half years of his life in prison in sas or the supreme court made clear that federal pundits have that right that is mr mcwhorter sense today there is no dispute the government cannot keep him in jail i think the bureau of prisons had decided that it actually you that there was going to be pronouncement and that was to be consecutive it would have seemed to me that you would have recognized at the time of the sentence by the federal district or certainly from the time that he was sentenced by the state or it would just seem like he might have had some notion in the problem i read your honor that it's it's not that if you have some idea that there might be a problem but the question is for twenty fifty five  llowed you to address on appeal but don't you have to prevail on the issue of ineffective assistance of college so ultimately in order to have success in this proceeding i don't believe so your honor we certainly feel good about our in fact i and sentence by the district court he was not the executive can't really show you what it's forty for these consecutive sentences so he has to go back to the district court for that to be authorized and we think that makes a lot of sense it sort of consistent with the core of hideous which is all twenty two fifty vs right that the executive can be brought before court to answer for why it's detaining someone after sex or it's simply unclear what if or the government has to make this potential decision it's extending a sentence by two and a half years but it can't point to the constitution or statute of success or at the very least says or did i understand you to say and perhaps i misunderstood you at the beginning of your argument that under now and in this decision that the trial judge the federal say it's not on so teague simply wouldn't apply and that makes it retroactive as long arm of his is on the other hand you the government that the statutory decision we think we've shown the supreme court cases like newsweek has said you really don't do  identical this case and there's no reason it would apply here that you take waiver off the table if you agree with my reasoning that i just explained judge moore on retroactivity that makes the timing because if it retroactive under twenty to fifty five  act government's one response from twenty to fifty five or three so i take it as an assertion that sets are doesn't establish a right at all but go ahead the government hasn't offered any precedent to support that and this court is already granted relief on sets or in a go back to that definition it's where the distinction between substantive and proceed to your own runs through a lot of issues in the law and frequently it's not an easy question to answer with that definition that this decision does either one of those things you have to certainly can find out a supreme court case and a couple but i don't think there's any exclusive definition of substantive as to choose one example this court's recent decision in jones was actually jury rather than the judge find certain celebrity factor there's no disputing the court have the power here you're dealing with a case where the executive imposed the punishment it made the decision to run the sense and secondly and it doesn't have any authority to do that whatsoever it's not a procedural question something saying this branch can't do this at all it's substantive and i think by analogy he says like muesli and jones are actually pretty clear so if you look at loosely the supreme court says there's no doubt this punishment can be at the start of this  published in whose leave the conduct an issue as a manager has a legal gun extra legal drugs there's no constitutional right it wasn't placing primary conduct outside the sphere of punishment under that definition judge i referred to before what is that congress hasn't yet outlawed congress could but it hasn't and therefore this potential course lacked the power to impose the punishment question we're dealing with the same circumstances here perhaps someone else could impose consecutive sentences upon mr mcmorrow but the executive cannot do it at all it lacks not because of the question it lacks the substantive power to impose this punishment no matter what procedure he goes through and i think that is sort of really at the core of action waived his rights it was a case like sincere says the original meaning of  which twenty to fifty five infection rates is the executive tension must be brought before and that's really all we're asking for here we're saying the executive doesn't have the power of his team's problem without the district court doing so and so he must be brought before the district for please the court margaret sweeney assistant united states attorney on behalf of the respondent united states of america there are a number of procedural bars to mr mcpartland's petition in this case but i'd like to go straight to the heart of the matter and discuss the merits of his two cla starting first with his ineffective assistance of counsel claim mr mcpartlin would hold defense counsel to be impossible standard of requiring him to predict the future development of the law that is not the standard in strickland it's not the standard of th circuit in fact the circuit has specifically ruled and at least four occasions that defense counsel is not required to predict future developments in the law at the time of mr mcpartland sentencing this circuit specifically that agreed with the six circuit crack but at the time there are only four other circuits that went the other way and strickland is counsel to challenge binding precedent every time there's a circuit split and that's exactly what mr mcpartlin would require this versus warning which was a review of a state ineffective assistance of counsel claim and there the six circuit held that because the binding precedent in that circuit was such that defense counsel was not obligated to challenge it because although other districts in ohio and the ohio court of appeals may have went the other way that did not require counsel in an effort to be sufficient to challenge that precedent in the jurisdiction in which he was  when i asked him the question which you started with us he doesn't have to win on that prong of ineffective assistance of counsel yes and i believe that's because he also argues that he has a second claim under united states versus versus setser which going straight to the merits of that then your honor the most important fact on the merits of that issue is the fact the g o p the bureau of prisons has not made any sort of discretionary judgment in this case it is simply enforcing the judgment order issued by the district court there the district court ordered the bureau of prisons to hold mr mcpartland in its custody for seventy six months and that is exactly what the bureau of prisons is doing in this case your honor it has not made a decision of concurrent or consecutive when mr mcpartlin came into the custody of the federal prison he has to serve under the judgment order of the court seventy six months even if sets or had applied at the time mr mcpart the district court was not required to choose either consecutive or concurrent to the future state sentence the supreme court said that in sets or so the district court's order of seventy six months without further clarification of consecutive or concurrent perfectly fine order under setser and the b u p is simply enforcing that order and holding him for seventy six months that's going to in the year in effect have argued that he has another avenue to pursue here he does have another avenue you're on a correct and that same vein because this is an adversary procedure and lawyers like to win this your office really care whether he gets this time creditor or not your honor and the interest of finality we are satisfied with the court's judgment of seventy six months and we are here to enforce the order of the court and defend that on appeal except the court would be the first to tell you that when he did that he didn't think he had any other choice that presented on the merits of both claims he asserts in his briefs and there are no grounds to remain and it back to the district court because neither of his issues would result in any relief for him or concurrent sentence at the time has no bearing on the merits of how he is able to challenge that sentence and the merits of both of his challenges fail to give him an avenue to go back to the district court and i continue to go back to that because i believe that  reminding would serve no purpose other than to give the district court the opportunity to recent and some for the the same way and there's simply no way now that you can do consecutive or concurrent this court has nothing in the record to indicate that the court would have changed its opinion and would have done anything other than simply ordering a sentence of seventy six months as i said even if sets are applied of course around and that's all diane in the view of hindsight now looking back the district court would then be sentencing him after and i'm discharged posen prison or after a discharge him imposition of imprisonment by the state court and now the district court is in a very different position than it would have been this court should look at the judgment of the district court at the time it actually sentenced the defendant and at that time the district court was unaware of any inclination of what state court would do it didn't know if the state court would order consecutive or concurrent and frankly the federal judge the federal court is not obligated to consider what the state court sentence would be because the  came out i would agree with the court on that however there's no inclination that the district court was deferring that judgment to be to the b o p and in fact there were no your honor in fact the and the b o p never actually at the time of sentencing so there's nothing in the record that indicates who the judge believed would make a determination of concurrent or consecutive or even that a concurrent or consecutive determination would have to be made for all the judge could have known was that the charges in the state would have been dropped he had not even pleaded guilty in the state yet at the time that he was sentenced there was no inclination either way that that would have that would eventually have been raised what's your view on this case was sent back could the district judge now order the b o p to give him credit for the time served in the states that it would then have to be an order of concurrent sentence your honor and it would effectively run the time that he served in state court concurrent to vacating the sentence on remand so he would have to impose a new sentence and would then retroactively apply that sentence concurrent to the already served state sentence but like i said your honor i don't believe that there are any grounds for that  or i believe there is your honor because it if you look at credit for time served for the purposes of thirty five eighty four that discusses time served in federal custody and that is a determination that makes depending on when a federal prisoner comes into federal custody and when they actually begin serving a federal sentence in order that a judge issues saying that a sentence is concurrent is his ineffective assistance claim which is the claim he asserts is timely under twenty two fifty five or is untimely under that subsection simply because the facts that gave rise to that claim the fact that his sentence was concurrent were known to him at the time that he was sentenced in the state court the state court issued a sentence that was consecutive twenty to fifty five f for also says that the defendant has one year from the time that the facts were known to him or could have been discovered through exercise of due diligence and although counsel cites a case that was not in the brief i believe he stated that in that case there was it was based on a letter and a clarifying order and i would submit to the court that that could have been done in this case at the time when mr mcpartlin was sentenced in the state court and he was aware his state sentence would be consecutive he could have petition to the district court and asked is this sentence going to be consecutive or a i would point the court to the fact that when he gets his state sentence and he knows that his state sentence is going to be consecutive to fetter his federal sentence he knows that the seventy six month sentence that he received from the federal court will be a seventy six month sentence the well he effectively knew that he at least would be serving a state his full state sentence and then his full federal sentence he knew what his state sentence was when he was sentenced at the state and he knew what his federal sentence was when he was issued federally so he would know at the time he was sentenced in the state that those two sentences would be consecutive those are the facts that give rise to his ineffective assistance of counsel claim the other question was the  blanket waiver of a right to collateral attack and that blanket waiver covers all claims he may assert under twenty to fifty five except for those three that he reserved in his plea agreement in boman it was a specific waiver of one right to appeal under the guidelines and the court determined that in that case that waiver that specific waiver did not include a waiver of the right of the court's determination under the guidelines of consecutive or concurrent here we have a blanket waiver it's much more broad he only reserved three instances under collateral attack on and correct which i assert fact is untimely so with with that your honor this is a much broader waiver that involvement i have just one one last thing i know your time's up but why did he was already sentenced in federal court why did the why did he not start serving in that sense it's kind of the same question judge moore as i never understood it consecutive sentences you serve first that sort of a contradiction in terms why did this state sentence start being served first to begin with your honor mr mcfarlane was a prisoner of the state at the time he was for word identical to the waiver provision here in both cases you're dealing with the same exact language as part of the concern for the every question so that was all the distinction between the two second i'd like to talk about the government's argument that the prisons  implementing a sentence if that were the case we'd have here is effectively an automatic consecutive sentence their contention essentially is the district court didn't have any discretion of the time to shoot it now and your presence is not exercising the discretion it's just an automatic sent follows that the didn't follow sets or the discretion be up to the bureau of prisons but there's never been a case where this would be an automatic and second sentence and it's not accurate to say that the the district court could simply refrain from doing anything and allow nature to take its course  the failure to decide for the failure to exercise you for the district court has itself an error sort of no scenario under which consecutive sentences are supposed to be automatic and i and i will say to contest the government's view that the district court didn't give any indication i mean one it actually offered to issue a writ taking mr mccartney into federal custody so that this federal sentence would begin or is in state custody turned out to have the power to do that and i think that's an incredibly strong indication that he was inclined to give federal credit can we if we go along with your argument can we order the district court in this case to or just order that the he be given credit for saying supposed to run concurrently to the states and which by the way makes sense because those seventy six months included enhancement for basically the same conduct became the basis of the state sentence but he would get to reassess it and if he decided to issue consecutive sentences sentences and the bureau of prisons would give him back to that or by credit of his time in state in state custody just as it used to do before steps or where it would do what it called another proton designation in say two and a half years of your federal sentence were served in state custody procedural rule so there's simply no grounds on which it wouldn't apply retroactively if you do reach the ineffectual sister council claim i know that this court has consistently held open the possibility that where the demise of the president is clearly foreshadowed it may be ineffective assistance of counsel not to challenge the very difficult question this court actually went in bank to resolve that nichols then ended up deciding the case in other grounds so we think you need not go down that road because much simpler to resolve it under sets or but if you do we think we've shown that wise of quintile was clearly