case number sixteen one two two nine versus sherman campbell argument not to exceed fifteen minutes per side m thank you your honors of aches early for the appellant robert reeves if i manage like reserve three minutes for a bottle or this case may seem at first glance to present a lot of complicated issues but in the end it comes down to a single point no one here defends the district court's resolution of mr reid's double jeopardy claim nor the state courts resolution of that claim instead the warden is here presenting the series of new arguments that neither  district court nor the state court ever had a chance to a pint on most of those arguments have been forfeited all of them are in our view incorrect so this court should reverse or at the very least vacate the district court ruling and send the case back so that court can decide all these new issues in the first instance to the extent they've been properly preserved and like to begin if i may with the reasons the district courts and state courts resolution of mr reeves double jeopardy claim is incorrect the state court said that two offenses comply with the double jeopardy clause so long as they arise under different statutes with different elements the state isn't defending that articulation of the governing test today it isn't even defending it under at both and that's for good reason that statement of the law is inaccurate it doesn't matter whether the offenses arise under separate statutes or the same statute would we do about the missouri point you know you can have you can criminalize the same act in two different ways as long as it's clear that the legislature man for there to be separate power these for both that seems like a pretty good seems like it would be a pretty good point throughout we're here with the state as to say in terms of whether they preserve exactly what to do with it but your request is to let someone out of jail and it's quite possible given what i've heard that he belongs in jail one preliminary before i answer that which is my client is no longer in jail right right so there's just about the consequences that's right right  so setting aside the forfeiture point the state law on which the warden is relying there is itself a violation of the state constitution and for that reason can't validly seems like a serious lockstep that is cited in use missouri there are but those cases first of all many of those cases involve the federal constitution and of course they have to apply missouri versus holland when applying the federal constitution secondly in the remaining cases the argument that we've made as far as i'm aware was not separately presented and therefore could not have been passed upon by the state court as far as i'm aware the michigan courts have never squarely  held one way or the other on the issue we're talking about which is why we have to rely on a more general principles of michigan double jeopardy law one of those more general principles is that the state provision means the same thing in the multiple punishments context as in the single trial in multiple trial context that's the opposite of what missouri versus hundred says under suggests that the block protest applies only in the multiple trial context and can be overridden by legislative authorization in the single trial context but if you've got a state supreme court that says not once but five times in a single opinion and many times in other opinions that that distinction is not something that michigan recognizes then i don't see how hunter can properly be considered a part of the mission impossible let's say they did for the missouri argument  case technically and rule fifty two is part of the criminals so it wouldn't wouldn't apply here also you're right that's right i'm mixing it up ok but first of all even if you were to apply some form of plain error review i don't think the relevant prongs would be satisfied at the very least the michigan constitutional issue that we've raised is substantial so it can't be that the states arguments are so obvious that the district court  would have been certain to rule for them had the issue been raised in that way but even putting that aside of course there's the there are the other problems of plain error that they would still have to satisfy which they've made no effort to satisfy here unless or more questions on missouri vs hunter i'd like to turn to the state's other merits related arguments and since we're talking about the state's arguments the state also contends that the offenses here involved separate incidents rather than a single incident that argument too has been forfeited it wasn't raised in the district court and wasn't passed on in either the district court or the state court but even setting that aside there's no basis in the record for contending that the two convictions here restaurant two separate acts there's a plea form that says that i am pleading guilty to arranging sex with a minor using a computer it doesn't talk about separate trips or separate communications or anything like that so that contention too doesn't have a basis in the record  i'll turn then to the state's other procedural arguments unless there is more on the merits but what would happen if we sent it back to the district court the district court we should this missouri argument seem significant st courts haven't reviewed it it's of course the state that has inserted this into the case would you then require more exhaustion of that new way of thinking about the double jeopardy but i don't think so it's not a separate claim that i know i realize that that's what i'm trying to figure out there be no chance for a peer review because they've not reviewed that way of thinking about it i agree there would be no at the review applicable here because we just think about it in could offer an analogy to see how this would work let's say the state had relied on a statutory authorization for multiple punishments then we responded the legislature has repealed that statutory authorization of subsequent statute you wouldn't think of that as a separate claim that has to be exhausted has to be raised in state court it's just a response to a defense that they have put up here we're saying that the state authorization has been invalidated not by a later statute but by the state constitution so the same kind of way of thinking about it should apply here too so you wouldn't have to get into issues of exhaustion default ineffective assistance on this issue first of all because it's simply been forfeited by the state but second of all if you did get past that then you just analyze what the michigan constitution says what the state courts have said about the michigan constitution and then you'd apply those legal principles to determine whether the state authorization is indeed valid or not i'll turn then to the remaining grounds the district court offered for its decision which is procedural default we've identified a few different ways to overcome the procedural default but probably the simplest is the supreme court's decision in report against baker under which the state courts analysis here was dependent on federal law and therefore can't be an independent and adequate state ground so even if you accept the warden's reading of the state courts opinion even if you accept that they have made a clear statement about procedural default it's plain that it's causing prejudice analysis boil down to we don't think this claim is meritorious and because it isn't meritorious there's no prejudice there for procedural default but that's exactly what happened in the rip case which in fairness to the warden was decided after he filed his response brief but in that case squarely controls this analysis if you don't agree with that point then again dealing with duncan by staying in abeyance they do this automatically quotable tolling and i don't think that is correct so i wonder if there's a little there's a little bit of a statue limitations problem here even if you think that that isn't correct the point remains that that was the law that my client was faced with when he was filing these petitions so there's a case for equitable tolling because he would have been busy that i proposed tolling applies based on that condition wouldn't it be appropriate to tell the district court to change this procedure that there's no such thing as automatic equitable calling it's there's a stain bands use that if you want to use it but otherwise equitable calling is a case by case i won't fight too hard on whether the rule is correct or not but i'm happy to defend and explain why i don't think you should overrule that procedure the first is that duncan did not reach the equitable tolling you should talk only about statutory tolling and the second reason is that it's it's reasonable to say that since litigants don't control how long judges take to decide their cases once they've been brought up that time shouldn't be charged against them but if you have that thought you do a stay in a that solves the problem perfectly that is an alternative that's available certainly so i i don't think we need to fight too hard on that because it doesn't ultimately make a difference here even even if you accept that u nderstanding of equitable tolling equitable tolling would certainly be available on these facts because my client was certainly at the very least misled by the district court if there are no further questions at all reserved for a bottle separate claim it's just a basis for excusing the procedural default the court doesn't need to get to it because as we've explained there's an independence and adequate state ground problem that already gets rid of the procedural default there's also a clear statement issue but certainly i see is yet another reason to excuse the procedural default thank you thank you good morning your honour's may it please the court on behalf of respondent sherman campbell as this court is aware habeas relief is a is an extraordinary remedy and that remedy is not warranted in this case for three reasons because the double jeopardy claim untimely because it's defaulted and because it's without merit and i'd like to address the issues in that order the district court bought the district court correctly denied petitioner habeas really didn't address the statute of limitations issue this court should address that threshold issue and find the claim on timely because it's it's not at all a comp complicated issue and i think it's the easiest and most straightforward way to dispose of this only because of the one year bar so if you're saying yes yes what's your response to his point that this unusual procedure call unusual i might even say it's wrong surely the claimant would be allowed to rely on and understand why the claims not have to rely on the district court from an equitable tolling perspective as opposed to you know article three jurisdiction while the district court here did give the petitioner the benefit of equitable towing from the time that he filed his first petition which was timely and till it dismissed the petition because it included on exhausted claim so petitioner did get that benefit but the district court explained that petitioner had a year left didn't mislead the petition to think that the case would be pending set said that the petitioner had a your laugh and go exhaust your claims and it's our position that the statute of limitations begins to run the day after the district court no and so in your view even though the that district court decision was was on appeal to the six circuit he should have gone ahead and filed in state court he should have gone ahead and he didn't file his motion for leave from judgment and stake or and tell over four months after the limitations period expire and untimely motion for relief from judgment doesn't restart the statute of limitations period and he also i'd like to know it waited over three months after the michigan supreme court denied the application to then file the hey vs petition it's much from capturing something you said earlier so the way the and i'm not sure i understand how this mission this district court rule works but the rule says in our district it's equitable tolling is long as the petitions pending petition should be pending yes but you then said when the petition was dismissed for lack of exhaustion i think you said the district court said the clock starts running now that's the state's position that that's what the i don't it's not state's position it's what's the record show what did the district court say to reduce at that point i thought you said the dis the clock started deduced i believe the district court said clearly that petitioner has a year to to either file the motion has a year left remaining the statute of limitations period hadn't yet started hadn't got started for this particular petition or when he filed the confusion with this rule is whether the district court is saying there's equitable another while the case is pending i think the district court said that there is equitable tolling while the petition was was pending and it was no longer pending when the district court dismissed it and petition a petitioner gets tolling while a request for a certificate of appeal ability is pending petitioner hasn't cited to anything that says you get tolling for that period he wants so i don't know we're not connecting this is an equitable tolling point so accurately tolling is turning on what the representations were to the individual and how an individual reasonably would have understood that that's the point it's not what ed post says about counting and not counting it's the application of equitable tolling based on the way this district court will work that makes sense yes but i'm trying to figure out why it's not a fair assumption from the perspective of the petitioner hey this equitable tolling why the federal petitions pending why that would go to the end of that segment of the case as opposed to the immediately after the dismissal i'm not telling you the answer just trying to figure out your information on how to assess it it's not helpful to me to say ed put doesn't count that that doesn't matter does equitable polling well i don't believe the district court here in the districts opinion speaks for itself i don't believe the district court here misled the petitioner and said your you're getting equitable telling during this entire time that austrade page equitably told by the court and it uses the words while the time in which is he is case has been pending in federal court now it's true it uses the word has been pending yes but normally you would say i think you would say while you're engaged in appellate procedures the case is pending in federal court is it not a me it's not pending any place else and it's not unbending right right  i don't think the district court's language here would mislead the petitioner the district court indicated that he had a year remaining and the and he had he had the benefit of that credible tolling while the case had been pending it's no longer pending the clock starts the state's position the clock starts and petitioner had to had to timely file and what do we do if it sounds like everyone's in agreement that there's a big problem of the state court analysis on the merits of a probable just a courthouse the merits so has the has the state raised this argument before if they haven't raised the missouri argument before what do we do with it now what's with the way to think about it from our perspective well the state did not specifically raise those arguments and the answer we more broadly argued that the claimed black mare at the double jeopardy claim lack merit ideally they should have been included in the answer there were a number of habeas claims that were raised and there were other procedural hurdles that petitioner had to overcome the statue of limitations a procedural default i think the fact that the state did not include these two additional bases why petitioner loses on the merits i don't think that means the argument is forfeited it's not like a certain defense that a state has to raise or is waived this court can affirm the district court decision on any basis is supported by the record and if the court does get to the merits of the double jeopardy claim it should consider these arguments the cases that petitioner cites that indicate that the court considered the state arguments waived in those cases further development of the record factual development of the record was necessary these are not complicated arguments or pretty straightforward did have the opportunity to respond in the reply brief and i think the court should not consider them forfeited by the state they were just additional basis upon which to alternative grounds of affirms or alternative grounds raise below  this court which are not applied to the state of the stores this court has the discretion to not consider these arguments in this court could remain back to the district court to consider them that's the state concedes that but i think that i think that the arguments are are not complicated i think any judge that would look at these arguments or look at the legislative intent specifically with respect to the double jeopardy claim would find that the michigan legislature here clearly intended that these two that this that these actions be punished cumulatively in this in this case i think that i think it's a i think for judicial economy purposes court can consider those arguments and not remain back to the district court my second argument is that even if the court bypasses the default the petitioners double jeopardy claim is procedurally defaulted the last state court to issue a reasoned opinion was the trial court and the trial court specifically cited six point five three petitioner doesn't dispute that he failed to comply with that state procedural role in this court has repeatedly recognized that procedural rule as an independent and adequate state ground sufficient for a default petition claims that the state court didn't expressly and clearly rely on that ground but i think the opinion indicates that the reliance couldn't be plainer the state court cited the applicable rule early in its opinion it explained the standard applicable in its concluding paragraph i think it shows that it unquestionably denied relief on procedural grounds the state court said in summary petitioner fails to application in this case the default was not raising it in the initial post judgement state proceed yeah in the initial application the appeal after the plea the initial application for leave in this case it would be an application because he applied he didn't raise it at his first opportunity to do so and i think the language in the state court's opinion was more than just a generic procedural reference is petitioner claims  petitioner claims that the state court's decision was ambiguous and he cites peoples the laughter the circuits this court's decision from two thousand and thirteen but the distinguishing factor between that case and this one is that in that case the state court cited two conflicting procedural rules six point five zero eight d two and d three and those rules are conflicting here just one procedural rule was cited it was  again this court has repeatedly found that specific rule to be an adequate and independent procedural rule upon which a state court can default claims is far is the merits of the underlying claim petitioner claims that the state courts reasoning was flawed and it wasn't complete reasoning and even if it was flawed or it wasn't a proper analysis under the black berger test the result that the state court in this case wrist reach that there was no double jeopardy violation was correct and that's because the dispositive question in these multiple punishment contexts is whether the state legislature intended to authorize separate punishments for the crimes and in this case i think the legislative intent is very obvious there was no need to even apply a block burger analysis where the intent was so obvious as it was here in the mission michigan legislator legislature expressly said that a defendant can be convicted and punished for both the criminal sexual assault of activity and using the computer or the internet to commit that underlying crime and that is dispositive of the issue in this case to the extent the petitioner you're invok at this i think the deference would apply to the result that the state court reach which was that there was no double jeopardy violation to the ultimate result and this court has has applied  to the ultimate result of state court decisions and in the art of that rule go i mean let's say everything is litigated in the fourth amendment and ultimately it's which is the fifth amendment  somehow there's a fifth amendment argument that the fourth amendment claim goes away i'm kind of making this up but would you say well we apply it to deference because there is some constants a constitutional way to do with the state did in imprisoning this person yes i think really would do that i think that's right and i think richter supports that where you can look for any reasonable arguments that supported the state court decision and rector it wasn't limited to just unexplained unexplained decisions i think i think rich does go that far you know circuits have taken different different approaches but i think this this court has applied at the dock friends to the overall result of the state court decision i think i think it does go that far if there's any reasonable argument that supports the state courts ultimate conclusion it gets deference but even here the court even without applying at deference to this specific case i think petitioner loses given the clear legislative intent that michigan has in council speak you know the difference did you examine there was a supreme court case this past monday where they summarily reversed the sixth circuit on a an interplay of procedural default and deference did you look at that case does it have any effect on our ruling i'm sorry and i'm not aware of that case i just thank you you might at your convenience answer the same question if you have an answer i'm not aware of any effect that kicks in if you have the same answers all begin with a few words on the statute of limitations and then turn  suggest that we do have a case of double jeopardy here right i want to hear you respond to your you're opposing counsel in there or go or take my friend not to be contesting what the block burger test would provide for here because when you have a crime a and crime b where crime b is committing crime and using a computer it's clear that one is a subset of the other and therefore the block  t would be satisfied i take my friend instead to be suggesting that the block berger test doesn't apply in the first place because of this legislative authorization but of course that argument most importantly as we've just heard was not raised in the district court and so the court doesn't even need to get into all these complicated state constitutional law issues that we've talked about earlier so the most straightforward way to resolve it is just to say the state forfeited it you can raise the argument again next time if it wants to get into these state constitutional issues and my friend did say this court has discretion to overlook a forfeiture and it's true that the court does but all are asking for here is parity the court this court and other courts often hold prisoners to very exacting standards if they fail to preserve a claim at any level of court whether it's the state courts state post conviction court district court this court that's very rigorously enforced against those those pro se prisoners all we're asking for is for the court to apply the same standers to the state which is a well counseled litigant a few words on the statute of limitations issue the district court used the phrase pending in federal court there is no doubt that this court is a federal court and that case that's here is still pending a judge drew attention to the words has been pending i would note two things the first is that in a lot of the same districts other opinions it uses the phrase is pending interchangeably and the other is that the sentence says is equitably told and has been pending in the same sentence i don't think the district court was playing paying very close attention to the tense that was being used there no further questions thank you thank you from so if you took this case on the criminal justice court would certainly like to thank you we know you do that as a service to the court and their system of justice and your client has been well served so thank you very