good morning your honour's may please the court i'm lucy jewel i'm from the university of tennessee appellate litigation clinic it is my honor to introduce the court to william new york he is a third year law student in good standing at the university of tennessee college of law he is familiar with the rules of professional conduct as they have been promulgated by the state of tennessee we have the consent of our client to have students represent him throughout this appeal mr neal has participated intensively in the briefing of this case and this court has granted our motion to allow him to participate in th oral arguments thank you your hon guaranteed to him by the laws of these united states to federal review of a state court conviction the lower court denied mr thomas is right when it found that his second post conviction relief motion was improperly filed despite its compliance with all applicable conditions to filing recognizing the arguable nature of this denial this court graciously granting mr thomas a certificate of appeal ability as to that issue so the arguments here today are going to come down to conditions to filing versus conditions to obtaining relief if a motion is denied based on a condition to filing then that motion is not properly filed and thus fails to told the statute of limitations on a b s really found in the anti terrorism and effective or potentially the wrong form those are all things listed by the supreme court of united states as examples of conditions to filing so the other hand of motions denied based on a condition to obtain relief that motion is still properly followed  does told the statute of limitations so here we're dealing with with two rules in the state of kentucky kentucky rule of criminal procedure eleven point four two and kentucky rule of civil procedure sixty point two so while it is true that once an  therefore for this purpose for extraordinary circumstances that mr thomas availed himself to that motion we followed a second post conviction relief know what so what's the best case that you have found would support the proposition that kentucky ruth sixty point  sixty point two to relief they must affirmatively allege facts which if taken as true would would justify granting relief to the movement and i believe here in this case mr thomas met that burden he affirmed and we allege that that a fuel program that could have been used to impeach the state's main witness at trial was fraudulent we kept from him and later fraudulent we inserted into the record well let me ask you a question about his sixty point zero two you have subsection b which is for newly discovered evidence and my understanding is that would be the the funeral program but he also is making a claim under sixty eight point zero two f which is sort of a ca and the problem with subsection be here is that there is a statute of limitations of what is it one year which he didn't meet so he's really trying to come under sixty zero to f this your honor but what is it about what he is claiming that is more than just newly discovered evidence that would fit his allegation is that he asked for this record in two thousand and eight after after his first post conviction relief motion and he found this funeral program but his thank you but it was his position that you know a program was improperly honor there is it has been admitted by the by the responded that there was a discrepancy in the state in the state trial record as to when that that that funeral program was inserted into the record but i think what's most important here is to recognize that sixty point zero two exists and movements are entitled to file their motion under that there are circumstances in which sixty point zero two relief is granted and essentially the respondents entire argument is that mr thomas raised the wrong issues in a sixty point zero two motion that those issues were barred from being raised because they could have reasonably been raised in an eleven point four two motion if their whole argument is that he raised the wrong issues then the rule precludes issues not motions and was thus properly filed that's the big distinction that was that was set forth by the united states supreme court in our choose even in the year two thousand if a rule precludes motions then the motion is improperly filed however if it precludes only issues then it is still properly followed and that's what we're dealing with here today statute of limitations and it's improperly followed we can see that point however the sixty point zero two f is for extraordinary circumstances that's what the statute of limitations on that is just a reasonable time seeing a says tell two levels of the kentucky judicia examine the merits of this petition there they they stated nothing about this being in it filed in an unreasonable time so i must admit that statute of limitations so the three cases were really dealing with here so the three cases they were really dealing with in the realm here are to use and paste from the supreme court and then williams v burkett from this court in so in pace pace dealt with the statute of limitations issue so it's not really applicable here it's far as i'm concerned the case the case from this court that came down i believe in two thousand and twelve was williams v burkett and respondent relied fairly heavily on that case in their brief that case is highly distinguishable from the case at bar because that case the michigan root issue there six point five  two g i believe it was specifically stated in the statute specifically stated successive motions are not permitted to be filed and it directed the clerk to return all successive motions back to the movement so it went to the very initial reaction of the petition which is what are to use the guidance we got from our tos if it goes to the very initiation of the petition then it's not properly filed what we have here is a movement mr thomas the petitioner who was allowed to file his this motion on the merits and it is true that they deny the motion however that's not what we're that's not the end all be all what we're dealing with is whether the motion was properly filed such that it told the statute of limitations and it's our position that it certainly was because he was allowed to file virgie case out of michigan because in that case what we had was we had a pennsylvania rule that sounded essentially a lot like the rule here eleven point four two out of kentucky what the third circuit said in that case was are not entitled to have your haiti's petition heard yet and if if the courts were to say that motions like these like the want to live in the one here were not properly filed then it would be discouraging state litigants from from exhausting their state court remedies and it he never would have been able to tell anyone about it he never would have been able to pray for relief for a very grievous wrong quite frankly if if your honour's had no further questions i would just pray that you overturn the erroneous ruling from the eastern district of kentucky shackleford i represent mr america the warden in this case that issue today is whether or not prisoners are going to be able to give themselves the facto extensions of time to follow federal  that hideous really well successive motion under eleven forty two would be any motion the kentucky courts do not look at the underlying claims they merely say you filed one eleven forty two motion that's it now there is some catch up or you know saving provisions for example a retroactive application of a change in constitutional law or something of that nature but kentucky the state courts actually lose jurisdiction and ten days after judgement and only the boeing case that i've cited in the briefs is only a proper motion under eleven forty enlarge this really period right in some circumstances certainly in this circumstance though kentucky has made it very clear that they view it that if you if you can bring a motion under eleven forty two a claim motion under eleven forty two you are barred from bringing it under c r sixty zero two even if you didn't raise it for example in the sanders opinion they discussed this the same thing that the mr thomas is tried they tried there they brought a motion under eleven forty two and sixty zero two and they said the supreme court said do not that they do not qualify to be brought in a sixty  i know the court does not like being read to but i would ask your indulgence to read two sentences from that opinion only that ok an examination of the claims as listed above discloses they are of the type ordinarily raised in an of and i say that because in this case the trial court briefly mentioned sixty zero two and spent a couple of sentences about how it had no merit and then said that's why successive motions are disfavored in this state now the kentucky court of appeals they said we argue the commonwealth i was representing the commonwealth argued it was a success of eleven forty two the kentucky court of appeals says we agree with it's improper under sixty zero to it also the crowd court did not abuse its discretion when it ruled on the merits and that's ok because pace talks about sometimes you get in tangled in in the merits and i've cited a couple of cases one from the eighth circuit one from the eleventh circuit where they say look even if the state decides on the merits we're going to look underneath that and these were untimely claims they were talking about well well if you if it had not been a success of motion ok he would have had to have stated the nature of the claim with specificity here he was claiming that oh certainly and i've cited this to the court several published in a bunch of unpublished cases where kentucky courts have ruled on brady claims under eleven forty two i mean i'm just wondering as a motion not just issues precluded as a motion we're not considering it and then that's one thing and they can do that there's nothing that's stopping them from doing that but what we actually have here is the kentucky courts  well i think to the to the extent that there was any kind of merits review it was simply to make sure that this fasts i called it the procedural merits again i i disagree that that it was completely a merits determination i i think it was a dual determination that it was both improper under sixty zero two and that it didn't say the trial court did not abuse its discretion so i think it's more of a mixed bag which again pays recognizes that sometimes you get in tangled with the merits when doing this and i think that that's ok in pace also recognized and i want to address the point raised  a moment ago about the fact that they didn't send this back a pace recognizes in discusses it and in footnote five that most of the time clerks don't have  you know mechanical limits you know occasionally you'll find something that says send backward or or so or don't accept it but most of the time they don't do that and i know in kentucky the only time they don't accept something for falling in is if there is a falling  time ed put doesn't want to preclude that one outlier out there where a prisoner really does have a valid complaint well if you're talking about a miscarriage of justice that's a different issue altogether even a freak would file or even someone who is filing different claims all the time if they have the imagination to think up something that is going to cause the kentucky courts to look at it and say well no there's no we deny this claim it's without merit the fact that he is able to sneak one through like that is not going to be the end of the  am very familiar with them and i want to i do want to address before i forget to do so this newly discovered evidence there were two instances it appears  in the state court record and as previously pointed out i agree that in the first instance which was before trial there is a discrepancy in the state court record the second instance which was relied upon by the kentucky court of appeals and by the district court was it was attached to a victim impact statement which was filed before sentencing so he was aware of the actual document before his direct appeal so i know that goes to the merits somewhat just in recent years all right no but it's relevant here because the fact that again it showed that he was aware and could have brought his his claim under eleven forty two and did not do so i guess i mean why wouldn't it make sense to have a rule here that says the state court considers them their claims were motion   to what the pace was saying in two to some extent what the verses birkett were saying that again you get you get some judicial consideration and entanglement with the merits because in reality yeah you'd make everybody's life a lot easier if everything was just a cookie cutter claim but it's not like that and i don't think that would be a good rule to require state course to follow the cookie cutter  our to use was a very clear decision it's only six or seven paragraphs it came down over fifteen years ago the state of kentucky has had at least that long to sort this out if they want to change their rules so be it they're more than welcome to they can require prior judicial authorization for a sixty point zero two motion they can do a litany of things that would prevent us from standing here today the fact of the matter is they did it their argument is that mr thomas raised the wrong issues he was allowed  motion he did and two levels of the kentucky judiciary ruled on his motion on the merits of his motion now it is true that pace has some language in it it talks about just because we get to the merits doesn't mean they were necessarily properly filed but pace the court in pace did not actually get to the merits of the motion the court and pays got to the quote unquote merits because they were looking to see if they met an exception to a statute of limitations so that's not the merits of post conviction relief that's simply the merits of the statute of limitations exception so that it's wholly different than what we have here the fact of the matter is the guiding case that we have here is william v burkett and the test this court used in williams v burkett is is the rule at issue more like the rule in our to use or is it more like the rule in pace here it is it is wholly clear that the rules eleven point four two and sixty point zero two when used in tandem or more like the ruling are to use the new york rule in order to use stated they all know all issues previously raised in litigated are barred from being raised again that's exactly what we have here it reads almost exactly like eleven point four difference is is in the situation you're talking about in federal sixty b in successive papers motions movements are required to get prior judicial authorization to fall that's excessive maybe this motion if the state of kentucky required that in this context then it would be the same thing