his continued incarceration violates the budget writer that inhibits the department of justice from spending money in to prevent states from implementing medical marijuana authorization as and the only issue we have here in this case and so it's really analogous to a challenge to the denial good time credits to our gap eligibility or computation of sentence it's not a challenge to the validity of the sentence that was imposed in this case and therefore it's not  validity of his sentence it just is a challenge to the dial good time credits is seeking release or shortening of a sentence it's even though the the remedy being sought it's not a challenge to the underlying sentence itself but there's nothing wrong can't afford to feed you i'm sorry your honor could they put him in a cell and say you know you make a good or given or on this on this appropriation rider and we st even in that scenario there would still be d o j funding for the building for the prison guard telling them that we can't give you food and then setting aside there's also would be other legal problems to holding someone in a prison correct or set aside sentences that were imposed in violation of federal law and that's not what mr sandusky is doing here he's different from some of these cases that have been cited because he's already been convicted yes and some of the folks who challenge this rider challenge it when they were charged that's right and so for someone if for someone who is currently being prosecuted the claim as the department of justice can spend money for prosecutors to requires in custody doesn't that yes and your honor i case that is sort of instructive on this point as the th circuit decision in kleinman where the person had already been convicted and was cheap basically arguing on appeal that the government couldn't continue to defend his conviction by bringing a usas into the court and in that case his claim failed because it was clear from the record that he was not in compliance with state medical marijuana laws but the th circuit recognized that you know if you could prove that he was in compliance with medical marijuana last one require his conviction to be vacated it would just go to whether the department of justice was able to continue defending the conviction was that nd part that nd part is dicta but i think it's instructive as to how this budget rider which is unusual would be applied and also just or an acknowledgement that when someone who has already been convicted before the budget right after the fact so he's not claiming that his conviction or sentence was imposed in violation of the writer he's just claiming that his continued conviction or his continued incarceration using  already been decided in a prior proceeding so my question is can we not affirm an alternative grounds the idea that this particular theory was rejected in as an alternative ground in the twenty dollars to fifty five dollars proceeding and that that would not require across appeal because it would be essentially affirming the dismissal without prejudice because ultimately that theory would allow mr sandusky in the future to fall twenty to forty one proceedings he its face and nd the government forfeited that argument right it didn't raise that at the top for the st time until it was on appeal and in the district court below is specifically invited by the district court to raise any district court in one sentence in addition to said you know basically fining you didn't have jurisdiction to reach the claim said also you know i disagree with on the merits well what what issue is waived by the government do you think the government never raised this twenty to forty four stacked our procedural bar or argued that mr sandusky was barred from raising this claim in a twenty to forty one issue but that the government has not waived or forfeited in your view the actual merits of this issue should it ever be the government has i think i'd like to see you think it's waived it i mean so we're done here i mean he he wins it's not part of this appeal it's the district court only reach the enlarge the rights in this case of one the of one of the parties and that we have that discussion as to the merits which is now off the table you can affirm without having to unwind the given that little bit of the the case that's on point here is martinez case from two thousand and six which we cited in our brief and that was a case where there was a two thousand two hundred and fifty five that had been brought previously the defendant had lost and then and if this would effectively preclude mr sandusky from ever perform securing this same claim which is seems lodged logically that would if the idea is he's precluded now well obviously because he's already said unsuccessfully prosecuted the which he lost on the merits he failed to seek further review from the th circuit of the supreme court so st of all he had that opportunity for the review in his application here his original application he's says straight ground for a firm or says a straight firm it's based on the fact that the argument that the district court gave is correct so what i'm saying is assuming that if it's an alternative ground for months one thing that means that definition that we're may been a head of the curve and they had to seek nd or successive relief but someone has to be the st litigant to take it up and he had that opportunity and he took a pass on it so i sure argument depends entirely up on how we view this challenge whether it is a challenge to the legality of the sentence and conviction or whether it is a challenge to the execution of the sun if we get into and i'm happy to step into that discussion now if we're talking about you have to i don't know how we can walk around it because i think the twenty to forty four a obviates the need to get into it because certainly the martinez case as if you brought this the same type of claim on the same factual where there were a variety of claims brought previously in minnesota and the court said that to these are mere a claim to are brought in minnesota and two others assert the same grounds the legal underpinnings are slightly different now i'm happy to step into that and talk about that ok both below and on appeal mr sandusky has argued that it's continued detention by v o p as ordered by his sentencing court is illegal and more to the point his judgment commits him quote to the custody of the bureau of prisons for a term of one hundred and twenty months his claim that the below he may not keep him in custody for one hundred and twenty months is inherently an attack on his criminal judgment well at the time of the criminal judgment there was no writer it he would say well that i go back to prison and so it i know your argument is that what you can serve in installments and this would effectively double senates and that may be a byproduct of his theory but his theory is on its face i am not saying that i get three p s i am not saying that i can't be reincorporated paul farley in the united states department of justice may ultimately say that i don't have to go back to prison but that's raised that question at this moment your honor because government appropriations are going to expire tonight at midnight eastern time and as as of this morning we're waiting for the senate to concur and house amendments before they send it to the president i would say submit it's probably unlikely that the appropriations are going to be provided for by midnight so if i were to file a motion to dismiss is moot at twelve o one december th so we're going to continue to do this little dance the point is this could easily be moot tomorrow and presumably he would have to refile his claim should be an interesting discussion to have so yes he can't be required to serve his sentence in installments and so the effect of this would actually be fully know if i i think the criminal judgment regardless of the appropriations because at the point where he's released he's going to be put on supervised release on the th circuit and see i think it's a nixon which i cannot recall if it's in the brief if it isn't i'll follow it twenty eight j said that the writer doesn't affect federal court's authorities in the probation or supervised release of a context so presumably he would be released and go immediately on supervised release and so this would completely obliterate his sen think i think i think it's hard to separate this from the fact of the court sentence and of course we tiptoe into the merits you have to ask whether that was congress's intent was was to invalidate these sentences across the country i don't think i have anything further on this unless there are further questions thank you thank you success in twenty dollars to forty dollars ones when you're talking about conditions of confinement those changes every day don't they i'm sorry aren't conditions of confinement change every day and you bring conditions of confinement cases under twenty to forty one so there has to be an opportunity for success if twenty to forty one yes there are and another point i just want to make is unstained go they know that under the pre adult law governing abuse of the rate it's the government's burden to plead writ and they are they affirmed because or they got the district or has to give the applicant notice an opportunity to respond which was present there neither of those things is present in this case which is another reason not to reach this claim that's raised for the  one claim we don't need to jump through that nd or successive hoops and all of those cases about you know just because you would lose doesn't mean you know you get to file again are also irrelevant so we can set those aside you know to the extent mr farley is trying to characterize this as an attack on the bulletin to give the judgment or sentence based on infelicitous phrasing used by mr sandusky and his application you know mr sandusky filed this post say and we should construe this in a way that's most and then finally you know to the government talks about the merits and how you know impractical it could be to enforce this budget riot or you know those things may all be true but they don't go to the question of whether or not this is an attack on the sentence or whether this is about the execution of a sentence just because congress enacted a law that is impractical effects doesn't transform this into a twenty to fifty five motion and then you know just because mr farley just heard at the merits just say forthrightly that if this core were to reach the merits our position is that the continued incarceration of mr sandusky violates the budget writer because the prevents