got into his vehicle he locked the door drove her to a remote area and raped her she stated that his behavior after she got in the car made her fear for her life troy taylor was not identified as the perpetrator of this rape until tw and sixteen years later when a code is d n a match to d n a taken from the victim identified him as the perpetrator in making a screening decision in this case the district attorney's office elected to charge mr taylor with nd degree rape and nd degree kidnapping although mr taylor's conduct fit either nd degree rape and nd degree kidnapping or aggravated rape and aggravated  and the state believe that nd degree kidnapping as well was extended in sex crimes where the perpetrator was identified through a d n a match article five hundred and seventy two b stated that the statues shall apply retroactively to all crimes committed prior to june th of two thousand and three after mr taylor was charged his attorney filed a motion to quash regarding the nd degree kidnapping arguing that it was untimely instituted but conceded in his island that the forcible rape charge was timely based on article five hundred and seventy two that motions across was denied and in august of two thousand and eleven almost seventeen years after she was raped the victim finally received justice when mr taylor was convicted of both charges mr taylor appealed to the th circuit court of appeals which overturned his kidnapping conviction based upon timeliness for the reasons urged in the motion aquash both parties saw writs to the louisiana supreme court both of which were denied the state took no further action at that time and taylor eventually filed an application for post conviction relief alleging that his counsel was ineffective for location to the lees e n a supreme court which was denied in a fifty two dollars ruling with two justices stating that they would grant and docket the matter at this point a rapist's conviction has been fully overturned and he will be released from jail the state had no other option to hold him accountable for the crime he committed on aug th of one thousand nine hundred and ninety four and obtain justice for the victim but to obtain a superseding indictment for the charges of aggravated rape and aggravated kidnapping which do not carry a statute of limitations mr taylor filed a motion to quash based upon blackledge and this was denied to every level of the state court the trial court's ruling stated that the district attorney's office believe that the original charges were timely and the reliance on article five hundred and seventy two dollars b was reasonable under the circumstances mr taylor then filed a federal habeas corpus petition in the eastern district of louisiana which was erroneous lee granted and the state is here today seeking reversal of that ruling the district court granted mr taylor's habeas petition based upon the finding that the state failed to rebut the presumption of indictive in this that arises in a post appeal charging increase this ruling is erroneous for several reasons st the district court erred in failing to consider the procedural timeline of this case and the law that was in effect regarding specifically article five hundred and seventy two in two thousand and eleven when the state st charge mr taylor in article five fifteen that the louisiana supreme court decided state vs nicholson nicholson was a defendant like taylor who was charged with a sex crime that occurred prior to  defendants there is there's many many kinds of criminal conduct that would fit two different sets of statutes possession of drugs versus possession with intent is an example and those are judgment call that the district attorney's office would have to make on a something about over well that the double jeopardy issue is not before this court because judge vance in the district court never made a ruling on it this is this is whether the prosecution is not true your argument that we lacked jurisdiction is completely wrong as long as it was raised in the district who are there isn't any reason why we can't decided the district court does not have to rule on every argument made for us to be able to rule on it we can affirm on any ground raised in the district court period end  story now if the appellate was trying to do something additional something that would grant them or relieve then they would have to cross that you know but otherwise that's just completely wrong your statement about jurisdiction so you need to address the merits of the double jeopardy claim now ok well it was so with respect to the double jeopardy claim you know the  taylor's original conviction was overturned and it was there is no there is no law that would prohibit the state from once that conviction is overturned  just not it's not likable to this case where the facts are a science where the district attorney's office is charging mr taylor with a different charge in the nd and i meant as opposed to the  indictment you you we're dealing with a very careful district judge here and i have to assume that she had a reason for ruling on vindictive prosecution and not also ruling on double jeopardy at the same time admittedly they're both questions of law but do you have any speculation why she chose not to rule on double jeopardy the theory being that if mr taylor has been improperly prosecuted for his rape that he should not spend an extra day in jail but a so regarding the decision not to rule on temple jeopardy the state did argue in the district court that a ruling on the double jeopardy would be premature at this point because taylor has not yet been convicted and after the nd indictment so you know whether whether he is convicted or not that hasn't been decided yet so any ruling on whether this process prosecution places him in double jeopardy would another agonizing trial if you double jeopardy applies so i don't understand this argument that you can't raise it now or he it he hasn't been convicted of his conviction has been reversed based upon timeliness he was not found to there was no finding that the evidence was insufficient or that the there was an actual in a separate question that's not a question of he hasn't been found guilty this it's you're saying the prior appeal did not forever bar future prosecutions that's your argument yes that he was never he was never what do you do with the argument that under louisiana law which is not the same as the delaware what we were debating last argument but under louisiana law the statute of limitations is considered a race you are caught ask defen e well under any under under louisiana law there's nothing that we would submit that there's nothing preventing the state from charging him with the higher charges that require different you know different elements and different proof and seeking to hold him accountable that way because we are prevented from holding him accountable based upon the original charges due to the charging because it's not you know it's not a quick it's not a overturning based upon insufficient evidence or actual innocence and i think that's very important in considering why the judge vance  so i'm some understanding why first he's not triggering double jeopardy because he was he was he was convicted  holder he was he was convicted of nd degree rape and nd degree kidnapping and those you know those those charges have specific essential elements but now the state is seeking to charge  aggravated rape and aggravated kidnapping after that conviction was overturned on procedural grounds and aggravated rape and aggravated kidnapping have different elements that the state must meet because he was number one were there not that there are more but the state has no other option to hold mr taylor accountable why you want to pursue this that's not the question the question is can you write and you know i would i would submit that we can i i think the you know the main judge they have never made a ruling on the double jeopardy issue and i would speculate that it's because she also found it to be premature the ruling that she made was on the prosecutorial vindictiveness and we went submit that we have met made at you know a non vindictive reasonable explanation for that charging decision  k you you have i i'm using my own time or because i can't read the one on the screen and i believe you've exhausted your time but you have time for a bottle thank you and will  seventeen charging decision it was merely an attempt to fix a purported mistake that was made in two thousand and eleven but is this court's recent decision in united states feeds of war and makes clear even if this chronology were true which is not case ever decided in this country th circuit state's other federal has held that in many in the initial charges and by the defendant successful assertion of his rights or that was brought to light by the defendant's appeal has had the opportunity and has opted to make no arguments whatsoever on the merits in their briefing before the th circuit and i want to focus on two key introductory points about the blackledge claim and then i'm happy to take any of the double jeopardy questions as well but my points concerning the significance of united states need to foreign in the significance of the un availability of the initial charges of the war in which was this court's most recent encounter with the blackledge doctrine emphasize the process huber's must to an objective event quote apart from the defendant's appeal and quot to increase charges post appeal and was actually a much harder case than this one it was much it was just like this case prosecutors increased the severity of charges just like time around in two thousand and eleven in light of whatever the prosecutor thought was appropriate and in two thousand and fifteen that charging decision has been decayed it correct the statute of limitations and then the louisiana supreme court ruled on nicholson now is a reasonable approach if this were some other official acting under color of a state statute and a state supreme court decision we would hope that they at least said oh a fight immunity so attaching the term the ndic ignace under the circumstances it seems to me is over the top yes your honor and i want to underscore this point for the presumptive indictive ms claim that was ruled upon by the trial court under united under black perry itself no showing of subjective ill will malice or anything of that sort is actually necessary in that regard vindictiveness is something of a misnomer to the species of constitutional claim that's being brought here it's a prophylactic rule but can succeed as in black  itself where the supreme court granted relief despite expressly saying we don't suggest that there is any hints of malice or ill will on the part of prosecutors to get a good that would overturn overcome a presumption of it ness either stand that it doesn't require malice and all that kind of step so what would overcome bad that did not happen here judge haynes in the post appeal setting where the presumption for example of somebody who was badly battered ends up dying in the course of the pendency of the appeal and that way the more serious charge perhaps a homicide or manslaughter charge brought in the nd indictment that's relevant to the question judge ho started off by why does this case not provide an objective event well because it has to be an objective of that that's discrete and apart from the defendant's successful appeal which is what the court said in the united states feeds of war here as prosecutors acknowledge that the charges were brought initial charges i mean so if they if they were to come back and charge him with something like on authorize use of a motor vehicle which i you know it's off the table here but actually i presume that if they were to do that or if there is some lesser charge than kidnapping sexual abuse of a minor or something like that you could not argue it was correct i think it's a much harder argument to argue  holding that you you cannot rebut the presumption whenever you charge a more serious crime no your honor i'm not asking the th circuit to adopt any kind of new rule or any kind of  presumption of addictiveness has already attached cannot remove what presumption without pointing to an objective event that is discrete from the defendant's appeal to justify the new charging decision that was the holding of devor and that's this case there have been a host of sort of other things that have happened till two thousand and seventeen including some incredibly unusual procedural moves with respect to plea offers with respect to asking mr taylor to rights with regards to affirmative misrepresentations by the same prosecutor many of those go more to the actual vindictiveness clearing which the court did not feel the need to reach the district court below but  conduct has been sort of questionable and in your view yes your honor and i don't believe there's any disagreement from the appellant's on that not i think at the end of the reply brief this is just that that would be the appropriate course of action  i do want to go back to a point the judge jones raised analogizing to the qualified immunity sort of question the precise argument that's being advanced here with respect to the question of whether there was a change in louisiana l argument advanced by the orleans parish district attorney's office was yes sure we understand that this case this charge was time barred but given nicholson given the state of louisiana law it was an objective reasonable for a attorney suggested that in any way that this would be a constitutional thing to do moreover i would point out to the court in thirteen mr taylor's kidnapping conviction was vacated on direct appeal and it might have been or something more serious than a mistake but my my my point is i think what you're saying is there is no change in law because the state was unreasonable a mistake and it was revealed on appeal that counted as an objective against that there would be no blackledge doctor because any time the defendant successfully asserts his rights there's been some sort of mistake a mistake of law a mistake a fact a mistake  strategy a mistake of some sort that was made by prosecutors and the closest parallel i'd say would be the united states the libs into the th circuit case from two thousand and thirteen in that case just like this one involved a very serious accusation of sexual misconduct there was a distribution of child pornography case and the prosecutors made a mistake they mistakenly thought that the th amendment allowed them to season obtain critical evidence after the defendant successfully asserted his rights on appeal prosecutors instituted more serious conspiracy charges which they could prove without the suppressed evidence and those six circuit had no trouble syrian these exact same argument that's been advanced here we just made a mistake we're not trying to punish the appeal we're just the pendency of mr hillard heaviest petition we filed a request for expedited rulings mr taylor i'm afraid in the three years that he was waiting in state court i became suicidal we were deeply concerned about his health and we asked for a ruling as quickly as possible the district court did of course state her decision but i don't know that that was necessarily an improper thing to do it created at most a couple extra days that mr taylor and under the theory of continue you mean jeopardy the prosecution is given another opportunity to try to defend well but what's your bet i mean statute of limitations doesn't go to the defendant's guilt or to any element valid prescriptive pleaded which is louisiana speak for statute of limitations has the effect of not only protecting the accused against conviction and punishment but also of relieving him of ever being tried for the same offense and are we empowered as a federal court to rule on the status of that louisiana law your honor those louisiana law i believe actually interpret in the federal constitutional right that's obviously not binding on the quit circuit  we think it sounds it doesn't make an awful lot of sense to treat double jeopardy as the sort of right that allows for a reason and and then retrial which you wouldn't lead is actually why if you look closely at the louisiana court opinion when they  extraordinarily underdeveloped area of law for for reasons that are unique to louisiana criminal procedure but i dealt addressability very few last pages of our brief in the federal system in texas in basically every other state in america when charges time barred if the excuse me if the jury returns a verdict of guilty of that time or charge in that context of a trial for a greater charge that's not a conviction that can't be done by prosecutors of the time are charges simply time barred louisiana has a victory in corky's sort of the rule that says that if the top charge is not time barred and prosecutors obtain and secure a conviction for the lesser included that's a permissible conviction so i think it's only because we have this extraordinarily  little law because most states preclude this type of achree action as a matter for all but i thought cruelty the nd circuit case seemed to say that it's a time bar situation does not turn and your honor i see you in and out of time i don't know that i have any better answer for that right now but i'm happy to brief the court so requests are instructors well normally that's not required but if i suppose if this court is going to take this up as a matter of law we might opposing counsel and the district court are distinguishable from this case into four in the prosecution or the the defendant's conviction was overturned based upon a finding of prosecutorial misconduct i believe  withholding of evidence or some other kind of ethical violation and it was only after that that the state brought more severe charges and the reason that this honorable court found that explanation of making a mistake did not rebut the presumption of bendixen is b because there was no objective evidence in the record that anyone actually made a mistake in contrast in this case the the state's initial reliance on article five hundred and seventy two dollars and the belief that it could charge either the less severe or the more severe charges because both were timely is a reasonable explanation although there may have been law in louisiana or federal law prior to two thousand and eleven regarding ex post facto cause there was no law on point in louisiana that directly interpreted and restricted the application of article five  and you know i think it would be an reasonable and in congress let me just ask his argument to blackboards basically just goes away if you say that every time a prosecutor makes a mistake that can be undone then isn't it true that every time bend it is the prosecutors are able sad made a mistake and blacklist power goes out the window how do you respond to that well i think there's a different there's different kinds of mistakes like you know there's there's the mist mistake that happened i'm sorry to use air quotes but the mistake that happened in foreign of the ethical violation where there was no actual evidence that any mistake was made there is some kind of error in the suppression hearing as was  referenced in united states versus the lead joe and then there is on the other and there's a mistake like this where the state in good faith relied on an article that was presumed to be invalid as written that the defendant's own attorney believed applied defense attorney really ends the matter right but that the trial court also found it to apply and every reviewing court that handled the nicholson case prior to two thousand and fifteen also found article five hundred and seventy two to apply to these circumstances to you know to ask a screening prosecutor to parse the law where she doesn't have the benefit of hindsight like we do when no one else has interpreted it was just brought the higher charge again and then the lesser included charge and then the jury could decide based on the evidence presented and maybe they would have convicted him of the higher one maybe not and then we'd be done and you know i don't know about information your honor there was th s maybe is attorney agreed that there was no statute of limitations problem on the lesser off and because he didn't want his client subjected at that point to the greater that's a very good point it's it's kind of bizarre to think that if if his attorney had filed a motion to quash prior to trial the state could have brought the superseding indictment and been in the province of the you know more favorable pretty pre bad decision based on the evidence they had and i don't just changed i don't i don't know again why it was brought but the victim did testify at trial that she feared for her life based upon taylor's conduct in the car when he locked the door and began driving and told her to shut up and in that you know in pontiac's with the size differential between the victim and mr taylor that would fit the elements of an aggravated ra right time thank you very much we have both your argument it's another very interesting case we appreciate your time thank you