here seeks to challenge the rock castle seeks to file seeks to have his federal habeas petition challenging the rock castle conviction and sentence heard and the district court below dismissed for lack of jurisdiction upon finding that bowling was no longer in custody on that conviction but that was erroneous there are two reasons why the district court's decision was wrong and based on a faulty factual premise the but your honor that the state conceding he's not is irrelevant here because we're arguing that he has and he is in custody for two reasons first he was entitled to zero days of credit against that rock castle sentence meaning that that  question is the usury isn't well your honor kentucky what the kentucky to doesn't matter if the state wrongly says he's not in custody the fact is he's not in custody on that well your honor but the problem here is that that the attorneys for the for the calm for the commonwealth are making that argument but what the department of corrections has said is it is precisely the opposite the department of corrections takes the position that mr bolling was in custody in september two thousand and twelve when he filed  not a function of the school work well if you wait till we tell pro se parties all that speak through your attorney i don't know why we shouldn't say that to the warden well the reason here is that the deference is oh don't under kentucky law chevron like deference is zero due to the position taken by the department of corrections in its official agency communications under the supreme court's holding in bowen versus georgetown no deference is owed toward the position taken by the the that assumed facts that were not correct that's exactly right your honor so what i'm struggling to understand what is the basis of kentucky's position that he's not in custody when what you have by my reading and i stand to be corrected what you have is the kentucky supreme court saying i'm going to assume what this district court told us and i'm not going to tell you the second question which would put the mayor it's only going to answer the question of who has the right the only go answer the first question that certified and i'm struggling to understand hale is a position that controls this case explain to the  who the kentucky supreme court decision or what in particular it is that you understand in kentucky rely on for making its determination of the your honor all answer the second question first kentucky under control in kentucky supreme court precedent winstead versus commonwealth as one case that holds this the courts rely on the department of corrections to make determinations about when a particular defendant is in custody or not in custody here as we've explained there are six documents from the department of corrections every one of which indicates that mr bolling was in custody in september two thousand and twelve when he filed this federal habeas petition in fact in light of kentucky's murder statute is still in custody on that sentence today what the kentucky supreme court did as you recognized is the district court certified this the district court believed to erroneous things one that mr  was deprived of credit that he was entitled to and second the department of corrections had corrected that error and the question that the district court certified that the kentucky supreme court actually took up was whether the department of corrections had legal authority to correct that here that's completely irrelevant because there is no indication in the record that either that he was entitled to the credit and in fact the logic that kentucky department of corrections policy twenty one zero eight dictates precisely the opposite and there's no indication in the record that the department of corrections fixed any supposed error in fact the opposite is true he got his credit against the law yes your honor i think th one of the problems in my understanding is whether when you are running concurrent sentences the caret it to the first conviction which is the way the rule really applies to all of the convictions that are run concurrently at the same time the documents from the department of corrections the resident record card does not indicate that's correct your honor and what is the turns the rule derives from the department of corrections policy twenty eight which states where multiple felony indictments are involved any a political credit shall be applied to the indictment which is sentenced first if an offender is being sentenced on more than one felony indictment custody time credit shall be calculated separately if those felony detainments overlap as they do here one indictment shall receive credit meaning the first that time served rowe is saying is that this is the amount of time he's spent in prison it doesn't separate out which how much of that time was on one conviction versus another and i think the more revealing components of the resident resident worker card are the column you pointed out which shows one thousand three hundred seventy eight days applied to the war all the first world conviction entirely consistent with twenty eight zero one zero eight zero days of credit applied to the others and then at the bottom this is at page eighty five of the record it lists total sentence length death expiration date of all of these sentences death sentence and that is due to the operation of kentucky's merger statute which as we've explained when multiple felony concurrent sentences are running at the same time they merge and the not none of the sentences expire until the time with the longest time to run through you are adopting what seems to me a very tortured view of kentucky law and frankly it really doesn't matter what the kentucky department of corrections  what i'm not getting there with you what the kentucky supreme court said in the winston case is that the department of corrections is the body ultimately responsible for determining when prisoners are eligible for release the kentucky law gives deference to the department of corrections and here the judgment of the department of corrections is is entirely consistent with the arguments we're making the argument if the department of corrections policy conflict with stack the statute drove right again your honor that's correct but there's no conflict here twenty eight zero one zero eight is a policy that doesn't conflict with anything in kentucky law and kentucky's merger statute is one that the commonwealth applies consistently as we explained in our briefing in the probes and stewart cases i think they're instructive here they're each of the defendants were sentenced to life in prison and the words that we read the argument if we don't agree with you can you still win on your in custody under the d o c yes your honor they're completely independent arguments so you don't need luck awana and you don't have to have murder the simple question is does that statutory language actually govern this case we're acquiring avoiding of the d o c rule or do the dio see rules and the statute are they capable of being read together without yes your honor there's nothing inconsistent about the statute with the policy what the commonwealth has argued here is that the statute somehow requires pretrial custody credit to be applied to later convictions that the statute doesn't say that at all all the statute says and this is true again of the cases they've cited rogers vs window the lean hard case all those cases say is that when a defendant is serving multiple concurrent sentences he's entitled to have this the time served on the first sentence credit against the second we're not arguing against that here we haven't argued that mr bolling's rock castle sentence should be deemed to start in one thousand nine hundred six when he was sentenced in that case we we agree that he should be deemed to have started that sentence in september of one thousand nine hundred two when he was sentenced on the laurel county case the only thing in question here is those one thousand three hundred seventy eight days that he spent in prison prior to being they said and i'm quoting here an award of jail time credit is not actually part of a defendant sentence even if the jail time credit award is included in the final judgment of conviction they use a plain language definition they cite to merriam webster's definition of sentence and they reason under the common sense analysis that a sentence cannot begin until the sentences imposed and so they view pretrial custody credit is an entirely different animal and not one of the cases that the commonwealth has cited says question the twenty years by any i haven't had time i mean concentration is counted the twenty years have expired he's been there much line and twenty years you'd agree with that when you wri because he's doing a life sentence and this law county case now you bring in this case because you think that if has a right to have that petition heard so long as the court has jurisdiction over it which if he was in custody the district court did and second many of the claims that mr bowling has brought in this federal he it's important to understand i think  for purposes of this question that the laurel county case was predicated almost entirely on the evidence from the rock castle county case that they were almost completely overlapping and so mr bolling believes that if he is the two separate crimes there were is that mr bowling if mr bowling gets relief on a claim in the rock castle case let's say for example that the court finds that five of the witnesses who testified against him both in the rock castle case and the world county case perjured themselves or otherwise lied during their testimony and therefore that this conviction was invalid and not saying that if he goes to laurel county he's automatically entitled to relief there but certainly that would be persuasive in the world county matters that no i agree none of that is before this court the only question before this court is whether he was in custody at the time he filed that petition if he was it doesn't matter whether those claims are likely to grant relief he's entitled to litigate that federal expired on february twenty fifth two thousand and nine three and a half years before he filed a petition the kentucky supreme court relied on k r s one ninety seven thirty five t begin on the same day concurrent sentences begin on the same date in so the trial court had said made an error in this respect and that the department of corrections had the duty to correct it and and under that statute a rule show that he was granted his credit on the burglary which yes you are now in why and it doesn't show that any credit would be applied to the attempted murder charge so didn't get what the statutes say on the his concurrent sentences his sentence was concurrent with the burglary of the laurel county sentence so they started at the same time operation of the  statute and there is that there's playful case law to support that there's a limb in the commonwealth engram the i agree i think you're right when you're running together  consecutive makes a difference but but if you're running together book where he becomes is one not under the rules assigned the jail credit to question that's what we're trying to figure out is does this statute make a requirement that is in conflict with the rules of the d o c or does the department of corrections get to explain exactly how things are credited in order to comply with the statute so that we can read them together well the kentucky supreme court said this is what the correction that corrections need to make the courts can't make this correction we're putting it on the department to do that but they need to do that is what we're talking what you're saying that it was said that was in the sort of five question you're you're referring to that opinion honor i struggle a little bit with because that the question that was certified assume things that were flat wrong i had do you address the do the dissent think that's a correct reading the the question is how does that apply here when they were making a generic statement that you have a right to have a credit done and they said pacifically we were not making any findings of fact we're not answering the merits question all we're doing is this looming what the district court told us  saying the district court seemed to assume that he was the question assumed that he had not been given the credit that he was supposed to be given right and aren't they supposed to giving the credit that was the question should the department of corrections do this in the spring kentucky's wearing court said yes exactly but it begs the question of whether the d l c had already done that because it assumed incorrectly didn't it that the d n c had not done it when the b o c the record show that they in fact had done it in the d l c had argued up until that point that it had done it does a d o c responded to the heaviest petition originally and said there's no jurisdiction so the question i believe that the district court went ahead and took the question of does that should it apply in the first place and if so did did the department do the correct thing it and felt there was conflicting case law with the bar decision and it wanted the kentucky supreme court to straighten out that conflict in the case law that can i ask you a question that just goes to honor ok so the mr bowie was was first apprehended in connection with the rock castle county yes your honor he was arrested the day that he shot it and so i mean the shots were exchanged with the victim leo yes but you had a victim to identify so he would have been taken because he was taken into custody case would have been the one against which it was credited because that would have been the to me he was in custody because of the rock castle yes and that would be how you would do it under federal law i mean federal judges don't calculate since the bureau prisons does that but you know we i mean that's just the way it would work is consecutive but calculation after that we would court order could current or consecutive but after that the the can the into to charge a responsibility for confining him to take over yes your honor and that's applied for right that's it the argument that it applies the first indictment it would be and my understanding of the record resident record is the list of zeroes is bookkeeping method because otherwise the summary at the bottom would have several thousand days of credit when you think it the thirteenth seventy eight that applies to all of that money absolutely and is credited to case to be incorrect or or to any time there is an argue conflict and they just don't matter i struggle with the practical application of the policies a bit presented in this case were written prior to the supreme court's certification of law where it made a definite finding between the the case i'd like to address the the so called murders just very quickly l r c commentary our legislative research commission the official commentary to that statute points out that it is for the purpose of determining a maximum possible the possible maximum if you get a concurrent sentence of three years and five years it's a five year sentence if they are consecutive it is potentially an eight year sentence and there is case only in heart again use that language in a case called france the commonwealth and these were both persistent fillion fender calculations so they have to be very specific and if the court rejected this argument that five thirty two one twenty section  one the merger statute compels the result that it was her sentence will carry a shorter sentence along with it and extend it so and again the magistrate when it made its recommendation to the district court in this case cited kingly commonwealth of kentucky supreme court case in while the magistrate was using it to to talk about the the credit that was already served in mentioning that  twenty year sentence ordered in two thousand and eleven will expire with or without that credit prior to a forty five year sentence ordered in two thousand and three so they were both they were both concurrent so he had a forty five year sentence but the twenty year portion interest of finality of judgment for this case in all other cases the warden asked this court to affirm the dismissal of the district court because it lost or stiction when the sins expired on february twenty fifth two thousand i want to i'd like to just clean up one factual issue and then make three quick points the first in response to something that judge given said is mr boeing was indicted on the laurel county sentence first not the rock castle sentence and so applying twenty eight zero one zero eight all that credit should have gone to the world sentence the what what to what do we look to the date of indictment controls as opposed to the data being taken into custody because the result would be entirely what add described under federal senate's calculations you look your honor to the department of corrections policy which here is twenty eight one zero eight and just as you explain how federal courts don't determine sentences that's exactly true under kentucky law the kentucky courts don't determine sentences they work to the department of corrections to do it at the department of corrections is statutorily vested with authority and what is it about that particular policy is that the for case of in the first case indicted rather than the first you got a period of overlap the first indictment shall receive credit while all other shall have zero days of credit that's exactly what happened here the commonwealth has no explanation for why the department of corrections takes the exact opposite position that they've taken here they relied on the comment on the department of corrections documents in the district are proceeding and completely abandoned that reliance before this court and the commonwealth has basically hanging its hat on that line from the kentucky supreme court decision but i think it's important to be clear about what the kentucky supreme court did in didn't do here as judge strand acknowledge they declined to answer the second question which is exactly the question before this court which is whether mr bowling is in custody at the time he filed his federal habeas petition their decision their offhand comment that he was entitled to that credit was merely repeating what the district court had said in the in the order certifying the question it was premised on those two mistakes the fact that we've discussed and when the commonwealth says that the that the kentucky supreme court was relying on the statute to reach that holding that is completely false they don't  the cases well it's not your honor there's longstanding supreme court precedent holding that i think sobran versus new york is the case it's three ninety two u s forty that any time there's a conviction at issue even if it even if vacating that conviction would have no effect on the prisoners liberty that anytime there's a valid can a conviction in place the case is not new it's always better to have two convictions versus three and having a felony conviction you know could have collateral consequences for him so i think it's important also just going back to the merger argument my colleague here says that it's unfortunate for m but it's critical to recognize that the commonwealth is applying that murder statute continue consistently against defendants in stuart which she noted was unpublished but the kentucky supreme court affirmed that unpublished decision judge and should be reversed but i think kentucky is using that murder statute as a sword against defendants and it would be highly inequitable not to permit defendants to rely on that same statute for purposes of collaterally attacking their