think you may please the court the warden asks you today to reverse the district court sixty decision i'd like to begin this morning with  is entitled to a new trial in this case he's entitled to that new trial not because of a conditional writ however is that process was interrupted when the state court pulled the jurisdictional rug out from under the federal jurisdiction jurisdiction has awarded in federal hideous cases pursuant to article three two two five four essay and two two four one c three and it it occurs when there is an unconstitutional state conviction resulting in an unconstitutional a confinement of the state petitioner once that jurisdiction rug however has been pulled there are no longer remains any federal  which there was jurisdiction when it was entered jurisdiction when it was entered that action when it was entered but the court is required once that once the judgment has been fulfilled in the us in a sense moot the court was required to vacate with an order from the court of appeals when there is an appeal that moves out during the appeal is that one month's in where is all about yes or no yes munching where is it isn't that cases well it is your hon or in the the directives of monday where i stand for the equitable proposition that the losing party should not be made to force to acquiesce to a judgment that was in a case that was mooted during his appeal interpretation what happened in monday's in your honor in mincing where the court of appeals to a spontaneous dismissed the appeal now when asked to dismiss the appeal that was a price fixing case and the the court of appeals recognize sponsor that the the underlying issue had become it so they dismissed the appeal and the court held that the parties had slept on the rights because they didn't file a motion to vacate after the appeal pardon me  they even said that had a motion to vacate been filed that issue would have been properly before them in the denial of that sixty that's what occurred here in bank corp that case was a case where the part they peel became moot during the appeal but the cake the court did not lose jurisdiction as was the case here in bank or the appeal became moot because the parties settled nooning the effects of the appeal and the court once again held that the parties had slept on their rights because they did not file a motion to vacate either in the district court or before the court of appeals in the concluding paragraphs in bancorp they specifically say had the court had there been a motion to mission from having filed a motion of a kid let me start over we ought to overlook your omission that you didn't file a motion to  how do you mean i'm confused i mean ok how are you distinguishing munson where were are you know where it applies in this case one hundred percent and applies because in that case though they said not there's nowhere in the months where the bank court decision that required that the sixty motion be filed in the first instance in the court of appeals but you have no case where where i'm not seeing where order was just ordered without having an appeal and going to the court of appeals during the appeal and you ask the court of appeals to vacate the order do you have cases where your model has happened before is what i'm asking well we said is that's a strange model it is a very strange model your honor b ever seen in a federal case where nothing on precedent and it's an essence although the the my my opposing counsel has conceded on page twenty two of his a brief that your sister circuits in the fourth and eighth district have granted a b s relief in a instead of dismissing your appeal should a filed a motion of a case that is certainly one way to achieve that would be consistent with what i understand you arguing as far as munson were concerned it is one way to achieve the result but i definitely not conceding it is the only way this we had no choice but to dismiss our appeal we informed this court at what as was the belief of all parties in the case that if the jurisdiction was pulled by the state court would and didn't have the option of filing a motion of a case at the time you dismissed your appeal we certainly could have done that but there's nothing that prevents us from on that would we be here we probably would because i'm sure mr gillespie would be arguing something was wrong with that process as well however you cannot in all fairness and equity deny that a motion to vacate filed in the court of first instance who issued the judgment is an improper sleeping on your rights you see at least the difficulty some of us are having with the idea that this can be done and the money and the reason i'll tell you the reason is because the precedent it seems to set it seems to say you can get a months in where order without ever having appealed that's now you lose a case and and you comply and so it's moot and then you go in and ask for a month where order because you know months after the case has been decided and you paid the judgment or even complied with the injunction or whatever and there's nothing left to be ordered you go in and say i want months thing where order to erase the judgment that's not that never happened and it could happen in virtually every case so it just seems to me strange that we would say let's do that but you must determining factor here you couldn't our appeal could not have been reviewed period by you or any other court it's not our fault the case is moot but that isn't the case it's moot us for months you were or that's that's what you saying that's what i did in the district court we asked for the mending order in the district court which brings the issue properly before you on the denial of that sixty nowhere bancorp does it say and no where in munson where does it specify specifically that the the district order must be filed under one of the kit one of the six to be categories i'm sorry you have trouble fitting it under one of the sixty being category as we argued in our brief your honor i don't believe that that's the case as well under sixty five there is the underlying order is the underlying order that has been vacated is of course the state court conviction that is a prior order that is directly related to this case and a sense it is the jurisdictional brugge it has been vacated city of detroit helps you  the tone of your briefs suggests that your concern is not so much that you just don't want this president on the books and he more which is usually why there's some months in where or if they don't want this president to stay when they lost the chance to appeal it that's kind of  context for why you might see more but i'm wondering why the tone of your brief suggests that what you're really concerned about is subsequent actions by the court in reliance on this or when the order has mooted out is that fair or is that a misreading  here that's your concern why would it make sense for you to appeal those things well rather than saying we have to go back and erase what are you believe is the basis for them it just seems like a strange way  if the district court now for instance does something that the district court has no right to do for instance interfere with the state proceedings it's got to do that in an order right he can't do it by saying harrumph he enters an order that does something that you disagree with  and you say it's based on something that's moot and no longer has power would that make more sense than to then to try to go in or raise the conditional writ that's now moved and no longer will that just seems like a kind of a strange way to litigate that concern that courses through your brief that's my question sure what i hoped to communicate are there are two distinct issues that we are very concerned about that in this case the first issue is indeed the equitable stoppel of facts on an untested and in forcible hevia scorpius writ where our appeal was frustrated through no fault of our own will you mean that some puter order will be affected by the judge will that is what that is what the district court stated in his order and orders in other words however untested the state may believe this court's final judgment is that judgment is a declaration of how the united states constitution applies to the facts of this case binding on the parties of course if this court vacated its judgment the collateral estoppel effect of that judgment would disappear that is in large part lateral stoppel of fact that is in large part while the motion to dismiss was denied he goes on to say i'm asking what you're concerned about your turn about collateral estoppel of folks that he's hinting at there well he isn't hinting at them he is in an order that he stated but the will that the first concern about the very concerned about the state court needs to be have the authority to continue and proceed with its retrial without any unlawful interference whatsoever well because the issue is properly before you now your honour's and the denial of the sixty it is like the district court is holding a loaded gun against the state of ohio and the only thing that according to the second part which we are he believes he is under the misimpression that he retains jurisdiction that's an order that's currently before you in a sixty bt that got cleared out hypothetically that he this court should clear it up entering orders that proceeding the jurisdiction is done and then what your concern is still holding the gun against the state of ohio all he has to do is pull the trigger of declaring that the he can come in and the conviction was vacated he was granted a retrial and he was released while our appeal was pending the district court conceded that his judgment its record order that there could be no further retrial no he stopped by we're not saying that record did make such an order you can't you have to do mandamus in order to appeal if it's a prospective order he hasn't but it's just this i now declare that you can't try him anymore yes we could appeal that your hon honor but you could clear it up now lawfully under suffered we have to stretch sixty be all over the place don't appear on your respectfully this is a case where there is no jurisdiction and munson where acoustics and subject matter jurisdiction is is gone lost because the case was was completed it your respectfully your honor the state courts vacated the under the rug and everything that was on it has fallen during our appeal we didn't abandon our bill but it jurisdiction then you can go back and sixty before but not sixty five and certainly not sixty six which is equitable that flows along with the equitable determinations of munting where our appeal was not lost because we had ban that there was it by operation of law it evaporated we were left without a remedy i'm not i don't want to prolong this part of the argument but i mean that's you could say it's true in any month somewhere take years no not any money no i know there's things in applies when there's been no fault on the adverse party and they specifically say the adverse party should not and cannot be treated as if there had been an appellate ruling in the case ok ok thank you for that question detroit is united states versus city editor ok i'll check it out thank you it please the court there the reason we're here is twofold first of all the state wants to move forward with a retrial uncovered by the brady decision it wants to be able to go forward without having to produce the brady reports so after eight years of litigation involving thousands of documents ultimately resulting in a writ saying that these reports are brady and they have to be produced for a fair trial the state wants a do over an unconstitutional trial without producing those reports  changed your position is the other side alleges and that the brady material just isn't isn't produced so that the identical problem happens than the way you deal with that is you just seek another a b s when you get another unconstitutional state court judge right well your honor a couple that right in our in the brady case in particular the conditional routes are appropriate for the court to allow the state to cure the constitutional defect and that's what the district court did here the state had never come out and said we don't have the brady reports they've relied on the list because burden of proof saying he hasn't proven their material before we go off is he right or not yes or no they answer i would say is no because of the fact that  conditional where it was issued and the conditional writ was written in a slightly differently here than it is in other cases not involving brady it retain jurisdiction until he is again convicted well the district court can right  district court can write whatever it wants but it doesn't mean it retains jurisdiction the twenty to fifty four does not provide it i mean i don't know when adam and the district court want to continue monitoring the timeliness of the state court proceedings it was out of business once the unconstitutional judgment was vacated i agree with that agree with what you're saying about it i'm going to explain to you though why the the district court is correct that it retains jurisdiction it's an issue that should not be reached by this court but what happened in adelman was that the parties agreed that the underlying conviction was vacated the you agree that the underlying conviction has been vacated no no we have a court order to that effect  they're they're saying loose language isn't good enough you need an order you need an entry on the docket i think was the term we have that here don't we i mean can we just agree on what's on the docket i can agree that the court used the court of appeals use the word vacated it could have easily used overturned remanded the effect is were manning for a new trial but would teach is as you have to look at the course of conduct of the parties and whether they are teachers look at the docket and the docket says vacated and vacated ist words of courts you have to look at that or some yes or no to that question once the state court says vacated what the judgment under twenty to fifty four if it's actually vacated as an adult men that would be correct however at home and we didn't even have a documentary but the parties agree they conceded but you know what i mean what matters d'ambrosio says what matters is not what the parties are saying it's what the docket says likely disagree or i think d'ambrosio says you look at the entire course of conduct you look at whether the charges have been expunged if they haven't you look at the issue of whether he still suffers from collateral consequences like sex offender restrictions which my client does and what's more important about all of this is why it's improper for this court to reach that issue i mean what the state wants you to do with the bait you into saying the federal district court no longer has jurisdiction but we have opportunity decide that later if the district court takes action but in this case we have submitted to the district court evidence that's relevant under six circuit case law as to whether it has actually been vacated we submitted evidence that mr clisby still suffers from sex offender restrictions he can't get a job i understood that he had to register when he was released on bond prior to the vacant or the state court judgment i'm not aware that there's evidence that he had to continue he had an obligation to write a new let's say he moved that he would have an obligation to give a new exams that in the record yes we submitted that to the district court the district court said i'm not going to decide this now it didn't even enter into the right or it was either because it was without jurisdiction now that's not where the district or the district court said he in fact it was anyway i mean i'm not aware of evidence in the record before us if you can direct me to it that's great showing collateral consequences after the vicar of the state court judge those were submitted to the district court and we ask the court to accept that in our i mean how is that true i mean if in fact it's vague i mean if the state court said you know this is an unconstitutional judgment which is what the state courts and we hear by vacate it how  judgment continue to have consequences you know the state actually told him he had to register as a sex offender and threatened to arrest him if he didn't went after this during the litigation here and that's actually in the record  acre i mean the collateral consequences cases are where the defendant has served his sentence and the issue is oh you know he's released what's the big deal well the big deal is you know i'm still a convicted felon your client isn't right now he's not a convicted felon and maybe you know if if some sheriff was saying something to him that's something maybe to deal with with that chair but it's probably alter virus and i don't see how you can revive federal jurisdiction sixty motions don't give y discretion to federal judges to go back and amend writs because they only apply in rare circumstances but this is a circumstance where it may apply and india bruiser specifically says that you always have jurisdiction to consider a sixty b motion if one of those circumstances under sixty or present such as from the court new evidence which aerial change in circumstances we filed a motion alleging those and the district court has the right to consider that at some point if it comes to that what is the district court trying to accomplish anything they're trying to paint a picture in their brief of a district court that's out of control and is beating his chest and threatening history state court was actually happening is the state keeps going back in with motions and they doing a motion to vacate and then saying in the motion of vacate you have district court to address the equities of vacating so the district court addresses those issues in that cabinet context and in specifically says i'm not intending to interfere with the state court proceedings and i'm not barring the prosecution i'm going to wait and see what happens with the district court of that in the order that's appealed from apart from later order apart from earlier in this sort of that's appealed from did seem to change the scope of the conditional writ you see clarified it right seems to me that at least as problematic no i don't believe he did i mean the original conditional writ says unless he's again convicted by a certain date i'm the time limit is changed yeah he's gone back and he's a allow the state to have more time you guys i mean you you agreed in your joint motion i thought that i thought you agreed and i can't put my finger on it in some submission in the movie geisha i think in the district court but the district whatsoever you judge has as you asked me what the district court is trying to accomplish first of all the district court with these orders is not trying to accomplish anything it's simply responding to the state's motion but i think it's fair to say that at the beginning of this case the district court had authority to barring prosecution we're dealing with the brady case where the officers who talked about this called him material were very clear both in their affidavits and at the hearing that they cannot remember all these called the tory things in the records that and they went over and over again fact in cross examination they said i would have to see those records refresh my memory i don't remember they remembered that they conclusively excluded him as a suspect they were facts that did that they remembered one of them was a pant size a scrap and see what they even said they can't remember the details of that very well ask  and so i want to go back to the times believing in the decision granting the conditional writ the district or order the state quote to release petitioner from custody unless he is again convicted at a trial commencing not later than july one so if the trial commences you've met the condition in the order that words appeal from it says he has to be retried and reconvicted before july one or the writ would become absolute and that a chain i mean it's a small change but a small change yes a week is so that should be fixed by us or should be not to go back to the original language to clarify that is a stay back to the original language is fine yes so your original order was towards the end providing relief from an unconstitutional judgment there that's what twenty two fifty four a lot of statistic work to do yes so meanwhile he's gotten i mean hypothetically if we set aside the collateral consequences argument which i understand your argument and i will track down the part of the record you refer to but hypothetically hypothetically if we set that aside and we say that the order truly judgment truly was vacated by the state courts the purpose of that order the everything all the relief the district court could provide under twenty to fifty four in haiti is pretty proceeding has been provided i wouldn't know what is the court doing i would add ending its original order sixty b allows a court to modify an original writ in rare circumstances they don't exist in many cases but just explain the circumstances here i think it's fair to say that the district court was prepared and would have issued an unconditional writ if he knew that the brady board's reports could not be produced because it was clear on the record you know forensic psychology of the district court you know but he has that opportunity we're going to say what he thought was that was his opportunity he gave the state a chance and then learns that after years of litigation so the reports don't exist that's an opportunity that under sixty b he could go back and say well if i had known that i would have issued the first writ as an constitute an additional i mean proceedings and we have in monitoring state court proceedings so you know i mean a conditional writ is i'm going to vacate that state court judgment unless you do x and y unconditional as i'm baking it right now i mean at this point it's already been vacated so what is the district who cares whether the district court thinks it's conditions for vacating the judgment have been met or not it's already been vacated your honor i would submit it's like b the district court would have jurisdiction if one of those factors under sixty is met to modify the writ if how under twenty to fifty four if it's already been vacated in under adam and i thought we were clear on this i mean if the jersey if the wants gone so is jurisdiction that means get out of the way and if they do it wrong next time then you can deal with that then that's exactly what we said not on your honor specifically addresses that it discusses  on and off the books no it didn't it did it distinguished it and we didn't even have a vacant are there that the court was able to agree upon the the language and india ambrosio says specifically we can put all jurisdiction issues aside because in this case there was a proper sixty motion the petitioner made and you always have jurisdiction in the district court to consider a sixty motion i mean what if there actually is fraud on the court well the court has to be able to go back and look at those new circumstances and say hey wait a minute i didn't know this i need to now modify that original written in light of sixty that's exactly what the ambrosia says says you know looking at the whole course of conduct counsels against finding that convictions were vacated i mean that that is the predicate of everything that follows and i want to focus on the words you just said because i was talking about earlier rocio doesn't say there's magic words vacated in order as you just said says looking at the entire course of conduct right right in the course of conduct includes whether the state has actually expunged the record had they gotten rid of sex offender restriction it's precisely because there wasn't an actual docket entry ok i mean d zero saying these kind of confused you know claims and counterclaims between the pardons are not enough for us to say vacated absent baker on the docket we have that many closure on or  the only issue in this appeal is whether judge merz abuses discretion and declining to vacate the original writ and i think the state has a very uphill burden to meet there the state wants to get this court to go on and explain whether or not the district court has ongoing jurisdiction it would be most imprudent we submit to do that at this time because the district court has only discussed jurisdiction cabin in the context of their motions if the state if the district court does something in the future if it bars re prosecution at that time it will have explained its reasons it will have analyzed the cases it will have submitted the evidence into the record relating to that issue that we tried to submit and then there will be a full record for this court to review on that point at that time ok thank you thank you thank you judge catholic church you are absolutely correct and question the collateral consequences here he does not suffer from collateral consequences and we have addressed that in our brief in our reply brief as well i mean the point that you made as as as to the time period the state court properly required mr gillespie to to require become on the sex offender registry and to make the courts known his address according to that when that before the vacation of his conviction after the state courts vacated his conviction there's no longer any conviction forcing him to register and i have confirmed with the prosecutor's office he is not being forced to register he is not being forced to report and of course he may be re and he may be retried under the same indictment under satterlee and that is not something that is foreclosed by the edelman and d m broacha cases and judge druggers the indian brochure case absolutely turned on this court's belief whether or not there had been a vacate or of the state court judgement that is what that case turned on and the court in that case found there was no vacation as judge catholic has correctly said in this case it's on the record there is an absolute vacation of the of the judgement and i made that argument is compelling but it's hard to me to see why it's before us you say we can clear it all up now you can  legitimate when it was entered on the theory that it can't be relied upon in a future case to do something that he hasn't done you know i mean i was not a must it seems to me that's a must not in cases where there's something is vacated on appeal not in rule thirty rule sixty b five which seems to be dealing with something entirely different that's the supreme court in months or more and those cases did not turn on the and had filed a motion to vacate although he did all those cases were ones where the appeal of the now order remains with the court of appeals correct the appeal of the new order so there's an order party appeals during the pendency of the appeal the appeal i guess more specifically becomes moot just like here right difference difference well yeah like here for a while but the appeals dismissed the appeal and no party then moved to vacate it in bancorp they moved to dismiss the appeal because they settled out of appeals dismissed the appeal in other words as they did helen didn't dismiss the appeal appellant what happened here then months where but in bancorp they moved to dismiss the appeal because of their joint actions that's what made it the case here we had no choice if we had let the case go forward this the district court and there's nothing that says that it has to be done all right yes because here's what i don't know i mean presumably i mean as i understand your argument you're saying look we have two problems not just one all right we've got a moodiness problem and we've got a subject matter jurisdiction problem under twenty to fifty four and that for some reason is why unlike in the other kind of monsoon where type cases we could not persist in our peel you know because we'd say well we can't touch this and therefore we believe the irony in the inconsistency i would suggest is that you then turn to another federal court and ask for the same relief that you would have asked for here and twenty two fifty four applies to both of us so why does that make any sense we four ok if that's your problem you have the same problem with the district court so it doesn't seem to make a lot of sense to me that you would've departed from the normal once in where course i want to give you a chance or is well the court does a federal district court including the district court has jurisdiction under sixty b to vacate its order it made sense to us so do we but the court of the district court who up until the moment that we dismissed our appeal stated very clearly on the record the case is moot my judgment is moot there no longer remains any live interest for the state to to protect we had no reason to believe that he would have changed his mind it would have been in a formal you're right the case is moot it's dismissed go back to the state courts but he completely did a one eighty and while he half apologized by regretting if his comments misinformed counsel were to you know you got to make your own call you're not just doing what opposing counsel told you do  am i understand your honor but in the united please look at pages forty forty and forty one of the bancorp decision and the last of the months in her decision and the last paragraph of bancorp these cases do not stand for the proposition that the six to be must be filed in this court there is nothing there any language in muncie where which forecloses you to go to the district court no in fact it's specific lee says that the case the denial of a motion to vacate could bring the case to the appellate court  followed that procedure and given the posture of this how is that a prejudice in any way your on of the status prejudice because there is an untested unlawful absolutely wrong conditional recorder that we were unable to appeal that is on the books it is causing the state of ohio great consternation and confusion such that they have stayed their entire proceedings based upon their fear of what the district what they're allowed to do under the current order as it stands we request that you know that we hypothetically speaking just as an example that we just declined overturn this on the theory that we've been suggesting here that this is this is not a proper rule sixty b motion you would not then say that that precludes you from appealing any subsequent action which is beyond the district court's jurisdiction would you weak the state of ohio could certainly take that action but we would suggest that it shouldn't need to as the issue can be decided here so that you don't have to but you wouldn't argue that you would you would reject an argument that by losing here you're precluded from doing that yes ok i would like to to in closing answer judge catholic his question where he said that petitioner gillespie had conceded that the district court had modified its judge rogers had modified  s initial record that's found on page forty eight o two of the record i was a changed the district judge changed his decision from saying that you must initiate the retrial proceedings if you don't conclude i'm going to on the issue is something we don't vacate the first one but if we interpret the second one just a mistake would still applies from the first one then you'd be covered well you'd have to look at all of his subsequent issues where he continues to have to look at that when you do it i mean that's