well we welcome you today to the united states court of appeals for the six circuit and we are honored to be invited to vanderbilt university and to have the students and other and the attorneys come to nashville to argue before a tennessee panel will you call the case  plaintiff appellants i wanted to take a few moments you know honors to go through the history of this case before we got here today because i think it has some bearing on the jurisdictional concerns that have been presented to the court if we feel we filed this challenge on behalf of michigan and behalf of two hundred and three hundred sixty three individuals who were sentenced to life without possibility of parole for offenses they committed as children michigan has a second highest in the country make that the world in which they have imposed this sentence on children when we sought this  we filed in twenty ten and we sought the court to strike down the parole statute that prohibited any consideration of these children s sentences at any time in their life prohibited giving them a second chance or any opportunity to be released from prison while our case was pending below the supreme court of the united states struck down the mandatory life without parole for children finding it an eighth amendment violation a kin to the death penalty the federal judge below then granted the relief we saw for all three hundred sixty three you arguing that they were all entitled to an opportunity for people in order defendants to submit a plan for them to have meaningful review a second chance for them to be determined whether they could be released into society based upon their maturation in their growth from the time they committed their offenses defendants appeal arguing that the miller case which where the supreme court struck down mandatory life without parole should not apply to these three hundred sixty three plaintiffs in michigan case should not be applied retroactively and those individuals who are serving the sentence should continue to sort of that sentence until they die while we were on appeal of that the supreme court then took up the montgomery case and the case was a question of whether in fact miller should be applied to all youth who were given mandatory life without parole sentences i'm a comer all the supreme court ruled that it did apply to all you that it applied to all you particularly because it ruled it was a subset of ruling of law and the reason it was a substantive ruling of law has some deep impact into this case the court said that it's subsidy because categor cannot impose a sentence on the vast majority of you that the only category of youth who could be sentenced to die without ever being looked at again were those rare and then later the supreme court tatum the very rare arrest of youth serving the sentence when there's no dispute before this court that that's the case the mit michigan case the hiatt case in michigan has replicated that argument exactly so i  counsel do not stand on opposite sides on that issue i think that's true your honor but i think it's important to understand that when it determined that this should be reserved for the rarest of individuals and then what happened in michigan has some bearing on how they've how that has been applied this would be let me just be clear and ask today as you stand here you are not asking this court to get into a marriage determination are you are we looking at whether or not there whether or not that the twelve b six ruling was appropriate or not and so we're looking at a very narrow question obviously we have to consider some of the things you've mentioned in determining whether or not a motion to dismiss is that it mapped all those the out parameters of our inquiry today it is your honor it is our argument that this court's in the federal courts hands are not  but i do and that that the jurisdictional dismissal was an error of the court below dismissing both on hack and on younger principles ok and so i know in your brief you say the  challenges to the statute john are with regard to our challenge that life without parole which this challenge has been going on for seven years now that life without parole in michigan should be constitutionally forbidden for michigan children with regard to that a life without parole at the supreme court did not say it was constitutionally prohibited they say except for in the rarest of cases so that's not an absolute prohibition is that no and we're not arguing that the court has has that the supreme court has made knapp's loop or prohibition what we're arguing is that we should be able to get to the merits of our challenge the supreme court specifically said the miller war not addressing the categorical bar in this case we're not addressing it because we can resolve it by saying the rarest of the rare are our argument is that we should be able to go back now which is five years post miller and demonstrate to the court that this sentence and especially the sentence in michigan which a third of the children neither committed nor committed homicide nor intended where it goes back to fourteen year olds at this sentence has become cruel and extremely unusual sense miller decided this case that you're seeking the states to bring these children back before court and reduce their sentences considered that's correct but both miller and seeking to reduce their business know both miller  we had a sentence of life without parole there are two hundred almost two hundred fifty youth in michigan who have no sentence and their prior life without parole has been vacated the state has said we're going to we intend to try to enforce a life without parole sentence for you in the future but they are not they do not have a sentence it's a prospective sentence and what we're saying is heck only comes into play if we're seems to me that the the situation which we find ourselves though the sentencing is delayed it is in fact inevitable and so in that circumstance why shouldn't that particular can't be barred by a heck because you have the right on direct appeal to raise all those constitutional challenges following the inevitable recent saying so i don't think it's a with all due respect your honor i don't think it's a question because there's neither a sentence nor conviction that we're challenging i do think it raises a struggling with why it isn't a sentence if in fact there is a pending an inevitable re sentencing that will occur that's there's a been a long delay here but that's not so unusual to have someone who has appealed to some portion of a sentence an enhancement some other in correct determination by the court which is then found while they are in jail to be incorrect and a recent scene is ordered why is that different because those people as well as these youth would then be able on direct appeal of that recent those challenges so the reason why i think that and i want to circle back to that i think that what the court is talking is about either younger ripeness problem because we're not although it's evident at some point that they will be reset ends and we know that almost two hundred fifty this is the state is seeking to reimpose a life without parole sentence but we don't know whether they will get that sentence or not of course we're not challenging a sentence because there is no sentence to challenge and it is extraordinary i can't think of any other situation where people have served literally decades of what is now an unconstitutional sentence and now are convicted and are sitting for years in a prison with no sentence and with no date of a future re sentencing and and i tried to think of analogies then to be brought have theirselves is reduced considerably as of that in that was going to happen what is going to happen it's going to happen or yeah we don't have any date for that your honor in the problem here is since this case is started seven years ago many people have died serving in unconstitutional sense and if they have to wait until if this court says i we're going to hold our hands and not allow you to go forward and just simply have a determination of whether l wop is a constitutional or unconstitutional sentence under the federal law but we're going to require you to go the nine or ten years it would take individually for you all to do a hey  after someday in the future which may be years you're going to be resentenced they won't make it what are you what kind of injunction do you want us to issue  not asking for an injunction we're asking for remain and for the federal court to make a determination as to whether a life without parole sentence is unconstitutional categorically at this time given the evolving standards of decency given the way it's imposed in michigan on children who neither but that is contrary to the supreme court's opinion miller and in montgomery there to be well i think it's not contrary the court in miller in mchenry said we're not addressing the categorical bar at this time it's not contrary to decision but we are now five years down the line from miller and in fact the dissent in the miller anticipated it said you're going to make this unusual and then the next challenge is going to be a categorical bar the reason it becomes so urgent and michigan awards what do you want us to do in the you don't want any injunction no i don't believe they'll be any proceedings in michigan for some time to come against these individuals have a judgment do you want to stay here if the court re mantid this matter for a determination of the constitutional issue is life without parole unconstitutional  the flip that this state has done they have said you know we're not going to go after the temporary is the phrase a supreme court opinion that says to the contrary that in rare to remain and that but the michigan to make that determination and the supreme court which has spoken to the issue and has left him there a slice of cases where life without  what i think is happened is that the court the court was very explicit miller it says we're not addressing the categorical bar at this time they didn't say we don't feel because of what we're doing here that we think doing the rarest person we're not going to address and those arguments were in front of them and they did not address it but we're five years down the line we now have only nine was the case on for me and i don't think there's any question that that that that issue has to be taken  the issue here is unusual because you have this warm to lay but i looked very carefully this is not a bar to bringing those up all of these cases that have not continued with the two  hundred fifty life without parole that those courts had individually studied their case pending the michigan supreme court's determination a skinner and hyatt that is now to be argued in october i don't dispute with you that it's been an unreasonable delay but they are to be argued so what i'm trying to understand is what makes your case necessitate an and when and on direct appeal following the recent saying those constitutional issues can and should be raised and work their way up through the system i think because there are two things that i think what the i'd as again i've said it and i we've brief i don't think it's a heck or younger issue we filed this case seven years ago making this challenge and there are no state proceedings ongoing with regard to this issue now i think it's a i have a position that it's probably likely that it's a jury trial but we have no idea what the court's near argue in favor of a juror drop i am under the law your honor that's what they're going to decide and that's th we have brought the issue that a categorical bar of that up that a walk is simply unconstitutional in michigan for seven years we've been delayed while defendants have fought this up and down and now we are in a situation where literally almost two hundred fifty people have been and will be for at least another year or two or three stuck in a limbo which they have been serving a life without parole that's been so i actually think it's premature i think it should be remembered for that determination and i don't think that we should have to wait ten years more and the reason why this is so unusual is we have seventeen people who have served over forty years of an unconstitutional sentence they will not make it through hey be a strap and there's no they won't make it they'll die serving an unconstitutional sentence maybe without even being recent and resolve is some new issues it's true but we filed this case before seven years ago before any of these proceedings and this state which led the amicus briefs against miller which led the amicus briefs against  then after this court remain ended put into a statute in between can picture and sentencing and a brand new statute saying this is what we're going to do and we're going to go after almost seventy percent of you again for life without parole where this court's hands are not tied by the procedures and we're talking about significant injustice going on what harm is it for have the court decide if the court goes back down says you know you're right  standards of decency and the way it is in michigan it's unconstitutional to go life without parole then all these people some of who've already served the mandatory minimum of forty years will have an opportunity before they die to go and say listen i've been rehabilitated i did this when i was fourteen look at me and if this court holds its hands that won't happen it simply won't happen and all were asked is there any at analogy already that would that you could give us that would show where the dividing line would be on time because what you're asking us to do is to say that because there has been such an unreasonable delay and we are in this situation with people who have served the panama but not the mandatory maximum which is sixty years then their cases should be heard now in light of the fact that if they are that will take many years we haven't even it will take many when you have you know that the seventy three or seventy eight have already been recent only those people who were not recent us with a request for life without parole would at least two hundred fifty you've got the issue of how in the world can that be the rarest when it's seventy percent of the quiesce we all understand that but but those issues have to be we have to have a pattern or an authority or a reasonable basis for selecting a timeframe after which the ormal course of proceeding should no longer continue i agree with you there is a time period which you ought to say to a state an office enough but there has to be some sort of basis for making that determination and i'm struggling with this with skinner and hyatt coming up before the michigan supreme court in october when they render a judgment those two hundred fifty who have already been stuck specified by prosecutors for life without parole they're going to start having their sentencing because a number of the seventy eight have already had the erse so with all due respect i mean it is given our courts and their process i think it's fair to say there will not be a decision till the end of the term in july i think that it is fair to say that whatever happens it will go up on appeal to the two to the there will be an application to the u s supreme court both on the standards in which a judge has to the prosecutors are challenging the standards and the standards occurred was a year ago less than a year ago that's over a year so your talk about a long period the law changed but only a year ago and so we're going to have to go through a process principles both in younger and in rightness and intact that are helpful here in the question is are people has there been bad faith is there irreparable harm happening and i can't think of another situation where someone could have served forty years of an unconscious to sentence as a child and is simply won't make it your own or no one in the state of michigan coming in as a child has ever made it sixty years ok if i criteria for aggravators that mitigated them some are under this new statute have they been have been articulated on determined by no your honor i mean that as applied there they're one of the things we do know and it's not our class of the three hundred  comrie but we do know for example that post miller there were thirty three individuals who are on a direct appeal or convicted after miller over half of them have gotten life without michigan again over half those are all on appeal and the egg of eating standard issue is chaotic to say to say the least i mean aggravating standards judges have found it aggravating that your seventeen and a half judges of found it aggravating that you've had a child out of wedlock life without parole so we have chaos down there and we have i think a great deal of bad faith in imposing this statute in between while this court is on appeal in between conviction and sentencing that allows them to go after not the rarest but the vast majority and hold them in a very painful limbo none and facing a sentence that we believe is highly unconstitutional at this time and i can that's why the case that's why the case was remained pardon the case was remanded to this court so that you would have the opportunity to problem here with the timing there is a problem with the timing but the question becomes where law has the remedy and how is that remedy effectuated if in fact they are pending recent saying and is beginning to a car and you have two hundred fifty out of three hundred sixty three and the first one hundred of them are all given a sentence of life without parole in fact does not doesn't that give you the statistical proof not the fact that it's been requested by a prosecutor but the fact that it has been imposed by a judge or a jury isn't that the  proof that you are seeking in order to make your argument under miller magon rian hiatt that this is not the rarest of the way or that in fact michigan is actually acting unconstitutionally i think that that's an applied challenge but i think your honor with thirty nine states now seventeen cents miller having either legislatively or legally by judicial fiat gotten rid of life without parole that it is highly unusual that i think that even if we were allowed if this court re man didn't capture stiction just hold the federal court decide whether under the evolving standards of decency in the eighth amendment whether there is now a basis to make a determination that l wop in michigan you know one of the claims that the other there are two other claims that that i wanted to highlight that we raised in our amended complaint and one was with regard to the the fact that they have not changed the parole  process for michigan you so that you know if you don't go the life if you are in the two hundred fifty that they're going after for life without parole then you get a term of years of twenty five to forty on the minimum and sixty on the maximum as i've indicated no one's made sixty it's and it's a mandatory sixty it's mandatory it's not individualized it's mandatory and it's de facto life without parole so our argument was that you have to issuing those sentences the courts have taken a position that if you're not facing life without parole we don't have to consider any miller factors whatsoever there's no guidelines there are no nothing it's the wild west out there so they're issuing forty to sixty year sentences the parole board has no specific guidelines or processing him without miller consideration as if they're adults so now we're getting reset and stay after serving an there were no consideration and no credit for that so they the same as them come to be extended as it is that right right in coming down and being forced and i believe me they felt forced to do this from a gun maria miller there's a all about the good time and the disciplinary credit and that all of these individuals and the statutes are very clear that if you even if you had a first degree homicide conviction you earned a good time and you earned disciplinary credit if you had exemplary  legislature thought so in providing these credits in case you might ever be able to apply them it was the legislature decided that listen if we're going to encourage you to be good because we know people get recent times we know what term you years seven and it changed throughout the years but it most recently disciplinary credits in the eighty's and ninety's it continued to say explicitly we give it to people with first degree sentences even though we know that they can't apply it now but weaver to tells us it doesn't have to be vested in order for it to be an ex post facto violation the legislature put it in because they knew that people were entitled to it they didn't make a nonsensical section and say we're going to take it away they said you can keep your own time i mean you could keep the time you spent in there and it would have been no less an ex post facto if they'd taken away the time served they say well well credit your time served for you good ones you ones they had no hope but still were really good and earned this credit you can't have it applied in order to come before the parole board at a lesser time and we have some really real pain about that jennifer pruitt one of the named plaintiffs here she got a sentence in which she has she's already served over twenty five years she has a sentence that she can't go to the parole board for seven more years but with her good time have been denied their disciplinary and good time credits we have neither a hack nor a younger problem there we're not seeking release it's just the opportunity to go earlier before the parole board to have the paro board decide that you have can go home and say you want to wilkinson in worship remedy i i actually i think that i do and i want the reversal there i think it's a clear ex post facto violation is this being raised in the court system and mission on appeal not that i'm aware of your why not i think because we had it in this case and we filed the federal challenge immediately after when the court remitted to attack this statute people are hopeful do you have any further comments you would like to make on count four five and six  don't know four five and six which are the the challenges that fall under have can younger and fall under whorish and wilkinson well i i do think that our challenges to the parole statutes again and to the denial of do not fall are all were she claims are all were only seeking an opportunity there is no problem with heck in terms of a shortened sentence being necessarily occurring this is all this case has always been your honor all about opportunity to tell that opportunity for the proceed general possibility to be heard by a board w discretion correctly and which is the wilkinson warsh line of yes i know you know are really out to be really brief on this but i need to go back to count one again to that i think that there's a concern there that's legitimate here there's a but now i think there's a legitimate concern burial here that the statutes are a little odd in that it still in place but now instead of a life good afternoon may please the court has to show from the attorney general's office about half the state defendants with me accountable will escape bell's l i want to thank the court and of the clerks office and also venerable law school for hosting i think it really is very i think so the short answer for the court is that this court should affirm based on procedure principles abstention and had that when judge you said when and how are the important questions those really are the important question is this is really a issue before the court about federalism an opportunity for the state courts to address the issue doesn't the case law say that even in federalist no u to giving the state the right to begin its own proceedings where a case has been filed in the federal court and proceedings have been undertaken then the value of federalism counsels us to continue and to resolve it in the federal system i think that that's one of the important pieces of this case in fact i want to do a little bit of kind of background to kind of back fill a little bit of the description given by plato's counsel because because i even have additional information about what's been happening with these cases but i want to answer that question directly because in my view i think judge amir hit it hit the nail on the head when he said this is essentially a new case and i want to explain that other than count one which has been mooted because the statute that issue and there are those for whom the prosecutors do not seek life without parole and that's approximately one hundred that interplays with the plaintiffs here there are three plaintiffs who are then subject to this life without parole motion and there are ten for whom the prospers did not seek life without parole seven have been resentment of the ten two of that was seven have been paroled mr hines and mr hill mr hill they will be as of october thirty first when you have to pla i don't think anybody disputes that there are individuals from this named group of kline tiffs and individuals within the class that fall within each category and the question is how do you treat for example the two percent so i think you have to keep that in my with respect to the term of years claims about the inadequacy of the prop process and whether it's been a meaningful opportunity for release when ninety percent of the class that they're talking about actually know now would ok i would have to push back a little on that ninety percent of those that you determined you would not seek life without parole through because you determined as a state that two hundred fifty or seventy percent of that class should be back up again with the express direction to allow the plaintiffs to amanda the compliant and to place evidence in the record on the current legal landscape very good how does that create a new case we're just challenging the proper asas we think these offenders should be should be considered for parole that was it that the seventy one to thirty four six that he was was unconstitutional well come june june of two thousand and sixteen now the complaint filed it's no longer a challenge to the parole process statute it's now a challenge to a's one it says life without parole should be categorically bar that a direct challenge to the sentencing scheme and the sentence that would be available for the state to impose that's why it implicates both hacked and it implicates younger and abstention because all of these claims can be raised on direct review it will be parallel proceedings one of the prior considerations of made a sentence agreement took thirty two and a half to sixty years with a sentence of room with the prosecution and then in his court of appeals action raise the ex post facto and the misconceived court of appeals ruled in that case on the ex post facto said that he  a new a new client a new complaint for purposes of a heck analysis or a younger analysis i'm not i'm not saying any authority that supports your position that we have to take each complaint as it is amended apart and then determine whether heck is now implicated when we've already determined that the complaint in the ongoing proceedings are not subject to the language comes from hicks or twenty two us three thirty two with united states supreme court case which talked about the timing it said that in fact the state proceeding could be second in time the critical question is whether there's been any proceedings of substance on the know but you know your argument i think sort of the logic because if you file a complaint and that case is subsequently amended if the amendment represents a mute complaint you could end up facing a statue of limitations bar because the rules talk about relation back and so how could it be that the amendment itself would constitute a distinctly new complaint i think the question about the relation back doctrine as opposed to the younger principles are artistic of course they are right you talk about because in this amendment it made you complete and i know in your brief you talk about well there were other defendants added the attorney general and i'm not i am just not heard what i believe is a persuasive argument to why this amendment constituted a new case and why we are we've measure time from the amendment or the from the original but that's what i haven't heard the the merits of this june two thousand and sixteen complaint is now a sentencing challenge it's no longer a parole stack you challenge it's now directly challenging michigan's statutory remedy that came in response to the decisions and miller in montgomery in fact montgomery kind of provided guidance on this issue with the court said that he was careful to limit the scope of any attendant pursuit or harm is to avoid intruding more than necessary upon the state's sovereign administration of the criminal justice system there are no other cases if you look at if you do a search all these cases that are being litigated on miller and montgomery you will not find the one nine hundred eighty three case they are all a b s cases and direct review cases the very kinds of claims that are being raised here whether for a categorical bar with respect to life without parole or the trial i'm still struggling with your answer because i think it begs the question the question is what authority do you have for saying that a complaint filed in two thousand and ten must be reevaluated when there is an express authorization and remain and authorizing the complaint to be amended to to address the new legal setting really struggling with the lack of clarity and the rule that you propose because what it would say to every court is yes we've always look these doctrines in the context of when a complaint was filed that's what all the cases say we look at when the complaint was filed and now you want to say to us no scrap that every time the complaint is a min did you must now take it up again and consider whether the heck or younger doctrines began their application at the amendment that just sounds like a morass to me the case and the dorm below it are evaluating the question of time and the answer was it is not strictly when the complaint was filed the legal standard here at the legal standard that's at issue is proceedings of substance on the that's the standard for younger the question is have there been any proceedings of substance on the merits and the only count for which there was proceedings of substance on the merits in the new complaint related to the first count which has been mo d because ok so my question to you is how does the the court's directive that the parties be permitted to i'm in their complaints how does that impact your younger analysis because the court court in its order said that the plane this should be authorized the permitted to him in the complaint well i think if there was that back there in that i'd now it seems to me that the court here was providing the opportunity to see if there was still an opportunity to go forward and it didn't in fact in that case the state had briefly the heck issue before that court the court didn't answer the issue on heck and of course the heck claim here is much stronger because previously the original complaint was challenging a parole statute now the plaintiffs are challenging michigan's sentencing statute so the point is as judge ameera said in his decision below there ha decisions on the merits of their claims so far in the proceeding so consequently the abstention doctrine apply because all of the claims that are being raised in the action to his been ongoing in this case i guess what i'm struggling with counselor is that the argument that you have on why we have to wait and why count one is moot or count two should be dismissed under hakon younger is that even if it's slow we are actually fairly proceeding we are taking things in order and doing it and now when the federal court says to you even if things are slow we as a federal court have undertaken the adjudication of this case and have made progress along the way it feels like you want us to grant you time and you don't want to grant us any time really the question is who should be answer these questions in the first instance if you look at graham said in the first instance these are issues for the state miller said it and montgomery as said these are questions for the state courts all his constitutional claims can be raised in state court and they will be i don't just i don't think there's a dispute about that right the problem is you're arguing that both for the continued application both for count one in two which we've discussed at length already but also for counts four five and six which in fact have precedential support and siding and allowing for a nine hundred ninety three client for the challenges that are before us the disagree yet for four five and six the strongest claim for the state is younger abstention and also the merits i mean once you see that there have been such a huge number of parole grants for the people who have had access to that process impeaches the claim that the pro process is inadequate unless you are focusing in on the minimum sentence and a maximum sentence of course that's one that challenges the ultimate duration and would then implicate arguably not if not if what you're challenging is the duration as it applies to these individual's rights to come before the parole board sooner and ask that parole board to exercise its discretion on their behalf we have stats were which you did not address no that's true the that's why i think in a way for us the stronger point is that heck is younger because these claims can all be raised in state court in so far as you  sentence that's the opportunity then to address the parole process but the threshold question is one that can be raised in state court and is pending in these cases as these different specific plaintiffs can raise their own individual claim but why shouldn't why shouldn't this group plaintiffs under the clear authority of wilkinson united states supreme court and worship two thousand and fourteen six circuit case be able to process the client the complaints about the way the structural system functions for the parole board because you're a asking that these people all go through the parole board on a system that you opposing counsel tells us is in proper and so then what they would have to do would then go up on appeal and say what you have done to me the way it's functioned is inappropriate when there is when there is there was no pending state case for mr worth at the time in which he filed his ninety three act so you're providing a heck analysis to me and i'm getting younger response which is but question on younger has to do with the question is where has there been where has there been proceedings on the substance of the merits and my response is that on that case pending since two thousand and ten there have been proceed ings on the merits for example the count one was spanned by the district court not to be a heck problem it came up late legal landscape it changed it was sent back down and remanded to allow these pla continue the existing litigation we're now relying on younger for countless i think i want to just a straight is just made the statement is claim the honor relates to counts two and four and the reason that this is a new complaint which there is no development on the merits is that the challenge relates to michigan's statutory fix the statutory fix classes in march of two thousand and fourteen seven hundred twenty five and seven sixty nine twenty five  for the miller offender one for the montgomery offenders it's an entirely new regime one that creates a twenty five to forty minimum sentence but if you're max hardly new regime in response to michigan attempting to fit itself within the parameters of supreme court jurisprudence on the very issue that is before discord what do you that's the issue that began this case and has proceeded throughout yes the legal landscape has changed without question but the only basis on which they could bring the challenge in the first instance was because they were challenging the parole statute which didn't allow offenders to be pro life if they received a life sentence none of these offenders will see a probable life sentence they will either get life without parole or they have a term of years sentence that is the belief they were seeking was essential to create a parole life sentence nobody in michigan will have a parole the life sentence at the end of the scheme the legislature created two possibilities terms of situation is that the way you look at it yes or us know what is the result is what the result is that this case is properly dismissed and the opportunity to then go forward with these cla occurs in state court because the challenges here are all new and they relate to michigan statutory scheme the only existing challenge which there was development on the merits was the first claim of course that claim is mooted because the statute being challenged is no longer any of these offenders so the the the insight is that montgomery changed the landscape and required when they filed their men to complain to bring new challenges xanax writing normally we wouldn't be here basically that's that's exactly right that the whole matter changed and that's why now they are saying they never saw a bar or a life without parole before because of course that would have been barred by hacking and the only reason that they're able they're not trying to sneak into this window nazi there's nothing  just have nothing but considerations of justice i don't like the state understands the question though really is broadly reviewed i mean i made my point about the pretty you know proceedings of substance the merits i think that's the right legal answer if you step back and look at this from a broader what's going on here really is a question of federalism the state courts are equally capable of addressing these constitutional claims and there will be a basis for relief if you and ask the district court to evaluate the constitutionality and then the be a classification of course the classification requests will then have specific plaintiffs who will have gotten contrary results in the state courts it will create a very friction heck are designed to foreclose these plaintiffs will not lose their opportunity to raise all of the arguments that they're currently raising here they can raise them all through the state process and the claims that they are raising all arising out of their june two sympathetic to the claims before him drawing a decision but he recognized that none of the arguments advanced other than count one presented existing claims they were new substantive claims requiring new subs an which they were pending cases mistake or for all of those claims could be advanced and litigated a remain and would be contrary to the very principles of abstention and heck because it creates the very friction those cases are designed so you say that remain and would not be appropriate to any of the counts in the line because the even the claim with respect to the term of years offenders is new because what they're arguing now which was not present before is that the twenty five to forty to sixty years and it is a de facto life sentence i dispute it as a factual matter on the merits but separate from the merits of it it is a new claim because previously the claim was that the statu and and that is our case law specifically says it is the filing of the complaint on the younger issue that sits there i just you know you're asking us well you haven't given me a case given me a case with some policy discussion in it which you have not given me a case that says we are going to as a court from now on prospect of likely going to say generally we'll look at the first filing of the compliant but now we are also going to look at every amendment to say that creates the kind of rule that creates judicial chaos because then won't every point of have to say do political it matters but the very point you're making and you say that the rule has been the filing date is the control indeed that's not the rule of law right i'll give you the quote from hicks because this very point was kind of discussed the united states supreme court very dynamic you're talking about right now and the ultimate rule wasn't filing date but subst proceedings of substance on the merits of here's the quote neither stefon nor and this is from hicks for twenty two us three three two or three for united three fifty the no any other case in this court has held that for you or to apply the state criminal proceedings must be pending on the day the federal cases filed because then what it means and i'm familiar with that  that's that that that told you that you can't know the date by looking at what's been filed it doesn't look it doesn't tell you have or whether filing a new complaint becomes the bar which you say i think you and i may just disagree on that because it does look to where the merits have been ongoing in the state court but the cases also say if the federal court has engaged in determinations and undertaken the litigation of this case then federalism on the federal side suggests that the federal court should continue to completion well then ultimately it was not a disagreement but what the standard is the question of whether it applies here in other words i think  that there are going overseas on the merits of the complaint now if you don't agree that's just were we have the same standard the way the question was asked was suggesting to me that we were we were arguing different standards i think we have the same standard i think the right answer is here that there have been no proceedings of substance on the merits of the judge o'meara said i think is exactly right if you look at these two complaints there are predicated on fundamentally have moved through as we've had since like one hundred sentencings since august of twenty aug two thousand and sixteen so those cases moved along this idea of the lead to two hundred fifty are totally and completely true stats but that you're you're now moving back to the first group of life without parole was present in the first complaint because of course it could never be advanced without having to run past heck the way that counts three four five and six try to escape heck is by demonstrating that they're not going to necessarily obtain their priorities the responses not relying on because we have worse right but the younger analysis remains the same which is these cases are pending worst had no case but there are cases pending for all of these offenders in fact not just plaintiffs in this case the attorney general's office doesn't have anything to do with the draw of these cases it's the we don't have the we have three cases in which we have we were the original originating prosecuting agency so that's our jurisdiction we have three cases the claim regarding the term of years offenders are offering a new subset of analysis and that's why judge america accurately say there have been no proceedings of substance on the merits of the claim because nothing related sentence that is an entirely new claim there is nothing in the proceedings previous to that which addressed that claim that's why nothing on the merits had occurred with respect to that claim they are centrally bringing something new to their further questions i do i d one is with regard to whether someone is eligible for good time credits previously before because that the way michigan law is a bit of a complex but further step back i'm sorry i moved too quickly and i do talk quickly but i'll just slow down a little to get through it but in a proper way under michigan law there was a statute that essentially said every convict who shall have no infraction of the rules of the prison  a majority decision to twenty four northwest second six ninety two at page six ninety three we didn't cite it i said quickly but i know you can gather your answer those questions basically that this can be raised in the state courts and the supreme court of michigan will in the end just the nature of the good time credits and so i think that's true i think this is there's also a heck problem with respect this post facto but i'm trying to build up  mirror evaluate and i think that's exactly right there's been no disadvantage i think that's the right answer but part of what the plaintiff has said is they said we have the wrong baseline wrong the baseline is not life without parole because that mentally imposed because that is void sentence unconstitutional so the question is if you look term of years as the baseline then they have been disadvantaged and here's the other piece in which i think the court needs as a supplemental matter to understand what the baseline was in the time which the legislature stepped in and created this scheme in march of twenty fourteen in november of two thousand and twelve the people versus car decision came down from the mission court of appeals and that's a site of a twenty eight northwest section sixty five and the mission court of appeal said the right way to resolve this matter there had been a legislative back and forth the prosecutors wanted thirty years on the minimum one of things legislature did is it took twenty five to forty pull the minimum down the process did oppose once there was an elimination of the opportunity for good time credits because in the absence of the statute if there were then the all the law defaults in the absence of that default there was no entitlement in the position of the attorney general but even if somehow there was a theoretical title meant nevertheless their position was accommodated and was improved because they then research determine your  in the face of a life with a life without parole i think your count your opposing counsel has an answer to that and perhaps it's her turn to get it thank you thank you thank you justin coming back for one moment on a categorical issue because i think when the court asked about the timing issue i think one of the the best issue on timing is younger rule that it doesn't apply and or doesn't apply the obss the sanction is substantial proceedings on the merits of already taken place i think that i understand that mr stewart has not  this case from the beginning but i have your honor and we've done discovery we've done up and down we've had five decisions from this court based on both our original complaint which simply our original complaint was jail lapse unconstitutional and the remedy and we're entitled to meaningful opportunity for release it's still our claim today and it's true that the landscape has changed originally because the our clients had a sentence we challenge the parole statute that prohibited them from a meaningful opportunity for review now they don't have a sentence and so we're challenging a future imposition of life without parole and under the parole statutes we're seeking a meaningful opportunity for release for those with a term of years we're not challenging the sixty years but what we're saying is always saying is sixty is a defacto life and so in order to not have another imposition of a life without possibility of parole you have to have a parole system the provides a meaningful and realistic opportunity for life for release that's where that's wilkerson and that should be remanded the other issues that have been raised go to the merits of it and we should have an opportunity to address it at the court of law i think that with regard to again i think that we have had substantial  activities with regard to the categorical and i think that we should be able to return to the court for prompt decision on the constitutionality of that rather than this court hold its hand i understand federalism but there has to be something wrong with allowing a state to go through all the machinations that it has since we filed this seven years ago putting in delays asking for abstention finally new legislation right putting every block they can and then say younger you know we're now moving down here even though he couldn't no one could tell us here today and couldn't tell his court tell me on a date when when two hundred fifty people have an opportunity to demonstrate as this court said i looked at your your prior decision and i remember you said at the very end that plane as must be given an opportunity to show their crime did not reflect irreparable corruption and if it did not their hope for some years of life outside prison walls must be restored and then you remain ended and now they have been manipulating and sayin how could two hundred fifty be the rarest the other exception to youngers bad faith how do you hang those people up there for years and then say younger were were there in limbo but you this court should hold its hands and not make a decision about what potentially is an unconstitutional sense if the court says it's not unconstitutional ok my clients will sit there and hopefully survive and be able to get that opportunity someday but why wait we've been arguing this for seven years let us present the merits of their case and i'm pleased we can't your response to the argument about a good time credits  the ex post facto klein so good time credits are given by statute and and the everyone has accumulated them and that's why the legislature had a thing saying we're not going to give them to you because they know that you cumulate them in the michigan supreme court case of moore v parole board talk specifically about that of course they accumulate them and the legislature thought it would be good for people to have hope that someday they would be applied if our clients get a life without parole sentence of course it doesn't apply it only applies and is only an ex post facto violation for those individuals who got term of years and so it doesn't have to  been vested they had it in a bank i would be horrified if because i didn't access my five hundred one k the bank said well i can take it because you haven't taken it yet and you've delayed too long now at a certain point i get it at a certain point they're entitled to when and and they're disadvantaged by not having their only two questions is it retrospective did they take away what they had yes and does it disadvantage them of course it does that was the whole intent of it it was you know and and i'm not going to get into all of the hearings that i said into as to how the legislature was doing this in the you know it's a vindictive piece of legislation it took away only for the people who were very good count to four and six be remitted for a determination on the merits and that this court reversed the district court on the expos fact thank you thank you both councillors good argument good briefing we appreciate your work on this case will be taken under advisement and we'll be getting back to you i hope more quickly and just as you've been