wall of e coli to a maryland motion to modify a sentence every other federal court that is considered a similar motion has applied while v coley regardless of whether the motion request relief based on  legal error or leniency regardless of whether and when a trial court must rule on such a motion and regardless of whether such a motion carries a right to appeal these courts follow kohli's teaching that one purpose of ed tolling provision is to allow litigants to exhaust all possible state court remedies before proceeding to federal court and this purpose further is important principles of comedy finality and federalis this court should follow the lead of its sister circuits and the many other district courts that have faithfully applied coley and find that mr mitchell's motion to modify his sentence told the statute of limitations under  so like to start with the plain language of wall of e coli because i think that it supports a finding that a motion to modify a sentence under maryland law tolls the statute of limitations for holi sets forth a simple and broad definition of a motion for collateral review it means judicial review that takes place outside of the direct review process and that's what happens in a motion to modify a sentence under maryland law and ask the trial court to review a sentence  it shorter or to modify it and this request is separate from the direct appeal process what about the fact that in coley the or was clear that it was applying its analysis specifically to rhode island law well the court always has to be clear that it's applying its analysis of the statue in front of it and that fact was a really no moment to any of the many many circuit courts and federal courts that have written as well if again difference between maryland this maryland law and the rhode island law not that are significant and i think that's the key is that what the state because the language of kohli is so clear and so she clearly should apply what this state has had to do is try to pick apart differen if you actually look at the language of all the coli and you look at how that language was analyzed by all of the federal courts that have applied it they're really just distinctions without a difference one of the points that callie makes is that the application of  provision should not turn on the formalities that's the word that it used of the particular state rule because state rules vary so widely the other reason i don't think these differences matter is that in analyzing rhode island's rule and i think judge factor that this addresses your question most directly the supreme actually compared it quite a bit to the former federal rule of criminal procedure rule thirty five which is very different from rhode island's rule very but it has differences that has the same structural differences that the maryland rule has so the former federal thirty five is actually more similar to maryland's rule then it is to the rhode island rule that the court was looking at coli and then as i said none of the other courts really cared about these differences and they and one of the significant differences the state points to is that in the rhode island rule a legal challenge and a leniency challenge are all in the same subsection of the statute and in the maryland rule and in former rule thirty five there in two different subsections so that according to the state is supposed to be a significant difference but if you actually look at every single role that was examined by all of the federal circuit and district courts that have applied wholly they all  they feel about i think it's more of a mutual respect they have they know not bound it she said and she granted the certificate of some sort appeal ability to respond to it because she felt uncomfortable going against this line of cases in her district and really wanted to hand this question which i think she knows the right answer to over to this court and that's why she granted the difficult it one of the things that a lot of the courts don't realize here so it is the second time that the first time it was in the wood the wood full versus main ard where it came up except this court didn't have to address because it granted it reversed the district has a section on a different subject a different topic so that's why it never actually got addressed but part of the reason these don't get addressed is because so many of the petitioners are are per se so it's actually pretty unusual for counsel to be appointed and it's you know a complicated issue that does need briefing  the litigation of all possible state court remedies that that is one of the purposes of epis tolling provision and i think the state tries to focus on this fact that because you the issues you might raise in a motion to modify a sentence are not i argument and the supreme court said no that doesn't matter what matters is allowing all remedies to be exhausted in state court because that furthers an important goal of finality comedy and federalism in the king at  your honor i asked about the the other district court cases in maryland so they all start with this case of tasker versus maryland and that case relied very heavily on an unpublished and an argued eleven circuit case called baker v mcneil and versus mcneil and that is if this court needs a nother compelling reason to overrule the district court's decision in this case it is rogers versus secretary it is a published opinion over the opinion that all of the district courts have been relying on over the years and it not only overruled it but actually does it making all of the arguments that we are making here it makes all of the arguments that mr mitchell made in his opening brief it basically talks about the fact that the purpose coley relies heavily on furthering this purpose of allowing state court litigants to exhaust all state court remedies when it extinguishes the difference between leniency and legal challenges it talks about the fact that the florida examining you know just fits that plain language definition of coley and it calls the state's attempt to distinguish florida's rule from rhode island rule misguided and it says that it doesn't matter that in florida you cannot appeal from a motion to modify a sentence it doesn't matter that there are no legal standards that guide those motions it doesn't matter that legal and leniency challenges are in separate sections and it doesn't matter that it may ultimately extend the tolling provision by some amount of time none of those differences matter to the eleventh circuit and i don't think they should matter to this court your honors if you have no further questions then i will reserve my time  warning your honour's may please the court writing teacher for the state of maryland motions filed pursuant to maryland rule for three four five he do not toll the twenty two forty four statue limitations for federal a b s purposes as we know it's told during when a pending application for collateral review is before the court you said that's not a collateral review that's correct that's what you have say right that's correct and as we tolls that the statute of limitations under the maryland rule as opposed to the rhode island rule which was discussed in wall v coley and there are significant differences between the rhode island rule and the maryland rule that are per to this discussion there the supreme court acknowledged that it was in rhode island what was being the motion it issue was a motion for solely for leniency but there's differences in that structure and what happens in  about this split that it would make a difference one way or the other it did i want the court to be confused by my argument it's not that the fact solely of leniency vs legality is the difference maker but it's all of these factors combined that i lay out in my brief whether it be in the structure or the rule of the leniency aspect the fact that it's not appealable the fact that there are no explicit factors to be considered in maryland whereas rhode island had explicit factors that the court would use to review  the sentence that being asked to be modified that in rhode island a motion for modification of sentence under rule thirty five was necessary for further appellate review that fits within the notion of exhaustion of of placing a claim before the court before the state court having it be exhausted so that it could be possibly presented in federal court under federal hate b s and very importantly under maryland rule maryland rule there's absolutely no need a sentence at all and in fact in this case much like most cases the the defense actually asked for the court not to rule on the s they asked that it be held sub geria so it's inconsistent with review to ask a court to not review a sentence under a motion for modification and finally and get into this later because there's a some ambiguity in that in the state case law now but with regard to how long a motion can actually be pending before the court but to get down to what happened to apply this to wall v coli the state's position is this this is not a motion understand if the judge takes up that motion and intention quite a bit essentially and so obviously this court is now being asked to resolve the issue with respect to america with respect to the fourth circuit as and with particular maryland rule four three four five rule for three four five eight there's five year limit that's written into the rule now maryland quarter special peals intermediate court about a month ago came out with a decision that sort of threw that into doubt and whether that was actually jurisdictional bar to reviewing the decision and i've informed opposing counsel of that case it's slick of the state and it's the west law site is two thousand eight hundred west law for that but what the court held in a situation where a defendant got post conviction relief in maryland you can file post conviction petition ten years after your conviction they filed that somewhere  several years after the conviction and what they got is a belated motion for modification of sentence they filed that meanwhile the five year limit after the imposition of sentence expired the court of held that even though the court the rule says that they have five years a court has five years and cannot modify a sentence after that fact the court retains jurisdiction to in fact modify that sentence and that's important here because one of the arguments that that opposing counsel makes is that there's no concern about the effect of tolling because of that limited time and what this case sort of calls into doubt is is there in fact a limit on that time so five year limit as strict jurisdictional five year limit but and unfortunately here in the in the meantime where that's the state of the law as it exists and and again that's important because if you can have a motion for modification again most of my vacation sense which cannot have in maryland cannot have any impact on a claim that can thereafter be put forth in federal  that you would sanction a situation where you could toll indefinitely for something that has absolutely nothing to do with what the purpose of it is and so that and again the  state acknowledges that there was no distinction made between legality and leniency involve e coli but all of those factors put together make it inconsistent vastly inconsistent for the court to hold or for the court to interpret valving kohli to encompass purely lenient leniency petitions or motion for modification where in maryland the court need not rule on it there's no there's nothing unlike other rules unlike the rhode island rule that says that you have to rule on it within a reasonable time nothing saying that and especially where as is the case in many jurisdictions where a motion is filed and the defendant asks that it not be h it happened here so all those factors combined together to make it so that the maryland rule for three four five eighty the leniency rule is not affected and not within the scope of and if there's no other question i will yield my time like you stark thank you the silver good luck if you want to just briefly just to clarify that it's not just three circuits that have rolled as mr mitchell is asking this court to rule but many district courts including the western bit district of virginia has recently ruled in three different decisions reviewing a virginia rule a federal procedural thirty five  very similar to the maryland rule very similar to the former federal rule thirty five and the state of west virginia never appealed those decisions so that's also important for the court to keep in mind also when looking at judge chaz now it's decision is that  and so this in the bridge the west virginia rule at issue is similar to maryland's in that the legal and leniency challenges fall in two different sections has very limited light rights to appeal and it again has this what i think is actually a very open ended rule that the court has to rule on its motion within a reasonable amount of time that actually allows a court to hold on to that motion for longer than a motion in maryland which has to be ruled on within five years despite this court of special appeals case that the state just mentioned and i can if the i can address that case very briefly it's actually a very very narrow holding it's actually based in part on a decision of this court in united states versus stollings and it says that when circumstances that are not within the defendant's control cause the trial court to have to consider a motion to modify sentence outside of the five year window that delay should not be held against the defendant so it is in no way opening up that five year limit to indefinite jurisdiction over those motions it's a very now ruling the five year limit though is also relevant to another reason why this court should feel comfortable disregarding the line of cases in the district court which is that the very first hit case tasker versus maryland was issued before maryland added the five year limit so when tasker was decided there actually was no limitation on when a court could decide a motion to modify sentence under maryland law and so  that is also important your honor is and again i do i just it's frustrating that the state continues to say that it allows tolling indefinitely absolutely does not in this case the facts of this case mr mitchell basically bought himself an extra six months if you look at the chronology based on the fact that he filed his motion to modify a sentence and again the distinction between leniency and legal error is rooted entirely on the fact that just because a claim made in a motion to modify sentence is not cognizable in a b s law does not matter because the purpose that the supreme court was addressing them all the coli is to encourage litigants to exhaust all state court remedies before proceeding to federal court in the hope that proceeding to federal court may become an idea is already over with the federal bench exactly right to take every op opportunity that you can to basically resolve the case and to get an outcome even if it's just in your sentence and just getting your sentence to be shorter it might prevent you from going to federal court that's what the court held in while the holy that's why every other court that has ruled in cases that have rules that have a whole variety of differences and none of those differences matter their differences without distinctions your honor the definition in coley is broad and it's simple and it's clear it applies to motion to modify sentence under maryland law and mr mitchell respectfully ask this court to overrule the decision of the district court and to reinstate his habeas petition if you have no other questions i will yield the remainder of my time