the conceptual nature of federal habeas review and the structural limits the constitution places on the reach of federal power now i'm not here to be labor the briefs which on both sides are pretty extensive and highly technical in terms of the research but to my first point quite quickly the central error in the district court's ruling below is the confusion of confinement on the one hand with the actual which is a jurisdiction prerequisite for seeking federal habeas review with what federal habeas relief actually does which in substantial part is to vacate and unlawfully imposed conviction in this case a conviction that does not violate the statute of conviction eighteen u s c fifteen twelve and it doesn't violate the statute of conviction quite simply in our view because of the supreme court's intervening decision in the fall or case and that is the central flaw in the district court's invocation of the concurrent sentence doctrine here to essentially hold the dispute in this case non justiciable or moot simply because is serving multiple life sentences arising from the same case and i'm reminded i guess of an organized crime case that occurred that could be before judge duffy all the way back in the eighty's and and  defendant got up and said you know i regret that i have only one life to give for my country when he was imposed a hundred year sentence and in an organized crime case not to be glib or flip about it  life sentence is a big deal no matter how many of them are imposed and it's a big deal why is it a big deal because in part because he wants to express the maximum amount of opprobrium possible for the defendant's conduct if we're going to be imposing  multiple life sentences arising for the course of conduct in the same case it only follows as a matter of fairness where one or two or less than all of those life sentences are later revealed to infirm that the defendant does entitle to some relief and why couldn't your client have raised these issues on appeal and so it is same question i guess is how did fowler change the law on the second circuit well i think i think of mere plausibility or possibility on the one hand with the prevailing standard now which is a reasonable likelihood of a relevant federal communication didn't d i s set an even higher standard that is at least one communication that would have been with yeah that's a stray a stray piece out of diaz it did say that but subsequent to diaz lopez reaffirmed the possibility or plausibility standard that was originally a non si a did that this quarter originally enunciated in romero well in the eyes was the law when your client appealed his conviction wasn't as was romero and of course diaz did not proport to overrule romero and we're not going to  the old saw that one panel can't overrule the decision of the other so at best we have no i wouldn't even say conflicting there are decisions that are tough to reconcile and in any event  before fowler we applied the same federal nexus taks test to both subsections and sites d s so how so doesn't doesn't the levy's and the and the story for you i mean does of the least say the law before in the in the circuit before fowler and after fall or was the same now with respect i think it ends the story on the change of law for the government because it's says in there quote while fowler may have increased the likelihood that must be demonstrated it does not follow that a reasonable likelihood cannot be shown by the same means that we previously permitted plausibility to be shown so that passage right there is confirming that the pre standard in this circuit was one of plausibility and it's strongly suggesting that fowler increased the quantum of the government's burden if not the means by which it can be satisfied so i think it ends the story on that and even if that's right i mean here it doesn't seem likely that a federal prosecution for rico prosecution would been brought against your client and even though the initial prosecution investigation was conducted by the state that the likelihood of interaction with the federal authorities was so high that there's nothing really in the it that fowler changes well even before fowler ma'am lopez made it made it quite clear that the mere federal nature of the offense even just a racketeering offense is not enough and there has to be additional appropriate evidence as vollies subsequently reconfirmed so it's not sufficient just to rely on the federal nature of the offen even if it is a rico offense and there has to be the additional appropriate evidence and even if you parse of the lee's very closely and look and judge lynch is decision of least candidly it's it's tough to discern very much in there that goes beyond the fact that it was a federal offense but at the end of the discussion of the facts he does pregnant lee note that at least with recent respect to the second obstruction conviction in that case there was was an ongoing federal investigation at the time of that offense and i think what's what's really instructive and billie's is the examples that are reciting of what generally and would constitute appropriate additional evidence and by the way i digress for a second the snyder opinion the twenty seven hundred snyder opinion from the seventh circuit came out during the briefing of this case also makes it very clear that the mere federal nature of the crime doesn't suffice but to circle back for a minute the examples that are provided at gilley's page it's nine of the west law print out tells you what would generally suffice an ongoing federal probe at the time of the obstruction crime or actual knowledge that federal target crimes are what would have been communicated about so that's the kind of proof that would generally suffice and we don't have that here even on the government's marshalling of the evidence and on on necessarily evidence that it was reasonably likely or would have occurred no judge florida because it's a temporal concept it has to be at the time of the offense and i understand that but but isn't the proof in the  know because the so i'm what i'm saying is temporarily at that time what hadn't happened yet but it was reasonably likely in the words of fall or and we know it was reasonably likely because it actually occurred at asd to have been reasonably likely that there would have been a federal communication at the time or near the time of the killing if the person had been eliminated how do we know this not so i take your honour's point i think it's a relevant fact from which a jury  have properly instructed be able to infer that there was a reasonable likelihood of a contemporaneous federal communication but we look again to release over that question even even as far as i just went and i think that that would be a reasonable thing that a properly instructed jury could infer the jury wasn't properly instructed here but it's not enough in and of itself and the question is reserved in valise quote nor need we explore sorry about that arguably arguably the very fact that communication with federal officers took place months after billy's assist solicitations i should say lend some support to a farming that the communications were reasonably likely at the time of the solicitation so that's that's why i'm saying potentially a properly instructed jury could have considered that but it's clear that it's not enough on its own and it's an open question under the lease if i think i've reserved it looks like i'm does permit courts to manage the workload that they have and to deal with cases in which there is nothing real at stake the potential sentence there sorry want to begin with jurisdictional absently or on to the question as to whether or not fowler changed the law is a critical question here but it's one that your honour's dealt with i think reasonably well counsel points to billy's believes very clearly reserves the question of whether or not fall or change the law in the circuit it is as might as counsel started to say  nor need we explore what gap if any exists between fowler's reasonable likelihood standard and our previous plausibility formulation the third circuit in interpreting fowler has specifically cited to second circuit precedent to describe how follow should be applied the question of whether or not fowler changed the law here is answered best by looking to fowler which determined a circuit split between the way in which is that it should be interpreted it laid out harris on one side the fourth circuit's decision and lopez on the other out the second circuit's formulation that there must be some plausible communication could you following one judge judge could promise i'm interested in hearing your thoughts on the jurisdictional question the district court's discussion of the concurrent sentence doctrine side to a lot of article three cases and suggested that he thought either there was a mootness issue here or there was nothing actually at stake and i wondered what your comment was about that because it seemed to me that if a court were to vacat one of mr dances convictions that you know the order might have the effect of vacating the corresponding sentence quoting in the mandatory assessments for example and so even though that is modest in the civil context we find petition in this case the potential concurrent sentence doctrine is more prevention and less depending on const in my interpretation less jurisdictional however that the court did cite standing concerns insofar as standing is relevant the government's position is that it's the courts for a row view of the court's history and jurisprudence on the question of what constitutes custody now because he specifically draws a line between cases that deal with with financial penalties such as those that are actually the issue here and those they deal with with things like restrictions on an individual's liberty there are times when financial penalties can be so severe as to restrict an individual this isn't a financial penalty so much as a specialist susman that is part and parcel of a conviction  it's a part of the criminal penalty where's the no a caskey i think they were discussing various categories of criminal proceedings under state law and differentiating an infraction or a violation or i challenges to sentence challenges to financial components of a sentence such as for example the court's decision in kaminski in which it held that a restitution order was did not constitute custody for the purposes of committing a hideous petition a challenges to other aspects for example community service in which an individual would be encumbered such that he was ordered to be at a particular place or to particular time restrictions that didn't apply to members of the public at large so so  distinction there and does have a very broad interpretation of what constitutes custody but that interpretation doesn't extend so far as to say special assessments or restitution would be consonant with the idea of custody under the court there may be financial penalties that are so significant accompanying convictions that are so significant as to constitute restrictions on liberty and that's the gonzalez case however not all financial penalties are and kaminski has been applied by district courts throughout the circuit indicating that the court i cannot hear him because petitions challenging only financial aspects of a penalty absent something making them a restriction on liberty this is not a case in which there is a restriction on the body on liberty at issue if the only issue in this case is whether or not the petitioner is going to be serving four or six concurrent life sentences your position is there's no jurisdictional basis for the appellant to challenge this conviction notwithstanding any presumption of collateral consequences of a criminal conviction is that right there is no jurisdiction a basis in so far as twenty fifty five provides only a remedy for people to challenge their custody for petitions to challenge their custody and it doesn't challenge is custody it's also fact this was a case in which federal authorities were going to pursue this case the not all federal court so if we were to differ with you on that and if fowler really affected if we were decide that fowler affected a significant change of law supporting an actual innocence claim is there any way that a person with six life sentences could challenge it under he could challenge two of those six life sentences well the court could decline to apply the prudential doctrine find that there are some harms that would constitute sufficient standing how do we get to the concurrent sentence dr i thought that was a discretionary basis for declining to exercise jurisdiction but i'm trying to understand what would be the basis for jurisdiction based on insofar as there's no insofar as there's no harm whatsoever there's none the courts have have found that challenges such as these are are not moot in a direct appeal context insofar as a b s petition relies on twenty two fifty five to provide jurisdiction relies on the in custody provision to provide jurisdiction then it would be a lack of statutory jurisdiction that we keep the court from exercising its authority to hear the petition rather than than point so to that end the interplay between that and the current sense doctrine is in so far as the claim asserted by the petitioner is that he is challenging his custody because he's in custody pursuing not only to fo life sentences not at issue but also to two that are at issue and the concurrent sentence doctrine would permit the court to say that custody the two that already issue isn't relevant to this determination because though that won't affect your actual custo y it's something that's that's not real in this world to that end just briefly dealing with the petitioners actual innocence claim there's ample evidence in the record to support the theory that the federal government was going to pursue this massive rico investigation irrespective of whether or not the n y p d was the first agency to be  the indian task force works closely with federal authorities the record reflects that quote the feds want to sing bad and that's a government appendix eighty seven there's there's lots of what is the in the task force the indian task force was an n y p d task force working with the united states attorney's office to address crimes specifically the violent crimes at issue in this case this is a forty million dollars roughly fraud case involving corruption of public officials petitioner had sources of the new york city police department and was bribing local officials this is precisely the sort of case the federal prosecutors love to bring the federal authorities are extremely interested in the case extended beyond simply new york city and so the new york city police department frequently takes cases like that to the u s attorney's office and in fact that the record reflects evidence of wrongdoing in us and nassau county this is a quintessential federal rico investigation and appendix two sixty three i'm not aware of its continued existence i'm certainly not working with the new task force of this time how long after the second murder did defense get involved what was that gap the records not clear as to the specific murder the guns were recovered before his murder and the f b i was responsible for it and dealing with the guns federal prosecutors were involved in an informal sense early those references to leslie caldwell who was i believe the chief of the organized crime section in our office at that time i think of an appendix eighty two and eighty three addressing the early intervention with respect to potential witnesses in the case who had been arrested and the again the record is replete with references to how badly the federal government wanted to names to judge carney's point let me make this very very clear we are not challenging the special assessment itself it's the existence of the conviction at sentencing understand i want to just confirm my understanding of the government's position that yes your jurisdiction and maybe you could comment on that yes i would point the court to footnotes ten and eleven of our initial brief if the government is right about this then their position would raise the same suspension cla problems that animated the treatment decision it would raise significant constitutional doubt i guess the suspension clause i think it arises under the eighth amendment i'm not sure but you would want to avoid that constitutionally doubtful position and take the much narrower reading that we're urging here and that reaching reading is summarized in part in footnote eleven of our opening brief even if the court were to invoke the concurrent sentence doctrine and with respect to my friend  collateral view posture but if a court were to apply it in its discretion the appropriate remedy spelled out in footnote eleven of our opening brief is to vacate the convictions and return the special assessments and  world isn't going to crumble if if that happens here is not not going anywhere and four to six lives so i don't understand the strenuous opposition to that form of  relief the indian task force as i understand it from the government's brief that testimony is not part of the trial record in this case it was a elicited as a sort of suppression hearing that wasn't before the jury and more fundamentally as we've  detailed in our reply brief what they're talking about is a federal involvement ex post that was quite limited at that point to the recovery of the hidden serial numbers on guns and it's a it's a