supplemental briefing after this oral argument should this court's you fat the first question this court asked was whether or not the theory that christopher by montes trial counsel was ineffective for having failed to move to suppress the blood alcohol test because m monte was not under arrest not actually subject to the arrest at the time he consented to the blood drop whether that was properly presented to the district court certified for appeal and briefed on appeal i would answer yes to all three of those questions  terms of whether it was properly presented to the district court in the opinion order issued by judge watts and judge washington did consider the merits of the argument when he found that he thought that the fact that he was not subject to  arrest at the time that he consented to the blood draw was without significance to his constitutional claim and would certainly disagree with that characterization i think that the actual arrest is is crucial to the  to present this argument to the state appellate court how have you satisfied exhaustion that argument to two issues with that just in terms of the general presentation to the district court there with that was just my my point that the court did consider it with regard to the exhaustion in the state courts under your second question initially the exhaustion defense was never raised in the district court and the doctrine of exhaustion is not a jurisdictional requirement and therefore i would initially argue that the state waived any way of the argument offered that defense also i was presented to the state court the however the particular facts surrounding whether or not he was subject to arrest was never specifically addressed in the court of appeals i don't think that that means that this court cannot consider that at this stage of these proceedings and i also think that the question of the arrest arose from the tense districts finding and while there was no argument about it in the briefs court was the one that found that she was actually subject that he was actually arrested at the hospital on that night and december of two thousand and eight  so i'm i'm really not sure who to ask about this that you don't know their day ask you or or your sister counsel there this has to be one of the craziest state statutes that i have ever seen in my wife and i don't understand how this works you can't you have to be under arrest to make an implied in order to engage in an implied consent i you're referring to the implied consent statute yeah that's what i'm referring to you have to be under arrest before they review the the thing and get your implied consent but if they read you something and you make a statement it's not implied consent it's actual consent i mean this fellow actually consented made a voluntary statement did me no i wouldn't say that was a voluntary  are specific requirements that they have to go through hell it's that's what the statute requires i and so it's but if you don't go through that and you get actual consent to take a breath whatever why isn't that sufficient at least for constitutional purposes well for constitutional purposes first i would say that following the statute there's do privateers due process implications that the state is required to follow their own laws and go through their own procedures that are sad i understand that but this you know most implied consent laws say that if you refuse to you're yours you're stopped they think there may be drunk driving you refused to take a breathalyzer you're giving implied consent for a blood draw i mean that's what implied consent is if you don't do this then your consent is implied in this that you doesn't it isn't that at all i don't understand what it is what does being arrested have to do with apologize on behalf of the general  convoluted and illogical oftentimes statute however the law is you have to you have to be actually arrested before this can take place so supposing under arrest which is apparently what happened here why is that a problem again i would i would say back to the statute or the requirements that he is under the developed that he has to be under the and they have to they have to the police officers of the state have to do something affirmatively to place you under arrest to either a tell you there was there's information that can be provided on  v twenty to fifty five form that was not filled out that was not provided and he was unable to i mean something also to keep in mind as he had just been in a pretty very serious car accident and shattered shattered his hip and so he was unable to he was unable to consent to a lot of things because he was under that because of that because of the accident  all i can say is the case law supports that he is that they were required to vallium valley arrest him and so again you need to have a valid arrest you also need to have probable cause for that and then and then they can request and then they can request the blood job and up the blood alcohol to getting back to the waiver sure about in this case did you yourself weigh the issue in your opening brief and i'm just reading the summary of argument that you have aged twenty one christopher belmonte was and i did write to effective assistance of trial counsel trial counsel failed to file a motion to suppress based upon the fact that the police did not cite to that point in my brief that i do raise the issue that he was not on that point you mention it as a fact but you don't you don't raise it as an issue for us to decide the issue you raise is there's an old no probable cause which is the same thing it was raised in the state court and i thought in district court as well i mean i mean the fact that you meet you may mention some facts along the way doesn't present the issue to us and just tell me we're other than an occasional mention of that have you raised the issue and asked us to reverse on that basis in your opening brief i know you in the reply brief you do but that's not really sufficient you have to do in your opening brief and a the i think the issue of the actual arrest is implicit and and all of the argument in its and but you know we decide issues that are raised on appeal and we there's a lot of facts and what we don't in fact we don't have we don't really have to search for the issues of the we absolutely ok and that's my job to your best that because you mentioned in passing that he was not under arrest that you have to preserve the issue in your opening again i guess i would submit that if the argument the actual arrest is implicit in any argument as to whether or not there is there's probable cause we all know there are actually different i mean you could have probable cause to arrest which is different than whether they actually arrested him and i apparently under this strange statute they actually have to arrest him not not that they had probable cause to arrest but they did not arrest him you need both you need both ok but you wouldn't make the argument that there was a lack of probable cause for an arrest if there wasn't an arrest the and i guess that goes back to the tense districts finding that that was not that was that was never specifically addressed as to whether or not she was actually under arrest the bottom line is that the took the blood draw the blood jar was admitted at trial and that the issue of whether or not the issue of whether or not there was probable cause or an arrest was not raised in the  court which is why it was the basis of that and effective assistance of counsel but you but you still have to go back to the court at some point in connection with your ineffective assistance of counsel raise the claim that you say was not properly raise below and give the states a chance to exhaust to address it now when i ask you that earlier you just dismiss that argument by saying well the state didn't argue exhaustions jurisdictional are you conceding that you didn't exhaust the this was not exhausted before the state courts yes there is and there's no there's no way and there's no there's no way to he was arrested before the state courts correct so then you file your he b s petition and you you mentioned that he wasn't arrested but the promise of the argument is that there wasn't probable cause to arrest him that's what you focus on right that's what watson focuses on right then he issues a certificate of appeal that doesn't address the question of whether he was under arrest maybe you can infer  that that cited to several different factors that where she was arguing that she was under oath that he was actually subject to arrest and so it was certainly responding to the state's argument there this was this was not something that  the exhaust in the state courts i can't argue with that you don't have to do that though there are exceptions that there are exceptions that you can consider this issue on the merits and i think that i think that you should because i think that at the end of the day those test results should not have kamen and i think that mr mr belmonte has attempted to exhaust every avenue to try to seek redress here and i think that if it warrants consideration by this court i think that this court is can do the merits determination and i think you should and should find that there was no actual arrest and therefore the blood issue and there's the certainly you can also remand it to the district court and to further consider that issue we don't send things straight back to the state courts we have to send it back to the district court to so the question then before the district court would be whether it's exhausted and whether the district wants to remit it back to the state courts or determine whether this cause approaches that would excuse the failure to exhaust but once you find out once it goes back for exhaustion then you're going to find that there's a procedural bar you know but there are exhausted will be considered to have taken place but then it will the decision will base will be based on the on an independent reason from the state courts which is which is the procedural bar so i'm just trying to figure out in my own mind how you get around all that there is like i said there are several exceptions to the exhaust requirement that again first of all it needs to be it needs to be raised otherwise it can be waived and there are also under hold on just to say if you're not raising in your opening brief the question of whether or not he was actually arrested and if that wasn't the subject of the thrust of the hearing before watson which seems to me to be pretty clear what i've read that material how can you say the state has waived something that you didn't raise you didn't really bring it up then and tell your reply brief so how can you hold them to a waiver standard for it what it was specifically raised and the objections to the magistrate's report recommendation was the first objection raised and so i did so this is so it's not something that that was never considered in the in the district court i would also say that again i can i can cite in my brief where it's where i do discuss the waiver question is whether they waived your feel your to present this to state court not at the district court level so how can they be held  now there was presenting it to the district court doesn't constitute assuming that they did it doesn't constitute exhausting before the state court back so how can so what did the government do to waive that argument that it wasn't to when this issue was raised whether or not he was actually arrested in its opinion the district court said on page three that it wasn't raised until he filed his objections and so at that point the district court said that is not the proper place to raise a new argued bit and that is one of the reasons why the district court did not certify the question whether or not there was a and therefore it's not it wasn't proper to before the district court it is not properly before this court however i think there is one matter that could clarify the issue that this court was interested in this  court asked the parties to consider whether or not mr belmonte was actually subject to arrest at the time he consented to the blood drawn the court of the state court of appeals in its opinion said that the form twenty two fifty five indicates interest and that language wasn't expanded upon but in fact the twenty two fifty five form itself begins by saying you are under arrest i'm in the record it's not in the record i looked for a copy of a form yesterday that would have been effective during the time period in question i did not find one but i think that i can a form yes that is is the farm prescribed by the statute it is it refers to we may not have a piece of paper does the statute tell us that that language is in the form yes the statute requires the language to be in the form it requires the form to advise that not only is he under arrest but he has a right to get an independent person to determine whether or what his blood alcohol content is explains his  rights so am i right that even though it's it would appear on the surface anyway that you that the state didn't do any of the normal things incident to an arrest so just taking him up to jail that they did not do that jail because he was in the hospital his injuries were critical he was in the hospital for several weeks and the police do not take you to jail when you are recuperating from serious injuries and so they told him he was under arrest and when he was released from the hospital he was arrested and taken to jail he posted bond was that after the indictment though there's an indication that he wasn't arrested until after the indictment was returned and i'm wondering if happened while he was in the hospital he was indicted on february eleventh and posted bond on feb thirteenth he was given credit for thirty one days of jail time created while he was in the hospital i though in january he was given credit for being under arrest so i believe that he was  under arrest in the month of january he posted bail february thirteenth two days this is december nineteenth two thousand and eight that's when the accident occurred he had critical injuries he was in the hospital and i don't know where in the record it might be reflected maybe the testimony but the trial court gave him credit for thirty one days of jail time credit so it would seem that he was taken to jail sometime in the month of january and posted bail on february thirteenth when he was indicted february eleventh yes he sort of a related question that to picks up on what your opposing counsel said we're trying to find out where the constitutional violation is here if there is one and generally speaking i think there is a constitutional violation for a b s purposes simply because of  a to follow state law so if all of mr belmonte has rights that are allegedly violated here arise under state law first of all is that a basis for he has to start with his constitutional claim is that his attorney violated the sixth amendment by failing to exercise a right so that's his that's his sixth amendment right but then we go to strickland yes but i suppose you can violate strickland by by not comply by not raising a valid state laws ok exactly how we get that's how we get that before us yes now if all of that arises under state law then you claim is no violation of state law because the form says he was arrested that's true but there was no banishing of state law the state court of appeals here was that the form indicated an arrest and even though the it details your rights and it provides that you may consent to a blood alcohol test however the law says to that the fact that you are under all right that's what it says but so how did how did the ohio courts come up with a rule that says once you've read that form if there's no if there's no arrest you can't volunt consent to have your blood taken i gather that's what some of the cases say i mean forget implied consent what if in that situation the officer tells you we want you to sign a consent form for a blood and you do it well if there had not been an arrest yeah there is no arrest actually is here i know i know that's the argument but the officer comes to the to the hospital and he says you you know it looks like you are involved in a possible drunk driving lation and we'd like to have a blood draw but we need your consent to do it and the person signs  consent isn't that good enough i don't understand why this law would bar the admission of a a blood test if it could be shown that the defendant voluntarily consented to it without regard to everything else i think the law is that it's not considered voluntary under certain circumstances and it wouldn't be considered voluntary if there is no probable cause for an arrest and he argues belatedly if there is no arrest however there was an arrest here if there had been no probable cause for an arrest and he had been arrested then consent would have been considered involuntary under back vs ohio u s opinion even if it was express l what happens then the name implied consent form is sort of a misnomer it doesn't really mean that you have to get his consent it means that you have consented you are driving a vehicle under the influence of alcohol and allow say as in the statute point five eleven point one nine one that that is consent to have a blood draw so even though he expressed we consented because he was asked the officer could have had a blood draw whether he consented to it or not an implied consent form is based upon the implied arrest well he was arrested except for the fact that they did he was in the only way the only reason that they arrested him is because that's the language on the for the reason they arrest him was because the officer believed he had violated the law they believe he believed that he had operated a motor vehicle on the influence of alcohol but but that officer said he didn't arrest him he said he didn't he probably meant he didn't take him to jail take it to the to the next step and say he wasn't authorized to leave the hospitals or some evidence that he had to do something to get permission to leave the hospital and we know that one way or the other in the record well when you're released from the hospital ordinarily you you're free to go home but he was in jail for thirty one days and you're saying he went from the hospital directly to jail do not pass go i believe he had to give it up where do i find out and they did jazmine entry gives him credit for thirty one days he was indicted february eleventh he posted by on february thirteenth so he was only in jail after the indictment for two days but the thirty one days had to be the month of january which would have been the accident was december nineteenth two thousand and eight he had serious injuries so serious that he wasn't given a sobriety test at the scene of the accident the officer came saw him in the hospital and arrested him because he said on the form you are under arrest these are your rights after the hospital did the surgery because they were serious injuries he was in jail for thirty one days he was indicted february eleventh he posted bond fair where thirteenth two thousand and nine so he was arrested  he just wasn't taken off to jail so let me ask you one final question the officer arrives and reads him that form yes and the form starts out saying you were under arrest you read in the form after he asked him more questions after mr belmonte admitted that he had been drinking he admitted that he went left of center and that was obvious also from the scene of the accident ok and then the question is can we take your blood sample blood alcohol test it was a courtesy to ask him to consent to a blood drawn but the officer could in fact have taken his blood because he had probable cause to believe he had violated the o b o they have signed a form or something opposing counsel says that any concern about exhaustion is taken here because you've waived an exhaustion are you i agree with what you said earlier your honor they didn't raise it in the state court any question about whether he was actually arrested or not and the only time it came up was in the district court at which point we have different lawyers looking at the facts differently it may have appeared that he wasn't arrested the argument came up the district court said too late you didn't raise it in the state court and it's not proper to before this court additionally it wasn't proper before the district court because it wasn't in the petition itself a claim it was not a basis for arguing trial counsel was in effect clearly judge who was as watson thinks that you argued that that exhaustion was an issue so but it was that as a result of the state having pled that before the district court or did he raise that on his own you know their agenda watson mentions that it was raised in the objections to the r n r that was the first time the question of whether or not that's the argument the legal argument about whether he was arrested yes i'm saying judge watson says it wasn't presented below did he say that because you would argue that no i didn't argue that it didn't come up at home until the objections he pointed out as a collateral matter that it hadn't been raised in the state court therefore it wasn't proper to be for the district court in any event but it was also not even raised in the district court so not only was it not a matter that i could have raised an exhaustion or procedural the phone argument about pertaining to what he did in the state court it wasn't raised in the state court it wasn't an issue in the district court i couldn't argue that a non issue wasn't exhausted it wasn't a claim in the petition it wasn't discussed in the petition it wasn't discussed in the memorandum in support of the petition it only came up when filed objections to the are in are at that point why did the objection look like i object to what's being found here because i object to the report because i wasn't actually under it was presented in the objections however it i know that it was not an argument made as a separate legal basis of trial counsel effectiveness and even hudson it's in one thousand and ninety seven case discusses this between two fifty five four and they read it into the record and the form starts out you are under arrest and the question was whether or not the officer who according to the form is to advise the person being arrested of the potential jail term or incarceration time based upon a possible conviction the question was whether or not he has to specifically say how much jail time is a possibility and the court in that case said that that's not his obligation like that that answers my question whether it's conclusive that form by saying so under ohio law you are deemed to be arrested it is a catch just evidence of it or whether it creates a rebuttal it doesn't create a rebuttable presumption he was under arrest when a police officer says you are under arrest i don't think there is any your opinion i mean has the iowa supreme court so held and well we didn't brief that question because it wasn't presented at all however i would be happy to provide if i are thank you counsel you to begin with i have i have a copy of the twenty two fifty five that was at issue in this in this case that i would be happy to submit to this court and two opposing counsel i will say that the issue with the twenty to fifty five is that what it costs or check the box saying offender was provided a copy of this form at the time of the arrest there is no question that the officer checked the box however there is there is nothing that says that he was unable to sign due to medical this you don't have the whatever they're reading from correct do you know whether it's you are under arrest off the top of my head i do not know but let's assume that it does ok and what does that do to your argument i still don't think i still don't think that there is a problem because because there's more to an arrest than just simply saying that you're under arrest there's you have to have an intent to arrest be under real or pretend authority and be accompanied by actual or constructive detention which is understood by the person if the if the statute creates this whole scheme if the if if the statute says they have to be told they're under arrest trying to figure out why that isn't enough there's just more to it and they have to they have to show that the person understood it and they actually have to do something to affirmatively to show that they were under arrest which just to clarify it in a rest normally means that you've submitted to the to the authority of the arresting officer you're in a you're in a gurney on a gurney in a hospital having to have some serious operation you're constructing an argument that seems to me says the police officer when they go to the hospital they then have to handcuff him to a gurney or something or this they have not followed the statute how can that be true that they have to have to do something to show that he is actually under arrest and just to just to be clear what and why is not saying you are under arrest not enough if in fact that happened under arrest and i think disc form actually supports the fact that he wasn't told that he was under arrest because it says he was unable to sign due to medical and isn't this persuasively why we should not be addressing this this is exactly why this is supposed to be presented to the state court that do things on the granted there are some circumstances where we may go ahead and decide to rule on the merits of something that is not presented in light of the recent supreme court decisions i can't imagine what that is but let's assume there is such a situation why would this fit within that situation i don't get it first but you it is it is possible for you to review these issues like i said  oh you've told me we don't have the form we don't know what he was actually told we do have to form again if it was not filed and it was not filed in the in the district court so if you can't find it how do you expect us to find it and then rule on it if you're getting it now if we're if we're looking at issues outside of the record again this would be a little bit beyond the scope of what i prepared for today holster argument that you want us to address issues that seem to be outside the record i even a legal question was he under arrest that's what you want us to do so let's say we take you up five i don't think the analysis and is there i think the record does support both opposing counsel i have both briefed the issues about his arrest after the hospital i would say that the record supports the fact that he was not taken to jail afterwards that he was free to leave at any time the jail time credit that he was given was given at the time of the sentencing there's a month between verdict and sentence they found him guilty again what took him into custody what you want us to do you want us to go back and parse through the state trial court record that may or may not contain this information and then rule on the merits of something that was not presented to the state court i think but i think i think you don't need to do that because i think both opposing counsel and i presented the argument and are public roofs they really happen but today they say he was under arrest but he was given his rights and i guess if we go if there's been a state court decision on the merits if there's no stake or decision on the merits because you didn't fairly present it and it may or may not be barred by procedural default then the supreme court i don't think has yet taken the next step in the footnote that an further review of the case we need to hear from you any further but enough thank you