prescribed range of penalties to which a criminal defendant is exposed such facts are deemed elements of the crime that must be submitted to the jury and found beyond reasonable doubt this did not happen in robinson's case during the course of his direct appeal the supreme court decided aleem and the michigan courts and this court held the sentencing scheme under which robinson was sentenced constitutional this is uncontrover nevertheless robinson has never been given the opportunity to seek a corrected sentence asked such his request for hay vs review should be granted before getting to the merits of the issue it seems necessary to address the issue of exhaustion and whether or not he terminated the state remedies available to him i mean that seems to be the question here today i've not seen a big fight about the merits as you just described them so that's the fight right there and it seems that the courts inquiry has kind of focused on the sentence any pro per application quote i want the court to consider the issues as raised in my court of appeals brief and the additional information below in quote and i ask you about that for sure the form is printed by the prison legal services of michigan is that a state entity a nonprofit  private corporation would it's not the michigan supreme court correct that is correct i believe it it one thing if the machine supreme court was pretty a form that had this language  but your client wasn't in other words your claim was not relying on something that was published by the courts as a published by a private group trying to help inmates yes i believe that is correct but nevertheless he was operating pro se and  the form is clear in the language that he said there was some confusion it was the court's own form you might hold that against the court but i just want to i just wanted to confirm what that entity was i don't i don't necessarily hold it against the core but i do think the language of the form is nevertheless just as i guess binding as far as what mr robinson perceived it to mean there is an actual official form of the i mean the clerk the mc clerk of the michigan supreme court has put out a form for pro se people want to see him leave to appeal to michigan's rink or they did but there's also other means available to get the case before the michigan supreme court just as we have in this case and at the time the form clearly provides that he intended to raise every issue that he raised below i know that the apple leave spends time kind of doing an academic exercise as to what the phrase or the word as means in that sentence but even all the offered up alternatives make it very difficult to kind of parcel any difference from what mr robinson himself is advocating for they suggest that it could mean to the same degree or quantity that in the same manner or way that or in accordance with which or way or with the way in which that it was raised all of those from mr robinson's perspective basically boil down to the same thing that whether it's the way the man or the degree or the quantity the bottom line was when he filled out this form an it to the supreme court of michigan he thought that he was raising all of the issues raised in his michigan court of appeals brief and then he had the opportunity to proceed by providing additional information through the various questions are those are those the information he listed are those issues are those actually additional is actually just those are those additional claims or additional issues or are those issues that were raised in his briefs they did not have the advice of counsel at the time that he completed the form he did not have the american heritage college dictionary at the time that he completed with i mean all that just makes the least informative that he did listen the issues those are all issues that were in his briefs they were new issues which would be one thing you might do and he didn't list the one that you care about the most today that is true he did not but i still think you have to go back to the language of the form because the form is clear that it says and that's obviously what the apple e is proposing but i think if you look at the questions that follow you know it instructs the copy of the head  note that you might want to present the additional information for the question about michigan procedure that i just don't know the answer to so what is the purpose of this form does the state respond to this form or is this something that's just sort of purely informational for the court is like a docketing mechanism i believe that was what mr robinson thought would get his issues before the supreme court record petition yeah i mean it was his version of the government that does the state respond to that directly or is this something that the court can take up on its own and say look there's nothing here but what's what's the procedure after this is filed why no in this case the you know one question of the what's the purpose of this forum is this purpose is the purpose to alert just to state just to state supreme court is that that there's a case and here's the issues is it also to put the the government i noticed that you have this case  here the issues i think the primary purpose from mr robinson's perspective at the time which i think is all that we can really focus on as a pro se litigant was to get this docketed to the supreme court to preserve his right to continue in his direct appeal of the issues he wanted to present and is asking the michigan supreme court to take his case he is asking them that application for leave to appeal correct and under the existing law that's all that he was required to do for exhaustion purposes whether they addressed it directly or not so they just you know say it doesn't or i mean just there's a reason but there's typically a reason why you list i mean every park court every court there is some form that goes out that sort of ask you to identify what are the issues it is specifically that your brain to the court and there's some reason for that i think one is to let this state court know this case about these four issues maybe a certain kind of issue a trigger certain kind of procedure or certain time docketing it might also be to let the other side know what the issues are so i thought i understand it from your client's perspective i'm trying to figure out what the broader purpose of the form is and whether there is any sort of harm or prejudice well i think i certainly think there's harm if he's not permitted to pursue the appeal based on the fact that he did not list that specific issue under this important to note on the form itself st of all the michigan supreme court did accept the form so it does somewhat validate its you know ability to get it to  to get the issues before it and secondly by saying the additional information below the way that it's interpreted by mr robinson is if you wanted to present additional information on an issue you copy the headnote you put that issue on section a and then you say why they should review that particular issue with the additional information that he wants to offer its not saying i only want the court to consider these issues  saying i want to consider all the issues as regular as that language is was preprinted on the form he didn't even type out that language no he didn't it was it was just already in existence and you know that i'm looking in michigan rule of court seven point three  and it lists what you're supposed to put you know according the michigan supreme court rules and it says you know the record there's like the questions presented for review related in concise terms to the facts of the case and also it says a concise argument you i think it does because i think he is directly raising the same issue i guess boils down to can is it appropriate under michigan law to incorporate by reference to basically say i want you to review everything that i raised in the michigan court of appeals and therefore just incorporate by reference all that happened below is if you have any authority from the state of michigan the says that's ok well i think for exhaustion purposes i have authority from the united states supreme court where they said that arguments may not be couched in any specific legal or factual form in order to be steam submitted to the court to be exact i'm sorry state in state court  viable option if your client well i think that's a collateral review avenue and he has not terminated his direct appeal and under what do you mean by that how is he terminated his clean scale versus carter which this court decided in two thousand and four it held that you need not exhaust any and all remedios that are potentially available to a defendant in state court and under allen the united states supreme court said that you're not required to file and pursue all collateral motions that might be available to you i think your injury lawyers asking a different question i think which is is this remedy still available to you in the michigan courts if you wanted to could you file a six five i believe you could because i don't believe that there is any kind of statute of limitations on that particular rule but i think given the length of time and the changes in law that have occurred again it's easy to lose sight of the fact that you know three different decisions have been handed down that say good morning your honor is may it please the court rebecca brawls assistant attorney general on behalf of the respondent appel the warden county horton listening to the arguments the questions and reading the briefs i think it might be helpful to go over the purpose of the application for leave to appeal  and that includes a statement of questions presented an argument as to why the application or those issues presented demonstrate grounds for review by the michigan supreme court and rule seven three hundred and five b li those grounds and those grounds are issues of import such as a question of the village idiot a lack act of the legislature where the michigan court of appeals arguably conflicts with another decision of the  supreme court so if you take a look at the form application itself the information that's listed in number seven it's not additional information it's information that needs to be required in order for the application to comply with the court rules now i mean for whatever reason the state did not argue in its group this this document was not compliant with that that's correct your honor i mean normally we with you know with some grace and if he i guess where i'm scratching my head about in this appeal is if he presents the olean issue to the michigan appeals which i think he did and whatever that supplemental pro se in the michigan court of appeals actually addresses that issue in his view this and in and and say that there isn't a in a lean violation he thinks they misapplied to some of the facts of the kids but the michigan court of appeals reaches that issue and then we have a pro se inmate who files something that says i want t misconstrue court to consider the issues as raised in my court of appeals brief i mean why the why doesn't that flag all of those issues for the michigan supreme court now does he develop the argument does he do the stuff we do of course it does and he's an inmate in the michigan penitentiary but why doesn't that refer to all the issues in which case the michigan supreme court staff attorney can look at the court of appeals opinion and see them and sealing why why are we i mean why is that this not presenting the issue that he wants to present which undisputedly was wrongly decided well i have to answer so that hess ok sorry for the speech but i'm a an exhaustion holding your point it was an exhaustion holding yes your honor a pro se litigant i don't know that off the top of my head i do have the case and i could review it but i believe it was a pro se litigant but i'm not one hundred percent sure about that but the supreme court held that courts of discretionary review have heavy workloads and it would increase the workload significantly if we were quired those courts to look through the pleading that was filed with the court to then the lower court pleadings the lower court opinions to try and discover an issue that was raised below that wasn't done flag for that court for review and this is what baldwin it's like a cat the case or as ordinarily a state prisoner does not fairly present a claim to a state court if that court must read beyond a petition or brief or simulate similar document that does not alert it to the presence of a federal claim in order to find material such as a lower court opinion in the case that does so well that's where it says ordinarily i'm making that up piper's i'm not making that up and then my nd answer to your question would be that we have to view this statement in context that it's isolated it's really kind of just an introductory clause to the remainder of number seven so i think our supplemental brief lays out the meaning of the language within that sentence but then when you look at what's included within the proper application form it's issue one issue to issue three and then you have that the applicant has to fill out b and c which is that information that must be included in the form in order to bring it into compliance with the michigan court rules so it's really just guiding the proper applicant through compliance with the machine court rules so when viewing this sentence in context it sort of takes on a new meaning and that is i want the court to consider these issues in the manner in which they were raised in my michigan court of appeals brief and your french of the instructions at the top of the page i'm referring to number seven so it says i want the court to consider the issues as raised in my court of appeals brief that has to be read against the backdrop i think of the identifying your shoes can i ask you this this prison legal services of michigan is this a group that works with a lot of pro se litigants is that so i don't know exactly what prison legal services of michigan as i attempted to find this form on the machine and supreme court website and the michigan supreme court provides a different form whether this form was provided back when mr robinson was going through his direct appeal i can't answer that  question i do know that the form that's provided on the website of the michigan supreme court was updated in twenty million one hundred and sixty two thousand and seventeen no the official form actually has a language says if you do not raise an issue in the supreme court by writing it out in the application form it will not be addressed by the supreme court even if it was raised in the court of appeal right and i believe that that information and that instruction reflects the court's policy that if you don't flag this issue for review for the court we're not going to decide it and there was no change in law before that court was revived that before that form was revised in two thousand and sixteen so it just reflects a continuing policy of the michigan supreme court and i think that the issue is fair presentation circumstances where the michigan supreme court would know that this issue is being raised to the court and in this circumstance he raises six of his eight issues and the elaine issues not included within those six issues so the supreme court has no obligation to look through that pro se filing to determine whether or not there were potential other claims raised they'd have to thumb through possibly hundreds of pages of supplemental filings amended pleadings within the machine martin appeal that's the that's the trouble of this creates for the court what about for you do you respond i mean one part of this is to put the court on notice about here's what the case looks like is it you to pay attention to what about the part of their side which in this case was stage do you respond directly to this the policy of our office is to respond to all of these applications i can't speak for the county prosecutors and there are circumstances that and in this case they don't respond  believe most of the time that's because they don't believe that the issues merit review by the supreme court but the policy of our office is to always respond to these applications opposing side of these has the opportunity to and so one reason for the rule  is not only a sort of theoretical or nominal option but but truly a viable option for him but then there are some hint that maybe that that motion would be procedur bar as well because the punitive failure to present these issues to michigan supreme court so i guess i want to ask you i mean it is the state representing to us in this appeal that they will not assert a procedural procedure and the state doesn't automatically respond to them it's the kind again the county prosecutor so typically the court would order a response from the county prosecutor whether or not they wanted to contest the motion in some circumstances the court just issues an opinion decision in twenty from two thousand and nine which says that it's for the state courts to determine the applicability of a state procedural bar and not for this court so we would have to wait and see what the state court did with that sixty i know i know we w determined but it's a seed like the state was flagging it as an actual option for that is an actual option yes actual in the sense of not barred but that's ok i understand what you're saying yeah i couldn't give an answer to that question  but other than that in closing i do just want to point out that the relief that we requested in the brief isn't exactly the relief that we do want we were clustered in a firm and but we want a remain and for the trial court to the five point six that's six thousand five hundred machine five hundred sorry about i don't know off the top of my head if there are any circumstances that that has occurred i know on one lockridge came out which is the michigan supreme court decision which is the procedures and whether any of those have been granted now you say you you want us to remain and with instruction and her dismissal rather than to leave in place the merits ruling of the just a few points first of all regarding baldwin versus rees as the apple e pointed out the test is if the issues were presented to the court your fair presentation and we would submit that the presentation was fair because it clearly states he was presenting the issues asked raised the representation that the court would have had to go through hundreds of pages in order to determine what issues were before it it's simply not true all they had to do was go to the court of appeals brief and they could have easily found what issues were included in his pro per application but doesn't baldwin specifically say that the issue is not preserved if i mean i'm just reciting it as it was read a moment ago the issue was not preserved if the court would have to look at for example in intermediate court of appeals opinion to know that the petition trying to raise that issue well i think it i'm not sure that that's exactly what we have here i mean i  i think mort for this particular case mr robinson submitted it to the court whether the court addressed it or not whether the court knew about it or not we have no way of knowing because they summarily tonight we would disagree with that interpretation just to the extent that i think the form itself does raise the issue you know only by incorporation by reference it certainly doesn't raise it on the face of nothingness as a lane or anything about the but there's there's been no argument that his proceed you're up to this point was defective in any way as far as  violating seven point three zero five there's no indication that it was rejected for that particular reason the court didn't dismiss his application for failure to present properly the court just summarily denied review the instructions of the form don't say you're identifying the issues below they say that you're bringing up the issues below and again we believe that that is for the purposes of providing additional information for whatever issues you want to bring to the attention of the court but if mr robinson had counsel at fortis counsel of a counsel and do the exact same thing would you say we should reach the same result you're asking for now when he doesn't have counts in other words this appears as a pro se rule such as you're asking us to craft or well i certainly think that it has to be viewed through the lens that he was a pro se litigant he did not have the expertise counsel available to him i don't think that the situation would be the same had he had counsel present time i think i would say it was the same i mean there's a lot of struggling with i think there are valid reasons for these rules i think they tell the court what this case is about i think to tell the other side what this case is about i think it's fair for a state to do that i think we have to give some deference to a state procedure on the other hand i completely sympathize with your client in this circumstance creates some problems but there's also the pro se aspect of this case would be unique and so i just want this is really a pro se rule you want to write or well if i can address i see amount of time a bit but i think if you have a pro se litigant and the form is deficient for procedural purposes then i think it should be incumbent upon the michigan supreme court to not allow those forms to be filed to not accept them in cases for such review by accepting all the pro se litigant is going to think that if followed procedure and did everything that he was supposed to do so i guess to a certain extent i am asking for leniency and the procedural rules because we do have a jagger i see that you're appointed pursuant to the criminal justice act and you have rendered fine service to your client in that capacity you've done admirable job here and we sincerely appreciate your contribution to  process in deciding the case both parties did a fine job case will be submitted clerk may call the next case