all right i'm just trying to let the courtroom clear a little bit our third case for this morning is going to be darryl sutton against randy sr so ms o'connell almost never be available in collateral attack on a state conviction did i want to ask you about some questions about preservation of the state's  one issue that jumped off the page at me was whether an argument complaining about ineffective assistance of counsel because counsel failed to make a fourth amendment  to preserve the underlying fourth amendment argument but it looks to me as though the state has waived that issue altogether that's correct our position is that alleging ineffective assistance of appellate counsel is insufficient to present it as an independent basis for a belief in the hay vs petition however i think this court's cases make clear that this can nevertheless serve as a means of effectively preserving an argument or in this case failure to properly support or argue for the moment it's close enough so that that's why i understood you to be saying well we aren't required to come up with still against powell in response to an but then we get the later problems of a when when the district judge shift gears for a mere fact of assistance to the fourth amendment itself and at that point there's no it look to me at that point that the state did not argue that the district court couldn't do that the state says well you know this is close enough and actually the standards are quite different given strong versus powell we had a whole line of cases home against page owens against united states in which we considered whether you could even complain about a fourth amendment issue as support for and effectiveness claim we said yes there's the supreme court's kimelman decision but on the other hand if you have waived this at this point and we really are here talking about the fourth amendment claim that will structure o consideration of the case i hear a couple of different questions in that the first is that in terms of our answering of the heaviest petition at that point there was only an ineffective assistance of appellate counsel claim however we did choose to recognize that the district court in its discretion could have construed the petition as also having preserved a fourth amendment issue so for example there might in some cases there might be an argument as to whether a different claim would relate back to the original claim here we chose not to challenge this particular issue on that basis instead we used the motion to reconsider as a means of raising something that the district court had already considered the district court had already addresses down versus po but what i am concerned about so for example in your motion to reconsider you wrote despite this court's error meaning the district courts error in granting havey is relieved on a claim that was not presented to presume must amend the fourth member claim that claim may be considered now the court has broad discretion to permit amendments the fourth amendment claim would have been fine if he'd asked you know and so on and so i just just trying to get this sorted out procedurally all right so my next question about the fourth amendment is how you think it's supposed to work when the alleged fourth amendment violation we ask your causes as well when the alleged violation took place in a different case i think it's a fairly unique circumstance and there's not a lot of  is this someone is going to have to answer that question here well in this case i think there are a lot of different ways that it could have been defended and it was defended certain ways in state court and in certain ways here in the context of behavi proceeding what was most clear at that point was that this occurred in a separate case where even assuming there was an error a conviction actually resulted in that prosecution that was not based in any way on the blood sample at issue here and that provided by means of a mandatory state statute a basis for the state to get an essentially on tainted sample of the defendant's blood that's true but here this is just a piece of the whole way t state seems to have done is the proceedings in the rock case are a disaster i mean you have judge hunter you know being asked to authorize those blood sample and the other samples for bond and then nothing happens and then judge will a scene suddenly signs a completely different order not tethered to ban the states saying well you know maybe maybe he was thinking of some blood on a sweat shirt that nobody ever says anything to about him and then you finally get to the illinois appellate courts in that case and they're not even paying attention to the fact that the transcript is in front of them if full and fair litigation means anything it's awfully hard to say that that's what was going on in rack case it may be that it's completely irrelevant but if it is irrelevant i'd like to know why and the state is continuing this with the blood sample we could have gotten a blood sample we didn't you know i don't know why you didn't but of lawsuits illinois courts about whether the state could require somebody to submit to a second blood test under that statute when they'd already provided some of the first nickel that's record and many cases state officials were obtaining additional blood samples and then as a result of that they were charging defendants who had already provided funds are correct there and so the illinois supreme court considered those actions and decided that it didn't quite make sense to require the additional blood samples in the d n a feeds but those cases reflect that in a lot of circumstances in certain counties officials were at that time still complying with the what appears to be mandatory language in the statute but i just want to clarify a little bit about the two separate prosecutions on the errors did occur in the rock case in the pretrial context i don't know that there's any any discussion or dispute that after this error was made in taking the blood sample there proceedings there were perfectly constitutional he had a fair trial there was not even any forensic evidence presented at the trial it was primarily the victims i would have identification of him as a perpetrator so that provides a basis on which the state had the authority while before he was prosecuted in the welly case to get a blood sample that complied with the constitution that was standing what appeared to be confusion at best in the pretrial proceedings as to what the basis was for asking for the blood at that point your position has to be that no matter how unconstitutional the collection of the blood sample was in the rack case once the rack case is over you tie a bow on it and it's finished and there's some presumption of procedural regularity or lack of collateral attack or whatever words you want to use so that this unconstitutionally collected blood sample isn't subject to challenge anymore and i'd like to know whether you can think of cases that have taken that position again i think this is a fairly rare circumstance but i don't know that i would agree that it's not relevant at all to consider what happened in the rat case i mean we have to show that we have a lawful means of obtaining a new sample if you had had an unfair trial and it was unconstitutional at that point we wouldn't have a lot of means of obtaining a sample here we did it and it was completely independent filing you're saying your whole case really hangs on your inevitable discovery argument that it does to the extent this court were to find that he overcomes the stone versus powell threshold bar on k b s relief or fourth amendment issues but that but you may have waved to the right to think about the fourth amendment by your willingness to litigate it well i think that we have  not sure if this if i'm understanding question correctly but i don't think we've waived the stone versus powell argument that generally it's not proper to grant he was really fond of fourth amendment issue regardless of what the circumstances are under which it arises even here where it's fairly unusual circumstances about the two unrelated cases but just to be clear issue of the full and fair hearing comment in the last case and it was here that there was a did there was the apparent misunderstanding about what transcripts were in the record and the state courts never nail this down to evidence their presuming their forgetting that their transcripts in front of them there's never an actual adjudication of the circumstances in the state courts could have gone into notable discovery if in general means anything surely there must be some cases in which the process that the state in fact engages in is constitutionally deficient that is correct that there is a point at which a petitioner could argue that it is not full and fair and why haven't we reached that point here well what the cases seem to suggest is that the defendant has to show essentially that the state courts were operating in bad faith that they were not taking seriously their obligation to adjudicate the fourth amendment claim so we can see that there were errors if you look closely at the record there were errors and the state court in the direct appeal did make one procedural error and said that there had been a failure to provide a transcript but it also at that point went on and considered the merits of the issue however more significantly in the post conviction appeal the appellate court reviewed it work and said actually we made a mistake there we overlooked a transcript that was actually in the record and then at that point the court looking at that transcript then reexamined the issue of whether there had been probable cause and and says that there is based on evidence that was never introduced into the record before the issue and judge correct that evidence in the record was what titian or relied on in pursuing his motion to suppress the trial before his blood on the switch or whatever it was right correct and there's actually a sort of complicated reason as to why that made its way into the record here but in the rack case in the post conviction for seating petition a testing on the sweatshirt blood evidence to show that he was not the perpetrator he then the prosecutor in that case argued against that and said well we didn't introduce forensic evidence and it doesn't show your innocence petitioner then switched gears in the lousy prosecution and said well sure there might have been blood evidence but you said it didn't matter but the prosecutor did testify regarding the underlying facts of petitioners argument in the post conviction proceeding there and in that context petitioner himself had been arguing that this was a basis for finding his innocence so we did provide a basis for the state court to have found probable cause to conduct d n a testing in that d i think that stone versus powell is an even more absolute bar tavi is relief than the statutory amendments under twenty two fifty four d so want to essentially how old that a fourth amendment violation does that provide a what you argue for the exception that you don't write don't it still is essential holding was that these should almost never be a basis and then this court in career are interpreted that to mean they were outside of the scope of twenty two fifty four day however the court said we can continue to look at whether there was a fun fair opportunity to litigate as a basis for he is really and it's on that narrow point that the court retains the ability to grant relief on an underlying fourth amendment issue and here he has i would c i understand it one of the key reasons behind stone versus powell was the supreme court's sense that the exclusionary rule does not really operate as deterrent for poor police practice or poor practice on the part of whoever the is representing the state in the original case because it's a collateral attack it's attenuated and all the rest of it here we have not even that we have a different case the loudly prosecution looking at what happened in the rack case so if if stone versus powell would have precluded a fourth amendment challenge in a collateral attack to the rack conviction then how much more with that logic apply to other cases so that's my first point my second point is that i'm still looking for authority that says you can reach back into a closed separate case pull out a fourth amendment violation and then use that in a new case the closest i can come to is the supreme court decisions saying that you can't reopen earlier convictions for case is done it's done and if you're using that prior conviction for enhancement it has to be regarded as procedurally regular the only exception they made was if the right to counsel under gideon was was not afforded but we're not worried about that if you could incorporate those thoughts in your concession of stone i would appreciate it ok starting with the issue of deterrence i know my friend has talked a great deal about whether the purpose of the exclusionary rule would be applied would be served by applying in this case it but as he said in this case if this isn't the state not taking the fourth man seriously it's hard to imagine what it is well but it's not right because you know that here's here's the state court in the loud case i don't think anybody's really criticizing what happened in the rock case in and of itself since together tints doesn't wind up getting used he's convicted on more conventional evidence as far as we know that was fine and there was even th statute that would have permitted collecting the blood sample so the rec use is over and done with everybody is very confused and that's the nicest word i can use about what is going on with this evidence in the but what we do know is that the evidence was collected and we do know that the d n a testing even way back then it's gotten a lot better now actually these cases won't come up very much anymore given the supreme court's bu so i don't know that the state courts were anything but confused about was what was going on and i don't think stone versus powell has an exception for well when the stakes are really wrong you get to redo to kate but if they're only a little bit wrong you leave their procedure alone will stone people it doesn't require a federal court to find subjective bad faith hampton recognize that when the state court is not taking the fourth minute seriously it really says explicitly we don't care about the fourth amendment probable cause isn't required in illinois etc well i don't understand even this whole phrase not taking the fourth amendment seriously but we have another case it seems like you know if some state judges routinely throwing fourth amendment arguments into the waste basket or the state passes a law that says we're not going to consider any fourth amendment claim after five years after the arrestor or search i mean that strikes me there could be situate sions where the state really doesn't give you a full and fair opportunity but this case is really more a case of bungling than anything more sinister well i don't know that we can draw a distinction between subject of bad faith and extreme negligence in either case the petitioners tonight a full and fair hearing and a stone be paul recognizes a a fair judicial process is an individual right of the accused where you get the extreme negligence standard from  i'm simply describing what happened in this case right at the what what supreme court decision says that that's the right standard to apply to overcome the otherwise applicable bar stock well i don't know the supreme court says it but i know that this court has repeatedly said that stone the palm requires federal courts to review the merits of state court decisions including their factual findings and in miranda this court said that it would assume that strikes me as an overstatement to well the court has qualified it by saying that it is that this review the stone the power of you is not a mere search for error it's a search for egregious mistakes but in miranda this court said that it would assume that a factual finding that has no basis at all in the record would be evidence of a denial of a full and fair opportunity well in this case we've gone one better because we have a factual finding that squarely contradicted by the record so this isn't the kind of case where the petitioner is asking a federal court to go sifting through the record and  determine if the state court had quite enough to reach probable cause this is where we have an ambiguous piece of record evidence that's been included and presented that shows that there was no probable cause supposed when when they went back in the rack case to judge last seen the question whether mr daniel was going to be out on i'm sorry mr sutton was going to be out on bond was still alive question and that's still in the warrant in judge was seen signs of warrant and they go take the blood and you know either do or don't let him out on bond would you think that would be enough to justify the collection of blood sample the now the words just following through on the original my purpose or maybe it was maybe hypothetically you know when when judge henry issues the order it gets recorded and the gets done instead of them having to go back to judge the scene if the blood were collected as a condition of bond if he if mr right had been let out right i assume i confess i soon that was constitutional and that's why i haven't been talking about it but i'm not actually sure is leon leon's good faith exception relevant here good blood drawn under a court order right well no it isn't the district court found that it it isn't but sutton not that i'm aware of so what's your point here our point here is really what the blood essentially conclusively proves he was guilty of a violent attack possibility i think from the perspective of this court the the main concern is ensuring that stone be paul doesn't become a completely dead letter this court has recognized that there is some role for the federal judiciary in making sure when the record conclusively demonstrates that there was no probable cause that there actually was then i don't i know it's difficult for me to see how that's any different but that actually takes you into one of the state's back up arguments at this point even if there wasn't probable cause the time the blood was collected which is after the the scene warrant if i can call it that it is the fact that if there had been any blood at all no one ever discussed blood if once he's convicted in a rat case illinois like many many states at that time was starting to collect d n a samples from you know blood samples and so there's this statute of course they didn't do it because they already had the blood but they they have an independent legal basis for doing it and there's no reason to think they wouldn't have obeyed the law why it why should we adopt an assumption the state would the law on us well we don't know what the state would have done that we don't have anything in the record saying that presentations of regularity we don't start in with an assumption that state officials are going to fail to carry out mandates under state law this wasn't discretionary was required you know but the mere fact that we know some statutory taxes on the book doesn't tell us that the mandate would have been followed we know that many mandates are not followed particularly when they're directed at the executive and no individual have standing to enforce them when the mandates may require something that's beyond the technical capability of the state we know they didn't actually have d n a testing capability at this time or they were basing samples though and then actually winds up that all the samples get that isn't in the record there's nothing in the record about what their actual practice was at this time but i think that's you know that there was a man that you're asking us to assume that the state was going to fail to follow the law and i'm worried about and i know your honor i'm asking you to hold the state to its eviden burden to demonstrate what would in fact happened and they say they have satisfied that by showing that it was not discretionary it wasn't just an option it was mandatory now you may think that's not enough but i think that's how they're trying to meet that very well it is how they're trying to meet the burden but i think that comparison with the hampton case is actually instructive there where it is very similar situation is a statute on the books but the key difference was that there was actual testimony saying yes at this time we were in fact collecting samples from every prisoner here wouldn't necessarily require a lot to meet their burden but i think that that's the arkansas thanks it wouldn't necessarily require a lot to meet their burden  but this court emphasized in jones that it is an evidentiary burden and state has to be held to it and usually that means live testimony especially on uncontested issues so when we do hear we're the whole issue doesn't and get raised until the district judge issues her opinion and enters a final judgment so if you're talking about the rule fifty nine standard here no i'm talking i'm talking about what i  confess was forever you've been doing a great job for mr suddenly i confess to having had some sense of irony when i read it in the context of federal habeas litigation your brief say the interests of finality judicial economy and fairness parties demand the litigants receive only one opportunity to make relevant argus and i federal habeas litigation is usually the third round or at least the second don't believe so i think it might not my client did an excellent job litigating this case and his although he's purported to be raising only ineffective assistance claim if you look at everything in that that petition it's all about how his fourth amendment rights were violated and he even explicitly said that he should that the district court find either ineffective assistance or a fourth amendment violation his real issue there was that he thought that the state was playing something of a shell game saying you lose at one stage because there is no transcript and now you lose at the next stage because there is so he thought that there should be a lot of the case issues there but you know this court recognized him a lot and again that you know there's nothing inappropriate or surprising about a district court treating ineffective assistance claims as merits claims when they're when that's the real purpose but you know there is and you should go back and look at the panel opinion the opinion objecting to the refusal of our court to rehear coleman against page and bank and then the later opinion oh and we went back and forth about whether you could even raise a fourth amendment claim in behaviors corpus proceeding because of the purposes of stone versus powell and eventually because of what the supreme court had said and whatever thinking carefully about the matter the opinion owen says yes but there's a sharp distinction drawn between the idea that you as a defendant are entitled to competent representation which includes everything which includes making your fourth amendment motions just to press which includes they look at all those come before a huge number of things that would not carry forward some of them do carry forward to his corpus others don't and so we did draw quite a line and so then to turn around and say oh well you know we kind of know he was trying to get at the fourth amendment claim i think if that had been squarely in front of the district court judge at least she would have had the benefit of better briefs on the scope of this stone versus pow l bar i don't think that's accurate your honor because the state didn't argue about stone people at all even in their rehearing petition they cited it once in passing but their whole whole brief was about  just briefly we could go tomorrow and get a new blood sample from petitioner we have the wreck conviction we have his conviction for monica read all these murder there are a lot of moving parts here and a lot of our arguments that we could have made but we relied on the inevitable discovery doctrine because it's essentially a harmless error rule it says that there's no point to applying the exclusionary rule where the state can go ahead and get the evidence set it up to unlawfully through lawful means anyways and that's the case here there's no point to applying exclusionary rule not even mentioning the fact that this is on he vs where there's almost never enough of it and turn it back to just by the fluke mary rule but it particularly doesn't make sense where we can go today get the same evidence and if there's a new trial