morning and mant please the court my name is stephanie attacked us and i represent leslie kingsbury this court should hold that rule fifty eight the separate judgment document rule applies to motions to vacate set aside or correct a sentence under section twenty two fifty five and find that mr kingsbury's notice of appeal was timely filed the court should also issue a certificate of appeal ability as to mr kingsbury's claims the time for filing a notice of appeal is a critical period in a collateral attack on a criminal judgment in order to avoid default of appellate rights it's particularly important that the date that the judgment is entered is clear in section twenty two fifty four cases the rule fifty eight separate judgment document rule provides clear notice that the time for filing an appeal as commenced has commenced the same rule should apply in twenty to fifty five challenges in order to promote consistency and clarity as to the time for filing the majority of courts that have can it was that clarity whatever rule we adopt that wouldn't there be well your honor the problematic nature of the order on a motion for twenty to fifty five is that it sometimes is not clear whether or not the order itself actually is a final judgment and that was the reason that the court adopted the rule fifty eight to supply a single individual short and clear document that signals to the petitioner that the time for filing has begun there is discussion in some of the cases cited about whether or not a packet of documents that is issued as a final judgment on  is or is not a final judgment so it's not entirely clear particularly for a pro se petitioner as often is the case with the section twenty two fifty five motion but the majority of the courts that have considered the issue have held that under a straightforward reading of the applicable rules that rule fifty eight applies to section twenty to fifty five appeals that's why operation of rule eleven of the twenty two fifty five rules which states simply that rule for eight of the federal rules of appellate procedure applies because i ask you we have said with respect to rule fifty nine the rule sixty motions that the time to file those motions which can have the effect of tolling the time to f notice of appeal that the time for those for those motions does run from the entry of the order just the order something you know not necessarily any kind of a need for a separate document whether it's titled judgment and that just seems to me inconsistent with what you're asking us to hole am i wrong in thinking that you know i get the there is no inconsistency because the fifty nine and sixty motions by their nature are seeking to change the underlying order disposing of the petition or motion and so there is an end inconsistency there because it doesn't make sense to have two notices of appeal essentially one that's filed before and perhaps after the ruling on sixty motion we have said that that time runs from the time that like in this case you would be from the date that the order was entered regardless of whether there was any separate judgment later filed right under said your honor however rule fifty eight by its terms well rule fifty eight the the i'm sorry the decisions in turkey being rule fifty eight and what is final judgment talk about whether or not the document includes legal analysis a discussion of the facts and so this be judgment in this case or the order in this case wouldn't qualify as a final judgment under those cases so the effect of the if you want to call it the district court's error here would mean that the time for filing a rule fifty nine sixty motion wouldn't begin running for one hundred fifty days after entry of the order and that just seems silly that doesn't seem like what anybody couldn't tell right but that's the fact of your position is that if applies to twenty to fifty five could take petitions don't address that inconsistency so i can't definitively say yes there is an inconsistency here and it would cause confusion as defiling rule fift n or sixteen motions but i can say that if the united states versus haman applies in its totality to rule twenty to fifty five petitions that the civil rules of appellate procedure in total appl to twenty to fifty five motions and so one could refer to them as a as a source of the authority governing the filing of the notice of appeal without reference to rule fifty nine or rule sixty i hope that's clear it's know i just i think you should acknowledge that the effect of the rule you're asking us to to to adopt is to extend potentially the time for filing those post what would ordinarily be deemed post judgment  it does not apply are the the advisory committee notes to rule eleven of the twenty two fifty five rules and even those notes were amended later to clarify that united states versus haman does in fact still apply and does state that the federal rules of appellate civil procedure apply to twenty to fifty five appeals that seems to be dispositive of the issue before the court now i understand the court's concern that perhaps it would create some an issue regarding when one must file a rule fifty nine or sixty motion but because those are under the federal rules of civil procedure that does not seem to be an inconsistency that is governed by him and it would be governed by other authority that isn't directly on point you know what's happened in the circuits that have adopted the rule you're you're advocating for rule fifty nine and sixty motions i did not see any cases in looking petitions i guess i'm interested in a second question here is you know why a certificate of appeal ability should issue in this case mr kingsbury's request for certificate as to whether or not his ple voluntary and also was whether he had an effective assistance of counsel although there's a crossover between those two issues because his contention is that his plea was involuntary because his lawyer was ineffective and there are of course many cases  conviction a petitioner says my plea was cool what it was involuntary but this case is different because of mr king's very very serious medical conditions and it's documented in the record that he had been suffering from a serious heart condition beginning when he was a teenager and also that he was in a car accident on his way to court at the time of the commencement of his first trial so the court declared a mistrial he did suffer a spinal cord injury he was receiving medical care that in my reply that there's not a procedural default here because mr kingsbury's twenty two fifty five motion includes facts that are not included in the record on appeal for example his contentions about his health condition and his  his his conversations with his counsel are not part of the underlying record on appeal so he could not have brought this these claims in a direct appeal he properly brought them in a twenty to fifty five motion where he was able to supplement the record decided authority in my reply when the petitioner movent in this case is bringing a new facts before the court that there is no procedural to fault in bringing it first in a twenty to fifty five motion and actually that's what this statute was intended to provide but a vehicle for bringing claims like these where there's other information besides what is available in the  seems like he needs to have a hearing on this issue if he's going to ever prevail on it but the next step if we grant the cia would be more appeal not going directly back to the just recorded that right that is right your honor that the this court would have to it please the court christopher spent for the united states your honors this court should hold that mr kingsbury's notice of appeal was timely filed but it should decline to issue a certificate of appeal ability and dismiss the appeal for lack of jurisdiction on that  especially in the context in which it's just a straight to niall of the motion i guess i don't understand the need for this separate piece of paper that's going to just cause district court clerks headaches there's no ambiguity about  when the notice of appeal should be filed when there's a straight denial i understand if the court isn't going to in any way grant some form of relief well most often there will be entry of a new judgment because by definition you have altered in some fashion the underlyin judgement in the criminal case but when it's a straight denial the judgement from the original criminal case simply stands i don't see why there's a need to enter a new judgment your honor your point's well taken in that i do think in a large majority of cases it might be clear but so too may be the case in civil cases in the supreme court made clear in a case called injury lunes that prior to one nine hundred sixty three when federal rule of civil procedure fifty eight was adopted that there was considerable uncertainty over what actions the district court would comp what actions of the district court would constitute entry of judgment for purposes of notice of appeal in a civil case and that straightforward application of the rules as the d c circuit turned in johnson does lead us to the same conclusion here and i think that the rationale the need for clarity and maybe it is a belt and suspenders type of clarity but the need for clarity here is called for by the same rationale that led the rules committee to adopt rule fifty eight to begin with yet and that's my question why well i think most of the vast majority of these motions just get denied it's a straighten out just like this one what ambiguity exists in that scenario from the petitioner standpoint well your honor i would know that even beyond the usual civil case here in the twenty to fifty five we're dealing this gratian where a large portion of these individuals may be indigent in acting process so there is an enhanced need for clarity in that regard again i take your point that the in the mainstay of cases it may indeed be b s straight denial but there are cases i could think of where there if you know that's what i'm trying to get tease out let's hear the examples of where there would be ambiguity i get it in the regular civil case i see that all the time but in this context what's give me some example well some examples i'm i think perhaps more of the ambiguity could be when the motion is partially granted in some way that that's why i said when that happens by definition the underlying judgement in the criminal case disturbed right and there needs to be entry of a new judge and that i totally get why rule fifty eight kicks in at that point i'm talking about in the i don't know what the percentages are even i would guess eighty ninety percent of twenty five fifty five percent petition just result in the street  here and i'm saying in that context what kind of ambiguity could possibly arise your honor i think in a case like this one i think the court's memorandum it's pretty clear that it's a straight denial i'm not in a case where there is just simply a straight denial i'm not coming up with a good example off the top of my head here but the rules i think and i perhaps for the first time i've ever said this i agree but almost everything petitioners council has has said here that a straightforward application of these rules i think seven expressly incorporates the rule of federal rule of civil procedure fifty eight now the history of that as as my opposing counsel touched on i think is quite clear and that c in the supreme court's decision in hayman in footnote for the court made clear there that civil rules pertaining to appeals apply to twenty to fifty five actions now when the twenty to fifty five rules were adopted there was the potential that they could inject some ambiguity into that because there are statements and some of the advisory committee notes in those rules that the twenty to fifty five motion is a further step in a criminal case and that's why the one nine hundred seventy nine and moment to rule eleven came into play because the advisory committee notes there say that that is to indicate that haman still is good law and that the civil rules apply here and even though i can't think of a great example off the top of my head your honor we're in a situation like this where it is a straight without an evidentiary hearing where the district court's order leave much ambiguity and this is where the rules in their straightforward application will leave us and again in the ambiguity right now because the district courts differ in their practices my understanding is some district courts enter a separate document some go in our circuit there's a real mix and i think your honor we made that point in our briefs that and this goes to your honor's rule fifty nine and sixty point i think while there theoretically could be some daylight there practically speaking if this court issues a clear rule in this case the separate judgment simply on a separate piece of paper is a separate docket entry will follow as a matter of course in the circuit and i think the situation will be improved simply by clarity in that regard and again the supreme court and other circuits had been quite clear that because of the rationale of all fifty eight which again was animated primarily in the civil contacts a mechanical application of that rule is required for it to function effectively and your honor is all just very briefly turned to the certificate of appeal ability point as as its court held and explained in its case called muth and as the supreme court that i've ever seen quite frankly and it addresses directly addresses a number of the points that have been raised here and mr heene is moved doesn't say that you can never overcome this presumption that why isn't this case at least at least that the c e o wastage where doesn't he doesn't know when he just had to have right you know a more plausible claim why isn't it the case that there should at least have been a hearing to flush out what happened i mean he has factual allegations that conflict with his lawyers account that are pretty serious and how could the judge figure out who is telling the truth well your honor for to begin with the district judge in her findings noted that mr kingsbury's demeanor and her observations in the hearings in addition to the simple could have medical treatment i mean it does seem plausible that he might have been thinking that and still thought a lot of things well i think your honor and in some case perhaps it would be possible here i draw the court's attention to your fifty three and there in the rule eleven colloquy the district court says i want to make speaking to mr kingsbury says i want to make sure you understand that if we go forward with the trial i will make sure that the doctors are able to see you so you're take your health is not in danger in any way do you understand this and he says yes and that's one piece of a longer colloquy about his health i mean the district court engaged in a pretty thorough examination of this during the colloquy and while there might be some theoretical circumstance that could well your honor i think that that the district judge on the record and again that's where we go to move them blackledge you have to put some weight on to the sworn statements of the petitioner in this case and if it were a situation where the issue of not being covered at all in the colloquy maybe this would be different but it was directly addressed under oath and he confirmed multiple times that he understood and if the court has no further questions your honor i would ask you to section but i mean just as it originated as a health care fraud case we do do cases such as this one where perhaps there is a complex legal issue involved that courts around the country have diverged on but this one primarily  magistrate judge issues an initial findings and recommendations as to the disposition of the petition and then the parties are given an opportunity to object before a final decision is entered those findings and recommendations can sometimes appear to an unskilled person as disposing of the petition because they state for example this petition should be denied a pro se litigant could be confused by that could believe that that actually is the final order and if one applies for a and they filed their notice of appeal right after those findings and recommendations are issued it would be both premature and would not qualify for a later deemed filing under four a because it was filed before the actual final order in the perceiving and i have actually seen this kind of situation come up in my practice with pro se litigants who do not understand that in fact the court is not actually disposed of the petition yet it's the district judge needs to review the findings and recommendations and make and a final judgment afterward i hope that's helpful that was helpful can i ask you so on your side is the red light flashing yes it is that is just incredibly annoying