to please the court and peterson for appellant warden the structure of the federal constitution gives to the states certain core sovereign functions in executing the will of the people including the just administration of a criminal justice system the supreme court in ryan's versus weber cautioned the lower courts about intruding on those sovereign interests except in the rarest cases of palpable injustice the court intended its test that it had an ounce  genuinely limit stays of federal litigation and given that the supreme court's own jurisdiction in that case depended on the collateral order doctrine this court can also have confidence that it has jurisdiction to hear the state's claim of an improper stay the district court's stay order in this case violated all three elements of rinds and it did so in a way that irrevocably and unreviewable deprives the people of utah of the of their constitutional right to timely carry out their presumptively valid sentence against mr kell utah sovereign dignitary interests mandate exercise of the collateral order doctrine to reach jurisdiction in order to review and reverse the stay order i would like to address first jurisdiction and then the ryans elements unless the court has questions in a different order first under the collateral order  i know that sort of bleeds into the second element there but there was nothing tentative about the district court's stay order here it conclusively decided that the that the petitioners interest in going back to say court to exhaust the the supplemental instruction claim outweighed the state's sovereign interests in timely executing its sentence against mr kel there was nothing tentative about this apple he has cited the mozes h cone case for to suggest that stays generally are inherently tentative and therefore not amenable to collateral order jurisdiction but this is wrong first of all moses h cone said that ordinary in ordinary circumstances stays are not conclusive for collateral order purposes but this is not ordinary this is not simply the a matter of the federal district court putting the federal case on hold for no other reason than to delay the litigation the state is not asserting litigation delay as the important interest that's being conclusively decided against it this is a matter of the state's sovereign right to carry out its sentences and every day that passes is a day that concludes without that the sentence having been carried out so are you saying that the district court was somehow required to have an anticipatory procedural default isn't that within the district court's discretion i think that probably goes to a different element than  the conclusive decision but yes i do think that anticipatory default is a necessary consideration in deciding whether there is potential merit to to the  claim and again we're sort of jumping ahead to ryan's itself but anticipatory default is a way of respecting the state's sovereign interests and a way of ensuring we are not sending cases back halting execution of presumptively valid judgments for no possible good reason i mean in this case for example the state defaults were obvious and inevitable and have said that has since been proven out in the state litigation where the state court denied the petition on purely procedural grounds for exactly the same reasons that the state alerted the federal district court to in its opposition to the rinds motion the time and procedural bars were obvious and inevitable that the application of the fault in federal court should have been a matter of federal law for the district court to apply in stead the district court here said well i think i think the fault is a question for the state court to address but again default is a federal question so so what's the answer that the district court heard by that the district court was required to find an anticipatory default or could the district court simply defer to the state court on that question deferring to the state court on that a petitioner can raise any time barred or procedurally part claim at any point in the federal litigation as mr tell did here many years into the into the federal litigation and say you know don't don't bother looking at the state bars it's not your problem we'll just we'll just dump that on the state court or i don't want to use up all your time on this but i do want an answer as the and if you can answer that's all right too but are you saying that the district court was required to anticipatory lauralee procedural default that there are some rule of law that requires that is not there it is there isn't a direct holding that requires it my my proposition is that it is consistent with the purposes of the d p a and the spirit of ryans to at least consider the question and where the bar the state bars are obvious in the negative will they should be applied in federal court i certainly concede that there are circumstances where it might not be so clear and in that quote in that case the federal court might be well advised to defer to state action first so i do want to follow up a little bit of your exchange with judge phillips so if i understood part of your answer correctly when we're considering the rinds versus where were factors in regard to ryan's admonition that one of the factors is whether the claim is potentially m we should in that context consider procedural default yes both both state default and federal defaults and so then when we consider the collateral order doctrine when the supreme court has has directed the courts to consider whether or not the question raised is separate from the merits you're saying now the same word merit doesn't mean procedural default right or let me put it that way put it this way when we consider the collateral or doctrine on the element the second element whether or not the question is separate from the merits do we consider the potential for procedural default the question of the scope of the important separate issue is a fluid one what how how broad a level of generality do we look at what what issue has to be separate from the merits so certainly you could say well each of the three rimes elements has to be separate from from the underlying merits of the litigation for us to reach to have collateral order jurisdiction i'm not aware of any case that says that you have to look to all of the elements of the test well you may have answered requests should but if you did i'm not sure i don't think i'm there yet so ok my point is i didn't mean interrupt you well if you have further well i just wanted to see on the separate from the merits part do you consider this the word merits in the phrase separate from the merits does that encompass procedural default i can't see how it would well so but in minute ago the same word in when we're talking about the rinds versus weber factors whether or not something is potentially meritorious there we do consider procedural default but now when we're considering the collateral or doctrine merits does not consider in compass procedural default how do you reconcile those those answers what science was considering when it says potential merits is whether the whether there is a constitutional claim that the petitioner in fairness ought to be able to exhaust and potentially get relief on the question of default doesn't look to the substance of the constitutional claim and in many instances including those here were also suggesting that the defaults don't preclude  considering the merits of the constitutional claim in determining whether there is jurisdiction as well i thought i think this is probably a linguistic anomaly here that that we use the same and particularly the second element i think it fairly evident that the spirit of the purpose is not to require piecemeal litigation for the district court that's right and so if if they if the court then says ok well we're going to entertain it now and let it and and then later we can get we're going to consider exactly the same issue procedural default piecemeal litigation if that the district court were to at once decide that there was neither good cause under ryan's nor cause for to excuse a procedural default  then there is no need for repetitive litigation over that that the same is true if this court were to hold good cause means coleman and there was no good cause here that settles the question there's there's nothing to merge into later litigation and and in no event with the court be required to consider the merits of the supplemental instruction claim well that's all well and good but when you go back to the rhymes case the supreme court they'd circuit just they said we've got jurisdiction they held the collateral rule applied in that instance and all the supreme court did in that case were you reverse them substantively they make no mention of the the necessity for looking at the jurisdictional basis on the collateral dockery now you'd think that as much as the supreme court preaches to us that the first thing we have to decide is our jurisdiction and they take a case they substantively reverse it and don't even mention the fact that the eighth circuit took this on the basis collateral rule doctrine dogma apply your marriage i agree with that i think it would be remarkable proposition to suggest that the supreme court took a case from the eighth circuit where the eighth circuit never had jurisdiction to be to begin with it would be even more remarkable  to do what the supreme court did in its mandate which was to return the case to the eighth circuit to rule substantively on the elements of the runs less don't get too excited because i've been seeing it that way because i come back to work we're judged phillips questioned i mean you might you may or you may not win the question about whether they're your addiction up here but you've got other issues that in regards to a deep and whether or not we still look at it or did the trial court in this instance do something wrong by sending it back by granting that stay so i don't i want you to get out my comment i'll try to i see that i only have about a minute left i think i would like to reserve the remainder of the time for a little i'm going to give you a minute but if you want to get if you want to answer your question no i don't my name is lindsey lehrer and here with my colleague three day on behalf of trike i'd like to start today by discussing the jurisdiction issue for other circuit court the fifth sixth eighth and ninth have all four courts agreed that a district court order granting iran stay fails to satisfy the third requirement of the collateral order doctrine which is that the decision be effectively on reviewable by other means those courts found that under the supreme court's decision in mohawk there were other avenues of review available including certification under twelve ninety two b and titian for mandamus the fifth and the ninth circuit also noted that review is available on appeal from final judgment and it does not the fact that they sought certification in this case doesn't that take away two of those circuits it doesn't the court touch on this in mohawk and what they said is that that there doesn't have to be review doesn't have to be had in every case as long as it's available so the question that this court is considering as whether review is available on the class of orders not necessarily on this order in particular and the certification under twelve ninety two b was a vailable to the state it's just that the district court denied available and so i consider it and as the trial court did here and i've said i'm not going to certify the question that's final so in short and you can say well tell me what the other available rim of these were in this case appeal is it's not a final judgment in the sense that you got a directive or you have here is the trial court saying i'm staying this procedure because it's  the other circuit courts that have considered it two of them said that appeal following final judgment that this issue could be appealed following final judgment the other two didn't say anything about that but again if you look at the supreme court's decision in mohawk the supreme court there really says that as long as there is some other avenue of review that that is enough and that the that jurisdiction of the twelve ninety one shouldn't be exercised let me explore that with you a little bit at the back to ryan's ryan's contemplates review because it speaks about abuse of discretion and if if there's going to be abuse of discretion standard then that presumably means that there's a appeal is largely moot at least on stay issue if you wait for it to come back to the district court and so forth so i don't see much review there that leaves you with mandamus how does mandamus work with the views of discretion if the and choose any of the ryans factors and then say the government challenges the district court on the use of its discretion there how is that that they file a mandamus with us and say order the district court to rule in our favor on this matter of discretion well part of the standard is a clear abuse of discretion  that that that would provide an avenue of review for instances where there are serious error and that's exactly the language that the supreme court used in mohawk they talked about twelve  and and mandamus being available they refer to them as safety valves for when there are clear instances of error so is a clear abuse of discretion for example an intentional de lay mean i suppose if there were something in the record that indicated that that the petitioner had intentionally delayed or was somehow engaging in abusive litigation tactics  whether that was something in the record from state post conviction proceedings or from the federal habeas proceedings that you know just clearly indicated and that in some way i think i mean that that's what the court looks  the court for example in this case look to the circumstances look to the existence of a case management schedule consider the arguments on both sides and found that there was not intentional delay well l court didn't even address it in rhymes so let's go assuming that we're here what other arguments do you have as to why the let's say the ok we have jurisdiction  reasonable confusion about a filing deadline would ordinarily constitute good cause under runs but the supreme court held in coleman itself that confusion about a filing deadline was not sufficient to meet the cause unprejudiced standard so the language in pace indicates that the supreme court intended those two standards to be different and that the ninth circuit explains this further in blake and what the ninth circuit explains is that good cause under ryan's is distinct because it only stays the federal case to allow the petitioner to present his claims to the state court first as opposed to under coleman where this is a mix question he's already had a couple of bites out of the apple in regards to this and that's what bothers me about the ninth circuit case do show good cause there has to be diligence actually on your part and my question is do you want porn in time  petitioner here become available darren become aware of of his claims of ineffectiveness now what like five years or more like that will move quite a period of time before fairly shortly after that the party stipulated to a case management schedule which contemplated that discovery and an evidentiary hearing would happen before other briefing and that once those things had been completed the parties would come up with a schedule for that other briefing mr kelly and here to that case management schedule of discovery was ongoing for three years at which point once discovery concluded  motion for an evidentiary hearing was promptly filed once that was denied that's when there were there was other argument and and the rinds motion was filed as the case management schedule contemplated at the time the case management schedule was entered the state was on notice that these claims remain to be exhausted and that mr cal would be filing iran's motion that is something that mr cole raised in his amended petition when he filed it the state could have chosen not to agree to that case management schedule at the time they did not and discovery ultimately took i think longer than probably anybody anticipated but it would not have been practical or efficient to file that rank motion in the middle of discovery proceedings while the parties are going back and forth on releasing documents and essentially just hope those discovery proceedings in the middle to put the case on hold to return to see court well my problem is so that you'll see is that a take the supreme court is exactly what it's saying that to grant a stay if we do that very often in the federal room where that's a state matter  death penalty case here who were clouding our muddying the concept of water deep or at bow however you want to pronounce it does as to what the state there's an encroachment and into me this case almost smacks of the exact picture what the supreme court was drawing for the for the federal courts when we don't hold of the district courts to that this almost seems like that classic case of the court was saying feds don't do that because we have a set and you should also in this case decided cause or prejudice  are good cause of things ourselves and then told the district court yeah you should you were ok or no you should have done that now because actually what's happened i think someone followed twenty eight yea the state district the question still remains an open question there are three cases from the utah supreme court when word gardner and hearst which leave open the question of whether there could be exceptions to the  it's true that there have been multiple states but they are justified by the facts in this case so the initial stay the initial petition in this case was filed in order to ensure that mr cole complied with the  limitations he had ongoing court proceedings that were a part of his initial post conviction at that point so he filed a protective a v s petition and the district court judge at that time found that that's what he had done and that it was justified to allow him to to finish his state court proceedings before proceeding in federal court in this instance with the with the good what the district court found here is that the post conviction petition that was filed in mr kells case was a perfunctory petition that council had done no investigation had not interviewed any jurors and three jurors ultimately said while we were deliberating in the penalty phase we sent out a question the judge came in and gave us an answer it was not on the record and it was not in the presence of mr khalil or his counsel and part of the context of that that doesn't appear in our briefs is that mr kells trial it was held inside the prison so that's the circumstance of the seriousness of the claim and of counsel's failure to post conviction counsel's failure to investigate that in the district court cited to several affidavits in the record including an affidavit from post conviction counsel himself saying i didn't conduct an investigation so i agree that there there have been multiple stays in this case and that might be unusual but it's warranted by the circumstances i wanted to touch briefly on it yes i was about to tell you you're out of time but i was going to ask you in any of that to respond recently and howard which is a two thousand and ten case and what the eighth circuit found there is that they the reason that they had jurisdiction in rheims itself was because it was not clear that the district court was even permitted to grant a stay and that the supreme court answered that question in rheims this in rheims the supreme court said yes a limited delay is justified if  meets these three requirements and so that once the supreme court had answered that question the there the state could no longer satisfy the collateral order talked so that's how that the circuit itself which had presumably that's why the eight the ninth circuit's of rejected the very argument that you're making but it's simply not true that the eighth circuit did not have continuing jurisdiction to review whether ryan say would be appropriate after remained from the supreme court it's not true that collateral order jurisdiction depended entirely on the question whether states are appropriate at all it had continuing jurisdiction to decide whether a stay was appropriate under ryan's in that case and the supreme court remanded the case court to vacate the stay order and remand with instructions to proceed thank you