good morning and welcome to the ninth circuit we've got several cases on the calendar this morning let me clear my field of vision the first case on my calendar is health and versus johnson ten minutes per side and when you're ready coun case he is still in custody when he is fully completed his two years of probation and there are no further court imposed restrictions than outstanding on his liberty ok the case that i have cited there and the on the opposite side that they are here and the winning side on this case what happened then maisano was that the trial court had given a sixty day sentence but i think i'll go to institute any terms of probation now more than three months later the court of appeal along after his probation had terminated and he was supposedly three came back and said oh no wait a minute under the under the this doctrine he is still i'm having with your citation to a california appellate court decision is the question of in custody that we are examining is for purposes of federal hate b s corpus review i do have a federal case that was not cited in my jurisdiction to consider a federal action even though a legal precondition to the federal action in that case exhausting of local remedies which is also a legal precondition for a federal hate vs action hadn't been satisfied which people of the smith counsel i'm going to ask you one more time do you have a federal case that addresses this issue or is this a case of her i do think it is the case of first impression and i must argue by analogy and that's what i'm attempting to do ok consecutively for a second conviction may he while he is in custody for the first conviction challenge on he the second conviction i would think so i would think so he is still under a  under the structure of application of custody and you see mr goldman here at any time where subject to the district attorney going into court and saying to the judge this man has not completed this portion cases have unanimously held in california you are in custody for the rest of your life if in fact there is a condition a mandatory condition a shall impose condition which  to say custody and one year statute are two very different questions and if you're in custody and the statutes run the statutes run correct correct but that's not the case here well it may or not may not be depending on whether or not the time of that i know of of the california supreme court the question of a sentence that has not been served and incidentally again the attorney general was on the winning side which is opposite to the side that they're there on at the present because here in that the court has failed to impose an additional restitution fine the people have failed to object and the argument was well i think they ought to object at the time of the sentencing then it's been  are these type of things are never waived they are never weighed you are always subject to them and in fact mr smith had to pay that separate and additional circumstances here then that can retroactively the stow custody for purposes of filing a petition the reason i believe that there are no cases on that point is because i can't imagine another defendant w as this defendant did go back and voluntarily ask for custody to be reinstated solely for the purpose of allowing his federal petition to be adjudicated and the district court found that that was being manipulative which i probationary period has now expired as well so i don't know what remedy this court or federal court could possibly grant i think the ruling is that if there is custody at the time the petition is filed the ca not go on when custody has ended so long as there are collateral consequences from the conviction isn't that right correct and i'm under you are you saying they're not collateral consequences from the conviction i thought there would have to be the case if it were moot ha that can be remedied in any time well i don't disagree with that proposition but it doesn't somehow retroactively cure the situation at the time the petition is filed there's no way that the district court in this something and then left out of the sentence or maybe the court on its own oh and i don't disagree happen you know michael i don't dispute the proposition that if you discover something like that you can go back in court may impose it and  it would probably be in normal circumstances the prosecution or court that discovered it so why the matter of state law that doesn't seem to really speak to the question here one way or the other and i'd like to note that  at the time he finished exhausting these claims in the california courts he still have four months before his probation expired and he didn't and that's filing his federal habeas petition for seven months so it's not like there was some kind of tight deadline until his probation expired and he was still in custody he certainly could have pursued it in a more expeditious manner but he didn't he didn't violent thing for seven months so it's not a case where there is some kind of on one conviction yet he has outstanding against another conviction the sentence will be again when he finishes this happens may he file helias challenging the conviction for which he has not yet be challenge a conviction which i'm not going to get to serve my time in the i'm not in custody because of a conviction but i'm challenging how does that impact our analysis in this case well presumably the reason served and the only reason it's not being served right now is because the defendant is finishing the first conviction i think that's a totally different situation than this case where everything has been completed at the time that he  be taken and that was stayed pending appeal and the court said we know for a certainty that that is going to happen at some point in the future assuming that the appeal is unsuccessful and so there is sufficient  even though there's nothing else that you have to do to complete the terms of your sentence i think it's analogous to that that you have a spartan sentence coming up so and your engine cut to the only reason you wouldn't be kinds of protests and think you're being manipulated this is a quick we'd just be happy to stipulate that he's already done it which led her to call it to accuse him of calling having the pot calling the kettle black and to that i would add that yes this is very unusual everyone that's why every case that we've looked at the people or the district attorney or the attorney general have brought this and for the first time in knowledge the defendant has and i would ask this court  by claiming that you are being held in custody in violation of the constitution of the united states and there's no question that at the time your first petition was filed your client was not in  time there was a constructive custody this particular week quire and this mandatory requirements to me don't buy that argument and we acknowledge that there's not much what's your fallback position if  you lose then we buy that argument no i don't think i don't think we lose on that and the reason we don't lose is because of california's mandatory sentencing law that is unique to california and which this court under the principles of comedy must follow and it's unanimous you can't be waived you can't be modified it can't be changed as long as there is a provision i'm satisfied that acts as a type of custody and i assume with the state is worried that there is potential from manipulation on the part of the andrea and in some sense the state can blame people like mr hilton for not having filed while he was an actual custody if that's the right word but in some other helping versus johnson as a tricky case we have been puzzling over it i think we're still puzzling over it and the arguments were very helpful the case is helping versus johnson has now submitted the next case on the calendar clark versus what mark