capable irony of this case is that had the prosecution never committed a brady violation and the district court simply adopted the magistrate's report and recommendation my client mr doming would be a free man today and that's an important fact of i'd like this panel to think about it the first time he stands trial he's functionally acquitted he's acquitted mr domingo has the second time he stands trial the prosecution withholds exculpatory evidence in violation of his constitutional rights now there brady violation is rewarding them with a third tr if this court upholds the district court's ruling it will set a precedent that the prosecution can use a brady violation as a tool to defeat a double jeopardy claim now the issue before this court is whether or not the state court's ruling mooted the double jeopardy claim and it's really not that complicated of an issue i think the the outcome if we decide it's not moot then why it gets sent back to the district court for a decision on the hay vs ok so i'm looking at the theory that petitioners response to the order  requesting supplemental briefing yes and just like some help with the theories here on page two petitioner concedes that the charges of murder and conspiracy are not the same offense under blocker right correct and then it says instead petitioner argues his double jeopardy claims do not fail because the federal court because federal collateral stoppel a legal concept that he's embodied in the protection of double jeopardy bars retrial on the conspiracy count understanding it that in this third trial he would only be on trial for conspiracy if you want to want to fill in the blanks here for me so this is i think what the panel is asking about is related to  claim that this is some new theory that we just raised for the first time and i would dispute that not the case that i'm relying on this insofar as collateral  and ash first swenson is clear that collateral estoppel is just simply an extension of double jeopardy there's no legal distinction between double jeopardy and collateral estoppel excuse me  distinction is that what you say that's right well then come back to page two of your brief here or petitioner's brief that says the charge of murder and conspiracy to commit murder are not the same offense under block berger right so under double jeopardy under the fifth amendment which is what mr domingo has challenged in his appeal he made a fifth amendment objection to the prosecution at virtually every stage of the state court including a petition for review at the supreme court  second prosecution on other charges and in fact did you say on both charges yes specifically conspiracy yes and that's in the eggs or for the record it's  challenging the trial it said that the trial was precluded the second trial was precluded it said both charges are precluded that's what the appeal said said ok i understand yeah ok so he they were objecting to the trial occurring in any way at all both on both charges and the reason that the legal basis for the objection was double jeopardy and that exhausted the claim as to both charges now trial on the same offense and this is new trials to be conspiracy only and and the briefing i'm rita was just reading from i think is the supplemental brief you submitted in response to that increase by the district court right she didn't save so much  that she inquired further briefing on that issue now i will say that that request for briefing occurred five days prior to the brady reversal so if the argument now from the appellee is that the brady reversal somehow lutes that question i don't see how that can stand whatsoever because that question was asked prior to the brady violation i will it's sort of brings you full circle to your argument that that is an irony that there's it had there not been this brady violation you'd have a very different picture here well it's just a matter of timing really i mean who's first to the finish line is essentially what happened here correct ok yes i agree with that and to clarify what i was arguing earlier that collateral estoppel and i disagree with the appellee is legal argument that it i think i forget the exact words but it's a related but distinct legal claim from double jeopardy it is not it is a double jeopardy claim collateral stoffel is to say here's the irony then for collateral stuff up because i think we're really pretty familiar with that concept but in trial number two your client was charged with murder and conspiracy to commit murder and he was convicted of of conspiracy to murder right he's convicted of all charges right and you want to rely on collateral estoppel you see my problem i don't you don't want him convicted a second time i take exactly you don't want him tried a second a third time the conspiracy charge necessarily relies on the one that was the theory in trial number two you are asserting that that will be the third theory and that the government hasn't denied that does that change or does that matter for us here it doesn't it doesn't because the issues are yes before you leave are there questions my colleague like to ask at this point ok thank you thank you that it appears to be stayed the last document i had which i included in the supplemental excerpts of record so that the trial would begin on june twenty seventh i think the trial date has been vacated but he's more familiar with and he told me that it was vacated that while the was incorrect in saying that the trial court in the first trial when it entered the mistrial and granted dismissal essentially effectively acquitted mr domingo's ok what if we don't agree with you on that point well i don't expect you to necessarily agree i don't think we're going to resolve that matter today but but you know there's a receipt it's your first fine i just ok a j have a second one yes the second one is that he assumes and i'm not sure on what brief and i think the fact that the district court asked for briefing on that made made it clear that she wasn't that judge was shot wasn't clear did you that island had you gotten around to i think the timing was really tight  o have the state filed a supplemental brief in response to the district court  retrial just for the same charge and every said he's relying on ash but i would just really value getting your response to that is it your position that it would have been necessary to exhaust to the california supreme court both those issue asking whether some fact was determined something identified that was determined at an earlier proceeding and i took i can't tell you what factual decided if you lose on the first issue about double jeopardy because of the murder that that that the six states appear court comments were what it had the legal effect that opposing counsel characterizes then the collateral estoppel argument puzzles me because of course there are different elements for conspiracy than there are for the murder charge to the declaration of a mistrial ash involved serial trials for serial victims in a single robbery in which in which the prosecution conceded that the fact of identity had been resolved in first trial that we make no sort of no concession that it was the end it is quite simply i an interesting and i think complex issue and one that the district court decided properly not to wade into yet until conviction because there is no conviction and spencer first can and related cases talk about the collateral consequences of a conviction right but the easy answer that opposing counsel made is why not just convert a two to four one otherwise this person had teed up a colorable due process sorry double jeopardy claim is now that his argument is it deprived of a ruling on that because the state took a fall on the brady issue i don't see that this deprived of a ruling he has in a pretrial context with no existing conviction and the way you challenge well is deprived of a ruling and and potentially deprived of the opportunity to vindicate a  right the right being cannot be retried a third time in the first instance he's not he's a happy we're just waiting to the outcome of the this third trial took then come back and argue that he should have been tried the right if the subsequent claims if the c regarding the conspiracy charge whether asked versus once and or some other dimension of collateral estoppel had been exhausted in the state courts was at the time before the district court they're not then i don't think i would have much of an argument about converting it that is if we were simply ready to proceed on the remaining issues that we think are undeveloped and on exhausted i although it's difficult for us to tell because he never fall in the mental petition saying these are the claims that we want to raise and he's not precluded from doing that now simply by writing those down in a two two four one petition the the stakes are not weighty for the for the state here in this case we think all of the issues that he wants to present his effort to preclude a third trial can occur in a properly filed two two four one petition and then we can decide that after he's identified those claims the legal theories and the and the operative facts whether those claims are exhausted or not theory and and she was unwilling to wait for six months to find out what those are i don't think see that as an abuse of discretion particularly where it has caused no harm no harm to mr might be done if necessary in advance of the commencement of trial that simply is no longer looming i don't know how that might have affected the district court to question of questions thank you very much of the of the direct appeal but in the petition for review the supreme court it's in the record as s e r zero eight eight and i'll quote appellants petition for review raises the issue of quote whether a trial court's dismissal of the charges for insufficient evidence following a hung jury for hits retrial where the trial court believed the prosecution's could still recharge the case so it does not limit its claim to only a single charge but the trial as a whole i will admit that there is some point heading in that same brief that does isolate murder but i think that and i think that's the concern that the panel has and a totality of that brief it's clear that they're challenging the entire prosecution and i think the context is related to a california statute called penal code six fifty four and i know that's not before this court it's a state law it's not a federal theories whether it's double jeopardy collateral estoppel and penal code six fifty four so quite frankly that wasn't really a concern to isolate the individual charges for argument or limit the argument to a single charge and fact that it wouldn't make much sense at all to argue that a murder was barred by double jeopardy but the conspiracy was not because the conspiracy had the same exact life sentence that the murder had and was simply stayed as far as punishment is concerned the punishment on that count was stated at sentencing and so that would have been a feeble argument from the appellate attorney had he limited to his challenge have seen other people argument i'll tell attorneys that don't fairly i mean i'm not trying to be flip but that is the question is whether the california supreme court was really fairly put on notice the california supreme court and the california court of appeal made it clear that the ruling was based solely on the fact that they did not believe that judge frazier's pronouncement was an acquittal different issue dr bashir is asking a different issue and i think i've made it clear i've got the same issue which is did the california supreme court and so so let's say just pretend for a minute if you would they'll give you that question have questions about that ruling but you still have an exhaustion issue and that's what we're trying to call your attention to as this issue fairly teed up to the i mean i assume that this petition was filed at a time before the  new charges have been filed by the way surely conspiracy would have been mentioned in this petition but i don't i don't see the it's issue for review right that was challenging the prosecution totality well you keep saying that but there's fissures called your attention to the fact that there's other places where it talks about murder and is the word conspiracy in this petition i'm not sure i have to look at it i know i didn't find it and the reason i'm asking just to be clear in that i promise  chance to talk but the reason i must i assumed that this must have been filed before the new charges have been filed or else i but i don't know that and i it was not it was filed after the second trial where both murder and conspiracy to murder commit murder yes right so how do you get around that problem well like i said if you understand it in context there's language in that pleading that challenge is a retrial in general says retrial was barred and i just read that prohibits retrial and the word retrial is referring to all of the charges well i think if i had been on the california supreme court i might not have understood that i was being put on notice of this argument  now if you if we agree with you that this is not moot and there should have been a conversion to a two to four one or that you should be ordered to file one if you want to file one should the the federal habeas proceedings be stayed so that this can be exhausted in the california if that's what we're required to do we will do that but i will urge this court that if this conviction occurred it occurred in two thousand and ten it's now two thousand and eighteen and i will know and this is only collaterally relevant but the if there is an acquittal state law would require that a conspiracy not be charged charged and this is not federal this is state so this court has no real say on that but the are dealing with the same exact set of facts and i wish this court are i hope this court can see what's what's going on here that the district attorney and the attorney general came together and dismissed the murder charge for the new trial as a legal tactic so that they can make these same arguments that they're making to you today i have a question about your petition for review before the killer when the state supreme court is honest in your argument you're saying it was the trial itself which was on both conspiracy and murder charges that's what was being challenged and so because it was the trial itself on both charges you brought it to their attention and it was so understood by everybody involved it was so understood the only real issue they were litigating is whether or not an acquittal occurred because if an acquittal occurred double jeopardy would prevent either one or both chargers and penal code six fifty four under state law would have barred without any question would have barred the conspiracy charge as a charge that should have been charged because it comes from the same set of facts as the murder and since the trial was on both charges correct then clearly everybody involved in the process understood you were challenging both chargers yes in fact it would have made no sense lawyer to only challenge the murder when the conspiracy to murder also comes with a twenty five to life sentence plus the twenty five to life and handsome and yet the petition doesn't mention right and i think that's the and at that point in th two four one what is your intention are you asking for an opportunity to do that or in fairness really and i would appreciate hearing what relief are you seeking i would like it converted to a two to four one petition in my response to the briefing that i filed in the hideous petition i asked the court and urge the court to treat this as a pretrial hideous petition and urge the court that all the brady violation did when the when this lower court the state court reversed the judgment all that happened from a legal standpoint is the judge to jurisdictional statute just changed that's all that happened so you're seeking an order from for us reminding and directing the district court to convert this to a two to four one and then it and then action picks up right where she left off about it that would be one available option for this court it wasn't a trick question are you asking for some other relief well i think the collateral consequences of the conviction are still right the collateral consequences could be seen as the collateral consequences of not getting a conviction i mean excuse me not getting an acquittal the collateral consequences of not having an acquittal are cognize of all for mr dominguez he has to face re trial because he did not obtain a ruling of acquittal and that is in fact the collateral consequences that i would like to see addressed at the at the district court level if they believe an acquittal occurred that and i think  and frankly i think this court is almost there as well if not already there then that resolves essentially all issues in this case you way over your time i mean and that's what i was just asking about relief you're seeking from us you want to ruling that this is not moot and you want to direction that it become very good to or you'll be ordered to file a two two four one are you looking for any other relief alternatively i would like the court to address the two to five four in so far as there are