good morning your honor may i please the court laura at lunch or for the state defendant regrettably in this case the state sent in court did not proceed in a manner that would have allowed docs to implement what the sentencing judge intended the state sentence run concurrently with the federal sentence but because it had not been imposed at the time she sentence the defendant and the plaintiffs her directive regarding the was not only an authorized under state law more importantly it could not be implemented consistent with the very detailed sentence calculation step she could not be implemented as she as it was an but there was a way that she could have achieved the result that she evidently aimed at right yes the sentencing court should have waited to sent plaintiff until after he had been sentenced in federal court and then exactly what she intended could have been put in place but she made an error and only the sentencing court could correct that error well then why why why shouldn't we prisons instead of putting a detainer on the individual indicating that he has a sentence is not able to be put into place under state law and we there is a sample copy of such a letter in the rack it's not that we concede that we didn't send a letter in this case we simply don't have proof that we did we don't have a copy of that letter that was sent could you have also sent a letter to the defense counsel and to the inmate well we did advise the inmate but but it looked to me like what was being advised was that he was going to need to serve consecutive sentences because the initial sentence was unlawful and there is no nothing in the record to suggest that the sentence that a letter was sent to the court itself right when i'm i have trouble with in particular with the position that state parent was taking that it was powerless to do anything until the state sentence began to be served i don't understand that at all that is that the state's position will know this just state recognizes that it could have sent a letter to the sentencing court and there's simply no evidence that in this record that the that the letter unless sent in fact the documents show that the state's intention was to apply this sentence consecutively yet to a contrary well because that was the only manner that they could be applied under state law why why wasn't reasonable to look at that as a totally invalid sentence it was not  district what the sentencing court explicitly directed and that was clear from all the documents and at the state noted in its own records a place to detain or and directed that it be served consecutively which was directly contrary to what the defense counsel was notified no no there's no evidence of any letters in this record and how does the state justify the documents placing the detained there and ordering that the sentence  consecutively because it was the only way the sentence could be put in the directive could be put into effect under state law that they had no because it was not a valid sentence well it was a balance sentence the terms of the sentence were valid directive regarding concurrent the can be put into effect and this court in the south or decision made a very distinct sound that there was a critical distinction between the terms of a sentence and a court's directive regarding the relationship between sentences and particular between sentences imposed at different times in separate proceedings and that was the problem here and under the sentence calculation statutes there simply was no legal mechanism to concurrent because he would have been released instead there's a detainer put on that says he's to serve a consecutive sentence well to that and then when you had a lengthy period of time in which the problem could have been worked  need to do something before the federal senate has run well they did something they did notify the defendant with much specificity in two thousand and ten that his sentence could the legally the directive regarding concurrently rather could not be legally implemented because it was imposed before the federal sentence began and that if the plaintiffs did contact the sentencing court and the court seemed to not understand what the problem was because for three times the court did not correct its own error when it had an opportunity to what authority did the state have to impose a consecutive sentence to modify the concurrent and turn it into a consecutive sentence was that a valid sentence at all because the term of the sentence was valid one and a half to three years the relationship the court of appeals has it the new york state court of appeals has explained and as agreed with this court that there is a distinction between the terms of the sentence and the relationship between sentences you would concede that if there was a mandatory minimum of two years and the same corner imposed a six month sentence the administrators would be able to hold the person for t years correct but worse but of course this amount it amounts to the same thing if you happen to be custody you're going to be in custody for longer than the judge directed you should be yes  why are they not administering what the state court judge directs because there was no legal way for them to do so that the state sentence could not commence until plaintiffs came into your life there was no legal way for the judge to impose separate the direction that the judge imposed but there are really two problems here which distinguish this from the earlier the murray cases there there was just a sense error here that was not only an error in the directed and direct regarding concur the it actually could not be implemented under state law his state sentence there was no way for them to calculate when his state sentence would commence until the plaintiffs came into state custody and that did not happen as they r court found that there were issues the fact on the issue of qualified immunity the court found that the court relied on the early b murray line of cases which this court distinguished in southern the city of new york and held under very similar facts involving a directive regarding concurrency that there was not clearly established law that puts the sentencing calculation officials on notice doesn't really is exactly on point for the due process claim here and the th amendment case you don't see any distinction between the return of a parole violation and two sentences imposed by federal and state authorities by judges you know here in the city the state had actual made a directive that the local criminal sentence run concurrently to the what was called the parole violation sentence the remaining time on the state sentence and there as here that could be put into effect and discordant but that could have been put is because it recognizes this critical distinction between the terms of the sentence and the relationship between sentences and even if even if the state officials violated state law by not putting into effect the directive regarding and skirts the we don't concede that they did but even if they did that doesn't answer the question whether there was clearly a stablished law for constitutional purposes this court has been clear that even violations of state law for for correcting any problem and then if an article from the proceedings started one can seek an immediate injunction we made that argument in the court below we did i don't see it here you know we didn't make that argument of all the relevant facts i think there is some question about that in the us but here it's indisputable that the state has actual knowledge yes but the question is did once there are clearly established law that told them that that was a by operation of law as she said in her three sentencing by operation of law he was affectively directed to serve consecutive sentences because the state did that by itself it well it didn't have it it didn't have a judge imposing a consecutive sentence ever until now because there was simply no other way for them to put into effect his state sentence there was no way that that by declining to extend it and not play no they couldn't do that there was no legal way for them to do that because he didn't come into state custody his state sentence could begin to run they couldn't credit his time in federal sentence under the state laws there was no way to credit the time he spent in federal prison serving a federal sentence under state law and they couldn't commence his idea that the state has a stronger for the publication than your acknowledging to clarify the matter before this man served extra time needlessly in jail well the question is did they have a constitutional obligation when they had the question is would they have been reasonably aware that they had a constitutional obligation to notify the sentencing court even if they had notified the sentencing court there's no guarantee that the sentence in court would have corrected it but that's the question not whether it is free to incarcerate someone on the mistaken a clearly with actual knowledge of a mistaken understanding that there's a sentence with the question of taking any action if the question is just that violates an inmate's constitutional right this court hasn't yet declared that it is so if the court declares that it is now then the state will be on notice for the future but at the time these are you're saying that this is going to go on doing what it does tomorrow and next year that's the thing i wake up to the problem calling on the day that the that the that the person is delivered from federal prison to stay in custody and then say well go to article seventy eight because we are sets and send you to this term to be served consecutive no it's the only way that's what you're saying you know if we move at you know you're inviting us you're inviting us to do that because otherwise you're saying you're going to go on doing this which frankly sounds quite stupid to me well they don't have a way to implement under state law and they would normally want to go to by the way if we say that that's violates the federal constitution then you're saying they continue to violate it because they have no way to do that know exactly that if a court telling there's no way it's not a way to do it but i'll tell you that basically you're saying you're going to continue to do that no no and i apologize i think people of their freedom i apologize but no reason no i apologize if that's what the court understood if this court declares that it's a constitutional violation that gives the docs officials authority to follow a court directive to not violate it made constitutional right and they were this court court for a state court either court they would follow absolutely but it hadn't been declared at the time here and that's why unless we were to this is well settled violation of due process your conduct because you're doing what you do which which is depriving people of could be twenty months but their freedom because there's no way you print them of them that's wh want to have a judge yes yes yes we rule against you know this idiotic arrangement is going to continue because they need us because they need a directive to do so a directive that simply a legal in possibility because the defendant is because the defendant it's not in state custody and because there's no way to credit the sentence they have no way to calculate it unless they're directed to do so you could you just address a qualified immunity for a moment law that told them that following state law violated the inmates right there was no that the clip in the course of the cases that existed had to do with the terms of the sentence and this court in souther distinguished the terms of the sentence from the relationship between sentences so subs are applied qualified immunity to those facts because there was a critical distinction and that was the governing law and no court no decision from this court or the u s supreme court had said that the failure to implement a directive regard the relationship between sentences from different jurisdictions which can themselves conflict ended here he was actually effectively sent question here thank you credits which makes it more complicated and so the more complicated you get maybe there might not be a clearly established right answer in cases but this is a simple case this is where it was a concurrent sentences if anything or inhibit your client from say it's oh it's it says concurrent but i'm going to go with consecutive because i disagree the remedy here under the procedures of matthew is to go back to the sentinel court and get a change if that's what they want they don't go back and spent in court the sentence is what it is it stays the sentence and be defined as cannot expressly a consecutive detainer thing that was efficient to explain to a pro se no i was saying that he could have brought that the argument that plaintiff's counsel made with that he didn't have a letter he could have shown the sentencing court to explain what was wrong and we're saying our letter would have explained it to the fencing court if he had shown the court that letter because the but it doesn't say there's a misapprehension here we can't do it this way and you know you could seek relief it doesn't say anything like that it just says you're sent to your state sentence will not commence until you receive by docs priest penal law seventy point we think the st part of the letter explains that there doesn't but i'd really like to turn to the th amendment violation because we hadn't really explored that and with respect to whether an th and then didn't claim it's clearly established the most primarily court cases from other jurisdictions are not point because they involve holding a mint inmate beyond the term of his lawful sentence and they do not involve the fact here where you're being held pursuant to an unlawful and unauthorized directive regarding two sentences the relationship between two sentences i ask you described in your briefing or alluded your briefing to the fact that now there is in place the mechanism to send a letter to the same yes or no evidence that one with that here but that aside because you just described that mechanism the the mechanism is consistent with  one dash day which requires letters to the sentencing court the district attorney and defense counsel and a copy of that letter and that is sent which is very clear is page  i apologize six hundred and ninety seven dollars of the joint appendix is that is a copy of the letter that we would be sending to the state court to explain it and that how long is that procedure been in place well that that is the procedure it's simply that we don't have evidence that it was filed in the year that it happened here we don't have a copy of the letter that was sent or no we don't know whether a letter was sent from that figure yes we don't know whether a letter with that because we weren't able we look for a copy of it we weren't able to find a copy of a letter that had been sent but the th amendment cases are distinguishable because if an indian is being held beyond the term of his lawful sentence there's no  proper penal logical objective in holding an inmate but here at the sentencing court itself recognized by operation of law he had to serve consecutive sentences and that there was no way in court recogniz returned well and she said in the sentencing minutes she said yes yes so our point really is that there is qualified immunity because there was no clearly established law and that is the court is inclined to find that there was a  process violation here the question would be what process would do and it's the what what the state defendants could have done is send a letter and advise the court and others about the about the sentencing directive lack of authority thank you take the matter