path since the certificate of appeal ability was issued three judges of the court issued a certificate of a pill delivery on two issues whether to see years twenty to fifty five motion was timely and whether section eight hundred and forty two p is a crime of violence i will concede at the outset that after reviewing the record it did seem that even if kiss here prevailed in this appeal it would be an incomplete victory because were the court to vacate the eight hundred and forty two p conviction he still would be serving two sentences of life in prison but then i went back to the order that had been issued by judges cooler park in the late judgement or and i briefed those issues the government then did something quite unexpected they conceded that the twenty to fifty five motion was kindly filed but they entirely ignored the question of whether eight hundred and forty two dollars p is a crime of violence they never even mention the statute in the argument portion of their brief instead they said he's not claiming the right to be released from custody they dropped a footnote in their briefs at page twenty one dollars saying there is this concurrent case doctrine and they put that term in quotation marks as if it was a novelty and they took the position doctrine and the government dramatically revised its position and concluded yes the doctrine does apply to twenty to fifty five petitions and this court should apply it and dismiss because yours claim a remarkable fe of intellectual flex flexibility what is notable about the doctrine is that apart from it being used in quotes by the government it is a doctrine of judicial convenience that is not my term that was judge arnold's assessment in tw you convenient what if you have a case can wage unless you apply the doctrine you will have to be deciding whole bunch of tangled and difficult constitutional issues well judge jacobs i would give you two responses to that question is a fair question the st is that the government has repeatedly in this appeal said that doctrine does not apply or that appeal it why why would the government's lack of interest in that mean that we could not invoke a doctrine that and designed to two to say but the decision of the on the ferry decision complicated question well that brings me to my nd response which is it's not a complicated question in this case i mean we have come hypothetically we would add yet that at the moment you're saying that the fact that the government didn't raise discretionary so by definition the court ted i don't i don't think it's relevant that the government comes in and says it's an open question and it shouldn't be applied here i think that's still worth some weight but to go to the nd part of  your honor's question the question is do you know it's a discretionary doctrine why should we not invoke it in a complicated case and that's a fair response but this is not a complicated case this is a very very straightforward case and i rather suspect that that's why judges who are parked in the late charge went or issued the certificate of appeal ability inly account the court said no for a number of statutes criminalize conduct that has as an element the commission of crime of a crime of violence under section sixteen and then of course in the maya of the supreme court held the section sixteen be defined a crime of violence and an unconstitutional a big manner that is not that is the obvious that is the reverse of a complicated question this is actually a very straightforward appeal and i will say as well it would be one thing if if the court over the last literally fifty years as far as i can tell this this this doctrine appears to be older than i am i'm sixty one years old if courts still had had applied it consistently or if this this court had applied it consistently that would be one thing but but when as recently as two thousand and nineteen a panel of this court referred to the doctrine as the so called doctrine and in i'm going to interrupt because i do want to get this question in before your time is up and let me pose this thought and i'd like to hear your reaction is you know one of the reasons why i may be called the so called concurrent sentence doctrine is because it's really nothing more than a subspecies of harmless error doctoring writing and isn't it the case that even though in re the supreme court said  aren't there other circumstances where you can say look these sentences from a challenging underactive p o for example the length of say one drug sentence but they have multiple concurrent terms of imprisonment that we will say look the area of which you are complaining is in fact harmless it works no effect in your life in real terms and therefore we will not a long question and i apologize but if you could just tell me what you think the relationship is between the doctrine that does survive and our harmlessness case law your honor the th circuit rested its holding would not take issue with that the question that i would go back to again we continue to get further and further afield in this case from the certificate of appeal ability that the court itself granted recognize that but but but isn't isn't this question though likely to come up again i mean isn't isn't the question of whether eight hundred and forty two penie is unconstitutionally vague likely to rise again and so what what judicial resources are really going to be conserved by by avoiding the question in this case it's before the court it has been briefed we are discussing it today in the court can simply issue a merit assessment flanker does not need to be very complicated at all and that would dispose of it not only in this case in a manner that by the way is not going to result in this in this prisoner who serving a life sentence serving any less time but it would give litigants in partings clarity as to good morning your honor just may please the court my name is david rutledge i'm in the th united tourney in the southern district of new york and i represent the united states on this appeal i want to start by addressing what is not a issue in this appeal and mr president to earlier and that is that mr can see there's liberty is not at stake he will not be released from custody if the court reaches the merits and rules in his favor nor will he suffer any collateral consequences that the level of custody judge nardini just asked about whether the concurrent sentence doctrine is a species of harmless error and i do think that's the right way to think about this appeal whether the claim is not cognize a boy as we've argued principally or whether the court simply should exercise its discretion not to consider the merits the point remains the same mr seale will remain in custody regardless of the outcome of this appeal focus d in section two thousand and fifty five claims is whether it is on the impact that the relief is going to actually have on the defendants livery that comes directly from the text of the statute which requires a petitioner to show that he's claiming that language the right to be released has to be read has to be construed as a demand to actually be released from custody the supreme court's decision in peyton v row which was and which dealt with consecutive sentences interpreted what it meant what it meant to be in custody in a v s context and looked at that as the aggregate of time that a petitioners actually serving and in prison and not just on individual sentences that were imposed on different counts and so here the  question is is the relief that mr casey are seeking going to in any way advance his release date or lift any of severe restraint on his liberty that he's not otherwise facing as a result of the on challenge life sentences and the answer is no the rd circuit as we pointed out in our brief grapple squarely with this very similar factual scenario and found that the defendant there who faced concurrent sentences that were unchallenged in the section tw decisions from this court that have dealt with section with jurisdictional issues in the in the a v s context so for example the court's decision in vince from two thousand and nineteen found that even though petitioner might have standing court has subject matter jurisdiction in order for the court to reach the merits of the claim i'd also note that that's consistent with discourse decisions in kaminski and particularly i know that focused on what it meant to actually challenge your custody well can i ask you this you know you can take a very rigid reading of twenty to fifty five but it seems that the case law from the supreme court in our court has  custody can also mean in some respects to sure who will be in custody correct correct and it's also true that the courts have generally recognized that you can raise a twenty to fifty five claim that at best might get you a reset and saying but wouldn't necessarily get you released so you're not necessarily limited to a claim under pain versus drought that i'm going to be released now that's out so we're not talking about twenty dollars to fifty five dollars requiring immediate release and under these other cases we don't look at the relief you're actually seeing there has to be a drawn or set of actual real concrete impact on your on the defendant's custody whether busy that happens now or in the future there this particular cases is unique in that a re sensing is not appropriate and it's not warranted in fact i know st that the defendant here has conceded that pre sentencing is not appropriate that he will not be released from custody that one sentence wouldn't go away implicate his right to be released from custody given the unchallenged life sentences that which he's not entitled to or to every sentencing on i think the record before the court makes that very clear that the district court viewed the the charges essentially two sets of charges in this case one that related to mr cossey or running a jihad training camp in oregon and the others that related to him running al no basis in the record to to believe that mr bashir might be entitled to every sentencing and i know that that's another reason why we have argued and we certainly i want to clarify this point about the concurrent sense doctrine and if that we did not concede or say that it did not applying case what we said in our briefing was that the courtney not reach the two in the alternative and you didn't launch it and i mean it's maybe if it is something that lines within our discretion one of the things that often factors into our discretion is whether it's been adequately promptly raised by a party and generally don't we take the position that if a party raises an issue only in a footnote in their briefs that we don't deem it to be an have been adequately raised right i do think that's right your honor however all of the factors here of posit this if we do get into the world of discretion here and presumably one of the considerations would be judicial efficiency for one thing you're  inefficient if both parties agree on the merits for us to just send it back for vacate or that one sentence that's the st question and then i have another one i was that point doesn't reach or address the point of whether the predicate crimes of violence here my qualifies whether the predicate offenses in this case might qualify as crimes of violence under sixteen a's elements clause and so again but we're not contesting the merits the court here has no guidance from the parties on how you two to analyze that issue we're stuck with the things our and you both agree in the outcome i guess i'm not seeing the efficiency loss let discretionary question but you know limited to reconstruction of the scope of twenty or fifty five are we setting up a situation where certain plaint certain defendants would be placed in an on catch twenty calling but you say it's not good nigel under twenty to fifty five but you said it's kindly because it's brought within a year of the relevant spring court case ok we reject that claim now judgment enters four years down the road the supreme court decide united states versus jones some hypothetical case in the future that calls d into question the validity of his remaining counts or his then presumably would remain unavailable and i again taking it putting aside the particulars mystics here wouldn't we be building in that structural problem for future cases situation all right and then well in testing your patience and that of judge jacobs let me ask one more question there because the problem i posited is dependent on the st claim no longer being timely in the future it's one thing to have discovered newly available witnesses who were not previously available in the exercise of due diligence satisfies all the threshold to two thousand two hundred and fifty five i've found these three witnesses who can come forward and prove i'm not guilty of and forty two people and we say sorry concurrent doctorin you know two thousand two hundred and fifty five can't be construed that way you're out of luck come back in several years if you can get out from your other counts in the meantime unconstitutional so the convenient thing to do is is simply to say so and it's it's more than convenient it's it's as a practical matter it's an advantageous thing to do because of a forty two p is unconstitutional it does no one any favors including and especially courts in this this court and courts in the district of the nd circuit to continue to labor under under the false pretense that eight hundred and forty two p is constitutional  the court should in this case simply issue an opinion word or even a summary order saying that the twenty dollars to fifty five dollars is timely the statute is unconstitutional frankly that's the right thing to do because it sounds to me like there is general consensus between the government and mr christie or that count thirteen at this point in the light of recent supreme court cases is is is not constitutional and that's why we have courts to correct these judgments and to make sure that that they're correct going forward and to prevent the catch twenty two xin the future so that courts don't need to grapple with those kinds of most recent supplemental letter that was frankly advocacy that was not based on the record because there really for all intents and purposes is not much of a record here mr cossey or filed is pro se two thousand two hundred and fifty five there was a response by the government and then it was dismissed or he was ruled against by the district court but there is as far as as as i'm concerned there there is a least a possibility that in terms of his prison designation in terms  just thing to do is for the court simply to to to issue a ruling consistent with what we've discussed this morning thank you very much and again i'd like to tell the world council that you did a very good job arguing that