y hasn't hasn't the constitutional issues that the petitioners raised in federal court now been resolved and therefore the federal court should be the best jurisdiction knocked out sound like a lawyer a court is whether those extraordinary circumstances exist if there are striders circumstances brought to the district court in a sixty b motion the district court has jurisdiction to entertain that now you know there's all kinds of hypotheticals i'm i'm not sure i any time after one hundred eighty days you have this argument well what i was about to say the very beginning is this is not a case where the you know we ran inside judgment of and they want a one and sack you know ten year it this is five and a half years want eighty one five years is is a matter of degree quite different perfect but why is it a difference in kind one of your arguments is that your speedy trial right is while you want us to say that you're quiet and that's a tactical decision my client mr wilson who spent the bulk of his life in prison without constitutional conviction should not have to bear the prejudice the results from that would you know you talked about before the nature of the sixty in your papers you talk both about your your client's difficulties which based on the record seems to be equivocal because there seems to be some some evidence in the record that diagnosis of having a delusional disorder and that that happened during a period in the way now whether he's competent or not is one question but to say that he isn't more impaired than he was thirty years ago is quite another question clearly you see sherm so really i guess i'm challenged you with the notion that this isn't so much about what it's who and and in hey b s you know the federal courts are supposed to be the line of the first line of of relief from judge to go his opinion where he intermingles exhaustion with his discussion of the merits i don't believe there's a single finding of fact how i'm sure eight or surgeons are prejudiced in each instance he says for example a thirty six conclude the mental health concerns of mark wilson not present extraordinary circumstances that cannot be fairly addressed by the same court so he doesn't ever really separate out in his ruling prejudiced from his loss so i think the issue before this a conviction that resulted in it being overturned of a pro batson issue here in this case right and there was a conditional  you have one hundred eighty days either to retry or or release the reason is not released is because there's another it's the lam case is still pending although in that case he was at a brady issue so on this one it looks as if practically speaking the commonwealth prefers to go forward with lemon let's see what happens here let's let's be efficient about it and they wait a lot of time and much more than you think should have happened and therefore you have a claim that they just waited too long and they can't go back and retried with regard to the the swift case why when you weigh federal state relations why is it that you don't let the state court have the first shot at that i have and i think i tried to ask that i think that the know what the state courts would do but it at this point back to judge going away so i mean you've got what you asked for you got a he was vacated at some point after one hundred eighty days or at least in effect vacated so therefore if they're going to go forward they need to do something but we're now back in state courts are we federal courts are diverse the jurisdiction and you have to as the target was pursuing pursue your clean state or i think the answer that you've given me is the patterns on what the nature of the sixty p is and of course the hypothetical i've given you is if you obtain the release the belief that you saw it in this case it would be the federal courts and you've got to start the cycle again yeah and i think the answer is that maybe i can answer it this way i don't think that the simple fact that we got i circle fact back when we got the relief that we sought and the fact that the state courts and some point vacated the conviction and rearranged just wasn't as not by itself all by itself divest the federal courts of jurisdiction it depends on the circumstances and it's not every day that the prosecution intentionally waits five and a half years to retry a homicide why you know this is an unusual case and i think it's not every day you went to  to do it may go the question in this case when you get right down to it is whether the commonwealth can retry zachary wilson for the murder of david swift in one thousand nine hundred two and obviously there have to be extraordinary circumstances for the federal courts to intervene in twenty one going say for prosecution it's our position that there's no such extraordinary circumstances here there are a lot of points of government go this goes right to the jurisdictional point motion to inforce and the sixty emotion i think the question is moot with respect to the motion to enforce because this wilson has appealed that and also because the district court held that the order wasn't violate it's there would be nothing to enforce with respect to the sixty emotion as as we said in our brief we believe the district we did not have jurisdiction to hear what amounts to a speedy trial claim in the sixty the ocean is this really two reasons for that first  because the kind of allegation that mr wells makes now is a speedy trial type allegation that is first new and not related to the baths in claim on which really was created and second it's the kind of claim that state courts routinely handle as part of the trial process it's subject to exhaustion if you read adelman and pitches those kinds of points question it presumes the existence of jurisdiction i can't find anything in the supreme court's opinion in that case that that intimate that it did not have jurisdiction well it's possibly that i'm open when i'm over reading it because i read pitch as if if the word jurisdictional and it could be over reading it in the last ten years the court has really shark right i mean they've been explicit that there's a distinction between claims processing rules and if there's not a statutory imperative almost it's not a strictly speaking jurisdictional problem most agree with that well paid is present a special case because remember that sauls rule sixty b is always subordinate to the  so to that point it is a jurisdictional point that is if it's a kind of claim that is subject to the hague use rules that if you present it in a different way i would say it takes it out of sixty six you be no longer applies it is not an avenue new claim that is not related to that right ok so let's go back in time for a moment let's say it was not a nuclear right so the following are the facts right some facts that now make you believe that a sixty b order is appropriate at the time of the vaca true order and i'm talking about the state  order which essentially enforces the grant of the hideous is the federal court divest of jurisdiction at that point and that's a very good hypothetical your honor i'm not sure the answer that question i'm inclined to say that there might be circumstances in which be for in order for the federal court have jurisdiction it would have to be an instance where it would be a sixty motion with extraordinary circumstances related to the basis of the original hey vs and in the absence of or something like that i think that in that case maybe you don't have to get into the sixty stuff because maybe then the motion to enforce is is the way to go because the action the order itself has been violated i mean if you look at sixty b remember that usually under sixty b what you're doing is in tacking something about the order itself here there's no attack on the order so it's you know from the very beginning it's for an odd sixty emotion  in a case like that i guess it wouldn't be an attack on the order itself but it would be attack an attack on compliance with the order and in motion to enforce would be the more obvious way of doing it which is the i want to make in this is just you know where you you've touched on this before at the time wilson filed the motions to enforce and especially when he filed the sixty motion we had complied with you  brief is the standard of review i think i understood mr wiseman to except that the district court did find at least with respect to some of the questions and there were no extraordinary circumstances which would justify suspension of the exhaustion requirement i didn't understand that he was accepting that in his reply brief but i think it's pretty clear if you read the opinion as a whole in the district court makes the standard riverview there is an abuse of discretion standard at least and for that i you can look it gives a versus frank that which i cite in our brief which says that we review a district court's interpretation of its own order for abuse of discretion the court is also characterize that holding more recently as the court gives great deference to district court's interpretation of its own order so  so the first so mr wilson faces a significant threshold to show that that the delay in this case of the deterioration of evidence does in fact constitute an extraordinary circumstance even though the district court found otherwise let me just ask a point of clarification on that as i understood mr wiseman's argument he's saying they don't have to exhaust because extraordinary circumstances it is in i understand your position to be that you don't get to the extraordinary circumstances analysis until you've already satisfied the exhaustion analysis is that your position yeah i think exhaustion comes first because of the nature of these claims and why not enter into related  they are interrelated in that they depend on the same allegations but the question is where you what box but the allegation is in when you first start looking at this but the district court did was assume that there was a doctrine of extraordinary circumstances that almost that could be satisfied hypothetically with these kinds of allegations and found that there were no extraordinary circumstances here that would justify suspension of the exhaustion requirement our position is just looking at the type of claims and the fact that their new claim because it's new yes that you have to exhaust would be first in extraordinary circumstances yet still impose the exhaustion requirement   even more extraordinary from his perspective than they are you know they were clearly disturbing that would be of no consequence if the plane or position i mean it's hard for me to no court has faced the kind of allegations that you know you're talking about that are speedy trial type allegations that are so egre ous that they move into the category of extraordinary circumstances and it's hard for me i never want to say never but it's hard for me to imagine those circumstances and also remember that the  in a situation where he deserves relief in the way that the system is set up is that the state court is presumed to do its job and that's part of the equation here that it's important not to forget i just want to touch very briefly most of the course has other questions on the idea of compliance you know compliance with a conditional deadline means either retrying the defendant or that once the the day has passed  hundred eighty days in this case no longer holding the defendant pursuant to the old conviction we obviously didn't try him within one hundred eighty days we didn't hold him pursuant to the old conviction either because what's really extraordinary about this case and again this is something that came up is that he had another death penalty case that had not been reversed and was not the reversal of which was not affirmed by this court until the end of two thousand and nine at which time we moved fast this is not a perfect world we can see that if there were no lamb case that five and a half years would be extraordinary in that we should grant the relief that this was so i'm not sure i and a half years right ok i misunderstood the question to question if he was still held pursuant to the old conviction after the hundred eighty days as opposed to you know released and then we arrested they were released and rearranged three years later that he would he would be here right right i again never say never but i can't imagine somebody being held on the charge that was you know vacated and reverse swart case the pens on the the notion that he was being held on the other conviction yes absolutely thank you very much say if there's jurisdiction and if there are extraordinary circumstances you should not have required exhaustion send it back to him with instructions that he should reconsider and make findings because he has made findings about the prejudice as i pointed out earlier so back to him and and say direct him to consider what would you call what he said about both mr guess and and your client with regard to yes it does depend all of these factors that and on the nature of the claims don't require exhaustion until you get and make findings about each of the the aspects why is that a jurisdictional necessity i don't understand the well because i think because i mean the way i see it i'm just putting my cards on the table that the court can say simultaneously i have jurisdiction to hear this sixty p motion but because of reasons of