Legal Case Summary

Good morning. I apologize for being humanist late here. We have two cases that will be argued this morning. The first is number 12-2283. Wilson, the Secretary of Pennsylvania Department of Corrections and Bonn, Mr. Weissman and Mr. Dogenes. I keep pronouncing it. How do I pronounce it? Dogenes. Got it. Mr. Weissman, ever you're ready. Thank you. Good morning, Mayor Ples. By the way, you would think after all this many times I would get it right. No, the answer is no. Sorry. Good morning, Mayor Ples, the court. My name is Michael Weissman and I'm usually a pronounce and I... Okay, so Weiss, like a Z instead of an S, instead of my Weissman

. No, Weiss, Weissman. And I represent Mr. Wilson. If I could, I'd like to reserve three minutes for the battle. All right, you're going to make us Weissman, we're done here then. Hopefully. Your orders, there are two primary issues that I'd like to address. One is exhaustion and the other is the prejudice resulting from the delay in this case. I'd like to talk about jurisdiction first. Sure. Let me ask you this question. You obviously agree with the proposition that at some point the district courts, the vested of subject matter jurisdiction and the habeas, once the reds granted. Correct. Okay. My question to you is, what is that point? Obviously there's a question here because of the lack of a back of your order and so forth. So I'd like your view on that point. Sure. I can't tell you precisely when the jurisdiction of the district court ends. I can tell you that when a petitioner files a rule 60b motion in a habeas case, a court has jurisdiction to adjudicate that motion. Even if they let me give you a hypothetical. Let's say a back of your order had been entered here

. It doesn't work. Right. So the reds granted as a consequence of the red, right, of back of your order is entered in the state court. Right. At that point, hasn't, hasn't the constitutional issues that the petitioner has raised in federal court now been resolved. And therefore the federal court should be divested jurisdiction. Yeah. That sounds like a lawyer, but it depends. And what it depends on is the nature of the rule 60b. So for example, we can all agree that if Mr. Wilson's claim was that he couldn't be retried because of a double jeopardy claim, then no one would argue. I don't think anyone would disagree that the district court would have jurisdiction on a subsequently filed rule 60b. Subsequently filed, but I'm talking about within the same, the framework of the same case that was filed. Obviously, there can be subsequently filed habeases on different bases, but I'm talking about in the same one that's filed, constitutional claim is raised, right. It's resolved. A vacket or order is entered on the state court docket at that point in time. Isn't the district court the best of the whole thing? I still believe that the answer to that question depends on whether the 60b motion is a properly framed 60b motion. If it's not, if it's like the case, purchase the Davis where the 60b motion sought an intrusive intervention into the minutia of how the state court was going about retrying the petitioner, then I would agree that there might not be jurisdiction. So that's not his case. So if the 60b motion speaks to the constitutional issue that was resolved in the haviest, then you would say the district court retained jurisdiction. Not necessarily

. The line of cases I'm relying on, sadly, and the embrosial carve out an area where if there are extraordinary circumstances, and the question I think before this court is whether those extraordinary circumstances existed. If there are extraordinary circumstances brought to the district court in a 60b motion, the district court has jurisdiction to entertain that. Now, you know, there's all kinds of hypotheticals. I'm not sure I can answer all of them, but certainly our view is that we had extraordinary circumstances. Therefore, judge the Dova had jurisdiction regardless of whether the state court vacated the conviction. But it's pretty clear that the state court did vacate the conviction, didn't it? Ultimately they did. Yeah. And so why doesn't Pitchis? How do you get around Pitchis? This says that with the 60b6 you got. Pitchis is a case where the litigant was back in the state court had had hearings in the state court, discovered a brand new Brady violation arguably, and then went back to the federal district court. We're different than that because nothing happened in the state court except they brought Mr. Wilson back to the state court and arraigned that started the process two days later. We were back in front of Judge Padova complaining about that. So we're not asking the federal district court to intervene into the minutia of the retrial. In other words, we're not going back to Judge Padova. But why isn't re-arrainment a point in time when the federal district court no longer has jurisdiction? Well, because we had no inkling that they were ever going to bring. But if they waited 30 years and then brought Mr. Wilson back to the state court, you still have a delay argument, but then in the state court. Now we have the exhaust. And that's why I think we get back to my initial response, which is that it depends on the nature of the rule 60B. Okay, sadly, again, which we're relying on, which Judge Padova acknowledged, says that in extraordinary circumstances, such as when the state inexcusably repeatedly or otherwise abusively fails to act within the prescribed time period, or if the state delay is likely to produce prejudice, then the district court has jurisdiction, then the district court. I'm going to adjudicate it, and that's at page 828 of the 20 next

. So are you saying that under your view of sadly any time after 180 days, you'd have this argument? Well, what I was about to say at the very beginning is this is not a case where we ran into Judge Padova on day 181 and said, you know, tab your it. This is five and a half years. And I think that that's a qualitative difference. No question, but that we don't have a right to barry prosecution simply because the time frame within the conditional writ was violated. And that's what distinguishes this case from the 10th and 11th Circuit cases that Judge Padova relied on his opinion at a payments 1920. Those cases, you know, it was like day 61 and the conditional writ was 60 days. You let it get went in and said, oh, that's it. You believe time frame. You can't. You can't reprocess you. This is a qualitatively different situation. The question, you know, habeas is about equity and the equitable question. All right. It's a matter of degree clearly. Yes. It's isn't day 181. Five years is a matter of degree quite different. Correct. But why is it a difference in kind? One of your arguments is that your speedy trial rate is violent. You want us to say that you're quiet. I'm sorry

. That's not our position. We have never framed this as a speedy trial. You claim. That is what my opponent has framed it as that's how Judge Padova saw it. We don't see it as a speedy trial claim. We see it as an extraordinary circumstance on the rule 60. A tactical decision made by the prosecutor. But part of the extraordinary circumstances include. Include speedy trial sort of within that includes competency issues. Correct. That's our project. It's a witness. Both your client and a witness who may have a competency issue. Right. Right. Right. Why can't the state court decide this? Well, certainly they they they you know I could present it to the state court. But that's not that's not the claim before this court. We believe we have established extraordinary circumstances that gives the district court and this court jurisdiction to hear. And and and adjudicate our claim that the Commonwealth engage. And really this was a week

. All right. Let's assume you're right. We have jurisdiction. We can hear it. But why why should we adjudicate those matters when the state court has never even had an opportunity to? Because the the as I was about to say you know at the heart of habeas corpus is is equity. And and when you know I cited Bumedi and and the Commonwealth responded that's an overstatement. And you know sure Mr. Wilson wasn't kept at black sites and he wasn't intentionally tortured. But Mr. Wilson's in walking on what decade of incarceration and and you know the fact that the Commonwealth made a decision. They decided let's wait until the other case gets decided and we'll see if we have to retry. And that's a tactical decision. My client Mr. Wilson who spent the bulk of his life in prison without a constitutional conviction should not have to bear. The prejudice the results from that but you know you talked about before the nature of the 60 B. You know in our discussion at the beginning. Now if the nature of the 60 B is distinct from the underlying claim which here was a batson claim. Then why should it what why shouldn't there be a point in time when the district court is divested of jurisdiction? Right. And the answer is there would be such a time. However, if if the petitioner can establish extraordinary circumstances as I believe we have. Then it doesn't matter why don't you begin to grant it the right

. So you have to be that connection so your so your view is extraordinary circumstances may have nothing to do with the original. Sure. The case. I mean you know what if they waited you know 30 years you know way to bring them back. I mean we couldn't you know we couldn't take a proactive role at this point prior to them bringing him to stay quiet. I think I thought the case was all I mean we're done with other stuff. Where's you know one of the things that we're often asked to do is line draw right so I think that based on Judge Hardman's question. You agreed with the notion that you know on day 181 probably no claim we're we're at you know whatever day. 181,800. Five and a half years you know whatever you know 1000 but I'm. When would you have no claim would it be you know a year is not that unreasonable you're in a hand. I mean I think that's a call for the for the. Or do we or you're saying we don't have to line for and this is just unreasonable and that's where we are. No no no not at all I think that you know look this case is about exhaustion in judge for the dove's eyes. And he never got to my view you never got to the merits of the prejudice. Our view is because A. B. is equitable you have to look at all the circumstances you look at how is Mr. Wilson been treated by the Commonwealth of Pennsylvania during his almost or in excess of three decades of incarceration. What happened on his other case why did the five year delay occur why didn't it happen in this case was because they couldn't find him sometimes the prosecution can't find. And then you get into all kinds of questions of

. We know the answer that if you hadn't had success on the second conviction they. This would have sat and suspended animation right that's a perfectly fine position for this adult is to take. But if his office takes that position we shouldn't have to bear the result of that we shouldn't have to then live with the fact that they decided well. We don't really want to try this case unless we have to well fine and don't try but don't come back five years later and say well we're ready to try that's their decision we shouldn't have to bear. Brunked that decision when you talk about prejudice I'd like you to. Tell us a little bit about that because in your papers you talk both about your your clients. And then you talk about your clients. Difficulties which based on the record seems to be equivocal. Because there seems to be some some evidence in the record that your client isn't as bad cognitively as. The picture might be painted but but also Mr. Guest because I wonder why Mr. Guest and his medical difficulties don't anew to your benefit. Well it addressing Mr. Wilson first. If you look at the appendix between six 12 and 627 you will see Dr. Kessel's testimony regarding her review of the DLC records and she says during the period of the delay it is the first time that Department of Corrections noted that Mr. Wilson was psychotic and they gave him a baseline diagnosis of having a delusional decision. And that that happened during the period of the way now whether he's competent or not is one question but to say that he isn't more impaired than he was 30 years ago is quite another question. He clearly is I don't think there's going to be any debate about it. It's in the DLC records. When were the recordings? I thought there were the recordings of him that spoke to his lucidity and conversation

. Mr. Wilson and you know it's hard to talk about this without you know separated my own personal experiences with him. He can talk about a lot of stuff he understands I'm here today and what I'm arguing for but if you talk to him about mental health on he'll respond at times talking about having snakes in his body. He'll talk about the arresting officer breaking into a cell and injecting him with poison. I've experienced all of those conversations. And when the state judge hears all that the state judge can say things like okay this is unfair. I'm going to grant you the relief you see. Sure. So really I guess I'm challenging with the notion that this isn't so much about what it's a who and and in habeas you know the federal courts aren't supposed to be the line of the first line of relief. And this is supposed to be the last I get that but and and that's why younger v Harris councils this court to tread lightly and I don't disagree with that. That's why you don't see very many cases like this but this court can't turn a blind eye to the sick circuit line of cases that say under circumstances like this relief can be ordered. I do want to I know it's on way over. I do want to just make a couple points. The issue I think for the court primarily in addition to the jurisdiction the judge Greenway mentioned is is one of whether judge Badova. Ruled only on exhaustion or whether he got to the merits of prejudice. I just want to point out at a 28 a 36 and a 39 of the appendix you will see excerpts from judge Badova's opinion where he intermingles exhaustion with his discussion of the merits. I don't believe there's a single finding a fact contrary to our assertions of prejudice in each instance he says for example at a 36 we conclude the mental health concerns regarding Wilson do not present extraordinary circumstances that cannot be fairly addressed by the state court. So he doesn't ever really separate out in his ruling prejudice from exhaustion so I think the issue before this court is exhaustion judge Badova. Respect for him of course was wrong in saying this had to be exhausted. Let me just see if I can summarize here. You've got a conviction that resulted in it being overturned for batson issue here on this case right and there was a conditional habeas granted that you have 180 days either to retry or or release the reason he's not released is because there's another it's the lamb case is still pending although

. So on that case he was at a Brady issue so on this one it looks as if practically speaking the commonwealth prefers to go forward with lamb and let's see what happens here let's let's be efficient about it and they wait a lot of time and much more than you think should have happened and therefore you have a claim that they just waited too long and they can't go back and retry with regard to the court. So I think that's a very important part of the question. Why when you weigh federal state relations why is it that you don't let the state court have the first shot at that? I think I tried to answer that I think that the line of cases out of the six circuit. But I'm just talking practically speaking now. Oh practically speaking because Mr Wilson cannot be made whole by requiring us to go back to say what even if we go back to state court and he wins we're talking about years more of delay and frankly if you want Mr Wilson would you want to put your faith in the courts that have treated you this way for over 30 years. The nod your constitutional rights with impunity and and and have you incarcerated all that's not the point is I don't know what the state courts would do. But at this point back to Judge Greenways I mean you've got what you asked for. You've got a habeas and he is the conviction was vacated at some point after 180 days or at least in effect vacated. So therefore if they're going to go forward they need to do something but we're now back in state courts. Are we not on this on this matter. Yes the cases in limbal sorry in the suspense in state court before the calendar judge that's correct awaiting the resolution of the 60 being motion. The concern that I've expressed is and I think we all have is there's got to be a point in time regardless of the merits or substance of the 60 be that's filed that the federal courts are divested of jurisdiction and you have to as judgment was pursuing pursue your claim in state court. And I think the answer that you've given me is it depends on what the nature of the 60 be is and of course the hypothetical I've given you is if you obtain the the release the relief that you saw it in this case it would be bats in relief it could be whatever the relief that you saw it was. If you've obtained the the relief doesn't that and if you will the relationship that you have on that habeas in the federal courts and you've got to start a cycle again yeah and I think the answer is maybe I can answer it this way I don't think that the simple fact that we got the relief that we saw it and the fact that the state courts at some point vacated the conviction and rearranged it. The claim Mr. Wilson does not by itself all by itself divest the federal courts of jurisdiction it depends on the circumstances and I I got it I've learned a lot of research for this case and I haven't found another case like it you know I was I was criticized in the briefing for not having for only having cited one case well you know it's not every day that the prostitution intentionally waits five and a half years for each other. I'm not trying to homicide. This is an unusual case and I think it's not every day you win two habeas. I'm a scientist. I don't know about ever happening before. You're the other case too. Yes I am. Wow. Yeah so you know it's an unusual case and I think unusual cases when you're talking about equity deserve unusual consideration. Thank you. Hopefully if I had some rebuttal left. Now we'll get you back we'll get you back. Mr. Dolginess. Good morning Your Honor Tom Dolginess from the Philadelphia D.A.'s office for the Commonwealth at Belize and just to get to that last point I lost both cases. With help. Now you're going to do a makeup. The question in this case when you get right down to it is whether the Commonwealth can retry Zachary Wilson for the murder of David Swift in 1982 and obviously there have to be extraordinary circumstances for the federal courts to intervene into an ongoing state murder prosecution. It's our position that there's no such extraordinary circumstances here. There are a lot of points to government go to the school right to the jurisdictional point. We have a lot of moving parts all of these questions I think are interrelated with respect to jurisdiction the court asked at the beginning of the appeal here whether or not the district court had jurisdiction to adjudicate both the motion to enforce and the 60 B motion. I think the question is moot with respect to the motion to enforce because Mr. Wilson hasn't appealed that and also because the district court held that order wasn't violated so there would be nothing to enforce with respect to the 60 B motion as as we said in our brief. We believe the district court did not have jurisdiction to hear what amounts to a speedy trial claim in the 60 B motion and there's there's really two reasons for that first. Because the kind of allegation that Mr

. Yes I am. Wow. Yeah so you know it's an unusual case and I think unusual cases when you're talking about equity deserve unusual consideration. Thank you. Hopefully if I had some rebuttal left. Now we'll get you back we'll get you back. Mr. Dolginess. Good morning Your Honor Tom Dolginess from the Philadelphia D.A.'s office for the Commonwealth at Belize and just to get to that last point I lost both cases. With help. Now you're going to do a makeup. The question in this case when you get right down to it is whether the Commonwealth can retry Zachary Wilson for the murder of David Swift in 1982 and obviously there have to be extraordinary circumstances for the federal courts to intervene into an ongoing state murder prosecution. It's our position that there's no such extraordinary circumstances here. There are a lot of points to government go to the school right to the jurisdictional point. We have a lot of moving parts all of these questions I think are interrelated with respect to jurisdiction the court asked at the beginning of the appeal here whether or not the district court had jurisdiction to adjudicate both the motion to enforce and the 60 B motion. I think the question is moot with respect to the motion to enforce because Mr. Wilson hasn't appealed that and also because the district court held that order wasn't violated so there would be nothing to enforce with respect to the 60 B motion as as we said in our brief. We believe the district court did not have jurisdiction to hear what amounts to a speedy trial claim in the 60 B motion and there's there's really two reasons for that first. Because the kind of allegation that Mr. Wilson makes now is a speedy trial type allegation that is first new and not related to the batson claim on which Relief was granted. And second, it's the kind of claim that state courts routinely handle as part of the trial process. It's subject to exhaustion. If you read Edelman and pitches those kinds of points the exhaustion requirements can be read as jurisdictional. I don't understand that with pitches because pitches seems to me to presume on the merits it went your way. I think it helps you on the merits but on the jurisdictional question it presumes the existence of jurisdiction. I can't find anything in the Supreme Court's opinion in that case that that intimates that it did not have jurisdiction. Well, it's possibly that I'm open that I'm over reading it but there's high read pitches. If if that's this type of claim based on new conduct after the grant of the writ is not the kind of claim that can be adjudicated in the 60 B motion and I interpret that as to be a jurisdictional point. Now, it doesn't the United States Supreme Court does not use the word jurisdiction on it could be over reading it. In the last 10 years the court has really shrunk. Right. I mean, jurisdiction they've been explicit that there's a distinction between claims processing rules. And if there's not a statutory imperative almost it's not a strictly speaking jurisdictional problem. Do you disagree with that? Well, habeas presents a special case because remember that rules 60 B is always subordinate to the habeas the grant of power to the federal courts to decide habeas claims. Gonzalez versus Crosby talks a lot about this point that if the rule 60 B only applies to habeas so long as it does not contradict the grant of power and the habeas statute. So to that point it is a jurisdictional point that is if it's a kind of claim that is subject to the habeas rules that if you presented in a different way. I would say it takes out of 60 B 60 B no longer applies it is not an avenue which the claim can take advantage of. So let me ask you this question. When you mention the moment ago that it depends and that here it's a new claim that is not related to that. So let's go back in time for a moment

. Wilson makes now is a speedy trial type allegation that is first new and not related to the batson claim on which Relief was granted. And second, it's the kind of claim that state courts routinely handle as part of the trial process. It's subject to exhaustion. If you read Edelman and pitches those kinds of points the exhaustion requirements can be read as jurisdictional. I don't understand that with pitches because pitches seems to me to presume on the merits it went your way. I think it helps you on the merits but on the jurisdictional question it presumes the existence of jurisdiction. I can't find anything in the Supreme Court's opinion in that case that that intimates that it did not have jurisdiction. Well, it's possibly that I'm open that I'm over reading it but there's high read pitches. If if that's this type of claim based on new conduct after the grant of the writ is not the kind of claim that can be adjudicated in the 60 B motion and I interpret that as to be a jurisdictional point. Now, it doesn't the United States Supreme Court does not use the word jurisdiction on it could be over reading it. In the last 10 years the court has really shrunk. Right. I mean, jurisdiction they've been explicit that there's a distinction between claims processing rules. And if there's not a statutory imperative almost it's not a strictly speaking jurisdictional problem. Do you disagree with that? Well, habeas presents a special case because remember that rules 60 B is always subordinate to the habeas the grant of power to the federal courts to decide habeas claims. Gonzalez versus Crosby talks a lot about this point that if the rule 60 B only applies to habeas so long as it does not contradict the grant of power and the habeas statute. So to that point it is a jurisdictional point that is if it's a kind of claim that is subject to the habeas rules that if you presented in a different way. I would say it takes out of 60 B 60 B no longer applies it is not an avenue which the claim can take advantage of. So let me ask you this question. When you mention the moment ago that it depends and that here it's a new claim that is not related to that. So let's go back in time for a moment. Let's say it was not a new claim. So the following are the facts. You have in my hypothetical a vacket order we don't have one here I get that as a result of the vacket order there's a rearrangement. You find out some facts that now make you believe that a 60 B order is appropriate. At the time of the vacket order and I'm talking about the state vacket order which essentially enforces the grant of the habeas is the federal court divestive jurisdiction at that point. That's a very good hypothetical you're on or I'm not sure the answer that question I'm inclined to say that there might be circumstances in which the federal court is not the best jurisdiction. At rearrangement are you more certain. Certainly before rearrangement the case for jurisdiction is better after rearrangement one would have to accept that the extraordinary circumstances doctrine can kind of reimpose jurisdiction over a case that might otherwise be so. So then would you say that at a point in time after rearrangement it would have to be for an order for the federal court to have jurisdiction. It would have to be an instance where it would be a 60 B motion with extraordinary circumstances related to the basis of the original habeas. And in the absence of that there would be no jurisdiction that's probably right although I'd also say that in a case like that when that if for example that there had been some continuing bats and type violation I'm not sure exactly how that would work but they say that the claim is the same like in the ambrosio or something like that. I think in that in that case maybe you don't have to get into the 60 B stuff because maybe then the motion to enforce is the way to go. Because the actually order itself has been violated I mean if you look at 60 B remember that usually under 60 B what you're doing is attacking something about the order itself here there's no attack on the order. So it's you know from the very beginning it's sort of an odd 60 B motion in a case like that I guess it wouldn't be an attack on the order itself but it would be attack an attack on compliance. And then motion to enforce would be the more obvious way of doing it which is the first thing that Mr. Wiseman filed in this case let me get courts always of jurisdiction enforce their own order. Yes. That's not necessarily to say that you'd win in that situation but that would be the I think that the more obvious way to go. The second jurisdictional point I want to make and this is just in a way you you touched on this before. At the time Wilson filed the motions to enforce and especially when he filed the 60 B motion we had complied with the order now. We complied in two ways first as Judge Piotr with found we never violated the order and second by the time these motions were filed we'd re-arranged Mr

. Let's say it was not a new claim. So the following are the facts. You have in my hypothetical a vacket order we don't have one here I get that as a result of the vacket order there's a rearrangement. You find out some facts that now make you believe that a 60 B order is appropriate. At the time of the vacket order and I'm talking about the state vacket order which essentially enforces the grant of the habeas is the federal court divestive jurisdiction at that point. That's a very good hypothetical you're on or I'm not sure the answer that question I'm inclined to say that there might be circumstances in which the federal court is not the best jurisdiction. At rearrangement are you more certain. Certainly before rearrangement the case for jurisdiction is better after rearrangement one would have to accept that the extraordinary circumstances doctrine can kind of reimpose jurisdiction over a case that might otherwise be so. So then would you say that at a point in time after rearrangement it would have to be for an order for the federal court to have jurisdiction. It would have to be an instance where it would be a 60 B motion with extraordinary circumstances related to the basis of the original habeas. And in the absence of that there would be no jurisdiction that's probably right although I'd also say that in a case like that when that if for example that there had been some continuing bats and type violation I'm not sure exactly how that would work but they say that the claim is the same like in the ambrosio or something like that. I think in that in that case maybe you don't have to get into the 60 B stuff because maybe then the motion to enforce is the way to go. Because the actually order itself has been violated I mean if you look at 60 B remember that usually under 60 B what you're doing is attacking something about the order itself here there's no attack on the order. So it's you know from the very beginning it's sort of an odd 60 B motion in a case like that I guess it wouldn't be an attack on the order itself but it would be attack an attack on compliance. And then motion to enforce would be the more obvious way of doing it which is the first thing that Mr. Wiseman filed in this case let me get courts always of jurisdiction enforce their own order. Yes. That's not necessarily to say that you'd win in that situation but that would be the I think that the more obvious way to go. The second jurisdictional point I want to make and this is just in a way you you touched on this before. At the time Wilson filed the motions to enforce and especially when he filed the 60 B motion we had complied with the order now. We complied in two ways first as Judge Piotr with found we never violated the order and second by the time these motions were filed we'd re-arranged Mr. Wilson. And that's the critical point under all the six circuit cases that seem to dominate the legal landscape here the Ambrosio Edelman Gertz they talk about what's the moment in time where the re-arrainment took place. It's true that the motion to enforce was was filed only two days after the re-arrainment took place the the 60 B motion was filed many months after that. Jurisdiction is always technical always depends on one date rather than another that's the second reason why there is no jurisdiction here. Mr. Wilson relies on Danbrosio to for his case are you saying that he's correct it. It's the it's the same issue that you have involved on habeas that you previously had with regard to the conditional read of the grant. The conditional grant of the writ. Well I think there are a number of ways to distinguish the Ambrosio one is the jurisdictional point but also in the Ambrosio it was the same claim again it was a. I think the writ was originally granted on Brady grounds and there was a continuing Brady violation afterwards that's when we were getting into that situation that this is this is a new claim. One point I want to make that I didn't really talk about very much in the brief is the standard of review. I think I understood Mr. Wiseman to accept that the district court did find at least with respect to some of the questions there were no extraordinary circumstances which would justify suspension of the exhaustion requirement. I didn't understand that he was accepting that in his reply brief but I think it's pretty clear if you read the opinion that's a holding the district court makes. The standard of review there is an abuse of discretion standard at least and for that I am you can look at Gibbs versus Frank which I cite in our brief which says that we review a district court's interpretation of its own order for abuse of discretion. The court is also characterized at holding more recently as the court gives great deference to district court's interpretation of its own orders. So Mr. Wilson faces a significant threshold to show that the delay in this case or the deterioration of evidence does in fact constitute an extraordinary circumstance even though the district court found otherwise. Let me just ask a point of clarification that as I understood Mr. Wiseman's argument he's saying they don't have to exhaust because extraordinary circumstances exist. Is in I understand your position to be that you don't get to the extraordinary circumstances analysis until you've already satisfied the exhaustion analysis

. Wilson. And that's the critical point under all the six circuit cases that seem to dominate the legal landscape here the Ambrosio Edelman Gertz they talk about what's the moment in time where the re-arrainment took place. It's true that the motion to enforce was was filed only two days after the re-arrainment took place the the 60 B motion was filed many months after that. Jurisdiction is always technical always depends on one date rather than another that's the second reason why there is no jurisdiction here. Mr. Wilson relies on Danbrosio to for his case are you saying that he's correct it. It's the it's the same issue that you have involved on habeas that you previously had with regard to the conditional read of the grant. The conditional grant of the writ. Well I think there are a number of ways to distinguish the Ambrosio one is the jurisdictional point but also in the Ambrosio it was the same claim again it was a. I think the writ was originally granted on Brady grounds and there was a continuing Brady violation afterwards that's when we were getting into that situation that this is this is a new claim. One point I want to make that I didn't really talk about very much in the brief is the standard of review. I think I understood Mr. Wiseman to accept that the district court did find at least with respect to some of the questions there were no extraordinary circumstances which would justify suspension of the exhaustion requirement. I didn't understand that he was accepting that in his reply brief but I think it's pretty clear if you read the opinion that's a holding the district court makes. The standard of review there is an abuse of discretion standard at least and for that I am you can look at Gibbs versus Frank which I cite in our brief which says that we review a district court's interpretation of its own order for abuse of discretion. The court is also characterized at holding more recently as the court gives great deference to district court's interpretation of its own orders. So Mr. Wilson faces a significant threshold to show that the delay in this case or the deterioration of evidence does in fact constitute an extraordinary circumstance even though the district court found otherwise. Let me just ask a point of clarification that as I understood Mr. Wiseman's argument he's saying they don't have to exhaust because extraordinary circumstances exist. Is in I understand your position to be that you don't get to the extraordinary circumstances analysis until you've already satisfied the exhaustion analysis. Is that your position? Yeah I think exhaustion comes first because of the nature of these claims. I mean not interrelated. They're interrelated in that they depend on the same allegations but the question is what box you put the allegations in when you first start looking at this. But the district court did was assume that there was a doctrine of extraordinary circumstances that almost that could be satisfied hypothetically with these kinds of allegations and found that there were no extraordinary circumstances here that would justify suspension of the exhaustion requirement. Our position is just looking at the type of claims and the fact that they're new claims because it's new. Yes that you'd have to do exhaustion would be first. Could you find extraordinary circumstances yet still impose the exhaustion requirement? If you let's you know I understand your position exhaustion comes first to speed trial right. He says it's reversed. So let's say the circumstances were even more extraordinary from his perspective than they are you know they were clearly disturbing. That would be of no consequence if the claim or delay was the same. That is if it's speedy trial doesn't matter how extraordinary the circumstances are you'd have to exhaust before you consider those on the merits right. That's your position. I think that is my position. I mean it's hard for me to no court has faced the kind of allegations that you know you're talking about that are speedy trial type allegations that are so egregious that they move into the category of extraordinary circumstances and it's hard for me. You never want to say never but it's hard for me to imagine those circumstances and also remember that the worst that those circumstances are the more likely it is is that the claimant will get relief and state court. I mean it's important to remember that the state courts are real court we can't just assume the state court will do nothing to help the defendant or the claimant in a situation where he deserves relief. I mean the way that the system is set up is that the state court is presumed to do its job and that's part of the equation here that it's important not to forget. I just want to touch very briefly unless the court has other questions on the idea of compliance. You know compliance with a conditional deadline means either retrying the defendant or that once the date has passed the 180 days in this case no longer holding the defendant pursuant to the old conviction. We obviously didn't try and within 180 days we didn't hold them pursuant to the old conviction either because what's really extraordinary about this case and again this is something that came up is that he had another death penalty case that had not been reversed and was not the reversal of which was not affirmed by this court until the end of 2009 at which time we moved fast back into common police court to wake up this case again. That is an extraordinary situation and any time that Mr

. Is that your position? Yeah I think exhaustion comes first because of the nature of these claims. I mean not interrelated. They're interrelated in that they depend on the same allegations but the question is what box you put the allegations in when you first start looking at this. But the district court did was assume that there was a doctrine of extraordinary circumstances that almost that could be satisfied hypothetically with these kinds of allegations and found that there were no extraordinary circumstances here that would justify suspension of the exhaustion requirement. Our position is just looking at the type of claims and the fact that they're new claims because it's new. Yes that you'd have to do exhaustion would be first. Could you find extraordinary circumstances yet still impose the exhaustion requirement? If you let's you know I understand your position exhaustion comes first to speed trial right. He says it's reversed. So let's say the circumstances were even more extraordinary from his perspective than they are you know they were clearly disturbing. That would be of no consequence if the claim or delay was the same. That is if it's speedy trial doesn't matter how extraordinary the circumstances are you'd have to exhaust before you consider those on the merits right. That's your position. I think that is my position. I mean it's hard for me to no court has faced the kind of allegations that you know you're talking about that are speedy trial type allegations that are so egregious that they move into the category of extraordinary circumstances and it's hard for me. You never want to say never but it's hard for me to imagine those circumstances and also remember that the worst that those circumstances are the more likely it is is that the claimant will get relief and state court. I mean it's important to remember that the state courts are real court we can't just assume the state court will do nothing to help the defendant or the claimant in a situation where he deserves relief. I mean the way that the system is set up is that the state court is presumed to do its job and that's part of the equation here that it's important not to forget. I just want to touch very briefly unless the court has other questions on the idea of compliance. You know compliance with a conditional deadline means either retrying the defendant or that once the date has passed the 180 days in this case no longer holding the defendant pursuant to the old conviction. We obviously didn't try and within 180 days we didn't hold them pursuant to the old conviction either because what's really extraordinary about this case and again this is something that came up is that he had another death penalty case that had not been reversed and was not the reversal of which was not affirmed by this court until the end of 2009 at which time we moved fast back into common police court to wake up this case again. That is an extraordinary situation and any time that Mr. Wiseman says or alleges that five and a half years he says true. You know this is not a perfect world. Would you see that if there were no lamb case that five and a half years would be extraordinary and that we should grant the relief that Mr. Wiseman seeks. I'm not sure I would but I would say because it depends we had a lot of that today. It's true. I don't know how you can say that he would have had to have been released on the 181st day and absolutely for five and a half years. I misunderstood the question. If he was still held pursuant to the old conviction after the 180 days as opposed to you know released and then we arrested. If he were released and re-arrained three years later. That's a speedy job claim. He wouldn't be here. Right. Right. I, again never say never but I can't imagine somebody being held on the charge that was you know vacated and reversed by this court. Your case depends on the notion that he was being held on the other conviction. Yes. Absolutely. Thank you very much. Thank you. Mr

. Wiseman says or alleges that five and a half years he says true. You know this is not a perfect world. Would you see that if there were no lamb case that five and a half years would be extraordinary and that we should grant the relief that Mr. Wiseman seeks. I'm not sure I would but I would say because it depends we had a lot of that today. It's true. I don't know how you can say that he would have had to have been released on the 181st day and absolutely for five and a half years. I misunderstood the question. If he was still held pursuant to the old conviction after the 180 days as opposed to you know released and then we arrested. If he were released and re-arrained three years later. That's a speedy job claim. He wouldn't be here. Right. Right. I, again never say never but I can't imagine somebody being held on the charge that was you know vacated and reversed by this court. Your case depends on the notion that he was being held on the other conviction. Yes. Absolutely. Thank you very much. Thank you. Mr. Wiseman, may I be up here for three minutes? Okay. I'll try to make a decision. No problem. I know that the court is concerned about line drawing. I would suggest that sometimes it's better not to draw lines. And I would pose the following to you. If, if jurisdiction depends on the nature of the claim, they for the 60 B claim. And if extraordinary circumstances obviously depends on the nature of the 60 B claim. Then why not send it back to George Bedouin and say if there's jurisdiction and if there are extraordinary circumstances. You should not have required exhaustion. I would not say that this was a very bad decision, but if we try to make it worse. Send it back to him with instructions that he should reconsider and make findings because he hasn't made findings about the prejudice as I pointed out earlier. Send it back to him and say direct him to, to consider. What would you call what he said about both Mr. Guests and your client within guard to be respected mental capacity arguments? I meant to spend more time on this, but if you look at the three sections that I quoted earlier, A36, A39, and A28 of the Appendants, Judge Pradova's opinion, in each instance where he's talking about what would look like findings about mental health of both men, he says these are not such that the state courts can't adjudicate. He never says, I find Mr. Wilson's competent, I don't find the deterioration in Mr. Guest's mental health. He never says that. He says these aren't extraordinary because the state courts can adjudicate. The very nature of exhaustion is I'm not getting to the merits

. Wiseman, may I be up here for three minutes? Okay. I'll try to make a decision. No problem. I know that the court is concerned about line drawing. I would suggest that sometimes it's better not to draw lines. And I would pose the following to you. If, if jurisdiction depends on the nature of the claim, they for the 60 B claim. And if extraordinary circumstances obviously depends on the nature of the 60 B claim. Then why not send it back to George Bedouin and say if there's jurisdiction and if there are extraordinary circumstances. You should not have required exhaustion. I would not say that this was a very bad decision, but if we try to make it worse. Send it back to him with instructions that he should reconsider and make findings because he hasn't made findings about the prejudice as I pointed out earlier. Send it back to him and say direct him to, to consider. What would you call what he said about both Mr. Guests and your client within guard to be respected mental capacity arguments? I meant to spend more time on this, but if you look at the three sections that I quoted earlier, A36, A39, and A28 of the Appendants, Judge Pradova's opinion, in each instance where he's talking about what would look like findings about mental health of both men, he says these are not such that the state courts can't adjudicate. He never says, I find Mr. Wilson's competent, I don't find the deterioration in Mr. Guest's mental health. He never says that. He says these aren't extraordinary because the state courts can adjudicate. The very nature of exhaustion is I'm not getting to the merits. You agree the state court is capable of adjudicating that as I understand it. You can see that, but your argument is, gosh, the delay is so extreme here that any further delay is beyond the pill. To get to the further support my suggestion I just made, I think I noted the times. It's not often Mr. Dolgian has not agreed on something. He agreed that jurisdiction vote depends. It depends on the nature of the claim. Send a back judge Pradova and say yes, it does depend. All of these factors depend on the nature of the claim. Don't require exhaustion until you get and make findings about each of the aspects. But why is that a jurisdictional necessity? I don't understand the. Well, because I think, I mean, the way I see it, I'm just putting my cards on the table, the court can say simultaneously I have jurisdiction here this 60 B motion, but because of reasons of comedy, the case law dictates that this state court, the state court, take the first crack at this. Now that could be very different in a situation where the state court has already had a crack at it and failed and is showing some sort of obstructlessness, then you've got a different case. But here, these are new claims, the state courts have never. I think I'm referring to the initial question I received from Judge Greenaway about, you know, why is there jurisdiction? I think the answer you've been getting from both sides is jurisdiction depends on the nature of the claims. And in your correct that you know, you could have jurisdiction but still decide claim to have to be exhausted. They all separate questions. Just two other very quick points. The standard of review on a 60 B is an abuse of discretion. Obviously, if Judge Bedova was wrong on the law that these had to be exhausted, that would be an abuse of discretion. Extraordinary circumstances, I would submit to you, is a mixed question

. You agree the state court is capable of adjudicating that as I understand it. You can see that, but your argument is, gosh, the delay is so extreme here that any further delay is beyond the pill. To get to the further support my suggestion I just made, I think I noted the times. It's not often Mr. Dolgian has not agreed on something. He agreed that jurisdiction vote depends. It depends on the nature of the claim. Send a back judge Pradova and say yes, it does depend. All of these factors depend on the nature of the claim. Don't require exhaustion until you get and make findings about each of the aspects. But why is that a jurisdictional necessity? I don't understand the. Well, because I think, I mean, the way I see it, I'm just putting my cards on the table, the court can say simultaneously I have jurisdiction here this 60 B motion, but because of reasons of comedy, the case law dictates that this state court, the state court, take the first crack at this. Now that could be very different in a situation where the state court has already had a crack at it and failed and is showing some sort of obstructlessness, then you've got a different case. But here, these are new claims, the state courts have never. I think I'm referring to the initial question I received from Judge Greenaway about, you know, why is there jurisdiction? I think the answer you've been getting from both sides is jurisdiction depends on the nature of the claims. And in your correct that you know, you could have jurisdiction but still decide claim to have to be exhausted. They all separate questions. Just two other very quick points. The standard of review on a 60 B is an abuse of discretion. Obviously, if Judge Bedova was wrong on the law that these had to be exhausted, that would be an abuse of discretion. Extraordinary circumstances, I would submit to you, is a mixed question. And again, he did not make specific findings about the prejudice and therefore he did not make findings about the last quick point. And I touched on this in my briefing and I hope I don't sound too indignant or righteous about it as I'm sometimes accused of being. But you know, it's a little solid to say Mr. Wilson was held on the lamb case. The lamb case was even worse than this case in terms of the constitutional violations. When you look at these two cases together, as I think it's appropriate to do when you're dealing with equity and when you're dealing with the presence of extraordinary circumstances, I take very little service. Oh, well, he was held on this other case. Oh, which by the way, was wrapped with gravy violations, for which he had a new trial and for which he, he almost won recently, a nine to three hung jury for a quill. So I don't think that there's much to be gained by a commonwealth by relying on the fact that he was being held on that other case. Thank you for your questions. Thank you. Thank you to both Councilor Wilkinson.

Good morning. I apologize for being humanist late here. We have two cases that will be argued this morning. The first is number 12-2283. Wilson, the Secretary of Pennsylvania Department of Corrections and Bonn, Mr. Weissman and Mr. Dogenes. I keep pronouncing it. How do I pronounce it? Dogenes. Got it. Mr. Weissman, ever you're ready. Thank you. Good morning, Mayor Ples. By the way, you would think after all this many times I would get it right. No, the answer is no. Sorry. Good morning, Mayor Ples, the court. My name is Michael Weissman and I'm usually a pronounce and I... Okay, so Weiss, like a Z instead of an S, instead of my Weissman. No, Weiss, Weissman. And I represent Mr. Wilson. If I could, I'd like to reserve three minutes for the battle. All right, you're going to make us Weissman, we're done here then. Hopefully. Your orders, there are two primary issues that I'd like to address. One is exhaustion and the other is the prejudice resulting from the delay in this case. I'd like to talk about jurisdiction first. Sure. Let me ask you this question. You obviously agree with the proposition that at some point the district courts, the vested of subject matter jurisdiction and the habeas, once the reds granted. Correct. Okay. My question to you is, what is that point? Obviously there's a question here because of the lack of a back of your order and so forth. So I'd like your view on that point. Sure. I can't tell you precisely when the jurisdiction of the district court ends. I can tell you that when a petitioner files a rule 60b motion in a habeas case, a court has jurisdiction to adjudicate that motion. Even if they let me give you a hypothetical. Let's say a back of your order had been entered here. It doesn't work. Right. So the reds granted as a consequence of the red, right, of back of your order is entered in the state court. Right. At that point, hasn't, hasn't the constitutional issues that the petitioner has raised in federal court now been resolved. And therefore the federal court should be divested jurisdiction. Yeah. That sounds like a lawyer, but it depends. And what it depends on is the nature of the rule 60b. So for example, we can all agree that if Mr. Wilson's claim was that he couldn't be retried because of a double jeopardy claim, then no one would argue. I don't think anyone would disagree that the district court would have jurisdiction on a subsequently filed rule 60b. Subsequently filed, but I'm talking about within the same, the framework of the same case that was filed. Obviously, there can be subsequently filed habeases on different bases, but I'm talking about in the same one that's filed, constitutional claim is raised, right. It's resolved. A vacket or order is entered on the state court docket at that point in time. Isn't the district court the best of the whole thing? I still believe that the answer to that question depends on whether the 60b motion is a properly framed 60b motion. If it's not, if it's like the case, purchase the Davis where the 60b motion sought an intrusive intervention into the minutia of how the state court was going about retrying the petitioner, then I would agree that there might not be jurisdiction. So that's not his case. So if the 60b motion speaks to the constitutional issue that was resolved in the haviest, then you would say the district court retained jurisdiction. Not necessarily. The line of cases I'm relying on, sadly, and the embrosial carve out an area where if there are extraordinary circumstances, and the question I think before this court is whether those extraordinary circumstances existed. If there are extraordinary circumstances brought to the district court in a 60b motion, the district court has jurisdiction to entertain that. Now, you know, there's all kinds of hypotheticals. I'm not sure I can answer all of them, but certainly our view is that we had extraordinary circumstances. Therefore, judge the Dova had jurisdiction regardless of whether the state court vacated the conviction. But it's pretty clear that the state court did vacate the conviction, didn't it? Ultimately they did. Yeah. And so why doesn't Pitchis? How do you get around Pitchis? This says that with the 60b6 you got. Pitchis is a case where the litigant was back in the state court had had hearings in the state court, discovered a brand new Brady violation arguably, and then went back to the federal district court. We're different than that because nothing happened in the state court except they brought Mr. Wilson back to the state court and arraigned that started the process two days later. We were back in front of Judge Padova complaining about that. So we're not asking the federal district court to intervene into the minutia of the retrial. In other words, we're not going back to Judge Padova. But why isn't re-arrainment a point in time when the federal district court no longer has jurisdiction? Well, because we had no inkling that they were ever going to bring. But if they waited 30 years and then brought Mr. Wilson back to the state court, you still have a delay argument, but then in the state court. Now we have the exhaust. And that's why I think we get back to my initial response, which is that it depends on the nature of the rule 60B. Okay, sadly, again, which we're relying on, which Judge Padova acknowledged, says that in extraordinary circumstances, such as when the state inexcusably repeatedly or otherwise abusively fails to act within the prescribed time period, or if the state delay is likely to produce prejudice, then the district court has jurisdiction, then the district court. I'm going to adjudicate it, and that's at page 828 of the 20 next. So are you saying that under your view of sadly any time after 180 days, you'd have this argument? Well, what I was about to say at the very beginning is this is not a case where we ran into Judge Padova on day 181 and said, you know, tab your it. This is five and a half years. And I think that that's a qualitative difference. No question, but that we don't have a right to barry prosecution simply because the time frame within the conditional writ was violated. And that's what distinguishes this case from the 10th and 11th Circuit cases that Judge Padova relied on his opinion at a payments 1920. Those cases, you know, it was like day 61 and the conditional writ was 60 days. You let it get went in and said, oh, that's it. You believe time frame. You can't. You can't reprocess you. This is a qualitatively different situation. The question, you know, habeas is about equity and the equitable question. All right. It's a matter of degree clearly. Yes. It's isn't day 181. Five years is a matter of degree quite different. Correct. But why is it a difference in kind? One of your arguments is that your speedy trial rate is violent. You want us to say that you're quiet. I'm sorry. That's not our position. We have never framed this as a speedy trial. You claim. That is what my opponent has framed it as that's how Judge Padova saw it. We don't see it as a speedy trial claim. We see it as an extraordinary circumstance on the rule 60. A tactical decision made by the prosecutor. But part of the extraordinary circumstances include. Include speedy trial sort of within that includes competency issues. Correct. That's our project. It's a witness. Both your client and a witness who may have a competency issue. Right. Right. Right. Why can't the state court decide this? Well, certainly they they they you know I could present it to the state court. But that's not that's not the claim before this court. We believe we have established extraordinary circumstances that gives the district court and this court jurisdiction to hear. And and and adjudicate our claim that the Commonwealth engage. And really this was a week. All right. Let's assume you're right. We have jurisdiction. We can hear it. But why why should we adjudicate those matters when the state court has never even had an opportunity to? Because the the as I was about to say you know at the heart of habeas corpus is is equity. And and when you know I cited Bumedi and and the Commonwealth responded that's an overstatement. And you know sure Mr. Wilson wasn't kept at black sites and he wasn't intentionally tortured. But Mr. Wilson's in walking on what decade of incarceration and and you know the fact that the Commonwealth made a decision. They decided let's wait until the other case gets decided and we'll see if we have to retry. And that's a tactical decision. My client Mr. Wilson who spent the bulk of his life in prison without a constitutional conviction should not have to bear. The prejudice the results from that but you know you talked about before the nature of the 60 B. You know in our discussion at the beginning. Now if the nature of the 60 B is distinct from the underlying claim which here was a batson claim. Then why should it what why shouldn't there be a point in time when the district court is divested of jurisdiction? Right. And the answer is there would be such a time. However, if if the petitioner can establish extraordinary circumstances as I believe we have. Then it doesn't matter why don't you begin to grant it the right. So you have to be that connection so your so your view is extraordinary circumstances may have nothing to do with the original. Sure. The case. I mean you know what if they waited you know 30 years you know way to bring them back. I mean we couldn't you know we couldn't take a proactive role at this point prior to them bringing him to stay quiet. I think I thought the case was all I mean we're done with other stuff. Where's you know one of the things that we're often asked to do is line draw right so I think that based on Judge Hardman's question. You agreed with the notion that you know on day 181 probably no claim we're we're at you know whatever day. 181,800. Five and a half years you know whatever you know 1000 but I'm. When would you have no claim would it be you know a year is not that unreasonable you're in a hand. I mean I think that's a call for the for the. Or do we or you're saying we don't have to line for and this is just unreasonable and that's where we are. No no no not at all I think that you know look this case is about exhaustion in judge for the dove's eyes. And he never got to my view you never got to the merits of the prejudice. Our view is because A. B. is equitable you have to look at all the circumstances you look at how is Mr. Wilson been treated by the Commonwealth of Pennsylvania during his almost or in excess of three decades of incarceration. What happened on his other case why did the five year delay occur why didn't it happen in this case was because they couldn't find him sometimes the prosecution can't find. And then you get into all kinds of questions of. We know the answer that if you hadn't had success on the second conviction they. This would have sat and suspended animation right that's a perfectly fine position for this adult is to take. But if his office takes that position we shouldn't have to bear the result of that we shouldn't have to then live with the fact that they decided well. We don't really want to try this case unless we have to well fine and don't try but don't come back five years later and say well we're ready to try that's their decision we shouldn't have to bear. Brunked that decision when you talk about prejudice I'd like you to. Tell us a little bit about that because in your papers you talk both about your your clients. And then you talk about your clients. Difficulties which based on the record seems to be equivocal. Because there seems to be some some evidence in the record that your client isn't as bad cognitively as. The picture might be painted but but also Mr. Guest because I wonder why Mr. Guest and his medical difficulties don't anew to your benefit. Well it addressing Mr. Wilson first. If you look at the appendix between six 12 and 627 you will see Dr. Kessel's testimony regarding her review of the DLC records and she says during the period of the delay it is the first time that Department of Corrections noted that Mr. Wilson was psychotic and they gave him a baseline diagnosis of having a delusional decision. And that that happened during the period of the way now whether he's competent or not is one question but to say that he isn't more impaired than he was 30 years ago is quite another question. He clearly is I don't think there's going to be any debate about it. It's in the DLC records. When were the recordings? I thought there were the recordings of him that spoke to his lucidity and conversation. Mr. Wilson and you know it's hard to talk about this without you know separated my own personal experiences with him. He can talk about a lot of stuff he understands I'm here today and what I'm arguing for but if you talk to him about mental health on he'll respond at times talking about having snakes in his body. He'll talk about the arresting officer breaking into a cell and injecting him with poison. I've experienced all of those conversations. And when the state judge hears all that the state judge can say things like okay this is unfair. I'm going to grant you the relief you see. Sure. So really I guess I'm challenging with the notion that this isn't so much about what it's a who and and in habeas you know the federal courts aren't supposed to be the line of the first line of relief. And this is supposed to be the last I get that but and and that's why younger v Harris councils this court to tread lightly and I don't disagree with that. That's why you don't see very many cases like this but this court can't turn a blind eye to the sick circuit line of cases that say under circumstances like this relief can be ordered. I do want to I know it's on way over. I do want to just make a couple points. The issue I think for the court primarily in addition to the jurisdiction the judge Greenway mentioned is is one of whether judge Badova. Ruled only on exhaustion or whether he got to the merits of prejudice. I just want to point out at a 28 a 36 and a 39 of the appendix you will see excerpts from judge Badova's opinion where he intermingles exhaustion with his discussion of the merits. I don't believe there's a single finding a fact contrary to our assertions of prejudice in each instance he says for example at a 36 we conclude the mental health concerns regarding Wilson do not present extraordinary circumstances that cannot be fairly addressed by the state court. So he doesn't ever really separate out in his ruling prejudice from exhaustion so I think the issue before this court is exhaustion judge Badova. Respect for him of course was wrong in saying this had to be exhausted. Let me just see if I can summarize here. You've got a conviction that resulted in it being overturned for batson issue here on this case right and there was a conditional habeas granted that you have 180 days either to retry or or release the reason he's not released is because there's another it's the lamb case is still pending although. So on that case he was at a Brady issue so on this one it looks as if practically speaking the commonwealth prefers to go forward with lamb and let's see what happens here let's let's be efficient about it and they wait a lot of time and much more than you think should have happened and therefore you have a claim that they just waited too long and they can't go back and retry with regard to the court. So I think that's a very important part of the question. Why when you weigh federal state relations why is it that you don't let the state court have the first shot at that? I think I tried to answer that I think that the line of cases out of the six circuit. But I'm just talking practically speaking now. Oh practically speaking because Mr Wilson cannot be made whole by requiring us to go back to say what even if we go back to state court and he wins we're talking about years more of delay and frankly if you want Mr Wilson would you want to put your faith in the courts that have treated you this way for over 30 years. The nod your constitutional rights with impunity and and and have you incarcerated all that's not the point is I don't know what the state courts would do. But at this point back to Judge Greenways I mean you've got what you asked for. You've got a habeas and he is the conviction was vacated at some point after 180 days or at least in effect vacated. So therefore if they're going to go forward they need to do something but we're now back in state courts. Are we not on this on this matter. Yes the cases in limbal sorry in the suspense in state court before the calendar judge that's correct awaiting the resolution of the 60 being motion. The concern that I've expressed is and I think we all have is there's got to be a point in time regardless of the merits or substance of the 60 be that's filed that the federal courts are divested of jurisdiction and you have to as judgment was pursuing pursue your claim in state court. And I think the answer that you've given me is it depends on what the nature of the 60 be is and of course the hypothetical I've given you is if you obtain the the release the relief that you saw it in this case it would be bats in relief it could be whatever the relief that you saw it was. If you've obtained the the relief doesn't that and if you will the relationship that you have on that habeas in the federal courts and you've got to start a cycle again yeah and I think the answer is maybe I can answer it this way I don't think that the simple fact that we got the relief that we saw it and the fact that the state courts at some point vacated the conviction and rearranged it. The claim Mr. Wilson does not by itself all by itself divest the federal courts of jurisdiction it depends on the circumstances and I I got it I've learned a lot of research for this case and I haven't found another case like it you know I was I was criticized in the briefing for not having for only having cited one case well you know it's not every day that the prostitution intentionally waits five and a half years for each other. I'm not trying to homicide. This is an unusual case and I think it's not every day you win two habeas. I'm a scientist. I don't know about ever happening before. You're the other case too. Yes I am. Wow. Yeah so you know it's an unusual case and I think unusual cases when you're talking about equity deserve unusual consideration. Thank you. Hopefully if I had some rebuttal left. Now we'll get you back we'll get you back. Mr. Dolginess. Good morning Your Honor Tom Dolginess from the Philadelphia D.A.'s office for the Commonwealth at Belize and just to get to that last point I lost both cases. With help. Now you're going to do a makeup. The question in this case when you get right down to it is whether the Commonwealth can retry Zachary Wilson for the murder of David Swift in 1982 and obviously there have to be extraordinary circumstances for the federal courts to intervene into an ongoing state murder prosecution. It's our position that there's no such extraordinary circumstances here. There are a lot of points to government go to the school right to the jurisdictional point. We have a lot of moving parts all of these questions I think are interrelated with respect to jurisdiction the court asked at the beginning of the appeal here whether or not the district court had jurisdiction to adjudicate both the motion to enforce and the 60 B motion. I think the question is moot with respect to the motion to enforce because Mr. Wilson hasn't appealed that and also because the district court held that order wasn't violated so there would be nothing to enforce with respect to the 60 B motion as as we said in our brief. We believe the district court did not have jurisdiction to hear what amounts to a speedy trial claim in the 60 B motion and there's there's really two reasons for that first. Because the kind of allegation that Mr. Wilson makes now is a speedy trial type allegation that is first new and not related to the batson claim on which Relief was granted. And second, it's the kind of claim that state courts routinely handle as part of the trial process. It's subject to exhaustion. If you read Edelman and pitches those kinds of points the exhaustion requirements can be read as jurisdictional. I don't understand that with pitches because pitches seems to me to presume on the merits it went your way. I think it helps you on the merits but on the jurisdictional question it presumes the existence of jurisdiction. I can't find anything in the Supreme Court's opinion in that case that that intimates that it did not have jurisdiction. Well, it's possibly that I'm open that I'm over reading it but there's high read pitches. If if that's this type of claim based on new conduct after the grant of the writ is not the kind of claim that can be adjudicated in the 60 B motion and I interpret that as to be a jurisdictional point. Now, it doesn't the United States Supreme Court does not use the word jurisdiction on it could be over reading it. In the last 10 years the court has really shrunk. Right. I mean, jurisdiction they've been explicit that there's a distinction between claims processing rules. And if there's not a statutory imperative almost it's not a strictly speaking jurisdictional problem. Do you disagree with that? Well, habeas presents a special case because remember that rules 60 B is always subordinate to the habeas the grant of power to the federal courts to decide habeas claims. Gonzalez versus Crosby talks a lot about this point that if the rule 60 B only applies to habeas so long as it does not contradict the grant of power and the habeas statute. So to that point it is a jurisdictional point that is if it's a kind of claim that is subject to the habeas rules that if you presented in a different way. I would say it takes out of 60 B 60 B no longer applies it is not an avenue which the claim can take advantage of. So let me ask you this question. When you mention the moment ago that it depends and that here it's a new claim that is not related to that. So let's go back in time for a moment. Let's say it was not a new claim. So the following are the facts. You have in my hypothetical a vacket order we don't have one here I get that as a result of the vacket order there's a rearrangement. You find out some facts that now make you believe that a 60 B order is appropriate. At the time of the vacket order and I'm talking about the state vacket order which essentially enforces the grant of the habeas is the federal court divestive jurisdiction at that point. That's a very good hypothetical you're on or I'm not sure the answer that question I'm inclined to say that there might be circumstances in which the federal court is not the best jurisdiction. At rearrangement are you more certain. Certainly before rearrangement the case for jurisdiction is better after rearrangement one would have to accept that the extraordinary circumstances doctrine can kind of reimpose jurisdiction over a case that might otherwise be so. So then would you say that at a point in time after rearrangement it would have to be for an order for the federal court to have jurisdiction. It would have to be an instance where it would be a 60 B motion with extraordinary circumstances related to the basis of the original habeas. And in the absence of that there would be no jurisdiction that's probably right although I'd also say that in a case like that when that if for example that there had been some continuing bats and type violation I'm not sure exactly how that would work but they say that the claim is the same like in the ambrosio or something like that. I think in that in that case maybe you don't have to get into the 60 B stuff because maybe then the motion to enforce is the way to go. Because the actually order itself has been violated I mean if you look at 60 B remember that usually under 60 B what you're doing is attacking something about the order itself here there's no attack on the order. So it's you know from the very beginning it's sort of an odd 60 B motion in a case like that I guess it wouldn't be an attack on the order itself but it would be attack an attack on compliance. And then motion to enforce would be the more obvious way of doing it which is the first thing that Mr. Wiseman filed in this case let me get courts always of jurisdiction enforce their own order. Yes. That's not necessarily to say that you'd win in that situation but that would be the I think that the more obvious way to go. The second jurisdictional point I want to make and this is just in a way you you touched on this before. At the time Wilson filed the motions to enforce and especially when he filed the 60 B motion we had complied with the order now. We complied in two ways first as Judge Piotr with found we never violated the order and second by the time these motions were filed we'd re-arranged Mr. Wilson. And that's the critical point under all the six circuit cases that seem to dominate the legal landscape here the Ambrosio Edelman Gertz they talk about what's the moment in time where the re-arrainment took place. It's true that the motion to enforce was was filed only two days after the re-arrainment took place the the 60 B motion was filed many months after that. Jurisdiction is always technical always depends on one date rather than another that's the second reason why there is no jurisdiction here. Mr. Wilson relies on Danbrosio to for his case are you saying that he's correct it. It's the it's the same issue that you have involved on habeas that you previously had with regard to the conditional read of the grant. The conditional grant of the writ. Well I think there are a number of ways to distinguish the Ambrosio one is the jurisdictional point but also in the Ambrosio it was the same claim again it was a. I think the writ was originally granted on Brady grounds and there was a continuing Brady violation afterwards that's when we were getting into that situation that this is this is a new claim. One point I want to make that I didn't really talk about very much in the brief is the standard of review. I think I understood Mr. Wiseman to accept that the district court did find at least with respect to some of the questions there were no extraordinary circumstances which would justify suspension of the exhaustion requirement. I didn't understand that he was accepting that in his reply brief but I think it's pretty clear if you read the opinion that's a holding the district court makes. The standard of review there is an abuse of discretion standard at least and for that I am you can look at Gibbs versus Frank which I cite in our brief which says that we review a district court's interpretation of its own order for abuse of discretion. The court is also characterized at holding more recently as the court gives great deference to district court's interpretation of its own orders. So Mr. Wilson faces a significant threshold to show that the delay in this case or the deterioration of evidence does in fact constitute an extraordinary circumstance even though the district court found otherwise. Let me just ask a point of clarification that as I understood Mr. Wiseman's argument he's saying they don't have to exhaust because extraordinary circumstances exist. Is in I understand your position to be that you don't get to the extraordinary circumstances analysis until you've already satisfied the exhaustion analysis. Is that your position? Yeah I think exhaustion comes first because of the nature of these claims. I mean not interrelated. They're interrelated in that they depend on the same allegations but the question is what box you put the allegations in when you first start looking at this. But the district court did was assume that there was a doctrine of extraordinary circumstances that almost that could be satisfied hypothetically with these kinds of allegations and found that there were no extraordinary circumstances here that would justify suspension of the exhaustion requirement. Our position is just looking at the type of claims and the fact that they're new claims because it's new. Yes that you'd have to do exhaustion would be first. Could you find extraordinary circumstances yet still impose the exhaustion requirement? If you let's you know I understand your position exhaustion comes first to speed trial right. He says it's reversed. So let's say the circumstances were even more extraordinary from his perspective than they are you know they were clearly disturbing. That would be of no consequence if the claim or delay was the same. That is if it's speedy trial doesn't matter how extraordinary the circumstances are you'd have to exhaust before you consider those on the merits right. That's your position. I think that is my position. I mean it's hard for me to no court has faced the kind of allegations that you know you're talking about that are speedy trial type allegations that are so egregious that they move into the category of extraordinary circumstances and it's hard for me. You never want to say never but it's hard for me to imagine those circumstances and also remember that the worst that those circumstances are the more likely it is is that the claimant will get relief and state court. I mean it's important to remember that the state courts are real court we can't just assume the state court will do nothing to help the defendant or the claimant in a situation where he deserves relief. I mean the way that the system is set up is that the state court is presumed to do its job and that's part of the equation here that it's important not to forget. I just want to touch very briefly unless the court has other questions on the idea of compliance. You know compliance with a conditional deadline means either retrying the defendant or that once the date has passed the 180 days in this case no longer holding the defendant pursuant to the old conviction. We obviously didn't try and within 180 days we didn't hold them pursuant to the old conviction either because what's really extraordinary about this case and again this is something that came up is that he had another death penalty case that had not been reversed and was not the reversal of which was not affirmed by this court until the end of 2009 at which time we moved fast back into common police court to wake up this case again. That is an extraordinary situation and any time that Mr. Wiseman says or alleges that five and a half years he says true. You know this is not a perfect world. Would you see that if there were no lamb case that five and a half years would be extraordinary and that we should grant the relief that Mr. Wiseman seeks. I'm not sure I would but I would say because it depends we had a lot of that today. It's true. I don't know how you can say that he would have had to have been released on the 181st day and absolutely for five and a half years. I misunderstood the question. If he was still held pursuant to the old conviction after the 180 days as opposed to you know released and then we arrested. If he were released and re-arrained three years later. That's a speedy job claim. He wouldn't be here. Right. Right. I, again never say never but I can't imagine somebody being held on the charge that was you know vacated and reversed by this court. Your case depends on the notion that he was being held on the other conviction. Yes. Absolutely. Thank you very much. Thank you. Mr. Wiseman, may I be up here for three minutes? Okay. I'll try to make a decision. No problem. I know that the court is concerned about line drawing. I would suggest that sometimes it's better not to draw lines. And I would pose the following to you. If, if jurisdiction depends on the nature of the claim, they for the 60 B claim. And if extraordinary circumstances obviously depends on the nature of the 60 B claim. Then why not send it back to George Bedouin and say if there's jurisdiction and if there are extraordinary circumstances. You should not have required exhaustion. I would not say that this was a very bad decision, but if we try to make it worse. Send it back to him with instructions that he should reconsider and make findings because he hasn't made findings about the prejudice as I pointed out earlier. Send it back to him and say direct him to, to consider. What would you call what he said about both Mr. Guests and your client within guard to be respected mental capacity arguments? I meant to spend more time on this, but if you look at the three sections that I quoted earlier, A36, A39, and A28 of the Appendants, Judge Pradova's opinion, in each instance where he's talking about what would look like findings about mental health of both men, he says these are not such that the state courts can't adjudicate. He never says, I find Mr. Wilson's competent, I don't find the deterioration in Mr. Guest's mental health. He never says that. He says these aren't extraordinary because the state courts can adjudicate. The very nature of exhaustion is I'm not getting to the merits. You agree the state court is capable of adjudicating that as I understand it. You can see that, but your argument is, gosh, the delay is so extreme here that any further delay is beyond the pill. To get to the further support my suggestion I just made, I think I noted the times. It's not often Mr. Dolgian has not agreed on something. He agreed that jurisdiction vote depends. It depends on the nature of the claim. Send a back judge Pradova and say yes, it does depend. All of these factors depend on the nature of the claim. Don't require exhaustion until you get and make findings about each of the aspects. But why is that a jurisdictional necessity? I don't understand the. Well, because I think, I mean, the way I see it, I'm just putting my cards on the table, the court can say simultaneously I have jurisdiction here this 60 B motion, but because of reasons of comedy, the case law dictates that this state court, the state court, take the first crack at this. Now that could be very different in a situation where the state court has already had a crack at it and failed and is showing some sort of obstructlessness, then you've got a different case. But here, these are new claims, the state courts have never. I think I'm referring to the initial question I received from Judge Greenaway about, you know, why is there jurisdiction? I think the answer you've been getting from both sides is jurisdiction depends on the nature of the claims. And in your correct that you know, you could have jurisdiction but still decide claim to have to be exhausted. They all separate questions. Just two other very quick points. The standard of review on a 60 B is an abuse of discretion. Obviously, if Judge Bedova was wrong on the law that these had to be exhausted, that would be an abuse of discretion. Extraordinary circumstances, I would submit to you, is a mixed question. And again, he did not make specific findings about the prejudice and therefore he did not make findings about the last quick point. And I touched on this in my briefing and I hope I don't sound too indignant or righteous about it as I'm sometimes accused of being. But you know, it's a little solid to say Mr. Wilson was held on the lamb case. The lamb case was even worse than this case in terms of the constitutional violations. When you look at these two cases together, as I think it's appropriate to do when you're dealing with equity and when you're dealing with the presence of extraordinary circumstances, I take very little service. Oh, well, he was held on this other case. Oh, which by the way, was wrapped with gravy violations, for which he had a new trial and for which he, he almost won recently, a nine to three hung jury for a quill. So I don't think that there's much to be gained by a commonwealth by relying on the fact that he was being held on that other case. Thank you for your questions. Thank you. Thank you to both Councilor Wilkinson