here the defendant was arrested charged arraigned and are released on bail the government's argument that the bond was exonerated and therefore the speedy trial rights somehow toles is really a red herring and should not distract the court from the speedy trial an fact that the principle what is the effect exonerating the bond in your view the well i think it's somewhat unclear in the record exactly what what occurred as far as exoneration of the body but what returned to state court upon the release of his federal incarceration you know that this brings up a question i had to but maybe what the local jargon is i for arizona it's not unusual if somebody supposed to be in court at nine o'clock so they were using the term release he exonerated the bond was the guy's actually in federal custody so he let the bill bond company off the hook is that what happened here i think both occurred the bond was exonerated so the bail bond company is off  mann before his release will say there's a hold when you walk into a trial court and you say does my client have you hold you asked that to the bailiff and the bailiff runs to see if there's any warrants anywhere so there is clearly a hold on mr man by the state of california they would assure his presence a media we following his federal incarceration at the end of the incarceration when you get right down to it he wasn't in federal custody from the time i mean he wasn't in state custody from the time the be released from federal custody he was coming back to the states so in my opinion they had a hold on his liberty but i think what's more important is the sixth amendment and elsa's protections are there to protect certain principles that the social the psychological a financial harm that comes to an individual and they've been arrested and charged with a crime that bell had already run mr mann had been arrested he had been brought to court you can charge he's been arraigned and he's been released on bail there were financial considerations he hired a lawyer he posted bail there were social considerations his federal case for cultivating marijuana as we all know marijuana has not become the the you know that the horrible  activity that it may be used to be the charges in this case in some way were much more serious so he has that social stigma of being charged with those kinds of charges it also impacted his federal incarceration it precluded him from seeking rehabilitation in federal prison percolated him from all kinds of things that he might have been able to is is the way that he was housed there is anxiety there was concern on the part of him and his family to the degree that he hired a lawyer to trying to go shape th he was in federal custody he had a lawyer that was saying don't worry about it just hide out mate see if they're going to come get you which the law says you know we look to that and in this case mr mann didn't do that he ignored his lawyers recommendations and he said i want to go out  to contact the d a i want you to try to go shoot a settlement i want to settlement that can globally take care of everything so i can get on the track to rehabilitation and instead the district attorney sat back and did nothing to the district judge said basically i agree with what you're saying but there's you know it's unclear in the opinion where he is given our case it's clear the guy's in federal custody he's not in state custody but but it's not just a matter of being in custody i mean people are released on bail and they're you know not in custody i mean he nobody's under the control of the state court if you're released on bail but our guy there's no bond there's just an outstanding four he's not before the court that that that warrant is in the system and that warrant the d a knows that warner is in the system that the correctional facilities are going to check before they release and they're going to ship him back to california it's as if the warrant was executed i mean they don't they don't serve the warrant mr mandela is sitting in federal custody what they do is they put it in the system knowing the correctional facilities are going to do a warrant to act and the minute he gets released from federal prison as he's walking towards the gate they're going to go wait there's a california warrant for taking you to california court they had a hold on him his liberty was held this entire time but again i think that's a red herring i think the real critical argument is that the the principles underlying marian and killing him underline the sixth amendment protection is once you are an accused and you come to court and you're charged you've been arrested you've been charged it implicates speedy trial six memmott right on direct appeal the arguments were not to dillingham in marion didn't apply and so to say now that they don't apply or doesn't cover this case is somewhat disingenuous in the issues that the court misapplied supreme court authority relied on martina's martinez is completely different in then sometime three years later gets arrested on another charge there was no there was no arrest and charging in that case in our case we have an arrest bring him to court he's charged he enters a plea of not guilty and then he posts one hundred thousand dollars  evil the government able to do that in this case because it's already reviews corpus but that really is sidestepping the clear analysis here we have more than dillingham had i mean mr mann you know i mean dillingham was arrested here you know mr mann not only was arrested he posted bail he you know came to court he entered his plea of not guilty and he did suffer the principles of the sixth amendment is designed to protect against that anxiety mean those are things that happen at the time you go to court you're publicly charged and the community in the public knows that you've been charged you suffer that anxiety and concern about your future and what you're going to do you suffer the financial concern hire a lawyer right then and there even though you're going off to federal custody to negotiate your state case and you've posted a bar eventually requested a trial i'm sorry his lawyer eventually request that he come to trial eventually well eventually they figured out how it after the negotiations broke down well i thought you said that the lawyer told them to kind of lay in the weeds and then just let it go and it seems to me like just looking at this they usually that's exactly what happened he waited just a minute counsel and he waited until so much time had gone by that counsel would be able to argue a speedy trial and violation then he said well i want to trial i do want to save some time there are two lawyers some a mess understood his trial lawyer told them to wait her federal lawyer told them to wait he had a second loire mike cell then he was a state lawyer and that was the one that tried to negotiate with the district attorney on two again obviously that didn't happen so he could have i mean just some women at why didn't he man speedy trial claim was not contrary to or an unreasonable application of clearly established law as determined by the u s supreme court now marian does tell us that the sixth amendment right is true triggered by formal indictment or information there's formality there or the actual restraints imposed by arrest and holding to answer the criminal charges and the case that followed make it clear that a defendant arrested and then released on bond is still subjected to actual restraints and that's the dillingham case now a defendant neither under indictment nor subject to bail is not and that's the allowed hot case here the state court recently concluded that man's speedy trial right was not triggered until he was brought back to trial after the bond held against him was exonerated at that point he was no longer under the strain of the state court not withstanding the fact that this war may have been in the system he was at that point that it's reasonable to conclude he was under the custody of another sovereign here and that the state court had no actual indictment that would be my argument would be the equivalent to having a complaint in the system without an arrest there's there's no restraint on the liberty alone with just a complaint or kind of this to a situation where somebody let's assume somebody gets arrested there for whatever reason a warrant is issued they disappear just disappear they're not in jail they disappear the bond gets exonerated for some reason because whatever the judge doesn't think that the bonding company was at fault in this circumstance and the guy's off somewhere and then finally he walks back in the door five years later and says i want to trial but i have a speedy tr did and he was in the hands of another sovereign here and not the state so while they knew where he was they were the state court was not imposed did not have any imposition on his liberty at that know not a waiver about but it was a factor in the reason for the delay when we fast forward to the barker vs lingo factors i don't think we need to get to that because our argument is that the speedy trial was not triggered in till he was actually brought back into state custody later on after his demand in here you know it was reasonable to conclude to conclude that his custody was interrupted constitutional claims on the merits a federal court may not grant relief on the same claim a claim unless the state court has committed an obvious and indisputable error and here based on the case law that existed utilizing the trigger date of when the defendant was brought in or i'm sorry the trigger date of when he was arrested in two thousand and two he's still not entitled to relief because he when you're evaluating prejudice under the park er factors the lengthy delay would be presumptive prejudice but in terms of actual prejudice this court needs to look at three factors as opposing counsel has identified oppressive whether or not there was oppressive pretrial incarceration and here there wasn't he was in federal custody of what is claimed that he lost his opportunity to work out a package deal well he did attempt to negotiate a deal durant while he was in incarceration and it's speculative to say he would have gotten a package deal here when he was ultimately sent and he didn't get a package deal so i don't think well he couldn't get it because it was already a done deal i think they could have r concurrent the state court could have ran his sentence concurrent with the federal sentencing laws he was serving but they chose not to so it's just speculative at that point but with regard to the anxiety and concern that he was facing you know he did make his point that he was wishing to get a better custody status and pursue rehabilitation but it there was no disruption on his employment his financial resources were drained he would have had to hire a state attorney anyway he didn't use all are in custody so you know he was not subjected to any more public and if you were in the orange county jail or not in the federal lockup his clock would be running right yeah i think that's a stronger argument because it's not a separate stop around here ok in our case the orange county judge knows that he's in the federal custody in effect the feds are holding him for you for the state why wouldn't we as we're treating this guy as if usually on the lam when he's really being held by the federal authorities with you or with your blessing well but he's still not subjected to the restraints by the state court notwithstanding the fact they're aware of his existence there's no formal charging document against them and and it requires the second prong omarion requires arrest and being held to answer and he's in federal custody and the judge doesn't know what's going to happen i mean there were negotiations going on and at that point he's just in a separate sovereign there and not being restrained by the state and it goes back to whether or not the state court decision was contrary to order and then reasonable application of the united states supreme court and you know because there is no u s supreme court directly on point and reasonable jurists could disagree about  put a minute on the on the clock for him it's possible i know the under supreme court authority the sixth amendment right kicks in when there's actual restraint imposed by arrest and charge so the court says the sixth amendment me not wait for indictment information or formal charges that's the analysis under marian and dillingham his point is that's all true if he were in state custody he's and he's being held by somebody else it has to do with what carson is and it has to do with being arrested and being charged doesn't so if he were in prison in canada would that count i think that it would if they knew where he was and you know i mean i think that the fact is there's been there may be other issues under barkby window whether or not they can get him in due diligence and all that but i think the speedy trial right ticks in once he's there and there needs to be some effort then the district attorney would make an effort and under barker we go he may not win because the district attorney made an effort here there's absolutely no justification for the district attorney and they knew where he was there is a procedure to get him over from state court it's list laid out nicely in a magistrate's report recommendation and the district attorney utilize that statute within months of the demand that was filed so it's very easy for they just did the state to bring over and inmate there is no record no evidence in the record at all of any justification for the delay the government now wants to tell you that there's some justification of the negotiations that that