thank you david case number thirteen dance two three six two alexander a civil versus duncan mcclaren argument not to exceed fifteen minutes per side mr bang hartman you may proceed through the appell thank you your honor i may please the court minus bankcard when assistant attorney general for the state of michigan and the half of the respondent warden respectfully requesting that this court reversed the district court erroneous grant of habeas relief on both the counsel of choice and double jeopardy claims the attorney general has taken the circumstances surrounding this case very seriously but the district court apparently believed that what had happened was not enough and therefore used the power of to impose a sanction on the police prosecutor and judge by granting the petitioner the windfall of absolute immunity for his drug felony this is not within the power this is not what habeas relief is for what  the federal courts are empowered by congress to grant hideous relief defending kate the constitutional rights of state prisoners only where the state courts have contravened or i'm reasonably applied clearly established federal law be i'm sorry was there question your honor i'm sorry i thought i heard something  w he plead guilty that back in time around right correct and i take it there's a reservation of rights for appealing the double jeopardy kind you know your honor nothing was reserved this is an unconditional guilty plea he was in he gave up his right to appeal by levy appealed only by leave granted he gave up his right to appeal as of right and was appealing only by leave granted and so the double jeopardy are correct that regardless of the quality of the representation that's true but under gonzales lopez if it was a complete shift if if the petitioner only had one attorney that he wanted and the court unreasonably denied him what it i don't think there's any reason to think that a civil would delay the case by having moffat in the proceedings i think the judge was concerned and reasonably concerned that moffatt would delay the proceedings of other retained counsel mr harris moved to withdraw twelve days before the scheduled date for a trial because he felt that he could not competently which is to say ethically defend mr ace of all mr moffat was also involved  and they were essentially butting heads and so the market never moffitt was muffin explicitly said he was not willing to try the case tariff was a civil choice to try the case to actually go to trial and harris was saying i can't do the job if moffat is in it so either delay but case because they let harris withdraw and get another attorney or they don't or they proceed with harris and he can't do his best job and you've got a built in ineffective assistance claim right out the existed thank you but thank you your honor i move on to to the double jeopardy claim and i think what's important first is to establish what the jeopardy question and did so twice in the in their first order they denied leave to appeal for lack of merit in the grounds presented that is the merits adjudication of all the claims that were presented under harrington versus rector the fact that there is no appeals also mentioned that the double jeopardy claim was without merit even though they hadn't been asked to do so by the michigan supreme court so this is then presented to and decided by the machine court of appeals on the win anyway yes your honor we do it anyway because in that stance well because there is no basis to extend in that case this court would have to decide as an issue of first impression whether to create a new constitutional rule and apply for the first time in haiti as relief this is this would be an extension of kennedy and as the petitioner said below this is in the state court excuse me as the in a hung jury whether there is an exception to the well established rule that jeopardy does not terminate and that retrial is not bar based on prosecutorial misconduct and judicial misconduct it is not engaged in for the purpose of goading the defendant into seeking a mistrial that would be the question  if they were not they're kind of left vague and left open which is why the supreme court in kennedy in oregon versus kennedy recognized that that door had been left open and they closed it and they locked it they sat we they said  majority and kennedy said we recognize there is this exception where the prosecutorial misconduct is intended to go the defendant in the seeking a mistrial and any language that we put in debts recognizing the possibility of other exceptions that it's not applicable in its own way and in fact to make it clear that they think is crystal clear language in the majority and you can read that the concurrence and kennedy as well because they're upset with the majority for closing the store and they say we need to have these other exceptions open for other prosecutorial misconduct or bad faith the overreaching and harassment if that's the problem with the kennedy majority is that they're closing the store so so there's no question that kennedy closed the store and at the only exception that still exists is for future mistimed of misconduct that is intended to go the defendant into seeking a mistrial and that's consistent with what the it is an anomaly but the question is what is clearly established federal law that the state court violated by saying that retrial was not barred and there is no exception for the agree just not for the level or the badness of the misconduct there's no exception for that it doesn't matter how bad the misconduct is the remedy is a new trial and even if the judge is involved as in oregon versus kennedy itself wasn't the level of a courageous ness that we see here but the judge wasn't but this was judicial misconduct in oregon versus kennedy or or if you look at you know julia versus united states where you've got the prosecutor suborning perjury similar to what happened here the remedy is if there's a conviction the remedy a new trial and there's no exception for how bad the misconduct is it can be as bad as it gets the only exception is when the misconduct has that specific intent and in fact i would drop a hypothetical even where the misconduct isn't that bad let's say a prosecutor decides that they can read the jury and they see the acquittal coming and so during closing argument they squeeze out a few tears in order to sort of inflame the emotions right if that draws a mistrial request before we begin i do want to point out with respect to the argument about the plea waiver that if you look at footnote three of the state court of appeals opinion it specifically says that whatever arguments could be made about table i believe we can all get out i guess on the right to counsel corner this happened after judge turn of decision but i guess i'm thinking abby vs how doesn't leave a lot of room to argue on that one of my wrong about that i was certainly concerned about the abby decision but it did not predate my brief and i spent significant time i thought  believe that the manner in which the disqualification of mr moffat took place somewhat distinguishes him because he was granted that status here and again there's the entire prevail pervading problem that we've been dealing with here i can go into it in greater detail but in all honesty i've said everything in the brief that i really can say about that's an exception to the general rule and of course not what happened here so why would you follow the general rule you get an unfair trial the remedy to get a fair trial answer to that i think first turns on the question all whether or not there is a state ruling on the merits within the meaning of harrington  if we if i get in over a review i think the judge posner's opinion addresses that this does fall within oregon versus kind of the exception and that it is perverse to say the least to say that if i cheat to get the mistrial that's one thing but if i cheat to get the conviction that's no where near is agreed to so i think that these items are inextricably intertwined and i believe that that's the point that the court's going to honestly have to turn to to decide how to answer it if you would like me to discuss the merits of why my proposed rule would be better i can do so i have cited to numerous commentators on that and in the story that i can find out what's your response to the you with respect to the issue of harrington but in this case the court didn't need to get there because of how it turned on the d harrington there would necessarily had to be a ruling to rule against the heaviest petitioner in that case i think that that is a significant difference that you are assuming that there is a state rationale that underlies fission whereas in this case they could have reached the result without actually having touched that point so we have to go in first infer that there was a does and then construct the reasonable decision and then defer to it i would call that a double straw man theory i guess my common sense way of thinking about it is you obviously have to exhaust the argument in state court so you're you're kind of in this tough spot where you either didn't raise the argument in which case you haven't exhausted in or you raised it the assumption is the judgment by the state courts that's your last point that's that's what you're trying to say that when i heard a havior speak at the federal defendants conference last year on this point he cracked a joke he said you can lead a judge to water but you can't make them drink meaning no disrespect but i don't think the courts always decide every issue that's in front of them when they find another that one of them is dispositive or one path resolves the directs the result and therefore we don't need to decide all the and so waypoints does herrington extend to also the deference to those uncovered points my answer to that would be no limits the right to counsel once for all of two single attorney will it down the whole case that's what he said but that seems back and puts the burden on the petitioner to show why what was done to as phrased i would have to answer yes but i but no two cases are ever exactly the same and it is always possible to find a distinction between any two cases the question is  whether the rationale that is stated by the united states supreme court applies not whether the two cases are factually identical i think that the issue with ms specter mr moffat is twofold first of all he had been granted that status the judge actually said that earlier in the same procedure in the same case the cheek that overrule a co equal judge with respect to rulings that already been decided and he had been granted the leave it had been participating in it and as the court of appeals panel in this case noted the real concern that came up was that she believed that his will was growing in the case and as the court stated earlier that there was a fear that the is this growing role was actually going to somehow slow down the litigation of the case double jeopardy going someone into moving for a mistrial if you just think of your theory ok that was misconduct and misconduct was designed not so much to go to someone and moving for a mistrial but  misconduct designed to get a conviction in that mission to bring your double jeopardy give me put some sand on the what seems to me a slippery slope i would have guessed  most misconduct in initial trial are going to go in the direction of trying to get a conviction and it's very strange to think of misconduct which isn't going in the direction of getting conviction that's the problem you know incentive to try to convict somebody so it just seems like it becomes a very big rule and maybe your answer is fine that should be the rule i there is misconduct designed to get a conviction that's enough to reduce to trigger double jeopardy prevent a new trial but is that your plan or what how would it work if i could use a football  y what i believe that the concern is is that if the government sees its case going down the drain and it's the proverbial hail mary pass with a loaded football or whatever the equivalent is in sunlight into cheating in football that would be where the demarcation happened the kind that would certainly have to reach this level of offensive but if the prosecutor asked to assume that the defense attorney would detect the misconduct rather than they could get away with it i think that also creates a slippery slope where you complete defenses where you could turn around and flip it around and say i thought the defense counsel was so off that i get away with it i didn't think he would catch me so that's why i did it i didn't want to go to ms trial i wanted to get away with my car that came off the bottom of the  deck switch my cheating metaphor to a different discipline i'm not totally following all the metaphors and that's just and that's captures it is your point that no misconduct designed to generate a conviction is not usually going to yes where it's the hail mary pass so to speak meaning that at that point you break to cheating because you know otherwise the game is over  supreme court precedent under it we remember one of the purposes in double jeopardy is to stop the trial by attrition fairly i mean i think i can think of no other case better case and this is an example of how this would completely deplete virtually any defendant if we adopted that approach and i think that that's consistent with kennedy i mean for every reason why you can argue for the kennedy exception to be limited to its facts this is an exact inversion it creates all the incentives that rule was design but again i'm actually got richter in front of me and i want to read the part of it that i just not sure how you get around or make sure at least want to make sure i understand how you think you can get around it so i'm reading on from you don't need to read look at it but it's one thirty one supreme court with porter at seventy four and so they had a dentist by the issue and that's whether twenty two fifty five five for view section applies want to stay court's order is unaccompanied by an opinion explaining the reasons plural relief has been denied then you go down to the next paragraph it goes where state court which of the elements in a multi part claim is found insufficient for twenty two fifty forty applies want to claim quote unquote not a component of one has been adjudicated i guess i feel like that's exactly this case where the opinion at least the wanted to eighty three seventy nine hundred twelve all of those components which that rationale and did not reach the double jeopardy component except for the footnote in footnote six  which speaks for itself it says manifest necessity if if that does it i have a problem but if you're earning two and if you're going to you know lack  where there was the order about lack of merit and then the supreme court ordered the court of appeals to hear this and then heard it i believe that this opinion supersedes that opinion in the  presented that is entitled to deference it may have been superseded by the court of appeals opinion with respect to the two issues that the michigan supreme court sent it back to review which didn't include the double jeopardy claim and to the extent that you we're not arguing a procedural default based on the state court and foresman of the waiver we're arguing that the claim is waived in the district court in this court by the guilty plea that that's a distinction we're not arguing procedural default and that claim to multiple counsel that the state court couldn't grant that only has to come from the united states supreme court at least for a b s purposes so even though he had multiple counsel he never had a federal constitutional right under clearly established federal to captain i think would be the case or lot i'm less interested in the name of the case and more interested in how you respond to be argument yes absolutely and in that case i don't recall which it was but i believe in that case which was a direct appeal case the seventh circuit was considering whether to extend the rule of kennedy to the circumstance of the case and the second circuit went back and forth and said there are good reasons to extend it there are good reasons n to and i think the discussion to the extent that it's persuasive at all weighs very heavily in the state's favor because if kennedy actually allowed relief in the in that circumstance there would be no discussion as to whether to extend kennedy there would be no extension you would simply apply kennedy and he would simply grant relief the fact that the court on direct appeal not bound by ad not bound to only follow clearly established federal law was able to consider this shows that clearly established federal law does not bind the state courts on that question and so that would that would be my response to that case and also like a president can i'm sorry go ahead  you thanks to both of you for your arguments for commentating the difficulties of doing the slides in cincinnati really appreciate doing it by phone and