habeas corpus ordering his immediate release alston's habeas petition was so compelling in fact that the wright county prosecuting authority stipulated to the issuance of the ret because this writ plainly satisfies the favorable termination under the plain language and sound policy of hack former prisoners are allowed to pursue the federal remedy of section one thousand nine hundred and three only if they demonstrate that their incarceration was reversed expunged invalidated or called into question by a cases where a b s is gridded your honor i would agree that that the circumstances of this writ perhaps are rare but i would submit to the court that because the only remedy under twenty what was called elevated right what was called into question was be continued incarceration of mr olson and that is because when the department of corrections set his target release date it did so pursuant to unconstitutional factors apprised of the circumstances of the matter and stated expressly that it was issuing the writ because it concluded that releasing all sin was necessary in the interests of justice fairness and equity do you think it was really issue the proposition that it matters and also i would note that neither of the apple leaves advance that argument that the vacation of the order was somehow relevant to that to the heck  analysis what it was at the same district court it's really both orders yes your honor what if this defendant had been sent in addition to his sentence had been fined five hundred dollars and what if the writ for some reason vacated the five hundred dollars fine would that satisfy hack no your honor because not in this case because what what underlying incarceration was somehow invalidated so i think a vacation of a fine would probably not satisfy that ok so if it has to show that the underlying incarceration was invalid where has that honor i think what the court can look to is the plain language that that was in the read itself and the writ admittedly is sort of bare with respect to any sort of findings but the apple is probably because it was the sides right that that may be the case your honor but i think that the question before the court today is whether mr olson has adequately alleged that he was released from prison pursuant to a read a paper as corpus the called into question h continued incarceration and i would submit your honor i i have not been able to find any cases that's the key is it his continued incarceration that has to be called into question or is it his past incarceration that has to be called into question and court to do is apply its precedent and in marlow i went back and listen to our argument in that case in preparation for today and a question was asked of the plaintiff in that case was a writ ever issued and the plaintiff's attorney had to answer no and so i would submit that i don't want to put too much emphasis on a question of oral argument but i think that highlight i'd like to take just a minute to address the statute of limitations questions for the negligence claim against m a twenty the plain language of hack requires that a former prisoner demonstrate that their conviction or sentence court correctly how that all mr alston's claims against the commissioners are barred by the hack doctrine the core of his claims against the commissioners as just by a ballot forty year prison sentence that was intact the entire time he w he was illegally incarcerated because he was actually constitutionally required to be released after just eighty six months the flour with that argument as the district court held was that there has been no invalidation of that period of incarceration relative to the parole date a part of the period was invalidated right now ya know i got out earlier than they thought right that's what the right was about it in the state authority agreed to it the prosecutor the county as the determination that it had any merit but that was the procedural posture i don't represent the county i can't speak to the county's reasons for that stipulation federal courts are part of the state for this purpose continue correct i can't speak to the reasons that the county across the prosecuting authority agreed to the stipulation but the stipulation expressly denied any fault with the sentence and it did not acknowledge anything wrong any past period of incarceration and the district court adopted the stipulation there silent as to the department of corrections and the claims relative to the parole date or any incarceration relative to when the parole date w stipulating with defendant a somehow a binding determination on the merits against defendant b and that's what we have here and hack is clear it's not about exhaustion or some technicality it requires a substantive review on those that will rest on the brief briefing and ask the court to affirm thank you i won't need that about a time i just have a few brief points i know there's been a lot of discussion about hack this morning and if the twenty five page decision in heck means anything as it relates to my client it's three words the conviction matters and there has been no happened here page twelve of the appendix which is the complaint at paragraph forty two dollars the allegation against my client is that her testimony at trial was the proximate cause of the conviction briefing there is no argument against the statute of limitations unless the doctrine of fraudulent concealment applied in other words there's there's mr olson does not  that the statute of limitations hasn't run but for equitable truly what's important in this case is that the doctrine of fraudulent concealment and equitable tolling requires t things in affirmative act by the party accused of the fraud and that the facts underlying the fraud are not discoverable by reasonable diligence and let's back up for a minute to t why she changed the determination or methodology of death from undetermined to homicide her quote and it's on paragraph forty one of the complaint was that it was based on the evidence now they take that and say well what that really meant was friends of governments or friends exide shouldn't use those words she said evidence that is the basis of this claim that somehow she wasn't forthcoming because she didn't say what ev we have an adversarial process in criminal courts and in civil courts and any lawyer who wants to challenge the foundation for changing the determination of death from undetermined to homicide should ask a simple question what evidence she did not affirmatively well anything she's under oath in court sworn to tell the truth and nobody asked the question that is not an affirmative act of concealment where you say my opinion is based on the evidence and nobody tries to narrow it down but more than that they have to overcome they have to plead that the facts are not discoverable by reasonable diligence and what better opportunity could there be then when the witness is in the chair under oath there is no basis for tolling the statute of limitations there was a supplemental letter submitted to the court a couple days ago that addressed the mcdonough decision that the united states supreme court just issued in june twenty one thousand in just briefly to address its applicability here and actually i think mcdon determination on the underlying prosecution or in our case conviction here that that never occurred hack bars the claim and i would just point out that from a public policy perspective lawsuit is dependent the person's liability is dependent on the quality of the questions that are asked of them while they're on the prosecutors are going to be very hard pressed to find medical examiners  going to be willing to testify because what you don't do in a court is you don't come in and start giving a speech you respond to questions that are asked dr amateurs you know did that openly she did that honestly and heck bars the claims against her like your hon this argument it is incredibly rare for a prisoner to be released pursuant to a writ of habeas corpus i think that takes care of any sort of ludgate argument that the court might be concerned about with respect to  the department's statements that she made that they did not know the reasons that the department agreed to stipulate to the issues have the writ as we allege in our complaint we don't include the letter itself in the complaint because it's not necessary to do so but we do have the letter from wright county setting forth its reasoning and to quote from that letter and this is i think fair game since we make these allegations in our complaint the court correct this right county would agree to all since immediate release in exchange for release of claims against wright county i can't imagine a case before this court or any court in which that is not a favorable terminations and as that is defined by hack the department is says it is unsure what the change and circumstances were to other constitutionally permissible reasons for extending a target release date those circumstances were that the department relied on the two thousand and seven sentencing guidelines and not the one thousand nine hundred and seventy nine parole matrix there was no change in circumstances they simply got it wrong to respond to the department's contention that the stipulation did not invalidate the underlying incarceration i would submit that the federal are in the habit of rubber stamping habeas petitions and letting prisoners go free in this itch in this case the the right itself states that the district court was aware of the circumstances of the situation and that it concluded that mr olson needed to be released in the interest of justice fairness and equity this writ plainly satisfies the requirements of hack we are not asking this court to go beyond its precedent every single case and see and marlo and hack and spencer in each of those cases there was no written issued and in our case there was so the court can apply hack and it's precedent in a straightforward manner to allow mr olson his day in its counsel points out the kind of the underlying premise of hickey is not being able to bring a civil case unless the criminal conviction has been invalidated against those who are responsible for arguments may have some merit those are arguments that ought to be made at summary judgment not at a rule twelve motion to dismiss