our second case for this morning is whitfield against howard if this part of the retaliation the correctional officers had only segregated him will take away recreational privileges done relatively minor things the reason we're here is that in addition to other sanctions the correctional  officials ultimately took away a good time credits and that triggered the rule and words which required mr whitfield while in custody clearly to pursue all available state remedies and federal hate b s remedies before he decision and birth but mr wickfield isn't just sitting around watching t v all this time he for these three reports two thousand and two two thousand and three and two thousand and seven he engages in a fair amount of litigation although he didn't he never quite hits what the illinois courts and other courts think he should have done and he eventually winds up in this federal i guess two things one thing that concerns me about the theory that you've proposed which is kind of yours straightforward once you're out of custody heck has no further force  because as as we put it in the bird case people could skirt the heck bar they said by simply waiting you could wind up with extremely stale claims being brought many many years after whatever the matter being complained about had occurred and that strikes me as a very troublesome rule so i want to know why that's not a problem from your point of view and the other thing i'm interested in is how diligent do you think mr whitfield was because if you read byrd is really just imposing a diligence requirement you know you've got to be trying at least and not skirting the heck bar can mr wickfield pass a test like that on the second question we have a review of course but my two thousand and eleven and he was trying i mean i think that yes that's a difference the president is the president who just sort of stores up all of his grievances over the years in prison and then files one massive one thousand nine hundred three action when he leaves his is the would ever even try to contemplate but just but but in terms of the number of years involved in theory he could have exhausted everything so if you want to be very strict under bert he might be out of luck but if you just want to be bird is preventing blatant circumvention and prevent prevent prisoners from sandy conclude that he would meet that test but my more fundamental objection to this whole analysis of exhaustion is that it's contrary to the heck decision which made very clear that they are not in grafting three action you're bringing would also mean that the heck heck it's the underlying conviction edwards against dallas takes set over to prison disciplinary proceedings would mean that the conviction is invalid or the disciplinary hundred three action a crew but they then whether you want to look at you know putting opinions together in spencer against kamna or however you want to do it they realize that this isn't going to work for everybody because there's a jurisdiction weren't til the concern about about lack of diligence or whatever you want to call it the concern expressed in bird comes up i agree i agree the bird was influenced by the other search to clear the six ninth circuit either hep or under spencer because hackers are cruel rules so you just have to succeed as a matter how hard you try or even if you just where is what spencer does is it doesn't create an exception to hack it doesn't say well generally you have to succeed to crew but will say you don't have then then we just ignore hideous that is the last we were like course in the last sentence of spencer but judge easterbrook i think put it very well in the two thousand and six simpson case which which relied on to walt and which the state of illinois cited on page twenty  this suppose that's all right suppose the best understanding of all of these cases hack spencer edwards but this what this court has said is what you just said so the only thing heck i about is preserving habeas corpus during that period of time that it's available for the conflict isn't there once the person is out so you can just go and bring the one nine hundred eighty three action what implications if any do you see for the statute of limitations for these cases if that's the rule if that's if that's the rule it seems that the stat that is even though in general illinois doesn't regard imprisonment as a legal once the personal or custody the statute starts running and here you know under the two year statute which was filed near the end of the two years and i think that's how work however i think you could avoid stale claims if you if there's a how do you do that that's my biggest issue  very broad reading what the what we say in burton i have it in front of me i'm sure you've memorized it as heck applies but what does it mean to say heck applies i guess is the first thing says the concerns for those individuals who are occluded by a legal impediment from bringing an action for collateral relief so so there's some space where there's no favorable termination requirement and then some other space where maybe there's a requirement should be pursuing remedies and some other space where maybe you need a favorable terminations the situation in bird was of a person who did nothing and that is most certainly not mr whitfield mr whitfield is busily litigating all sorts of things trying to bring his complaints before the courts he's pro se he fails he's constantly choosing the wrong procedural mechanism or he doesn't realize he has to go to the illinois supreme court in one instance edwards against ballots later makes clear that you do have to do that  so i guess i'm concerned about overdoing the favorable terminations rule for somebody who has been diligent and trying to bring claims before the various tribunals that the state makes available the time the clock runs out on it right he says research released and now all of a sudden he's in the situation where he can't go back to the state mandamus proceedings or the others ye we have to alternative arguments for that and it's the clock ran out for him ran didn't just run out for him it ran out because he delayed bringing his claims for substantial periods of time actually periods of time for two of the claims at least which exceeded the time in byrd so yes he did file he did finally file his randolph county abs action and you know the state remedy and pursue it but it was not until august of two thousand and nine thirty first filed the the mandamus action in the other county it he takes the appeal and then that's the one where he fails to to go to the illinois supreme court and so you know it makes a mistake gravies well that more than just a mistake on first of all the the livingston county only that only challenged his two thousand and three prison disciplinary decision so it didn't relate to his two thousand and two decision yet has three separate claims here really right and you know want to get to two thousand and two want to get to two thousand filed back in two thousand and four that just reflects for the two thousand and two action he knew in could have proceed with mandamus against that action as well even if you want to count that count that is him diligently pursuing his claim up to april two get a transcript and he finally offers i'll just give you all my papers and and the court says no you know we don't want that and so then he goes to the illinois supreme court who does exhaust all the way up to the illinois supreme court with respect to his ability procedurally to get the merits before the courts and the courts say no you know we're not going take the merits one but you are as we argue there that the problem is that that was a procedural default so he actually wasn't even though he certainly under illinois law proceeded properly the state supreme supreme court if his hideous action if you don't file after that he filed his hideous action in federal court if it had proceeded if the a not given not got moot at that point he this was really unavailable because it was due to its a few tile because under under the clear president his failure yeah i mean the fact that he didn't have enough money for a transcript because this is all characterized as civil meant that there is an adequate state ground for rejecting it which is a little troublesome in and of itself but let's just leave  so so this takes us back to sort of the basics you know where are these courts getting this idea about hack this cordon byrd the other courts that have gone that way when the rationale of the original head plurality decision by justice scalia is really that there's an overlap that you don't want to allow somebody to obtain release from prison without jumping through the hoops that the hades corpus statute sets up most importantly the the exhaustion of remedies who we're actually at the heck majority was in a  was a clear majority there was joined by the fort concurrences under justice souter's concurrence but the majority was there and while they did recognize the head trauma i think you think in the spencer decision or no spencer's also split but hecht winds up getting sort of certified if you will in edwards against dallas socks i'm not saying heck isn't good law but it's but the is the heck majority why they recognized certainly that there was an intersection here between section one thousand nine hundred three and the hideous statute it based its decision on the fly on uncommon law principles and principles and dirt predictors put instead is to ensure the finality of criminal judgments in order to avoid inconsistent judgments and rule against expanding civil that using civil actions declared early attack criminal judgments at least outside of it he went which is all to say that you know there are policy reasons to use hate because corpus when somebody is seeking release that's the whole point of h isn't shouldn't be released whereas if there are you know if you were disrespectful to a guard or your mail is being opened or you got bad medical care or what other sorts of things go on in prisons those kinds of things don't cause release they can be can and must be pursued under nine hundred eighty three and then there's this overlap where somebody sometimes loses you know thirty days of good time credit and they also you know are unhappy with the resolution say of their medical care things so you've got the hybrid cases and i'm not sure that the supreme court decisions tell you why the hybrid cases require a favorable terminations maybe you're just blocked from receiving damages for unlawful incarceration unknowing i mean the underbelly stock the case it applies to any kind of deceit and the state judgement i started to challenge to a state judgement that is affecting the duration of confine exactly what i'm saying so so but i'm saying that there are hybrid decisions there are lots of prisoners who will get number one thirty days of good time credit revo and number two maybe they're moved over to the disciplinary segregation wing of the prison number one would affect duration number two effects conditions of confinement and it's all in the same order it is but with their making the challenge to the basic to the duration of their confinement the rule applies because what about that what about mr wickfield he at least you know we have all of his its rules including properly exhausting their state remedies so you know i accept that when when you're not in prison anymore you can't use hey b s because you're not in custody now you can't anymore but you w a prisoner like like mr whitfield one who had it who had a base available in the state remedies available for years in order to allow them to sit on their hands to spend to delay for instance for four six or seven years and not seek that problem about the many cases broadwell's started there brought exception the implications of that exception well that's what i was going to follow up and ask you if if we were to disagree with you and read spencer the way because joe's or if we were to understand byrd is more of a diligence requirement and thought further facts were necessary what would you do with the statute of limitations you think it's told during a time in prison do you think it starts to run if remedies would have been available to you i bet i'm sorry i hope it would but i don't think this course choice i mean under the heck bar under those tech decision the case did not accrue this is that was that dictum in that decision under the heck majority decision effect if that kept rule applied to him while he was in prison and applied to these claims it was the claim could not accrue until either he satisfies the heck barrel or under the mckeesport exception until his release from prison and in fact doesn't apply then what happens to the statute of keys reading of the heck majority decision then it would have to accrue suddenly upon his release from prison and that's why of the problems still playing and i just you know undermines actually the the principle of ensuring the finality of judgments which the heck majority relied upon in creating this rule and in addition it even it also really undermines to as i mentioned before the concurrence it's just a student's concurrences at least to the extent that he was concerned about that say that he recognized the congressional intent  judgment that's that's being attacked spots were in the edwards against dallas stock world and everybody understands a person's been convicted of where they are convicted they have a sense of some number of years in the prison disciplinary context we have the hybrid claim that i was talking about just hypothetically you know never mind mr wickfield why does that undermine the finality of any criminal judgment if you're just now giving somebody a forum in which to explore claims that involve the deprivation of civil rights while in prison they did have an opportunity they did have a forum while they were in custody in prison through hideous they didn't take advantage of that forum however what you the problem you have is that you're providing yet a form again after their release and that you're actually provided only allowing them to not diligently or even to simply sit on their hands during the entire a case a few months after but it was decided at seven fifteen f third and sixty three where he says that no tenant heck was completely unnecessary to the case the whole idea that had been applied people that were that of course any questions i don't think so thank you very much we do appreciate your service amicus thanks of course as well to state clearly take the case under advisement