one can learn from their lessons however the mistake has to be something that people realize the mistake that's germane to this case it's still versus murshid it happens to be involved the exact same judge and the exact same counsel thirteen years ago and still did not realize the differences between b s jurisdiction and appellate jurisdiction and so what happened at the hearing the same mistake was made and so and the court was prevailed upon by counsel to just and i quote i would say the court can return in use to decide this case is actually stove versus they were not addressing appellate jurisdiction in fact record feldman as a doctrine was not even mention that mistake permeated cast the only consolation of errors in this with respect to the lack of jurisdiction as well as the failure to recognize there are standards assuming that we get to the merits that the court has to me is it your argument that the  appellate review of a state judgment under twenty two forty one in calling for purposes of pay b s review as the court made clear in the grounds which i'm certain that all of you are familiar because you made clear and as united states made clear the twenty to forty one does not confer appellate jurisdiction in exxon they specifically made that even more clear by contrast ing it to twenty two fifty four  exxon says it deals with the appellate jurisdiction that twenty two fifty four confers you also in that case cited to grant which makes it clear that it's not an exception twenty to fifty four simply congress is constitutional those samples propositions what i did do subsequent when i got the notice of the panel i went back for the last twenty years and read all the opinions that you folks have that excuse me that this honorable court has been or what i did i'd like evidently the panel caught it on twenty two fifty four but i have to have every confidence to believe that something is according to me why it makes a difference if a stranger fifty four twenty two forty one is a matter of the statute exactly four is a limitation on a subcategory of cases those involving judgments which have more stringent standards but twenty two forty one is the predecessor in the original statute no actually notes are correct it's not and this court made that clear in harrison versus going to speak which was also a double jeopardy case brought properly under twenty two forty one right as they were challenging the judgment i thought i'm asking you the history to see where it came from twenty two forty one their first i'm not certain but to the extent it doesn't authorize the review of a judgment which is a whole says it doesn't authorize review for just this court and runs as well as this as and but it said that twenty two forty one doesn't involve a judgment now it's said that when congress wants to confer appellate jurisdiction on a district court they would do so expressly as they did in twenty two fifty four which is exactly what this court recognized grants this court was a little bit more eloquent and on point noticing it's not an exception to roker it's a constitutional prerogatives provided by the constitution to convert confer concurrent jurisdiction  i think go now chief judge thomas laid it out pretty carefully and rate grants in his opinion one sentence it is well settled the rockefeller doctrine does not touch the writ of habeas corpus and so the jurisdiction here was in the district court by virtue of twenty a c twenty two forty one because mr is not in custody pursuant to the judgment of a state court he was in custody as a pretrial person who had been determined by the state courts to be eligible as it were for a second trial having been acquitted at his first trial so it's a twenty to forty one case and here's the curious thing about the record feldman doctrine in at least one of the cases that we've cited but the state never did the second part of ro all the members were the same of the supreme court and enlighten the question of jurisdiction and double jeopardy came up in the jurisdiction was invoked under twenty two forty one because leyden was subject to bail jury came back i know what happened i want to know so the judge but the judgment was the judge the mistrial that's the judgment what's the judgment it's the fact that under the state procedure as it played out think was correct was that the court could have examined the question of whether the taint the court truckle is concerned about by the fact of this sort of a separate us all headed for shaven headed person whether that tainted the verdict that could have been inquired into it seems to me would have resulted in the collusion that that's was harmless to the extent it existed because the jury expressed or some jurors expressed a concern about some danger themselves from their verdict and the verdict was not guilty think yeah i think that i found out about this case is that the child card had to have sort of that the jurors were afraid of the victim's brother and that would influence or take their verdict but they had already decided to acquit him anyway so clearly if there was that fear if there so i don't think there's some indication that he knew they knew he was affiliated with the prosecution in some way i think they knew that he was angry at the defense was there a finding of that i mean it's kind of flimsy isn't it that they knew who this court could have inquired into the circumstances which it did and then it could have reassured the jurors that steps have been taken and that there was no reason for them to be concerned and that it could have instructed a jury to go back and and consider again and there's no stronger bubble jeopardy claim then that you can't try a person again after they've been acquitted so here we have in the deliberations and so we know for sure that  the jury deliberated they reached a unanimous verdict they said so they signed it think they did it and they were prepared to return to the courtroom and do it in open court and that and the trial judge first of all that but decide the case on so i think that is the first issue we have offered is a second ground for firmaments the fact that there was an actual acquittal and the deliberations event which is why this case is different from the bluford case where the state not to retry him and then she actually and she stayed that part of her order pending this court's decision because the state made clear it was going to appeal and then she did relieve him though of the conditions of his pre second trial or maybe the supreme court to take an interest in the matter but i think i think that the judge always decision was clearly correct and she articulated why and she was also  which is can speak to us we absent from her order is defense counsel's concession that a continuance is in a viable alternative that no further admission or admonition or assure them that there are there there were protections in place and suggested that the go back and you know determine if they want to reaffirm their verdict and there were twelve of them so what's the difference of the alternate asking you why it's not a viable alternative and just simply say go back and you know and figure out and tell us whether you still stand by this verdict on the understanding that we're going to take care of any security problems you have that's one possibility another possibility is at least to poll the jury and ask each of them in open court whether their verdict was in any way influenced by what happened that's what they did over the course of today they did that but they didn't do it in the guise of polling and formally polling the jury after opening it i heard which is a very important zillion fact the judge more we considered as critical evidence which is clearly wrong because that wasn't before the judge what the standard should be as i believe his judgment were at all point out in the united states versus chapter in this relying on arizona you look at the process you want to make certain that it was deliberate not  alternative taken an abuse of discretion and more so when defense counsel was agreeing with it because in that raises the issue of the invited there he agreed no continuance he agreed no instruction he agreed that the only thing that could occur was the declaration of mistrial so to say that under those conditions and the trial judge as is a man that he abused his discretion there's there's just no precedent for that there's absolutely no deference to the findings of the trial court which under enderson united states supreme court case and cooper they're supposed to get deference they're supposed to be a presumption of correctness that can only be the reb convincing evidence and this court has said time and time again the fact that there could be in another interpretation even reasonable doesn't make the interpretation of the trial court under reasonable