds of issues in whatever fact paradigm happens to end up in front of the court. Our position here regarding the attic, we'll see the record, as Mr. Ross has pointed out, testified without contradiction from the State Court Council that he continued to cause a lawyer, continued to write his attorney, and indeed, guys family involved to the extent that they could make contact with the lawyer. But you have to acknowledge that there was a positive of efforts that he made between the 04 and 08. And so why did you provide, but were evidence that our testimony relevant to efforts that he made when it was for the match straight judge? Well, we wouldn't agree that there was a positive of effort, there's certainly a positive documentation. Why didn't we provide more testimony while the documents tended to refresh everybody's recollection as to exactly what the timeline was? But which we'd 04 and 08, except for what he said, and it wasn't a heck of a lot. That's all you got. Just his testimony, that's correct. But you know, I wondered when I read this case, the following question, suppose, for example, a petitioner showed that the petitioner was doing everything that a petitioner could possibly do to get his appeal heard, writing letters, making phone calls, getting a whole of relatives doing everything in the court. So the whole world, and one on for three or four years, and the appeal was never prosecuted by the attorney. At that point, the petitioner did nothing, finally got disgusted and just didn't do anything. Now, would the cause of action, if I can characterize it as that, have ripened so that it really didn't matter at that point. In other words, you wouldn't wipe out the diligence that had been shown by a lack of later diligence. Or you see what I mean, could that? I do and I would agree with that. I think that every case turns on its own particular facts. I think that's why they give the courts discretion in this area because not everybody's the same. And certainly a guy that's being disled and lied to by his attorneys in a little bit of a different position than somebody who's simply ignoring him. And we would suggest that the district court properly balanced that consideration. I'm looking at this case in the context of a guy with limited intellectual functioning, significant mental health issues, indeed on psychotropic medication, a fact that his lawyer not just ignored him or abandoned him, but actually disled him. And on top of that, he'd actually went to the district or to the common police court requested new counsel and it was denied. You heard Mr. Mills discuss the question of disciplinary proceedings in Pennsylvania we raised the issue. Do you have any further information on that that you can impart as to whether or not anything ever happened? Other than I believe there was a referral and there's likely some sort of investigative aspect taking place. But do you know of any consequence? Oh, I do not your honor. Well, if it was a consequence, wouldn't that become a matter of public knowledge in Pennsylvania? I believe it would and I regularly get a newsletter that has the results of those findings. You don't recall anything about this case. I do not. I think I probably would have noticed that. Let me ask you this question. You're at this very broad up one point that I'd like to hear your response to. He mentioned that it's improper to draw any inferences from the fact that Mr. Ross has been lied to between 0-00-2004. Because in 0-04 he learned for sure that he had been lied to so that any action or inaction that one couldn't for after that to be attributable to the fact that he had been lied to really isn't reasonable. Because he knows that Jake is up so to speak in 2004 because the DACA sheets have been sent to him and he realizes at that point that his lawyers, Cheffield, is lied to him because it hasn't been filed out. We know that the court have come and pleased the DACA sheet was sent to him. We also know that Cheffield told him, I'm going to file this appeal for you. He filed a heating copy Mr. Ross on that filing. In order to copy him on the withdrawal of that appeal, in order to copy him on anything that was filed in the Common Police Court. So yes, you got a DACA sheet from the Franklin County Court of Common Police. I'm not sure whether Mr. Ross understood what it necessarily reflected and maybe a different individual might have been on inquiry notice or at least constructive notice that he had to do something more. But tell him not to feel bad about that sometimes when I read a DACA sheet, I have a little trouble understanding it too. In any of that, we believe that there was adequate record-based support for the magistrate judges fairly detailed findings and that the reason to cause to disturb them at this juncture. Thank you. I don't have anything else. Thank you so much. How much time did you reserve? Three minutes. Go ahead. Your honours, the testimony as to what the efforts Mr. Ross made between 2004 and 2008 amount to basically one page of the transcript. That would be page roughly 231 of the reproduced record. But how about that point I raised? I was beaten as head against the wall for years getting nowhere. I mean, would the right to habeas relief sort of ripen at some point and even if he didn't continue the diligence, or would it be eliminated or wiped out? I would argue that it doesn't ripen your honor that the requirement of due diligence is ongoing because equitable tolling at least in this instance is an equitable remedy. It requires that a position or not sleep on his rights and from 2004 to 2008, that is what the record shows that Mr. Ross was doing. With respect to the point that was raised about the attempt to have new council obtained that was made in 2001 before Mr. Sheffield even had any contact with Mr. Ross. It was a rather pricient effort to give it to Mr. Sheffield. But in 2003, Mr. Sheffield said you have to say a pricient effort? Pricient. I'm going to look forward to it. In 2003, Mr. Sheffield wrote a letter to Mr. Ross suggesting that Sheffield withdraw and that new council will be appointed. So that option would still have been fresh in Mr. Ross's mind. It's not that the door was closed forever or that he would have any reason to believe that the door was closed forever when his own appellate council was trying to talk and indicating him out of the case. I'll send you that. Many times year after year is ticking off these in jail. I once heard an appeal, met in a brief by a pro-sealed advocate and he said, you know, to experience judges, I think the sentence should have been two years, about two years, six months. That might not seem much to an experienced judge that will read this brief. But let me tell you, he said when you're doing the time, the six months is a lot. So let's not forget that. I'll never forget that. In fact, I put it in the opinion what he said. He lost. I put it in the opinion. It wasn't because it was six months. Mr. Bill, your adversary makes a strong argument that this reasonable diligence is inherently a factual determination and that we should then on standard review exercise. It's a clear error and not a plenary review. What is your best argument that this is a plenary review as to the reasonable diligence since it's clear error. You know, the district court credited everything he said and made efforts, maybe not as good as he should have, but given his mental state, we would pretty much have to go along. I think with reasonable diligence. So what is your best argument on that this is a plenary question before, is not a clear error question. Your Honor, the muni, muni chiinsky case, when talking about the standard review for extraordinary circumstances, states that the review is de novo when the facts are not in dispute. And I would argue that that should carry over to the due diligence problem when the facts of which the finding of due diligence is made are not in dispute. And they aren't in dispute here. We don't contest the testimony of Mr. Ross. We just say that it doesn't rise to the level of reasonable diligence for this for your period. But when the facts are not in dispute, the standard review should be de novo for due diligence just as it is. That's avoiding the standard review. If the standard review is clear error and we credit what he said, the standard review is whether there's any error in his findings as he, and he credited as reasonable diligence. We can't revisit the reasonable diligence if he found it to be within those facts. We might look at the same facts and say it's not reasonable diligence. But if we, the standard review is clear error and he found on those facts reasonable diligence, even though we would have on the exact same facts, we can't reverse them unless we can conclude that no reasonable fact finder looking at those facts could say that there was diligence. So that it's avoided something standard review. And you're on, I would say that due diligence is a mixed question of law and fact and when the facts are plentiful. That's a, that's a, that's a, that's a, that's a, that's a, that you're, they're saying it's a plentiful standard review. But why is it, I mean, it seems to be quintessentially fact-laden as to whether someone made these efforts, even if this facts are not in review, you know, some people would say yes. Some people would say it is not a quintessential factual determination as to whether those efforts were reasonable. I would argue that it's a real determination now. You might be better off, it's usually very rare. You might be better off with the, with the rest of the standard review, than a plentiful standard review in this case. You're paying you might read better. Well, the same issue as comes up all the time before it's in etna cases. And in etna, I think, you know, that's for sure. Yeah, no, on the other end, they say that it's, it's a, it's a, it's a clear error standard review as to whether or not the factual limitations is equitably told. So why should it be different in etna, from here that we have an etna, which comes up all the time here? I'm not familiar with that class of case, Your Honor, but I would point out that in graph versus more an unpublished opinion from the circuit, the court previously said that the standard review for equitable. We don't, we don't, we don't consider unpublished opinions presidential. So I would argue the court should find that persuasive. All right. Thank you so much. Thank you