agree that this was not an act that they hate us discovery powers so i think we can say for another day whether that power might allow this type of order in the appropriate case and at this point no one is defending the district court's logic for why it had jurisdiction to issue this order so what we're down to is mr twyford is argument that the transport order was justified derived from the power in three thousand five hundred and ninety nine that's wrong for two reasons st as this court held in bays that provision provides a funding power and nothing more and that holds true whether you view the provision just on its on its own or in combination with the red sacked and  federal hate us case so before i dive too far into those issues though i understand there's a question regarding this court's jurisdiction to hear this immediate appeal ain't the short cut there is that whatever we might think the long as it feels like one of those paths justifies its review this court has sat on a couple different occasions that it doesn't always need to choose between those two options if the court i could interrupt really i would think in a civil case discovery orders are not immediately appealable under the collateral order doctrine or under a new name so why should this be any different i know it's honor a couple different points st about why it's different then you're your ordinary discovery order and then why an appeal at the end of the case won't be effective so why is this different than a discovery order i think you have two reasons st we don't in typical discovery to speak you're not going to have a dispute about the court's underlying jurisdiction you might have a dispute about whether it abuse that power but it won't be a jurisdictional matter here we have a dispute about whether the district court even has this power to begin with and that issue becomes even more important for the nd reason which is that we have a federalism concern here if you immediately mandamus cases your honor but if you look at even mandamus cases in more ordinary civil settings involving the state i'd point the court to the university of michigan case as well as the two thousand and eight case involving tennessee i believe it was named john b versus gets in though even in those ordinary civil settings this court held that federalism concerns were important enough to justify a media review and i think we actually have a federalism concern of a higher magnitude here because we have state criminal proceedings at stake we have a federal court where there's a serious question about that federal court the scope of that federal courts power so sort of are you saying then in any maybe it's case being a state conviction that a discovery  ordinary civil discovery and it's a much more extraordinary act but i could imagine acts of federal hate us discovery that won't be so intrusive as foreseen the state without any finding a violation to take a convicted murderer outside the prison walls into a public setting so i think again the magnitude of the importance here is greater than just even your typical federal hey b s discovery order if you want to if mr try for  appendicitis would he be transferred to the ohio state medical center for an appendectomy i believe i wouldn't expect so your honor and if he wasn't i think you'd have a nine hundred and eighty three question about medical indifference to a serious need and that that's not a it's not possible to give him the appendectomy and in the prison right yes of course and i do think that would raise a potential th amendment issue issue if the state refused in that setting but that would be about the conditions of confinement not about a federal hate crimes and it goes to the question of whether the state is able and and has seizures in place that would allow it to transport a death row prisoner to the ohio state medical center it's not like he's being transferred to the mayo clinic in minnesota or something sure and i think that goes to the rd prong of the collateral order doctrine whether or not i mean i'm not disputing that we have the capability to take mr twyford to the hospital but it if we're forced to do that and we have to wait till the final determination to appeal we're not going to be able to under that transport and there are risks and costs associated any time you take a prisoner outside the prison walls into the public setting so we try and limit those trips as much as possible and i think this court can take judicial notice of the fact that prison escapes do sometimes happen and that a common tactic is trying to escape from a hospital setting when you're on a hospital visit tennessee back in december had one of those instances if you look back in two thousand and seven in ohio we had a prisoner escape from a hospital setting and actually take a weapon from a guard and then go on on a bank robbing spree now admittedly those things are outside the record by i certainly think this court can take judicial notice of the common sense just reinforcing the common sense point that when you he needs this evidence for his federal hate b s case so i'm about to back to get into the merits but i do want to pause for a brief moment just in case there are any other questions about this court's jurisdiction and if i may end just quickly doing mandamus this court has said that mandamus is a proper vehicle for a judicial for correcting judicial usurpation of power as well as clear abuses of this crash and that happens to align perfectly scope of that power and i'll back up to that in a moment but i think it's telling in this case that even if we assume he's right that we're under the reasonably necessary standard of a yes this he completely fails to meet that standard because he has never identified to develop at least given a developed explanation for how this evidence he wants is relevant to and usable in his federal hate b s case and that's not just the state saying that if you look at page eighty seven dollars of the district court's transport order the district court also recognized it was not in a position to tell what or even predict whether this evidence would be usable in his federal hey b s case that should have proved fatal to to the to the request and i think it was legal lera for the district court not to hold so well isn't there a difficulty and he hasn't had a big health scare c t scanner and therefore he doesn't know what the evidence is going to be and how far will be able to be utilized in his various crimes that he happens i don't think so your and i certainly think both he and his doctor have an idea of what they're looking for and i certainly think even again if we assume the i a s the standard is the appropriate standard that requires a movement to unpack their legal theory and show the possible utility of the services they're asking for and here mr  resisted giving more than just bits and pieces of how he thinks he might use this evidence and let me give my best guess as to why reading between the lines mr twyford seems to be saying he wants to challenge his trial counsel and his acts for its failure to investigate his neurological defects he wouldn't be able to use that type of evidence in federal hey b s because if you look at post conviction proceedings and most specifically counsel and expert were deficient for failing to investigate his neurological defects so we would be for that type of claim we would be under two thousand two hundred and fifty four d and ten holster and no new evidence would be able to come in and you never even get to the type of trevino martinez out analysis he alludes to but never actually developed in his briefing now all of this assumes that the district court even has the power to grant this strings we want to make sure that when we're when we're granting federal dollars for for these types of services a court has approved them as reasonably necessary a pais baseless decided as a clemen case where the question was whether the federal court should be able to authorize the spending in support of a state clemency petition right that's absolutely correct your honor but  same conclusion in hay vs and that's if you look towards the end of the base court's analysis it engaged with the southern district of ohio's decision in meals and meals was a b s case and the six circuit your out your court disagreed with meals nields not because of the different setting because nields employed the wrong interpretation of the three thousand five hundred and ninety nine after that and the other way of putting this your honor is estimates decision permits a cream core impact it doesn't your honor i asked this was a pure funding case it wasn't about transporting foreseen and i'm willing participant to do something in furtheran procedural point but then i will actually also go to the substantive point about why the district court was wrong to procedurally speaking we spent our whole brief outlining why the district court was wrong and mr twyford made a strategic decision to abandon that rationale and argue something else so i do think procedurally the court would be justified in just stopping there but if the court feels differently the district court erred in how it used the all writs act because you cannot use that act in a way that undermines or sidestepped other federal law and that counts for both federal statutes and federal procedural rules and here at the very least we have a sidestep of a provision a federal hate b s law that you two for one c five provision that outlines the very narrow circumstances where a court sitting in hay vs gets to order the movement of a state prison there without finding a violation  and nd we also have a dodge of procedural rules federal havey as has its own set of pre procedural rules that the supreme court has promulgated those include a rule for discovery and as i mentioned in opening i don't think we need to reach here how far that discovery power goes because mr twyford has passionately disclaimed that he has to seeking discovery in this case i don't given the combination of those things i don't if you can use the here i think it's very telling that it was unclear once the district courts found it had the jurisdiction it couldn't actually point to what standard it was applying for why it was using that power and i think that's a tip off that the power really shouldn't be avoiding the bracy discovery standard or what the jurisdictional limits set forth into two for one you're basically arguing that even if that the district court would not have the power under its act to order that the prisoner sentenced to death be examined through a c t scan or a pet scan or anything like that under the that's correct your honor i think the closer question would be it sounds like from your your hypothetical that you would have satisfied the bracy standard for he gave us discovery and i think the closer question would be whether the hadiths discovery power would allow for this type of transport order but you know we don't have to but why would we be calling to discovery usually you think of discovery as finding out information from the other side not finding out information about your own body that if for example if you look at rule twenty six expert related testing is certainly built into our normal understanding of what discovery encompasses and what you're to get the  exam you're jumping to say that is discovery whereas you're getting the exam of yourself here you're if you're not a prisoner you would go to a doctor and say tell me tell me what's wrong with me  it's different it seems to me to be different than your normal discovery situation well i would point out your honor if you went in a normal civil case if you went and got an exam and then your doctor your expert d not be you know whether it's necessary or appropriate in the age of the courts hippias jurisdiction in terms of whether we the order should be issued well the standard would be the bracy discovery standard which is very similar that but not quite and that's why we do think mr twyford fails also because he has never come forward and developed a justification for why he needs this evidence but what i'm what i'm really saying is the all writs act does not allow you to side speak i do want to go over some of the legal in practical implications here legally speaking i don't think there's any way to rule for mr twyford without creating a circuit split if you rule for him on jurisdiction you're going to be breaking with three if not for other circuits that have held that prisoner transports satisfy the chloral clatter order doctrine if you hold for him on the funding provision not only will you be in conflict with baze but you also be breaking from  circuit's decision in jackson and likely to face circuit's decision on remained and i ask this if you hold for him under the district court's theory you're going to be splitting from the seven circuits decision an i v and the rd circuit's decision in and willy and now with regard to the practical implications i do want to note that in ohio we've already seen these types of requests in other cases more ensure and boy are the ones that we cite in the brief so  it's already not a unique thing to see this type of request and if you bless the transport order here under the limited showing that mr twyford made that should give the court pause because we know from  know from harrington and holster that it's state courts that are supposed to be the principal forum for litigating state constitution now the state constitution out excuse me a state court proceedings and if you accept mr t d idea that there is some easy to meet permissive standards for expanding evidence in federal hevia us you're going to be going against those general principles you mentioned  then held that the transport was not justified in that case and would it so you say they were and i had looked at them they were decided against the petitioner so would the petitioner be able to appeal him under the collateral order doctrine and you know i think there's actually a seven circuit decision on this i think it's called barnes that makes the point of you don't have the same on a final determination the petitioner can argue he should have gotten this transport and there's not the same undermining of the bell that happens when you force the transport to occur beforehand so people really it's a one way street o i think so yes i don't think there are the same imp federalism implications when it's the petition when the transport orders tonight to briefly recap your honor two reasons why this court should reverse the district court lacked the court's foundation for its authority to issue this order the district court's order vested under the all writs act under two grounds under its authority under three thousand five hundred and ninety nine to ensure that counsel was given the resources and access to materials that thirty d five hundred and ninety nine insurers but also to protect the district court's merits determination jurisdiction under two thousand two hundred and fifty four so i want to be clear there has been no abandoned by mr twyford of that logic of the district court and that logic is what vested the authority of the district court to grant this order now turning to the issue of this court's jurisdiction mr keller puts the cart before the horse the issue in this court is whether or not mr keller and the warden has demonstrated that this court has valid jurisdiction is to try for doesn't have to show that this court lacks jurisdiction mr keller has to demonstrate in fact that there is requirements under collateral order require demonstration of three concrete determinations st it must be a conclusive determination of a disputed question nd there must be a resolution of an important issue that is separate from the merits and rd the district courts determination must be essentially on reviewable upon appeal on all three grounds the warden's appeal feels so st regarding the issue of a disputed question the fact that the warden disagree with the district court's order does not convert their order to a disputed question rather disputed question is defined as that which is a claim of right that is separable and kalat to the orders of the merits of the underlying litigation what isn't the warden claiming that he that he meaning the state has a right not to be forced to transport your  client that is a disputed question is it dictionary definition but that is not a disputed question is a question of law every motion that is filed that is opposed by the other side is a disputed question but just because a judge resolves that question does not create it collateral order appeal of the side that disagrees with that order rather the determination must be a final resolution of a right that is not the right of the final order on the merits of the underlying that again this is not that type of final order the order to transport is a can despite what the warden is now just claiming a discovery or discovery orders are not subject doctrine when a district court orders transportation of state prisoners so what's your response to fact there were maybe treating a circus split if we buy into the argument so expressly disagree with the wardens position on creating a circuits but if you look at the cases in which collateral order jurisdiction has been vested there are concrete legal rationale it's that implicate the reason to grant collateral review so for example in the michigan case it was that it was an ex parte proceed this case is not an expert to proceed in the wording has been fully advice we in fact sought in the district court to proceed ex parte judge moore who ordered us to proceed publicly the warden was on full notice and actively engaged in the litigation in judge martin made his decision so there are factual and legal predicates that are different between those various circuit cases in determining whether or not collateral order doctrine applies and the collateral or doctrine looks to the underlying nature of the order itself indeterminate whether or not there is jurisdiction in the seven circuit case i believe the issue in that case was transporting  valid collateral order appeal and an invalid collateral or those cases predicated on the three prong test properly determined that there was jurisdiction for the appeal based on that test in this particular case murmur other people and read in a prisoner out prison even to go for a pet scan has that risk so isn't that isn't the transport if it occurs completed and and an appeal at the end is of no use to protect the state's asserted interest this is true that the issue of the transport itself would not be reviewable but the issue is not whether or not the transport is reviewable but whether or not the impact of the order is alternately review again i know that the warden despite his briefing arguments about why this is an invalid discovery order is now disavowing the hat but that's why discovery is not subject to collateral appeal yes i have to comply with the discovery order that entails costs burdens expenses maybe even involve risk of information that i don't want to be revealed but that's x object to collateral order review what subject to the review is the admissibility of the materials that is discovered and that's the exact same circumstance we face here as to the issue of the burden the risk and the expense the warden does this transport by the department of corrections correct it is instead it is a prison within the ohio state medical facility so it has guards and and not out and locked ward i don't have the site in front of me any prisoner has escaped from that part of the ohio state medical center i have been unable to find any evidence that any inmate has ever escaped from or transfer during stay at ohio state medical center or during transport the ohio medical center i will tell you your honor that based on what we understand this is done on a daily basis from institutions across the state of ohio inmates who suffer from coded or transferred to o d arcee at ohio state medical center for care i have had my own clients who have suffered catastrophic injuries transported under emergency basis to ohio medical center for care this is their hospital this is not a private hospital this is not an open in public wing of a hospital this is the department of corrections wing at the ohio state medical suits so the issue regarding burton yes there is a burden but it is a burden to the warden as mr keller conceded would engage in if the if the inmate required medical care for example mr twyford needs his neurological exam because at the age of forty put a gun to his head he could have twenty two bullets behind his head he lost an eye there are bullet fragments in his head and he the replacement of that surgery entailed of import of replacing him now he would be done if you had a statement so he would be transported to the hospital that we are asking to be transported to for the medical care that he is entitled to receive in the ward concedes would have to be given so yes there is a burden but it is not an undue burden yes there is some hypothetical risks but as the transports to this institution to and from on a daily basis demonstrate that risk is in and the you would analogize the expense of transport and to the expense are participating in a discovery matter correct it's akin to that i agree with mr keller this is not an issue of discovery this is an issue of our investigation is not an issue of discovery but it is akin to the costs associated with complying with discovery i may pose in a civil matter that the a request for discovery if the judge orders discovery i have to comply even i entails a significant amount of expenditure of cost resources and energy on my part and that doesn't create collateral order  efficiently the issue of collateral order requires a showing on the nd part by the part of the warden and that is that it resolves an important issue separate from the merits of the claim now i don't disagree that the ability of the district court issue orders is an important question but that isn't the standard for a determination under collateral or of the fact that we may want to know the answer to whether or not a district court has this authority does not generate the issue of this is an important issue separate from the merits rather the issue is whether or not it finally resolves an aspect of the case independent from the merits so primary example in which you see this type of an order is for example in a bankruptcy case when the trustee is seeking to liquidate were dispersed it body or a portion of the body of a state to the detriment of other debtors or to other claimants on the issue of  estate then you a have a collateral order because the distribution of that race of that body would in fact be something that is a final determination even if it doesn't ultimately conclude the merits of the bankruptcy process we don't have that kind of circumstance here there is nothing that is going to be able to be set in stone if this transport order is complied with yes the warden has to comply with the order d that's true but that's not the conclusion of important issue that is ultimately won decided by the right that higher court or even by the district court so this issue fails on the nd prong of the collateral moore plea when any information subject to this investigation is true is presented to him would make a determination that that material is were is not admissible in the hay vs proceeded so again thinking how the warden initially objected to this and how the warden briefed his objections to this order is a discovery order the question of whether or not it is discovery and that information can be admitted in court will be determined at a later date if twyford in fact seeks to bring that information to the district court but one of the reasons that we express we requested this in terms of our investigation is that we do not know where this information may take us rather what it is is our job to investigate the materials and information that may lead to legitimate claims being presented to the district court so the issue of this is no different for example than if the warden decided that he couldn't be bothered d with attorneys coming down to the institution to visit clients in issued an order that simply said no attorneys could as i don't think that the warden would actually tests just as the warden could not prevent the attorneys from coming into the institution and doing this testing but were you could not prevent our expert from entering the institution that also however doesn't tale a burden a risk and an expense of guards necessary to transport an escort there weren't any doctor sorry to the through the institution making mr try for to vailable providing facilities for testing a model and doctor sheri to bring materials and all of those things also entailed the same concerns that the to order the warden to comply with those requests this is no different and that's why the issue is in fact subject to appellate review because if there is material that gets presented to the district court because of some legal issue factual issue of her it may be at that point the district court would review it and determine its admissibility and upon appeal on the merits this court would review that issue i would direct this court lodged in hoster was decided and on appeal this court determined that the material that was developed in the district court was invalidly admit it pursuant to pinholes or and did not consider that information during the appeal that's the same circumstance here the information that we investigated determine will be subject to maybe presentation to the district court at that point that's the appeal of the order that would be subject to  this as a discovery order on that part we do agree this is not a discovery work it is however an order that allows mr twyford to conduct the investigation into his matter why itself st it goes to the issues of cause and prejudice it district court has already determined that a multitude of mr twyford claims are procedurally default that decision however was made prior to this court's decision in weight versus  warden of the ross correctional institution finding that trevino in fact applies to ohio's post eviction process so as a yes this itself determines the provision of services to to the merits of a multitude of mr twyford claims it particular it goes to the issues of his ineffective assistance of counsel claim a clean one of his petition regarding the failure of trial counsel in spite of knowing of the neurological damage to conduct his neurological testing it goes to the issue of mr try for its competency to stand trial there was a significant amount of discretion in litigation regarding medication and treatment of twyford pretrial regarding competency there is an issue of the impact of his neurological damage on his statement whether it was involuntary and consentual be given because of his neurological brain damage additionally there goes to the issue of ineffective assistance of counsel at mitigation and the failure of the mitigation expert dr horton to in fact conduct this discovery or to conduct this test at no point has mr twyford been subjected to the neurological testing that has been requested and yet trial counsel knew about it trial counsel's expert knew about it nobody requested the test this issue was raised in state post conviction but post conviction counsel also did not conduct the neurological this is our obligation as counsel for mr twyford to investigate this neurological test this may in fact result in evidence that we wish to submit to the district court and that litigation will come based on  and the facts at that time but this is also our investigation and the only reason that the warden knows that we are conducting this investigation is because we need the order of transport in order to have x access to mr but frankly we do investigation that the attorney general and the warden have no idea about we investigate all sorts of things our investigators interview witnesses talk to jurors talk to doctors we have evalu none of which the warden has any idea that we are conducting because it's an investigation the only time the warden the attorney general under three thousand five hundred and ninety nine dollars has any opportunity to understand what it is that we are investigating is if that investigation results in materials that we wish to present to the district court i will say it there having done capitol litigation for many years now we do a lot of investigation that never takes us to new evidence and new material f federal court that doesn't mean that we can't and don't have an obligation to do that investigation and i did score and that's exactly what the district court helped the district court determine that access to this testing is in fact reasonably necessary for counsel to do our jobs to determine exactly what is the damage that mr twenty for it suffered when he shot himself in the head of the age of forty and then if proper to bring that information to the district court in support of any pending or even new claims but until that time this issue remains simply an issue of our ability to do our jobs in representing mr twyford there are no further questions we stand on our briefs and we request that the court validate dismiss on the basis that this court does not have jurisdiction to hear this appeal the alternative that the district court in fact had jurisdiction to authorize this order transport remand this to the district court for compliance with the order at such time it which it is safe based on cobe it in other issues to conduct  points about the district court's lack of jurisdiction to order the transport three points about mr twyford failure to justify his request so on this court's jurisdiction i disagree with my friend on the other side about the state of the law it's not enough to point to minor factual differences between this case and other circuit authority you need to actually point to a fact that makes a material difference to the analysis for example the th circuit's jackson analysis on the clerk lateral order doctrine did not mention at all the acts party nature of the quote of the requests but in any but even if the court is on the fence about the collateral ordered up then we don't think it should be i would note that i think i heard a concession in there that at the very least we'd be requiring a field trip from the chillicothe the institution to the ohio state university but even if you're on the fence about the collateral order doctor and i didn't hear any argument as to why this court doesn't have the power in mandamus to correct either a clear abuse of power or a judicial usurpation of power i certainly would again repeat of that this case is of an equal if not greater magnitude of importance than the university of michigan case which involved a university president whether used university president had to attend a settlement conference or the john b vs gets case which to involved a discovery order regarding the state's computers i think i know mr twyford disputes whether the court should exercise the mandamus power but i think that really goes more to the merits i don't think he disputes that the power exists with that quickly with regard to the discovery label i think mr twyford has confused arguments consistently there we had agree that this was not a run of the mill civil discovery order what we're a way that contravenes to two for one c five which already lays out the very limited circumstances and k b s when a corps is allowed to direct the movement of the state prisoner without finding a violation so even if you disagree with us about whether or not this is discovery you still have that barrier in terms of the district other arguments about the district court's jurisdiction this is not the same as a denial of visitation to an attorney that would be a problem constitutional dimension and it would it would be a condition of confinement challenge under one thousand nine hundred and eighty three that's where the jurisdiction to correct that type of problem would come from prison prevent dr sherry from coming to examine him at the prison your honor i think the question that question would be a matter of how far the access to courts constitutional right i believe it's under the st amendment travel's mr twyford has not made an argument here that he has a constitutional right to this evidence and certainly here we have something a degree beyond that because it requires the what mr twyford rons would require going outside the prison walls it's not a service that can be provided within the prison walls f but at this stage it is binding authority on the mr twyford justification we never get to a cause and prejudice analysis here because you don't do trevino or martinez when the claim was raised below and adjudicated on the merits and here if you look at claims seven of his post release conviction to post really a post conviction relief petition he already raised this same claim about his neurological the facts it was  adjudicated on the merits by both the ohio trial court and the th district therefore we are in two to fifty four d and pain holster where no new evidence comes in so i i disagree with my friend on the other side we do know where this is going this i'll give you like fifteen seconds siri your honor i would just end by saying it is not enough that mr twyford thinks he has a medical reason for wanting this evidence he needs a legal justification for how it spit into  benson we thank you especially for your representation of mr twyford under the criminal justice act as we say in every argument that's a real service