thank you your honor may it please the court my name is dan olson i am the assistant federal defender representing can't cook and this is a a t s appeal and it resents the question of whether the state of alaska violated mr cooke's th amendment right to counsel of is true ace when he was unable to obtain the funds necessary to hire a private attorney in a criminal case based on the alaska court's refusal to set aside all judgment that was imposed against him and a closely related civil matter if fact of the state courts refusal to set aside a default judgment effect preventing mr cook getting the assets necessary to hire a private attorney and as a result you proceeded to trial oh say it was convicted and sentenced to ninety nine years i'm asking about what you just knew there  not have had any entitlement to seize those funds because they were after all not connected to the criminal case they were untainted assets that mr cooke had at his disposal and i want to underscore that mr cooke made diligent efforts to retain the services of a private attorney and there's no dispute that he did it prior to state attaching his assets he had the money ninety eight dollars the higher the attorney he wanted in our position  i think it was within a matter of i think the default judgment was d imposed i think a day or two after he failed to appear and i think within the next couple of weeks the state was able to  seize basically every asset that he had i mean so that's not my understanding and so my point is that by the time your client would have been in a position to have this trial judge set aside his own judgment all of the assets were i don't believe that the alaska supreme court had occasion to address the what the effect would have been if he had been successful in setting aside the default judgment let there be no mistake that he yes state got it all judgment for seven million dollars and  that ended up getting resolved as three hundred thousand dollars at it all was set aside but i think that it's i think it's incorrect to say that in an alternative scenario mr cooke would have been able to proceed with counsel of his choice and after all we are talking about a structural error we are talking about something that we can't envision what the alternatives would have been like we just say that if you're not able to get counsel of your choice i mean that's that's the kind of was decided whether or not to set aside a default judgment in the st place so that's what we're arguing and just to clarify and since i have about four minutes left i'm going to try to reserve a couple minutes here there is no question that the judge in the civil case was aware that mr cook was attempting to get the money necessary to hire an attorney in the criminal case after all the judge who handled the civil case presided o thank you your honor may it please the court my name is day when i went and i represent the respondent the marshal there are three things that this court should keep in mind when deciding this case st and foremost this is a federal  review is limited by the requirements of ed specifically you may grant relief only if the petitioner proves that the state court's decision violated clearly established federal law there is no clearly established federal law in fact there is no case law at all that mr cook has cited that says a criminal conviction must be set aside simply because an order in a private civil case case to which the state was not a party had an  nd cooke's argument assumes that he would have gained access to his assets if the default judgment had been set aside that's not true and it's directly contrary to what took argues to the alaska supreme court in cook st says rowland in that case mr cook argued that there would be no prejudice to the plaintiffs to mrs rowland and the state if the default judgment were set aside and the reason is there are just before setting it aside and that's what the supreme court the alaska supreme court pointed to when it said look we should set aside a civil judgment because there will be no prejudice because of acid can name frozen and they will be related to involve something other than tort claim why are you so confident in saying that even if the default judgment had been set aside that the plaintiff lawyer in the civil suit would have been entitled to retain the money pre going to be well in excess of that but that when he was moving to set aside a default judgment he had been convicted of anything the rematch would have been for a trial on the merits in the underlying claim but i don't see any  civil court plaintiffs may not have been if cook had come in and answered and no default had been entered but the supreme court explained that we were not operating under those conditions we were operating under sixty b and because sixty b says that condition that it can be conditioned on the terms and there's nothing in the supreme court discussion of this potential prejudice that will prejudice becomes important when setting aside the default judgment it took answers we would be under different rules but this was a sixty b motion and potential prejudice was a factor in deciding whether or not to side that default judgment and if you take a mention the fact that they could not allowing those assets to go back to the defendant nothing there is a dish and on the spec liability has already been decided so there's nothing about the supreme court opinion and how mentally even though there clearly the state is not we're not arguing that the default judgment should have remained in place we're simply saying that even if it had been set aside there was no guarantee that he was going to get his ass back back he argues the very opposite the rd point is simply that as part of the alaska court to recognize there's no principled way to limit the scope of the rule that cook is proposing here he is listed a number of factors that he thinks makes it more likely that you will agree with here but none of those really provide a way to limit the scope of this rule so for example by the type of creditor the fact that these cases were supposedly intertwined they were not intertwined they were separate cases granted they had similar facts as was the state of the slain officer but there's no principled way to say that the that would not be entitled to recover but a bank or credit card company would  the erroneous ruling occurred in a civil case but nonetheless it is so is state action according to his theory that had the direct effect of prosecuting him from higher and counsel his choice and i don't really see that big of a distinction between with his ability to hire local or they want to with all due respect your honor i believe that that makes all the difference in the world the fact that this occurred in a private civil war action over which the state as prosecutor certainly had no was asking you about the causal connection between your religious ruling and his access to the sun because if you're wrong a point and if the state judge had in fact properly set aside a default judgment if we knew that he would not have got access to the funds there would be a direct causal connection between not a road just ruling by a state actor and his inability to hire counsel of choice but your honor we our position is that the trial case was not obligated to make rulings in the civil case based on concerns about what was happening in the criminal case that would have that would have been important if this were a civil forfeiture that the government was involved in but it was not it was a private plaintiff in that civil action and there is nothing in federal law that says that private little creditors of any kind are required to take a nd seat behind a criminal defendant th amendment right that simply doesn't exist as any sort of clearly established federal law i grew but that's i just think you're missing the  and all you saying is that is the state judge's ruling turns out to be wrong yes right so there's there's been but then you're out of it brings you to i believe it was the court of appeals or the supreme court's concern which was that by doing this you have made criminal convictions hostage to civil cases that have no relationship to the criminal case and more importantly the fact that there was an error of some type in the civil case an error that had nothing to do with the criminal case is holy for to it and that simply cannot be the way this works because there is no way to limit that and years after the fact a criminal conviction could be set aside simply because of something entirely unrelated in unrelated case even though this is a trial judge it wouldn't necessarily bill emmott it with trial judge in the same jurisdiction in the same court it simply can't be as a practical matter so we take issue with the notion that the civil d and the criminal matters were entirely separate to state not only did they arise from the same set of acts not only did they have the same judicial officers sorry same judicial officer assigned in both cases but we know as a factual matter the judge who presided over the civil case was aware of the default judgment was having the effect of interfering with mr stability to find counsel in the criminal case that that was something that i don't actions which ordered his ability to get the funds to hire his attorney were were intentional and that is where the majority took a wrong turn so i think from the majority's perspective it wasn't which adopted what we think is the correct interpretation of the th amendment the question is did it actions erroneous to state actions have the effect of interfering with the sex and rights and there's no question about that now i  eyes that responded is making the argument that it wouldn't be fair or it wouldn't have been just for the plaintiffs in the civil action to essentially you know sit on the sidelines  went to trial in a criminal case that is ultimately the balancing test that that mr cook was deprived of it was not given the opportunity each state or obstinately refused to set aside the default judgment and mr cook was diligent in trying to get that set aside he asked to stay the civil proceedings he asked for the criminal case to be delayed until the appeal was a case could be resolved and in each term it was denied and those that