In this task, you will be shown a prompt from a judicial decision and multiple holding statements derived from citations following text in a legal decision.  Holdings represent the governing legal rule when the law is applied to a particular set of facts. There are five answer choices for each citing text. The correct answer is the holding statement that corresponds to the citing text. You should write an incorrect option. Even though there exist multiple wrong answers, we only need a single wrong answer. There is a <HOLDING> token in the position of the citing text prompt where the holding statement was extracted.

State, after expressing its clear and accurate understanding of the ... issue ..., deliberately steer[s] the District Court away from the question and towards the merits of [the] petition.” Wood v. Milyard, — U.S.-, 132 S.Ct. 1826, 1835, 182 L.Ed.2d 733 (2012) (internal citation omitted). In Wood, the state had assured the district court that it was “not challenging, but d[id] not concede, the timeliness of the petition.” Id. at 1830. As in Wood, the state’s words and conduct cannot be described as an inadvertent mistake or forfeiture of the exhaustion defense, as was the case in Day, but instead they clearly evidence an express intention to waive the exhaustion requirement. As the First Circuit said, “[t]hat was game, set, and match.” Pike v. Guarino, 492 F.3d 61, 71-72 (1st Cir.2007) (<HOLDING>). Other circuits have also held this type of 
 Holding statements: (A) holding that a deposition that was not presented to the trial court could not be considered on appeal (B) holding that nonconstitutional claims that could have been raised on direct appeal may not be asserted in a collateral proceeding (C) holding that a waived issue ordinarily cannot be resurrected on appeal whereas a forfeited issue may be reviewed for plain error (D) holding statement that  petitioner is correct in her assertion that the claims presented  have been exhausted  was unmistakably clear and could not be resurrected on appeal alteration in original (E) holding that complaint on appeal must be the same as that presented in the trial court
holding that a deposition that was not presented to the trial court could not be considered on appeal

to commit himself to such an alternative to a federal sentence. 2 . Defendant also raises two additional arguments: (1) that the district court improperly based its sentence on the defendant’s refusal to waive his constitutional and statutory rights to oppose his deportation; and (2) that the district court failed to appreciate the scope of its authority to consider, as a mitigating circumstance upon which to base a departure, defendant's vulnerability and susceptibility to abuse in prison due to his physical condition. Both arguments lack merit. As to the first argument, the conditioning of a downward departure on the surrender of a statutory right to a deportation hearing would not have offended due process. See United States v. Galvez-Falconi, 174 F.3d 255, 260 (2d Cir.1999) (<HOLDING>). See generally United States v. 
 Holding statements: (A) recognizing that a defendant may appeal a district courts refusal to depart downward if the sentence was imposed in violation of law because the district court misconstrued its authority to depart (B) holding that district court had authority to grant section 5k20 downward departure despite governments opposition (C) holding that the district court was not required to state affirmatively on the record that it knew it possessed the authority to depart downward (D) holding that a circuit court has no jurisdiction to review a district courts discretionary decision not to depart downward from the guidelines but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart (E) holding that where a defendant malees a showing that the act of consenting to deportation carries unusual assistance to the administration of justice district court has authority under ussg  5k20 to depart downward in absence of the governments consent
recognizing that a defendant may appeal a district courts refusal to depart downward if the sentence was imposed in violation of law because the district court misconstrued its authority to depart

in Wheeler occurred on May 31, 2007. Wheeler, 121 Hawai'i at 386-87, 219 P.3d 1170-74. Hence, for charging purposes, the law that governed was the OVUII statute as it existed in 2007. It is therefore inaccurate to say that the OVUII law post-Wheeler was any different than that existing pre-Wheeler, because the requirements set forth in Wheeler were themselves applied to a charge that dated back to 2007. Accordingly, the Walker quote is a misstatement ("essential elements that the State must include in an OVUII charge differ from those required in 2007”). 31 .This court has previously applied Wheeler retroactively in cases in which an OVUII charge lacked the public-road element without discussion of whether Wheeler announced a new rule. See Garcia, 125 Hawai'i at 443, 263 P.3d at 724 (<HOLDING>). These post-Wheeler decisions include the 
 Holding statements: (A) holding johnson announced a new substantive rule and prior supreme court holdings make it retroactive (B) holding that apprendi announced a rule of criminal procedure forecloses  argument that ring announced a substantive rule (C) holding that simmons announced a new rule and retrospective application of the rule was barred by teague (D) holding that retroactivity is assumed unless a new rule is announced (E) holding that rule announced in mcconnell applies retroactively

holding johnson announced a new substantive rule and prior supreme court holdings make it retroactive