to only one issue with certified here and that was the issue of whether the statute in question is unconstitutionally vague but there are some side issues that have been brought up by the respondent they seem to believe that a statute that deals with sentencing cannot be unconstitutionally vague unless it is vague about what the maximum sentence sort of is and we've cited in our brief pew versus united states that the mere fact that sentencing courts have discretion to deviate from the recommended guidelines range does not prevent a void for vagueness challenge and i'd like to bring to the court's attention a couple other cases that aren't cited in the brief but the court has held on a few occasions that  step which step to take the one that provides for delayed sentencing that's right m c l seven seven one point one and i'd like to point out that  case that stated that the purpose of the laid sentencing is to give defendant the opportunity to prove himself eligible for probation or other lenient treatment and in this case there was no misconduct by the petitioner during that period of one year allow them i mean afterward he violated his probation well what i'm suggesting to the court it is true that he later violated the probation but that probation was extended for a period of time that would not have happened but for the case of people v smith it is cited in the brief the the citation is for ninety six michigan one thirty three and the statute as it reads it certainly suggests that if there is good  three sentencings here or two when a delayed sentence after the delayed sentence one week before the sentence to the michigan supreme court issued their ruling in people vs smith and in that ruling of a state thus regardless of whether defendant's behavior during the period of de lay is abhorrent or exemplary a sentencing judge is not required to wait until the period of the way has elapsed in order to sentence defendant in accordance with the law and dispense whatever leniency the court is inclined to provide and it's our position that under the law before people based on the no violation it's something that belongs before the michigan courts it's a michigan statute michigan courts will tell you what it means yes they said it was ok yes but they didn't say it was ok until after he took the delayed sentence the statute as it was interpreted by the michigan courts before the set i'll call it sentence one the delayed sentencing situation before that the law was that if you have the good behavior you get the benefits and that as i mentioned was there's a number of unpublished cases but the published case of people v baker that the purpose is to give the defendant the opportunity to prove himself no they were not higher at that time the guidelines later became a higher because conduct that predated the emmett county case actually moved forward the conviction well if you saying that the judge was obliged to ignore that and the county case well this is the emmett county case that's the case that we're he the sentencing no the judge did consider that because he had the facts underlying the case in the pre sentence report at the time that the delayed sentence was imposed let me ask you this you know the government argues that this case really is not properly before us because there was no exhaustive at the state level would you address the the government's argument that there was not exhaustion of these in the state cour yes first of all i think that that issue is not really before the court because number one it was not the subject of a ruling from the district court the district court never found that there was a lack of exhaustion number two the state did not cross appeal on such an issue therefore it's our position that when the state does not cross appeal that they have abandoned such an issue and cannot raise it here so i mean that we can address it yes you address it yes  certainly it well i'll just add that it's not in the certificate of appeal ability either however in pickard v connor the u s supreme court indicated that the the party need not invoke talismanic phrases to properly present the issue to the state court and the  that the attorney in the brief repeat hadley referred to the fact that the statute was ambiguous and and more than leave particular to allege a denial of a specific constitutional right or alleging facts well within the mainstream of constitutional law so is there a case that says that if you say that a statute is ambiguous you are raising a vagueness or due process challenge i do not know of a case that expressly focuses in on that i was using the general standards that are established in mc means veber gonna go and if you're claiming that the statute is ambiguous you're automatically claiming that it's vague the two the state court brief did not cite a federal case that is clear and we can't run away from that but it's our position that if you repeatedly call the statute ambiguous that you are calling it big and that is well within the mainstream of constitutional law and that it was sufficiently particular to allege a denial of a specific constitutional right so if we go down that path and say that it was raised in the state court the state court concludes that the statute is not ambiguous the state court  well they or they did they did not find it to be ambiguous they found it to be just fine at least in the lower court level the circuit court but the higher courts did not address the issue simply issuing a standard form order of denying leave to and so we're here on hay b s and so do we have to say that the state courts interpretation is unreasonable then well if the state court does not explain their ruling then this court is not required to give deference to a ruling that is not its point or at least there is a lesser standard of deference when the ruling is not explained if if we find that it's appropriate to consider this on the merits latham why doesn't beccles preclude really well the  i don't believe that beccles says that you have a statute it's everyone believes it's a certain way because of the way the state courts have rule and then after the fact but when sentence one in sentence two you suddenly have this clarifying gloss and gall v parker an important case to thirty one f thirty two sixty five six circuit two thousand says that applying a clarifying last gloss to a statute that is ambiguous can be applied only prospectively and therefore that's why buckles would not  your honors it may please the court line especially hartley an assistant attorney general for the state of michigan on behalf of the respondent warden respectfully request in this court affirmed the district court summary dismissal of the petition i'm going to begin with exhaustion because i believe it's a threshold issue in the case and losing the end of your sentences i'm sorry thank you judge out i'll try to speak up i'm going to begin with exhaustion because i believe it's a threshold issue in the case the state is not insisting on you know sort of talismanic language and what my brother was referring to this is there was nothing in and i of course encourage the court to look at the application for leave to appeal page idea one thirty eight starting in the record could you make this argument in the district court we didn't we didn't make any argument the district court because the district court summarily dismissed and under habeas rule for without serving the attorney general because it was meritless on the face of the petition filed anything in district court correct the brief in this case was the first pleading we filed in this case and i think i need to address it if i was not prepared to address this argument because it wasn't in the petitioners reply brief but an apple doesn't need to cross appeal to raise an alternate grounds for a firm and i don't have a case on point because that argument was not given to me to respond to but i believe that's very well settled also the warden doesn't need a certificate of appeal ability which is the other another argument that he made as to why we can't raise this so we should get to the heart of the issue i believe is exhausted or not well the third the third argument he made is that the district court never ruled on exhaustion and that is correct but i believe this court is equally well equipped as the district court this doesn't require any particular factual findings or credibility judgments if this court were reviewing the district court it would be done over so there's really no reason to send it back to the district court to rule on exhaustion so then this court can then review done over the district courts exhaustion ruling this court is equipped to read just as well as the district judge is a go my recollection of the michigan state argument these are of the defendant's argument in the michigan state courts was that he did say that there was ambiguity in the statutes and he pleaded for lenity so why isn't that enough to raise due process federal due process claim it's because not every ambiguous statute i unconstitutional the argument made in the state court was this statute is ambiguous which by the way that's just the argument i just want to make clear the statutes not ambiguous in the state's view but the the argument weighted made is the statute is ambiguous we don't have a case on point so i'm asking the state court to interpret the statute as to option a as opposed to option b this is the better way to do it that there's nothing implied in that argument that says it would violate a constitutional right to take option b is simply urging the court to say well option a is better and the rule of lenity is better but there's no constitutional dimension to the argument that you know this would be better i would prefer this it would be better policy these are policy questions they're state law questions but there is no inherent in in in the idea of let's interpret a statute one way as opposed to the other there's no inherent argument that the opposite interpretation would violate the constitution unless he said so right and that and that was never said or implied in the state court that if you did not accept his interpretation there would be a constitutional violation i just a matter of it would be better policy to to interpret it his way and the state court disagreed and said no this is the way it's not ambiguous guidelines are scored at sentencing so when sentencing is delayed guideline scoring is delayed this statute nothing unusual about it there's nothing it's a little unusual because usually nothing would change between the original sentencing proceeding with the ovies wouldn't normally change because they address the offense itself which is kind of frozen in time although it can change if more information comes to light but as long as they were correctly scored originally they wouldn't be changed but you have p r v's could change because they can change both directions because some of the p r v's have sort of a how far do you look relationship to the criminal justice system prior concurrent and subsequent convictions and also you know probation parole status things like that so the goal in sentencing is to look at the offense and the offender the offense variables look at the offense the prior record variables look at the offender and then the two are combined and placed on the grid  what was the point for this delayed sentencing it was to give give him a chance to show that he could comply with the law which he did he did and he did and he got leniency at the sentencing at the at the delayed sentencing yes exactly at the first at the sept second proceeding which was the first sentencing the judge departed below the guidelines well below the guidelines and gave him a jail sentence and a deferred jail sentence and probation despite the fact that the guidelines call for a prison term he ended when the guidelines were first calculated it was an optional prison term right right the original one to the end at the time the guidelines were mandatory but that twelve to twelve to twenty original calculation would have allowed for either what's known as an intermediate sanction which can be a jail or probation term or or a prison sentence so what did he gain by waiting a year he gained he gained the opportunity to show that he can comply if he had it at the same sentence he was going to get but could have considered the crimes committed in livingston county as a reason to depart upward or could have simply imposed a prison term without departing upward so we don't know what was in the mind of the judge at the original proceeding except that the judge wanted to give this defendant a chance against the prosecutor's urging for an upward departure not just a prison sentence within the guidelines that the prosecutor was asking for an up or departure so so to move on to the crux of the issue assuming which i know you don't  seventy one point one does not prescribe or punish any behavior and i do want to backtrack from language in my brief that suggests that a sentencing statute cannot be unconstitutionally vague obviously some of the most prominent you know the arm career criminal act was unconstitutionally vague that's a sentencing statute the key is not whether it's a sentencing statute or sentence the point is doesn't prescribe or does it punish any crime and i'm c l seven seventy one point one the point of vagueness challenges is to give notice to us as we walk around of what we might be punished for depending on what we choose to do and so if it's not clear whether when i perform a certain action whether i will be subject to punishment or not or what the punishment i might be subject to is then the statute that says purports to subject me to punishment is unconstitutional even mc zero seven seventy one point one does not purport to subject any behavior to any punishment and it's outside of the realm of a void for vagueness challenges altogether you're saying it's simply a procedural it's exactly it's a procedural sentencing statute and i wish i'd said that in the brief instead of saying a sentencing statute which you know i own that mistake but it is a procedural statute it gives a power to the sentencing judge it does not you know and you know arguably  you know in this case you know mr snuff camp says you know i'm not subject to harsher punishment because of the delayed sentence again that's not clear because we don't know what the trial judge would have done had the trial judge sentenced at the original proceeding and and the crimes the livingston county crimes could have been considered either way so arguably he could get a windfall had he been sentenced the original proceeding because those crimes couldn't be scored and his p fees but they could have been considered as a basis for an upward departure so it's really not clear but there correctly scored his first sentencing despite the fact that they were correctly scored he got the downward departure he got the intermediate sentence of jail and probation and then and so there was no prejudice based on this and then he violates probation and then of course they're rescore because he's recent inst and he gets this enormous sentence i mean it's up to twenty years the twenty years is outside the discretion of the trial judge because a prison term the maximum sentence of a prison term in michigan is set by statute for this crime for some crimes they're defined to get it at the second sentencing right it's only for a get at that thirty six months minimum and the state sure that he really in michigan that's that's a thirty six months and most often it i mean most drug offenders are released at or very near their ideas through after what or very near to their earliest release date so basically he's in the hands of the parole board now because he served his thirty six months minimum and so at any time the parole board decides that he's ready to be out and under his original calculated guidelines because it was optional to go either way right right he could have got if he had been sentenced within the guidelines what was it twelve to twenty four of the well to twenty he would have his sentence would have been twenty months to twenty years if the judge had gone to the top of the guidelines it would've been twenty months to twenty years could have been nineteen months to twenty years anywhere between twelve and twenty months if the judge decided to do a prison term within the guidelines the judge also could have departed upward if if if if it accepted the prosecutor's recommendation so he was he was denied parole in my remembering correctly i believe that well since he's eligible for parole and still in prison i believe he was denied parole i don't have the records i don't know i don't know if there was a proceeding or not but you said that if somebody got thirty six months minimum that they would be out at thirty six months so he is board it depends on a lot of things you know their acceptance of responsibility their behavior while in prison a number of facts so all of that is not in our record correct correct that's correct yes and in fact he could serve twenty four  and that is a possibility but he's there now because of the probation that he violated correct correct because of the probation violation the court was required to rescore the the guidelines the guidelines and the and then the court chose to impose a within a guideline sentence at bottom of the guideline sentence of thirty six months to the statutory required twenty year maximum and his probation violation was drug use i believe that's correct because he's a very addict i believe that's correct i don't that's i feel like that's more of a medical question than a legal question i would assume that he's a drug  so as long as the denial of that was this direct appeal this was direct appeal but he didn't have an appeal of right because he pled guilty so it was his direct appeal by application and so it was denied in that form or lack of merit in the grounds presented which is a merits adjudication and so as long as any reasonable jurist could decide that the statute was not unconstitutionally vague and that's assuming the issue was presented to the machine court of appeals which again it wasn't but assuming it was as long as any reasonable jurist could have denied this application this court must reject the petition be glad to answer any other questions the panel my thank you i think your hono ok well first of all regarding the exhaustion question it's our position that since the district court made no ruling respondent made no objections that there's really nothing for this court to rule on regarding that if the court chooses it could remain and for a decision on that with respect to the central issue of the case i wanted to call to the court's attention that under michigan law when a person has an intermediate sanction the top the guidelines are not exactly what they appear to be in other words on an intermediate sanction unless there is a departure the court is limited to a twelve month county jail sentence just so i can be sure i understand you are claiming that seven seven one point one is unconstitutionally vague that's correct where is what language is unconstitutionally vague in that ok the unconstitutional vagueness is that the purpose of the statute as it says right there in seven seven one point one to give the defendant an opportunity to prove to the court his good behavior and he had good behavior and instead of being rewarded for that good behavior the michigan supreme court comes in and says one week before this sentencing that is  event to that it doesn't matter if his behavior was exemplary or appalling the judge can do whatever he wants but that's not what the courts were saying before th therefore it's our position that the petitioner was basically fooled into thinking that if you have good behavior it's going to work out i mean for all we know he was rewarded it's not like the judge said well now the guidelines of change i'm sentencing you were here the judge basically used the same guidelines and then didn't apart the judge the judge gave him the lower sentence well if the if the defendant had known that the statute torrie interpretation was going to change from the michigan supreme court then he wouldn't have taken the lead sentence the most he would have gotten would be a year in jail and he wouldn't they wouldn't have been on any probation violation at the time that the event in emmett county happened but why isn't this just a unfortunately horrible gamble on his part because the statute deceived him and his attorney but where i just don't see where the statute deceived him in seven seventy one point one so before you answer that i do understand your argument to be that the language of the statute did not really alert him to the full exposure i mean the statutes that based on the words he read us that there could be a particular reason he could get some kind of a break or whatever and then the interpretation  judge can do whatever he or she wants going up or down if that isn't the problem yes and the statute that provided the clarifying gloss was i'm sorry the ruling providing the clarifying gloss was made after the delayed sentence was imposed is an argument really that smith should not be applied retroactively well it was it was void for vagueness it after smith it is no longer vague but at the time the so the the ruling was something else i'm sorry you're saying at the time when you say it was void for vagueness because what because because the the statute only refers to good behavior during the term of the delayed sentence to try to prove something they used then they are cases that there were cases before smith that said that the court had to wait full year no what i'm saying is that in people v baker one twenty michelle the nine that the diff the purpose is to give the defendant the opportunity to prove himself eligible for probation or other lenient treatment and by the time of and that's why the delayed sentence was taken and then by the time of the actual sentence that was taken away of by the michigan supreme court  the statute was at best ambiguous before people v smith you saying it's ambiguous because it didn't say that there was a right to leniency no the statute was ambiguous because the courts interpreted it one way up until past the delay of sentence and then suddenly it's given a different interpretation if there are more good possible interpretations that suggest vagueness to me and what was the change in interpretation the change was that it does greta directly from it regard less of whether the defendant's behavior during the period of delay is a torrent or exemplary the judge still has the opportunity to do anything whereas the statute itself says give the defendant a chance to prove and he did prove ok and there were cases before opportunity to prove himself eligible and he thought well this is my chance to get out from under the sentence i don't even well counsel there are any cases before smith that said contrary to smith that the judge at the point of delayed sentencing the only question is did the person stay out of trouble and if the person stayed out of trouble the judge is obliged to impose a lenient sentence it's not quite that clear but you're relying on baker for that yes baker tends to say that it midway is not as clear as the language that you used which is part of our constitutional problem in the first place thank you thank you thank you both for your argument the case will be submitted with the clerk of the next case