good morning ladies and gentlemen welcome to the th circuit we're pleased to have you heard today we have four matters on the docket one of which is been submitted whole officially submit that at this time that is  defenders of montana i represent the petitioner in this case robert rose eighteen years ago rose rose as trial counsel was presented with a plea agreement that was very advantageous to him but for purposes of this case and maddened matter a lot of cases uncontested that he was not surprised at that offer he ended up going to trial and instead of getting out in what could have been time served he was ultimately given a sense of a ten thousand one hundred years with twenty years to spend other words eighteen years he's still in prison awaiting this st parole here after he won his case the district court ordered the state to re oper him an equivalent plea agreement and in in in the court's order saying so it said on or before june th the state is required to re offered the equivalent terms of the may two thousand and three plea agreement and that if it didn't do that rowe should be released from custody the state did end up offering a plea agreement but that plea agreement was not equivalent to that that was offered in may of two thousand and three to be equivalent in particular in a situation like this where your client agreed to the new offer actually signed off on it what happened was the judge didn't agree to what your client had agreed to how does that affect our analysis well nigh i cited a number of cases like analytical engineering and i think the baldwin filter case in those cases that deal with consent decrees in which edge ment's and what those cases say is that even if the parties come to some sort of side agreement for instance to modify a consent decree or to modify some sort of consent judgment a district court still has no authority effectuate or enforce those side agreements if you will so the fact that mr rosen accepted this plea agreement in an effort quite frankly to get this litigation done with he's been litigating this case for for ten years at least and he wanted to get the thing over with and so we went ahead and signed that plea agreement and then of course as it turns out we he returned a state court with a state court lawyer and that judge rich rejected the plea agreement the the state court judge you are correct not the state court lawyer and so therefore it didn't matter what kind of a plea agreement they would have come to the judge said we're not i'm not going to give it to y s case the district court in its discretion said i'm going to grant you a conditional writ and as a part of that conditional rip here is what's got to happen then your client signed off on that let's just suppose that it was whether he signed off or not he did i don't care about that so this district court judge says in my discretion i'm giving you a conditional writ then the district court in the state said i don't care what you're going to get i'm not going to give you any different than what i gave you because that either that or the and that state court judge had every opportunity every right every opportunity to do whatever the state court judge wanted to do then you come back and say ok judgment lloyd now you've give me a conditional writ now i want you don't do this because they didn't give me what you wanted them to give me at that point counsel what is my review of judgment loyce decision judgment willy's decision and i guess i i i don't know if that's taken me to the st certified issue and that is well what i'm trying to get to we're we've passed by the c e o a issue we're aware of the merits now and here i am at the merits i would have given you the business on the c e o a st but since this myth started off with the merits i'm going there we have a district court who now has said this is the conditional plea in my discretion i'm saying that has to happen and now you're coming back to the district court who gave the plea who gave the opportunity who who fashioned if you will what it was that would have to happen and now that district court said that's the same exact thing they got before it's equivalent what is my review of that i think the denial of a review of a rule seventy motion is for abuse of discretion judge so if it's and abuse of discretion then at that point the district court put this together fashion that the district courts got it back and looking at it and the district court says it's equivalent i've got to say then what that it's totally clear air not clear air well then what have i got to say well abuse of discretion is get well what is abuse of discretion it's it's it's unfathomable and there's nothing in the record which would suggest it now this is the district court who put it together i am now he's reviewing it and you're asking me to say that do this this and this and if you do it it's fine and if you don't he gets out and now it comes back to him and he says it was what i told them to do it was exactly what i told them to do in my discretion i'm saying it was exactly what i intended well but i'm at that point you're saying to me you're on high judge smith well judge malloy doesn't know what he's doing i mean i'm just trying to put it in my my vernacular as to what you're trying to get me to do because now if i'm reviewing this on an abuse of discretion review i don't think i can say it's a discretion is totally illogical what he thought totally illogical totally without foundation in the record totally unfathomable what he would come there and that's where i think your and that's why i don't know whether i'd branches c o way if you had to have one because you didn't get one and so there we are it's all wrapped up in that question that's why i hit  may what major is and that's what we have to determine judgment lloyd look at this thing and the ability to make the discretionary decision so he may have been wrong but even if he's wrong as long as it's not illogical what he did as long as he didn't apply any law which was bad as long as it's not without the any ability in the record to sustain it i'm of discretion come on and in the problem is that mr rose should have once he proved his constitutional violation been put back in the position that he was in back in two thousand and three and that would include district court that you can accept this agreement or not and so so mr rose went back and the state district court judge followed that admonition and and just refused to accept the new plea agreement can i ask you your client filed  the seventy a motion yes would that even be a proper motion to file in this context because that rule talks about the district court ordering another person basically appointing somebody to carry out the court's order in the context of the hague b s case like this who is judge malloy supposed to appoint it doesn't seem like there would be anybody he he could it doesn't seem like the right fit for this kind of clam recognizing that your client filed this pro se i think well i think it would be mr lynn geier who's sitting in for the state so essentially he'd be ordering the state just like i think he could order a corporation to execute a deed to give to someone so it so i think that the rule seventy does fit and the rules and rule seventy fits and it fits well because we're not contesting judgement always ultimate judgment at this point we can't judge as you're correct that's that was decided before by this court and  that he could have brought in this instance i quite quite honestly haven't thought about that i don't think rule sixty applies because that's a tough judgement i think will fifty nine does the same thing so i think that the rule seventy motion was the appropriate vehicle for me to take your can we work backwards i polish just my colleague for jumping ahead to the merits but there is in fact this c e o issue and this case since it rule sixty motion would have required a c e o way why in the way you've used it wouldn't a rule seventy motion also require a c e o way a rule seventy motion would not because it does not touch on the merits of what the judge did in entering the judgment all we're trying to do is remain where does your touch on the merits ultimate judgment here is everything went fine the conditional writ was applied and therefore you've got no case that's the judgment how does the conditional writ not fit into that well normal normally take i mean i know what you're saying as it relates to what was there a sentence or wasn't there but sixty b motions to the same thing you're trying to do except in a different situation you're just trying to say we've got a conditional right here so with a conditional ret why is the conditional writ valid  validly done should my client get out the judge says no the conditional writ was valley done you can't get out if i read peyton v davis of i read winkles of fiery darkness and they ought to have a c based on those cases yes and i guessed and i guess your honor with all due respect i just read those cases differently i think i mean if i may use an example to take it out you need to see a way to rule on a sixty d motion right that's correct yes you need one  pertaining to a district sixty looked at all these things that come out where you weren't i couldn't find it because it seems to be this is close that's why even ask if you got another motion that would work in a seventy eight may not work as my good colleague pointed out  good morning good morning and may it please the court i'm tami flu bell montana assistant attorney general appearing on behalf of the state of montana mr rose's pro pro se rule seventy motion was really another attempt for him to advocate for what he believes the appropriate remedy for is ineffective assistance of counsel claim should have really been and that is his immediate release in resolving the issues before this court in mr this most recent appeal it's important to keep in mind a number of factors the st of which is that this court has already ruled that the federal district court did not abuse its discretion when it applied the very the that leffler versus cooper demand the nd is that there is no factual dispute that in compliance with the conditional writ the state timely really offered an agreement to mr rose and his counsel and mr rose accepted that offer it's also important to remember that mr rose's and his counsel's acceptance of that offer is a jacked of manifestation of their understanding that that really offered plea agreement was of equivalent terms just because they have that i think that because they because of the timing of all of this and because of when he raised his his rule seventy motion yes it's appropriate to consider that as an objective manifestation that they believed that agreement w put it in the record this is the same the only thing that we've got is they accepted it right and i would respond that number one mr rose wasn't ever afraid to raise objections in the last eighteen years or to litigate any issue he deemed appropriate so i think based on the record in its totality in front of this court it's reasonable to conclude that if he believed that it was not of equivalent terms that he would have said something i can ask you the same question i asked mr ness which is at the point that the state court decided that it was not going to accept this new plea agreement and he went back to the federal court was it proper for him to file a motion and so i believe that it was appropriate the government does not does not object to the fact that it was a seventy b well i believe that other i think it actually in the in the briefing order that wasn't one of the issues that we were ordered to respond to is so that the the state had not anticipated arguing that what the state would say is that there's a significant case law that says that suggests that the district court has to have the ability to make sure obviously that the state has complied with its conditional writ on the question is it is it your position interesting question and i think at least in the context of a conditional writ you would always need one because you always have to hearken back to what happened what the conditional writ actually said and what was the conduct of the petitioner and the state and i think those things all touch upon the heaviest proceeding itself and there is obviously an allegation that there was some defect in that process c you're saying there's nothing to it after we get here on the merits itself yes yes because judge malloy did not abuse his discretion and in that regard i think there's a number of factors to consider obviously the state believes that it acted in good faith and it we offered an agreement of equivalent terms and when you look at what mr rose is saying is not equivalent it's now well st we have to back up and really think about what was the material terms at issue here what mr rose wanted was less time in prison understandably and the two agreements basically are identical other than the state specified in the two thousand and sixteen agreement that it was going to recommend the maximum sentence but if you consider the record before this court including the depositions that occurred through discovery mr carr made it very clear that he was going to recommend the maximum sentence so i more specificity was not going to make the district court judge reject or accept  agreement finally i think no question that the two ball said they're going to dismiss the aggravating good knapping yes and the assault on the judicial officer yes and there's no sense no question the two said they're going to plead to assault with a and the only thing that is is that in the st time they didn't say what they were going to recommend right on the plea do assault with a weapon but they did say they were going to have the persistent felony offender at ten years right and that was that that was the illegal portion of that proposed agreement and and it was illegal on the law that existed at the time and with respect to my state supreme court they later in interpreting that law and then an instant gunderson that occurred well after mr rose's case they had to correct that mistake that they made in gaither but it was the clear law at the time kelly say there was persistent felony offender and recommended sentence you can't do that and that's what got corrected in the two thousand and sixteen agreement and and judge malloy recognize that that needed to be corrected because the law in montana is that when you're sentenced as a persistent felony offender that sentence replace as the sentence for the underlying offense it is not in addition to the underlying offense and the two thousand and sixteen therefore because there was an assault with a weapon which could get twenty years and the persistent felony offender was offered it ten years offering thirty with five offers the sa it was a plea agreement of equivalent terms and i think it's also important to note that with respect to mr rose complaining about the conditions that were in the two thousand and sixteen agreement we can't necessarily look at that in a vacuum because we know that mr rose has already been sentenced and the sentence that the state district court imposed in two thousand and four actually contained all of those conditions in the agreement and more and most of those things are required by statute such as restitution or registering as a violent offender the other conditions with respect to drug and alcohol monitoring and not using drugs or alcohol and chemical dependency treatment absolutely we're going to be imposed because judge lankton had concerns about community safety if m supposing that the alternative to the conditional writ had heard with the defendant then be free or would the defendant be subject to further  trial i think that it would be a windfall to say that the defendant would simply be free and then the interesting part of this case is that mr rose has already received a jury trial free of constitutional  so i if if judge malloy have believed that the the terms were not equivalent then it seems that the appropriate remedy at that point would have been to identify and just very quickly touching on the issue of the certificate of appeal ability if rule seventy is an appropriate mechanism to do what mr gross attempted to do in this case is very much the state in keeping with the united states supreme court's decision in harbison this court's decision in winkles and pain the text of section two to fifty three c and the underlying policy of the statute the state requests that this court rule that a c e o is required to appeal the denial of a rule seventy motion and that mr rose failed to meet his burden of proving that a c e o is warranted alternatively that the state request that this court rule that the federal district court did not abuse its discretion when it denied mr rose's rule seventy motion after concluding that the state acted in good faith complied with the writ and offered a plea agreement of a club quibble and terms thank you a little bit of time left and i do mean a little bit my steam counsel she indicated that a conditional read rule seventy filed in the district court judge for whatever reason won't force the state to comply with its writ and so you come up in on the rule seventy i just don't see how that touches on the merits i would also be somewhat concerned about sometimes and sometimes requiring a c o a in a rule seventy context and other times not i think a bright line rule would be better that bright line rule should be that a c o i just simply is not required to enforce the judgment and so with that i will leave five seconds early thank you very much thank you both counsel for your argument we appreciate it