time before this court and his civil rights suit alleging procedural violations in connection with his one thousand nine hundred eight trial the district court erred below by holding that none of mr bloomberg claimed survive the heck bar and by failing to district court's erroneous result first the insulation doctrine under jackson against barnes and second the requirement that mr bloomberg claims be provable without implying the invalid state judge said well the he s there was really no elocution of guilt they go through the elements of it but there's usually an elocution of guilt in this particular case the parties said it's all in the police reports in the police reports of course are the things that are under attack under attack so the words even you use in your brief are a clean conviction entirely  completely insulated if the if the record shows that they have to look at the plead nolo as we were asked by the defendants here how is that a clean conviction or completely insulated sure so i would say first that at the plea hearing there was a stipulation that there was a factual basis in the record that is there were facts to support the plea i think that the factual provide the basis for the plea and i mean and state court that's frequently done essential you're saying everything enteric goes to support my guilt and then if you want to come up later on this and attack it under  eighty three as judge quest was saying you're attacking the validity of the conviction that's what the concern is i think jackson versus barnes is your best case and it stands for the proposition that a subsequent conviction does not necessarily hundred eighty three but i think judge quest has pointed out which might be the weakness in that the dike that you stipulated to the police report says a factual basis for the plague so how can you now bring in one nine hundred eighty three based on what was said in the police reports without attacking the validity of the conviction but i respectfully disagree with that characterization of the import of the stipulation that there is a factual basis for the convictions to which mr bloomberg pled in those police reports i don't think the import of that stipulation is that every fact or a statement that's in those police reports is necessarily admitted as true and in fact i don't believe those reports are in the record undermining his two thousand and twelve so that's why i want to make sure the real issue we've spent all this time talking up here as let me let me see if i have it straight the faults let's go to the false evidence that related to whether there was a gun in hundred ninety five is that right that's one example you are correct of false evidence so then the question is if you could sue in one thousand nine hundred three on this false evidence about whether there was a his plea then doesn't have anything to do with nine hundred ninety five is that correct that's exactly correct so the violations that mr bloomberg complains of relate to other events separate from the events in connection with he entered entered a plea one of the has anything to do with what is now admittedly false evidence in one thousand nine hundred five absolutely nothing here on it so now then you move to the essentially brady violation which is the shooting on these are so now explain to me on the brady violation he has a shooting eleven days before what in your view is the relation or absence of relation to what he pled to then eleven days like you know with the crime eleven days later to so completely separate events levon days apart mr bloomberg can prove the materiality of the brady violation in connection conviction formed no part of the two thousand and twelve plea in particular and i mean and to me is the question because you could have a brady violation over here and then it gets fixed because of course you have all these appeals and things happen an into a later trial so then the question i guess we have here is is there relationship in this case to that evidence and what he pled to i don't think that there is a relationship so i think the answer is no certainly what he pled to was a separate shooting and what that evidence was used to prove in one nine hundred ninety eight included the charge for conspiracy to commit murder and actions for the benefit of the gang both of which lead to what is serious in any relationship to the plea then why is the remedy that you get a new trial you get to set aside his plea no that's not what your answer you know aren't you asking does certainly have a civil rights case absolutely so now let me ask you this because i we've seen these cases before articulate to me what his potential damages are from the f there's also been cases of respect the right to attorney's fees and connection with the first trial emotional distress things of the like in terms of compensatory damages there's been an argument by the defense that mr bloomberg cannot recover because he would have been released earlier see to me that's where you fall off the cliff ok now and you can help me if i'm wrong you're all up to there was a one thousand nine hundred three case in which he might get zero one dollars or a whole bunch more knows but once you go down the road to implicating his sentence then it seems to me here in the heck country so i want to be one hundred percent clear that mr bloomberg concedes that he can have no compensatory damages recovery based on incarceration to the extent of the sentence validly imposed and received after the two thousand and twelve guilty plate he does have an argument that had that sentence been imposed earlier he would have ultimately spend spend less time in prison but there is a compensatory doubt damage and i'm still having a little trouble unpacking that from heck because it really does go to the sentencing and you're saying well there's a little bit different timing you might at last because he would come out he would come out of the whole situation earlier yes i'm not one hundred percent sure i  of getting the claim of one so i just want to make sure i understand let me try to clarify your honor mr bloomberg was sentenced to thirteen years in two thousand and twelve that is a valid sentence that he does not contest  years had he been sentenced to thirteen years at the outset because of good time credits he would have been released earlier the me ultimately was so he has spent more time incarcerated then he would have earlier that he would have gotten the thirteen the thirteen years would have been the sentence i mean it is now we now know but we don't know if we backed it up or isn't that a certain amount of speculation sure but that's not the question i think your honor  years the sentence later imposed was valid and so he cannot seek any damages for anything beyond that but he had a longer sentence beforehand and were spent less time had that been opposed imposed at the all it was valid and had that been the only sentence that mr bloomberg ever received he would have spent less time in prison than in fact he did but it's also based on the same police reports that existed back in you know previously and that's what you say is the basis for the play so that it's it is hard to unpack know your honor and i would point to over against quinn and mark against erickson and which this case has very clearly said that a conviction based on a plea derives from that plea now in this case there was a stipulation at the plea call cui that there is a factual basis for that plea in the police reports that means there exists in the police reports facts sufficient to provide a factual basis for the plea it does not mean that every fact including facts related to things never charge charges dismissed things never proved are to be held against mr bloomberg i have only about a minute remain i want to reserve that one yes thank you in my own notes the last one is that if the district court determines that the plaintiff action even if successful will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff the action should be allowed to proceed in the absence of some other bar to the suit how how is the let me put it this way how is the defendants here going to prove that the action will undermine the conviction in the second case where he pled guilty are you relying on the documents in the police reports or what is it about the second conviction minutes how long each of us are going to take five minutes ok so we're already at now down two minutes but in terms of your question your honor our position is that the way the court should approach brady had cases like this where you have a plea is that you have to consider the guilty plea and any facts established by the guilty plea in determining the materiality of the brady claims so here what you have is plaintiff is alleging that the brady evidence and i'm just for shorthand referring to the brady evidence and then vice all you know it applies to the fabrication of evidence as well but the brady evidence but for the brave violations he would have been able to show that or undermine the conclusions of intent to commit attempted murder the conspiracy conviction and the gang and handsome and so he is connecting all of those to the same evidence the same grade ten painted evidence and so to show that his brady claims are material he's necessarily going to imply the of his guilty plea because he's in effect saying although i admitted that i intended to to to shoot and to kill mr zuniga we can't really have confidence in that because those facts are questionable because now i think it's a little bit different i see it as saying look they didn't fork over the evidence ok which he views as a constitutional violation  whether they forked it over and he pled guilty to something over here so you know he doesn't get his conviction on done he's stuck with that and if you were to determine that the government or various of these actors commanded a constitutional violation why does that implicate his conviction because now your honor he has to show that what he's arguing is that the brady evidence was all related to again the gang related aspect of the offense that's really what it all goes to so he's saying if i had had this brady evidence i could have shown that i could've made that questionable those determinations questionable i could have undermined the gang related aspect of these offenses that's what he would have to say to show that his brady claims are material well i see and if he if he's if he has to argue that what is his intent he's saying it is in his complaint his intent is based on that exact same evidence so he necessarily inquired for the conviction of attempted murder with the gun is how is that different from or is it the same as the intent that was required for mr blunt bergs and national conviction is there a three action based on allegedly false testimony in his initial trial even if he concedes that he had the criminal intent that the false testimony sought to prove is that what you're i can keep it there they're inconsistent positions he can say that but they're inconsistent he can say listen i've met that i for attempted murder that i admit to the intent but he's kind of ignoring what the implications of that are he has to for his brady claim if the cook court approaches brady claims in this context where you saying is there's a constitutional violation here because it could be material whether in other words the materiality doesn't go to his guilt materiality goes to where there should be turned over and whether it should play a role so when he went on to trial and you use that evidence but he may have the narrowest possible window of a claim i mean  and i'd like to address that your honor i'm going to only address and i'll tell you why because with the timing i know but i took a but if you applies to all of you and it's the hazards that letting your time and i'm sure they appreciate that so i'm just going to have me answer that question because that goes let me just in that goes to all of you let me just take one last stab and then i'm going to turn it over to the council which is that again if you're analyzing brady you have to determine whether the brady violations were material and how could they be material here if he that if that would have been undermined had i had the brady evidence now that we know that i've admitted to intending to murder mysteries anita doesn't have a gang enhancement in his  know it is not because it doesn't factor into his all to my conviction he doesn't need to have these please because he's saying the same evidence it's the same evidence that's relevant and supports his intent is the same evidence that supports how can he then say that evidence we can't really have confidence in that evidence well that means we can't have confidence in his guilty plea because we can't have confidence that he actually really did there really is a basis for him in his intent to commit the murder it seemed to me if you f well this is why it's important because to prove the intent to according to plan that he said he had no idea that his brother was going to get out of the car and start shooting at somebody he said that he was completely oblivious to that the theory to prove that he had the was that there was this again while every theory and there was a prior offenses eleven days earlier signature shooting and they said look how could you say you didn't have the intent you're in the middle of this game robbery with this other guy that was shot you were involved in a very similar shooting brilliance in this case went to impeach the prosecution's evidence that there was a gang robbery and that there was a signature offense for example one of the pieces of brady evidence was that one of the witnesses said it was too dark to see whether it was in fact playing a shooting or not eleven days well i understand that point is arguing that would only go to impact the gaining enhanced men but it also went to intent and you see here the second conviction was for attempted game robbery is the intent he there was no evidence that he was intending to shoot zuniga for financial profit there was no evidence that the intent was because there were some other you know grudge between the two and so if he pled guilty and admitted the intent based on the police report that he can't you can't claim  twice and in fact the beginning have smith and the conspiracy theories i want to add are not distinct kwame's you know for example the conspiracy it was a conspiracy to commit not you know robbery not conspiracy to you know to do anything improper conviction in an improper sentence he could have told the d a s office i'm not taking that let's go to trial there's no way you have enough evidence to convict me to be dns but he realized that he had a problem even with the bradys is going to be you know difficult to would you please put five minutes back on the clock for her for the city good morning your honor as deputy city attorney wendy shapiro on behalf of the city of los angeles my argument is not about hack my argument goes to an alternate grounds to affirm the dismissal and that ultimate grounds was raised in the answering brief of the city of los angeles on judicial stoppel and this is certainly a case that warrants a determination the judicial stop will apply mr blumberg has made multiple inconsistent statements for the purpose of benefiting himself and does yet again in order to proceed him from successfully persuading the jury that he was only an accessory after the fact and resulted in his conviction now so after when the d a decided to retry him a couple of things which still existed in the case he that motion was denied so he was going to have to go to trial with the gang evidence so what he decided to do being concerned about that is he decided to enter into a guilty plea was able to persuade the d a to dismiss the criminal charges a dismissed the gang announcement and the conspiracy and just result in the benefit of a time served sentence well so it's just your argument sort of boiled down to the fact that even though it's really terrible that police officers lie it's really terrible that brady and of hooey violations the current whatever it inert to his benefit over all he's changed this but if he's allowed to proceed with the section nine hundred eighty three a lawsuit another he gets another shot after making inconsistent positions throughout the the progress of the trial well that you know we really nailed down the issue that there is there is here false testimony is that correct there was false testimony that was material to vacating the conviction so he obtained his habeas conviction ok so there so there's fault testimony well if that's the case talking about the false testimony how could that possibly implicate the guilty plea and the conviction that comes later on where your honor is going back to heck argument almost hoping to still i am going back to the heck ok because we may or may not buy or stop looking can you repeat that you don't know if you if you have false testimony and you can't introduce false testimony to support a conviction how could a one nine hundred eighty three lawsuit on based on the claim of that there had been false testimony implicate the conviction for his guilty plea will looking at the the opinion in the hague be as the court said at a minimum the intent the intent went to all of the crimes for which he was separate from the other evidence of intent its own piece of evidence correct it is its own piece of evidence but if i could return to the jewish will stop all there in the inconsistent positions is mr blumberg was able to negotiate a plea that gave him time served he was able to persuade the da that he should dismiss the gang and hansen charges dismissed the conspiracy again have time served and now what he's trying to do is just turn back and say oh but now i can actually obtain money damages for the dismissal all those negotiated dismissal of the charges because they're completely insulated and another inconsistency was represented in oral argument today and that is this mr blumberg according to the police transcript stipulated to a factual basis as set forth in the police reports appellants counsel today represented well he said that but he didn't actually agree to all of the facts in the police report and that's yet another inconsistency so there's a lot of bobbing and weaving for the benefit of getting an advantage and so i just put in the final analysis he pled guilty in the justice up to in the world in two or one of those cases well he knew about all those mid stuff he pled guilty right run with his guilty plea in the now you're saying well it's weird that the prosecutors really arguing that he's to plead guilty properly or whatever but  why not why not just start with the second case he pled guilty he admitted all the elements there was no elocution and he was convicted because there is and how did then how do you distinguish that from the lawyer in chicago you know we didn't do much criminal law but i was had to do it once or twice in the deals there were dismissed the charge we will sue you in a civil case very simple this was really doesn't yeah compensatory damages claim which is the only basis they have suggests that there is an attack on the sentence i think they're wrong but that claim is not necessary it's just an alternative theory of damages so it's no grounds to apply the heck are here  next as to the materiality notion as i understand what the defendants are saying they're saying that mr bloomberg cannot prove materiality for his one thousand nine hundred three claims because he's challenging evidence that was relevant in eighty eight to some things that were later part of the police in two thousand and twelve that argument doesn't work because there was other untainted clean evidence sufficient to support everything that mr bloomberg later pled to now one problem with that argument is that basically requires us to get into the of the documents and what he pled to an end and actual basis of spaced on the police report here is a factual basis in the police reports which contain all kinds of stuff your honor they say all sorts of things back and forth about whether there was or wasn't gang stuff and all sorts of other things and i don't know ma'am we have to get into that and decide what what he had in mind there and then that goes to challenge whether you know what was the basis of his intent what was the basis of the sentence i think not your honor and the reason is that your question now for the heck bar is whether mr bloomberg necessarily must undermine the two thousand and twelve conviction he need not because that conviction is based on his pleat you don't have to go hunting around because defendants haven't carried their burden to say that the only way that the materiality prong or any other element of the one thousand nine hundred three claims could be proved is by undermining or negating an element of the cli in two thousand and twelve they have not carry that burden it is the amendment on remand because there are allegations that are no longer viable in light of the plea but none of those allegations are necessary to the claims that mr bloomberg now pursues procedural the process quite so it will say that there were thank you i'd like to thank all counsel for your arguments this is a very interesting and difficult case so thank you we will take a short break now and the cask ness case for argument will be lua versus miller so you can come up and get ready for that ar