of them when performing the analysis under heavy humphrey whether a section one thousand nine hundred and three claim is barred there is a threshold question the threshold question is is there any outstanding conviction meaning a conviction that still has legal effect a conviction that has not been set aside a conviction that has not been eliminated that is a binary question either there is a conviction in legal effect where there is not and if the what it means by a type of favorable terminations and it lays it out clearly it's if there is a conviction in effect or if there isn't and that's iterated in the wireless decision it's reiterated in the bradford decision from this quote it's also be  rated in the mcdonough decision you just mentioned from the supreme court this term which says in the mcdonogh case because there was no conviction had although it was similar there was a corollary rule heck did not directly apply that for different had decided that those were four different favorable terminations and this person doesn't fall into any of those four categories but st it does actually fall into one of the categories because it's a there's a decision by a state tribunals authorized to make the determination that the conviction is no longer valid and valid simply means has legal effect there's no dispute that the convictions in this case no longer have legal the st question about the comment about the his reading simply monastery oh no i don't believe that's significant because there's no question under state law what the court did was vacate that conviction so what the defendants are asking you to do is to look behind and that's what this court has already dealt with in bradford what it dealt with in other cases talking about what kind of resolution do you need of the continuing legal charges and that's the issue that's dealt with although it's similar it's not identical to the that were vacated and then there was a subsequent conviction based on a guilty plea to one of those charges and what the this court said in was although the initial convictions had been vacated that lifted the heck barnett specifically stipulation by the parties that the grounds for state relief are met even if that's even if the stipulation comes out of a global settlement and in both taylor  convictions but he was limited in the damages that he could pursue because of the nd conviction and that's the issue that there were competing views on the st issue is so straightforward i agree it does get very little  very little discussion because under the binding that is and again you know we had twenty five twelve professors including three authors of the leading federal courts textbooks writing and the make  but it has also been dealt with already by binding decisions in bradford so often it is the case that a conviction when it is vacated and dismissed whether you're looking at it under the heck rule which applies only t federal court and comes out of the concern for avoiding conflicting judgments so that applies only when there's a conviction in effect and the hack bar is lifted as soon as a conviction is vacated and that's what  in two thousand and seven and then this court took it up in bradford and then the supreme court just took it up in the mcdonough v smith and under that framework you look at the type of claim brought now we have several different claims in this case we have cla fabrication of evidence we have claims for brave violation coerced confessions which are all separate claims recognized in the circuit they have separate elements that are laid out by lots of cited in our briefs in order to determine the acquittal for those claims you again analogize to malicious prosecution but you don't just graphed the most the exact same requirement for favorable terminations that there is a common law you use it as a guide but you don't do it exactly so for example in jacksonville barnes the plaintiff was permitted to pursue a section nine hundred and eighty three dollars claim even though after his conviction was vacated by was lifted under heck he was prior conviction because what happened was the st he was convicted in based on evidence including a statement was taken in violation of miranda that conviction was reversed on that basis the state was barred from using we don't dispute that the claims to be the question is whether and not to answer the question the judge hamann asked earlier about what does the stipulation again you have to look at this under the governing so under the governing law a stipulation those pretty clear about what it was doing it's exactly what it thought it was doing there's no question as to what was said as to what was actually done is a dispute a fact and generally especially on a motion to dismiss you can take judicial notice when you say if we're talking about a historical fact what was disputed about the historical facts the court stated what it stated and what it signed we have the document so explain to me what historical fact is it was and one i'm performing a ministerial act and secondly there is a provision and that the parties stipulate that the original conviction was based following up on this question what's disputed here are you going to call judge while as a witness to be deposed in the civil rights action if we permit you to go forward to ask him what did you mean by these comments on the record when you evidence that i heard that the evidence cherry kerry he told the parties at the time it was going to take him several months before he could render such a find so his statements essentially were made in orders not have force provision stipulating that there was proof beyond a reasonable doubt i'd totally be with you but i don't know what to do with that i don't even know what it's doing in there is it is a trying to protect the city and its officers from civil rights liability by saying look based on what the jury heard the st time around we all agree there was enough evidence to convict these men of these crimes but your response to that is yes but the evidence was so tainted by all these constitutional violations that you mentioned earlier that that is not the proof that should have been presented to the jury if they'd received a fair trial isn't that your response i don't think you can separate the stipulation from the rest of the release dismissal agreement with and what's he doing in there to explain to me what what water was that stipulation care i think there's no question that that was something that the prosecution wanted as part of an attempt to good morning may please the court i'm matt singer for the city of fair banks seated with me a counsel table is joe evans who represents the individual police officers he's reserved five minutes and will address why the state of alaska is an indispensable party one of our alternative it is hornbook tort law that there is no favorable terminations when a conviction is set aside based on a settlement this court recognized that principle in the  malicious prosecution that that respectfully is caught is contrary to certainly is contrary to malicious prosecution law to it's recognized by the circuit by as essentially every other court in erica so  the circumstances before your honor's today or somebody has attained a settlement without any evidence of innocence or any shelling of constitutional infirmity in the original conviction and then turn around by the one thousand nine hundred and eighty three claim and said that the mere setting aside of the convictions was sufficient to establish a favorable terminations and get around our decision in taylor versus county of pima the district court here did not have benefit of this decision because it wasn't decided until two thousand and nineteen after the court had entered the dismissal of the civil rights act and i'm referring specifically to page poses no bar to a challenge to that conviction or the resulting sentence while the other the search circumstances of that case they will terminations wasn't disputed it was vacated pursuant to a constitutional infirmity so it was it was vacated in a manner that indicated that the region conviction was invalid was that the original conviction had been declared invalid in the words of had so it wasn't merely vacated pursuant to a settlement it was and and that's the each of the cases that plaintiffs rely on are cruel cases statue limitations cases in which the original conviction is expressly set aside either due to an agreement of the parties that there were cumulative errors or constitutional errors or an express finding of the court that there are constitutional errors a brady miranda violation some see some significant error or new new evidence  relies on tort tort law on state law what what is a favorable term the nation and its been a favorable terminations is not a settlement on under american law where the nd question is that the patient is it not said that it wanted the law to apply the law of more of malicious prosecution to apply in just the same way to nine hundred and eighty three and then it wouldn't have listed the four specific methods by which a case can be  what is simply said so long as there is no extant conviction and of sort but instead the court identified the four ways in which and and here the or the only manner in which a conviction can be can be set aside to establish a favorable term nation rule is if a court has declared it invalid not if it's merely set aside but if it's declared invalid will to declare it to declare is to expressly state something to express the explicitly state that the prior judgment was invalid that never happened judge lyle never declared that the prior judgment was invalid quite the contrary and i think it's worth taking a minute to look at at what judge lyle did the honor mentioned that stipulation but in fact there that hearing is rife with comments or five or six comments that the judge explains in detail the inherent authority of the attorney general to handle the business of the state of alaska to enter into compromises the judge said that that when the attorney general properly exercised that authority that the court the spirit court had no authority to review or to criticize the judge explained in the criminal rule under which the stipulation was being entered did not authorize the court either to approve of the stipulation or to disapprove of the stipulation so that the judge repeatedly throughout the course of that short hearing made clear he wasn't making any findings he wasn't reaching any conclusions he was signing the dotted line to affected a negotiated compromise entered into between able attorneys representing twenty four judge lyle to have granted post conviction relief he would have had to make factual findings that there was clear and convincing evidence of actual innocence that's the standard under under the statute for it for a trial court judge to set aside a conviction he didn't make us findings clearly did not make us findings in fact the stipulation provides the opposite that the convictions were validly and properly answered based on proof beyond a reasonable doubt is a reason to give their side or the court i think what i'm hearing your honor say is that is that your your concern about whether the room or a doctrine that the notion that a release dismissal agreement may not always be enforceable should somehow extend to a stipulation courts that have considered that question have uniformly rejected the notion that stipulations of fact signed attorneys can be subject to two rumors that  is the attorneys here were not coerced your term is we're not no attorney was sitting in prison the the the these gentlemen were represented officially represented by seven different lawyers at the at the p c r here and they had a combined almost one hundred and fifty years of experience one of the attorneys mr bundy had been the u s attorney for the state of all of us for the district of alaska for purposes of judicial us up i was interested in your arguments so the the stipulation was to be shown for judicial estoppel is to say the parties are now arguing the opposite is at right what would you into show for judicial a stop all that we have to show that that the plaintiffs are arguing the opposite of what they stipulated and i believe they are they've stipulated that the original convictions were for validly improperly entered based on proof beyond a reasonable doubt and then as counsel conceded this morning all of their  challenge the validity of the same convictions so they so that in order to secure their immediate release before plaintiffs asserted it before a judge while in st convictions were valid and proper than two years later they turned around and sued in this court to say no the same convictions are not valid they're improper so that they're taking the opposite position there's no question that judge lyle relied on the evans is was planning to address that so i will i will let him less or any other questions i will let him address that my name is joe evans i represent the four individual police officers in this matter i will focus my argument on why the state of alaska is in and it's fanciful party in this matter although this issue was not considered by the district court it is an alternative grounds for dismissal in the event this court does not affirm the district court's tech basis for the swans he is the state indispensable we can enter relief as a federal court granting damages for a civil rights violation against the city and the individual officers without joining the state of alaska which has th amendment immunity from such an act so why is it indispensable to a civil rights end a special because i would s agreement if it is enforceable and it is valid would not allow this court to do that because that settlement agreement specifically states that their convictions were based upon proof beyond a reasonable  and that their convictions were valid in all but why can't the district court conduct appropriate discovery and perhaps on summary judgment make a factual determination as to whether the settlement agreement was knowingly and voluntarily entered relying perhaps upon testimony from the state's lawyers who were involved in the goetia or some of the facts that would inform that decision the state doesn't have to be a party to solicit evidence from the state so that but ya know if it if the state and the city had engaged together in the goshi ations for the settlement agreement i believe you're correct this settlement agreement though if you look at the settlement agreements when they were signed signed by the appellants and the state of alaska on december the th they hearing regarding the settlement agreement was on december the th the city of fair banks signed on december the th the city was not involved at all in putting this agreement together so i would respectfully submit judge hellmann in response to your question that it's more than just a question of evidence it's more than just a question of  asking the state what they did the state is the one that negotiated this agreement the state is the one that put it together and i'm i'm not disputing in my question aimed at the state isn't an important source of evidence here on the enforceability of the contract but the plaintiffs are not seeking damages from the state of alaska so other than having perhaps a sovereign interest in the enforceability of that settlement agreement why does  have to be a party to the civil rights case that's where you're losing on your own i believe that the state needs to be a party to this because as part of the state's putting together agreements such as this it's part of their obligation in a minister in the criminal justice in the state of alaska for them to have the ability to negotiate an agreement such as this and have those agreements in force or have them not decimated which is what the appellant seek to do here they seek to hold the disagreements on enforceable etc but that's purely a factual dispute isn't there that well that would ultimately inform the district court's decision as to whether the contract should be enforced but from the state's standpoint your honor it it would if if this agreement is unraveled and is not enforceable it impedes in impairs their ability the state's ability not the city's ability because the state prosecutes felonies as the court knows it impedes the state's ability to enter into such a settlement agreements in handling criminal cases at like to know what happens if  reinstated or what what happened if this imminent sudden force of all if this is is on enforceable then in in my opinion it would need to go back to the state court and at that particular point the state court and the state of alaska would need to determine whether or not they wish to proceed with prosecution that they have that right now do they not under the terms of the settlement agreement that they retain because it was a vacate or without prejudice they retained the authority to refile charges against these four men if additional evidence came to their attention to warrant a retrial and i assume that never happened but here's the path but ya know it would seem to me that's all the back to where they were right after the post conviction relief i mean nothing had been decided before the settlement about the validity or not quality of those convictions and to me that's another reason that you need to have the state of alaska in this matter because the state of alaska needs to be here to protect their interest in their administration of the criminal justice system here in alaska why have  required to appear in federal court to assert their sovereign immunity and i if i if the parents had found a case question it's not immunity you identified a somber and interest and i guess the freedom of the state to make prosecution decisions but nobody's trying to get money out of the state so they don't have to worry about being immunized from damages not where you are you seeking some sort of  declaratory judgment from the court in this case that that the state is free to do what the state is always free to do which is to file felony charges whenever they have probable cause to believe that the defendant for them and  what i'm saying is that the the state is required to appear in this matter which they can i do in federal court to defend the agreement that they negotiated but they could petition to intervene i mean the district court has the discretion to allow him in as a party even at this late stage and they haven't done that and i don't think you answered judge occlude as question is do have they ever expressed any interest and not formally or will then why are we worried about the state if if they don't care enough to even ask to participate in these procedures but at the city's nearly a rd party beneficiary to a contract that the state may go she added it would seem to me if you want to ever get a rd party beneficiary of your was that there was a pending motion for post conviction relief during that that motion was pending which is just like what happened in this case there was a settlement reached our facts are better than those facts because as part of that settlement there was actually a  to one of the four counts of the settlement was reached there was a stipulation presented to the state court that said that there was sufficient basis to grant post conviction relief that was presented the state court signed it and this court held that lifted the heck bar based on those initial convictions and as the federal courts dollars amicus points out it is not possible to undo a state court judgment just by settlement agreement you have to follow the procedures provided by state  court and it is also not true that under the only way to undo a conviction is through compelling evidence of innocence actually we cite in our brief a portion of the post conviction statute which allows a conviction to be vacated when there is sufficient new evidence of material facts that a new trial could be ordered which means that there's new evidence that on a new trial would probably produce an acquittal that's what the statute provides that's what the