good morning your honour's may it please the court i'm really sour and along with my co counsel keyser blakely we represent the appellate charles very i will address the issues for six minutes and my co counsel address the excessive force and statute of limitations issues for six the opposite conclusion so first could you tell me if these cases can be reconciled your honor the only way that this case should not go on bond is if the court finds that the line of cases that does not address this mean by that is that they're not necessarily maybe they can't stand for the proposition of whether a conviction based on a plea can support a hectare because let me offer a theory and see if you can shoot it down for me it appears to me that in safer and whitaker the crime was possession of something and and in both of those cases the court said whatever it said i need to recheck your case is possession of something also so what if we read these cases is saying that when you plead guilty to possession of something you can't challenge the search that you have resulted in the discovery of the sum of what statements in an opinion over deals with a different situation over his drunk driving there's evidence that the person was driving drunk there's no evidence introduced of course because there's a guilty plea and so the the actual charge is a different one than possession of something that's to unlock it also so that the sanction i see in my mind that i want you to try to deal with is we deal with possession cases doesn't whittaker and say for now if you pronounce it say to us you can challenge the search even if after a guilty plea no your honor and that's because the charge is immaterial and the question of whether conviction based on a plea can support a hectare the question is what the guilty plea is based on says but we've got it we've got one area where that's not true she doesn't discuss ovi to be fair but it's right but we have one there were area where that's not true and that's the area when we deal with the search and search that leads to the very research that on which the conviction is must be based because it's based on possession and so why if we're trying to reconcile these decisions and not involve eleven of our colleagues in an experience you don't want to go through nothing to reconcile with your honor i think that so important issue there is that whether the charges possession or not that's immaterial to the fact that the guilty plea is not based on any evidence and that's also supported by the supreme court's precedent in herring which stated that while in the context of a waiver rather than heck when a defendant is convicted pursuant to a guilty plea rather than a trial the validity of his conviction cannot be affected necessarily doesn't implicate the heck bar is that your argument that's right your honor because it's not based on any evidence and this court has or we have to do that in banqueting we are weak given a court finds the only way that the court should not send this case on the question that's my problem they they actually squarely address the question and say the heck bar doesn't apply under these circumstances so we would have to find that they are flatly inconsistent with other cases addresses explicitly about convictions based on pleas are not barred by hack because they're not based on any evidence that may have been seized illegally question one more question on your part of the case what do you do with smith art with respect to the word galatea the arrest is not challenging answered claims in his complaint that they stopped him without probable cause because he was riding a bike with the lights and everything from that everything what followed from that is that a tainted search you're saying he's not making the claim that claim eloquent so i guess my question is are you making a claim in this case that the arrest was not based on probable cause because if you are i think it's barred by smith thought if you're not then that's irrelevant you're under mr byrd is not challenging the fact that he respect to each of these as respect whether or not there was any evidence presented when the plea was made that's correct your honor the distinction that whether it's a charge for a dui or whether it's a charge for possession is immaterial because the key point is that the conviction itself is not based on any evidence that may have been seize illegally and that really goes so if there's a factual basis then that would be considered evidence right it's evidence for the purpose of the pleading guilty this is a particular offense so necessarily admitting to the elements where you have a full factual basis then you can look at that to determine what supports the plate right yes your honor the court can look to the factual stipulation but here mr bird doesn't contest is factual stipulation and because he's contesting the evidence that wasn't any part of this conviction the purpose of hackers satisfy because the purpose behind the supreme court had publish its decision and cite each of these cases and recognize that the law recognizes a difference between convictions based on pleas as opposed to the trial so when you sit down it's want to make or your position necessarily requires that we determine court can find that the what if your line of cases is not controlling because it doesn't address the issue you don't know but that when when you say something doesn't address an issue that means it's improperly decided so your position is that whoever decided these two cases got it wrong and that those cases therefore don't control yes your honor because they ignored binding ninth circuit precedent from of ok thank you right thank you how much time did you intend to say for your coll imitation to survive a section nine hundred fifteen a claim a complaint must contain sufficient factual matter except that it's true to state a claim to relief that's plausible on its face additionally pro se litigants compliance are to be liberally construed when we accept birds allegations as true and especially when we construe them liberally birds complaint states an excessive force claim that is possible page not of the record byrd alleges that he was doing nothing more than riding his bike without a light nonetheless the officers pulled him over so i continued to quote beat the crap out of byrd and because of the officers beating byrd suffered several injuries including seventy percent vision loss on its face this claim is plausible now  twenty of the record where there's that matter now the words if the district court let's assume the distant car properly took judicial notice of the fact that he was arrested for something different than riding a bike without a light that still that still would have any litigant and this court had said i'm saying it really doesn't matter even if we have sume that the court properly took notice of the arrest it still doesn't diminish your claim that they're after as your client put it they beat the crap out of  then one time to beat the crap out of me if he was arrested for something different than riding a bicycle without a light right yes even if the district court did not wrongly take judicial notice of a fact that doesn't negate the fact that on his complaint byrd stated a claim that it's possible that the officers used excessive force and beating him and then we want to ask what your position is on step to ditch district court did not dismiss because of statute of limitations but it appears you've got a problem what should we do with that well not only did the district  not a basis of its decision the statute of limitations wasn't even addressed or brought up in the district court and pursuant to this court's precedent because byrd was given no notice and no up to me to argue that the statute of the taishan should be equitably told then the correct ruling would be to to the district court for further proceedings which would include allowing her to explain why the statute of limitations should be told that if we do want to reserve some time for a bottle so unless this court has any other questions all right thank you ma'am please the court my name is clarence matheson jr says and city attorney for the city of phoenix and i'm here on behalf of i guess the interveners or absolutely the phoenix police department or the city of phoenix and officers robert mckinney and you mr matheson if you could just address first the excessive force claim and only with respect to the officers for a moment why doesn't this state claim it's it maybe it may be that it didn't happen that's a separate issue but he says in our brief but with the main point that we would take issue with is the fact that he never a lay as the type of force that the officers used so it's not it is or do you think that you think that if i just alleg officers he says they beat the crap out of me he says they i lost vision and i had broken bones he asked does he have to allege the instrumentality by which the officers did that with their fists as opposed to rockers and i will i would i  would i would argue that he would your honor and the reason for that he mailed a complaint to do that he could i mean the complaint that the district court gave them an opportunity to amend the complaint and rather than take that opportunity to amend the complaint to address that issue because again what what the fourth member requires is that the officer use no more force than is reasonable to expect me to arrest me again why they beat the crap out of me causing seventy percent vision loss why that's not enough under the liberal construction rule for pro se litigants your honor i would argue that beating the crap out of a person while it sounds harsh is not a type of force punching a suspect or striking a suspect with an open hand or striking a suspect with a baton or using a taser on a suspect those are all types of force if you would look at the city of phoenix use the force policy or this is a fairly specific complaint i would stop writing a bicycle wasn't a serious crime he says he may be wrong he may have been stopped carrying a machine gun you don't know because we haven't gotten to the point and then the even answer the complaint if they are required to answer at some point yes and again i would go back to the fact that if if he had said the officers punched me essentially being in the crap out of me or struck me with a baton or used the taser on me then we can understand that type of force beating the crap out of them is again it's an inflammatory statement it doesn't if it is not a type of force that's ever been identified in any case law that i'm aware of usually we have situations like we had in the in the cases that were cited in the opening brief where the officers used their body and put their foot force on the suspect and  a type of force and i thought i'd be helpful for me when you finish with this detergent hack stuff and but i want to let you finish which are ok thank you so you have the only other thing that i would say is that the district court did give mr byrd an opportunity to amend his complaint mr byrd took that opportunity and rather than amending the complain and addressing the issues that the court had he officially filed the same exact complaint and this court is aware that whether the dish quest give him another opportunity that's subject to abuse of discretion i don't believe that the district court abuse of discretion in allowing him to amend his complaint for the second time when he failed to even take the first opportunity and attempt to a man the complaint that the district court or that to address the issues that the district court raise in his order so can you help us understand what the heck we're saying in the head cases wh i think i think you you analyze it better than anybody that i have seen analyze it those are the two cases that we're talking about involve the possession some type of was in of some artifact articles that illegal substance and maybe that is the difference between these these cases don't make that distinction they do not make that distinction but if you analyze it in the way that you have your honor and i can see where that it wasn't distinguished i think with your colleagues are saying is in a nice way we're very confused you're very confused ninth circuit you haven't done a very good job explaining this area maybe judge her which has come up with the crazy explanation on the bench today but the right thing to do is to move the thing to it and back panel and let them sort this out what's your response to that your honor i would argue that an  necessary in this circumstance clearly when we have a plea agreement although it's contractual in nature that plea agreement is based on some substance but what if there's a plea without a factual basis then what do we do with that can we distinguish it by saying well we can look at the fact that this plea is without a factual basis it doesn't necessarily invalidate the validity of his conviction but in other circumstances where there is a factual basis although i don't think the factual but that's the case that how would how would that apply to this case because we don't have a factual basis here well i think we do have a little bit of factual basis based on here's the what does play in this case the allocution and it was for said i did but in his elocution or elsewhere he say and by the way they stopped me and by the way they searched me and by the way they complaint and you can tell me why they'd be have barred the first one is the third is the due process violation that he was unlawfully stopped and searched how would finding that he was illegally stopped and search undermine his conviction you're not each each one of his counsel except for the excessive force count arguably involves this the fourth amendment search and of probable cause as nine hundred eighty three action after you've put a guilty although i don't know how you would you would get to where he is which is pleading guilty to conspiracy count with our also alleging can you add to the question a judge eaton raises an interesting one let's assume i'm really brilliant and i've made a distinction here he didn't plead guilty to possession and he pleaded guilty to conspiracy to possess right yes so why would even if we read those two cases whitaker and safer as as applying to possession claims would that be a bar to a case in which you're only suggesting you only put a conspiracy to possess after  need not possess something to be guilty of conspiracy to possess right technically you would mean you do not need i could conspire with judge when i could say we want you here all the time you're we going to go i want you to go do something tomorrow go pick up the drugs for me from judge eaton i would never have possessed them but we would be guilty of conspiracy to possess right i guess that would be sort of my brilliant distinction is right it doesn't work in this case does it i would necessarily go that far i think you would have to look at the elements of the crime that he played by the elements of the crime conspiracy to possess do not require that one possess correct if you're different you know that t whether the court went beyond the screening function by taking traditional notice because heck it's an affirmative defense and i don't know that you that it's appropriate to get to that stage and take judicial notice of documents outside the four corners of the complaint but the fact that there isn't a factual basis in this case is important isn't it i would i would argue that there is at least a modicum a small amount of factual basis which goes to his plea agreement clearly the more of a factual basis that we have that allows the court analyze and interpret those issues  it's better for the dish record and also for this court but i would i would argue that there is somewhat of a factual basis that would allow the district court to make the ruling that it made and for to allow this court to affirm that ruling based on the evidence that was presented to what  echo your distinction that birds claim is a conspiracy to commit possession of dangerous drugs for sale but also to emphasize that that's a stinking is immaterial for the issue of whether his conviction based on a  don't know maybe maybe it should be material because you might win you know what we read these cases are saying we have a special rule when you're charged with possession which is to say you can't later say gee the search that showed that i have th stuff is no good but i'm not sure why we should have the same rule for conspiracy to possess even if we read those cases that way isn't conspiracy to possess a very different group yes your honor it is but regardless one way did not deal directly with these other issues which involves a different plea to different charges and so therefore the analysis may differ and rightly so that's that's one way to handle let you know you have to win on the basis you came into i think you might win on your might be some other might potentially i have but that's certainly not how these cases have held in the past they haven't made a distinction which is not to be charged as a panel to try to reconcile them but the words we shouldn't start out from the assumption that one case is inconsistent cases are struggling as cited in the opponent's opening brief there are several district courts that have even noted that there is some confusion surrounding this issue there's also been inconsistent and memorandum dispositions the earliest was in two thousand factual basis there must be some minimum factual basis the supreme court and the ninth circuit have held that it's not the evidence that's being challenged and that's for that reason it's not all right thank you very much and thank you for your participation in the program and our sincere appreciation goes mr rosen as well for supervising in this case thank you for matter