lectures in history, university of california davis history professor, catherine homestead. and how the red scare evolved into a wide ranging conspiracy theory, on the rise of communism in the united states. in the1940s and 1950s. exploring the american story. watch american history tv. saturdays on c-span two. and find a full schedule on your program ide, or watch online. anytime at c-span dot orglash history. the supreme court heard oral arguments in a case on dna testg requests from convicted offenders. texas death row inmate, rodney reed, was onvicted in the 1996 mder of a 19 year old woman. mr.eed claimed he was innocent, and his legal team brought evidence that implicated the victim's fiancée. his defense sought dna testing from evidence at the crime scene. but were denied. justices in the case are considering the statute of

limitations on post conviction reques r dna testing. they have through june to issue a ruling. >> your argument next in case -- read versus hurts. >> thk ou mr. chief justice, ayit please the court. the claim deled after skinner -- at the end of the state ur litigatio sking dna testing. there are two ss reasons why. one doctrinal the other practical. first, doctrine ali, he claims the law not a judgment. it makes sense to challenge what -- authoritarians -- after thabemes final on the hearing. by analogy, appellate review does not proceed into a lower court denies the hearing. traditional drew process claims aplete until that states full procedures deny due process. he fact is, re-hearing can change reasoning and results. well a section 1983 prisoner ne not exhaust, just as little get need not seek we

ng, the clock doesn't start taking until the state court procedures have come to an end. second, as prtical matter, tying a -- to the end of state court litigation is simple, predictable, and sensible. trying -- to some earlier stage isot a cool to the trial court's judgment would destroy respect the appellate process, and equire a state almost every case. it would clutter docke wh protective complaints, motions and amended complaints. it raises more questions than nsrs. the fifth circuisa reads claim occurred in 2015, now girds 2060. girths notice rule is an principled and unpredictable. it will burden coats and litigants alike with uncertain analyses comparing various state court opinions. a cruel before denng of -- it treats the state -- asa levant. likewise, it threatens parallel litigation, especially in statesi busy courts and short limitations periods. here's a straightforward answer.

a sinner claim a cruise at the end of the state u litigation. i welcome the courts questions. >> counsel, could you spend a minute on precisely what your liberty interest claude and keep it -- your client has beendeprived of? and who deprived him of i >> your honor, of course, as the court recognizes in osborne, th lerty interest is proving ones innocence with newly scered evidence. as the court said in osborne predal due process, the procedures ed to be fair to viice that interest. here, the allegation of mr. re'somplaint, there's a procedural e process vlaon based on the way the court of criminal peals in texas interpreted article 64. andt is the respondent ere who the district attorney, whs giving effect to hat ieretation by continuing to deny dna testing. without due process of law, -- >> you aby complying with the court ruling? >> i think he's enforcing the court ling, your honor, --

i would back up and say, as texas recognizes a page five of the red brief, the district attorney s thority to allow dna testing. so, he has a choice, he can either alw,or you can say i've looked at the constructon of article 64, i've looked at the way the cca has interpreted it, i'm going to not allow read to conduct dna testing on these items. he's enforcing article 64 in that way. if the court were to say to him, you must allowtesting, because read is satisfied aic 64, he would have to allow. it in this case, he's enfci article 64, by not permitting testing. >> he's permitting testing on somenos correct? >> not by court order but by agreement? >> that's right, your honor. and you can look at page 43 a the petition appendix for that detail, of course, as i said, page five of the red brief says, skinner versus state from 2016, when the cca also makes clear,there is

authority for district attorneys to permit testing. >> i'massuming you know our own finality rule, court ruled 13 three. and the time toil a circuit pitn in challenging a state court judgment runs under our rules. from the time a decision is rendered on a timely file position for re-heangright? >> that's right, your honor. >> and we explain the rationale behind that rule, correct? >> i think that's right, yr honor. >> because the court, henri hearing, ould modify the judgment? the texas court of appeals could do that here to? >> that's right, you're on. >> i'm sure, -- >> there is a difference before, enforceability of a judgment and finality of a judgment, correct? >> i think that's right, your honor. i think here, we wou pnt to the analogy exactly that your honor is making, i thnk that rule gs ar back in our tradition, wha i would say

texas pacific real vsus murphy won 11 u.s. for 88 in 40 1990, which is 1984 case which looks for older predt, and says there, for petition for recurring is presented, the time for a appeal does not begin to run until this position is dispod. this is long than the law. we can also point traditional due proces analogies as we point to the briefs and say, what we want to do is allow the state to come to rest before mininto federal court. >> could you have fileyo 1983 complai right aerhe court of criminal appeals decision? >> your honor, yes, we could have. i want to take a stepaca note, there's a difference betwe injury, when you can bring a cau oaction and a cruel dates. that's - and walls -- >> can you bring a claim bere the claim a cruise? >> your honor, i think yocan. he makes that clear. i'm using the dition of a

cruel from the courts -- when the statute adaptation gi to. i think wallceersus -- the court makes clear, someone could file a fourth amendment false imprisonment action, at theomnt they're falsely -- but there't court calls a refinement from the -- for the false imprisonment claim a common law sayg, based on practical considerations, oscauses of action did not accrue unl e legal process began. -- >> so there are those ces, but why is it this se should be held to fall within that set of cases where there's a delta between the two? why should we not, if he sn't the simplest thing, just to say, the percent isn't harmed until the states process has come to an end? and we kw r a fact, what the state judgment is? >> your honor, i think you look at various ways. you can look at it conceptually and say, by analogy, traditional due process claims

tho cims are not complete until the full processs er. know there's been a denial of due process. you could look at, justice was asking about traditional finality rule, those are alogies you could look to, you could also look to the analogies in cases like wallace versus cato, or mcdonough, we are saying we have a favorable termination requirement, cae we're looking at the full process beforehetate courts. i think there's also the practical considerations, which are verimrtant here. i think if everybody went in. >> you're saying your don't care which method we adopt? either justice alito's method, where there's dta between when you can bring a claim and when the statef limitation clock starts running or, i would suggesting, maybe tre ought not to be a delta? maybe the caue of action is -- at the same timehathe statute of limitation starts running? and both are wh the state prossas come to an end, including the opportunity for re-hearing? >> i just want to say, a few things your honor.

it'sot that i don't care what the rationale is, i think they're mutually supporting rationales. one thing i do want to point out, we don't think there's an exhaustion, requirement of this court should say there's an exuson requirement. ifyou were to say the harm is not complete, isuch a way that someone cannot bring a suit earlier, i think that might be problematic dn e road. >> an exhausti requirement is justa requirement that says even once you've suffered harm you have to go through certain processes rather than bring suit. this would be a statement that the harm doesn't occ? untilthe time when the opportunity for re-hearing has gone by? >> i think i would say, this way around her, i thina prisoner could exit the state court procedures at any point and bring a section 19 eight reaction a time. an all likelihood would allow, and i think your honor posits, the time for re-hearing to laps. i th would be okay. there would be harm at that point, there would bea cause of action at that point, and the procedurthe state court proceedings would've come to an d. there will be finality.

is no request for hearing. >> youto have your cake unaided t my concern is, w position would bth's going to put off the time when peop bring claims for acc to evidence, because the claim not going to be complete until you haveal decision by the cca under view. which hel yu, because you want to put off the time at which -- otherwise, the statute of limi probably would be clear. on the other hand, so who's there and is ready to go, in federal court, reallyon't be leo until the end of the cca process. because, under your view, he has not finally been deprived of due process yet.

an authoritative determination from the cca >> your honor, i would say this. i'm sure why the court suggested insbne it would be a good time to continue pursuing these processes was better positiod r showers. as always cca. practical concerns will inead challenge these seizures can see what result they get t th titles where listing is rolling from thfi will fail these requirements. it happens to be a state. >> the years in this case it

cos when i'm not in a safe five years from now there's plenty of articles or needs you file porcelain is r class state wch there is no such process? we have taxes here that have this elg always room and getting inclusive determination. but i most texas didn't have he rules in seymour 64 so you ve to say in which the case as i'm not giving you, i'm not going to give you dna stg because of how i understand the law what's your view is whether or not a person go to federal court in the evening go is a? >> not court they would be able to say i view the district attorney's actions

and think the law is unconstitutional . >> so it's right at the point wch the person is denied for the purpose of going to federal court i w ur answer to justice keegan was gointo be we're not really in the injury discovery rule r. in other words she suggested, at we say in his arms until the end of the stick that seems to be assume we're oking for an injury when l in this i understood justice lee in the trw case for example to say that in a 19 ce we're not really looking for injuriesin that same way . when looking for the cause of action to be complete which is i guess the determination that you don't have dna testing in this situation. >> i think thenjy your honor is the deprivation without due ocess of the

liberty interest in your. >> suppose this case is resolved without a determination ofhe merits of your due process challenge to theourt of criminal appeals interpretation of texas law. and w ppose another case arises similar to this and i'll make a different prisoner and prisoner asks the district attorney to allow the testing of certain evidence, district attorney said no,it's been contaminated therefore t interpretation is notyo don't have to write to have it posted. could that prisoner sue right away? >> i think that prisoner could your honor becau i think there's no exhaustion requirement will allege that there is without due process

ofawand procedures and challenges >> is challenge this in court . w you went with the statute of limitations on the first you? >> wld love only refusal the prisoner did not invoke process. the process. >> one until the child rearing by court of criminal appeals. >> or whaters the process . >> i have a question, let's say that i agree with yo that your no contamination clm not fired by worker told me to save the c physician is accurate interpretation iswas on the statute itself so. is thatr though a delay finding d the crime less

error that the jury would ha reached the same verdict lord according to findings? your offices will process challenge that ? >> we're challenging the three aspects. >> to not mark the snein the lobby of the state standards to the facts of your case . >> we saw some of thmet series on pages 40 and 41 of the blueprt read what i say is that the school will so what i thought it's a story's requirement is was the last year several problemsut feels says that the ... >> exculpatory doesn't count mark. >> you can show as a is and scredited sotomayor's opinion is the problem. and then the unreasonable

delay, theppcation our judgments, probable you can use against e excellent, he is talngabout is. >> that's very hopeful. quick estion, a jew see an injunctio what did you territory judgment instead ? >> a few points, the first is not necessary. this is this court can accept x executive decision and al i think as far as the court would need to find responsibility or say if a deral district court were to say these procedures are unconstitutional, you have to provide a process version, even just that would remedy the injury because the injur is of dna testing. >> is at your heart, i was wondering why. >> i think it was necessary .

what i'd like to do perhaps move to the practical considerations and the oblems with benefits circuits rule. as i stated in the opening, on the circuits rule the only injury to is in the file for. that's the rulvery single time prisoner is really in the court and seek that testing, there is great risk of parallel proceeng the criminal loans in federal cot file, the requirements and responses to figure out what he or she is with that protected complex. >> suppose the diffen is between a rule that says statute of limitations arises

when the criminal appeal renders its cion and a rule that doesn't need to run until three hearing is that you're talki aut . of time i would imagine in this case it seems to have dragged. so part of your argument is your rule is better because it rves the interest of federalism but how igy is that if you're just talking aboutrelatively short period of time wesrnark . >> two points, the first is that i think syolally it just disrespects the state court ocs to say federal court doesn'ca about what happens after dunghe prehearing process and i think this is ats asked the court knows, the statute of limatns are borrowed from state law tt every state will have your reader for yo limitations. the louisiana tennessee one years is all of the. he is lots course we normally don't think this so

conciliatory unless they filed beyond the statute of litaons. i thk e other point i would go to is not clear to me what purpose the statute of limitations is here for tes. most states point to the entire in the esprit. most states follow the same time with these kind of stconviction dna testing regime that they do for the postcoicon radius proceedings for example because they recognize the court t in half for the power of dna testing as well as incorporate. so we don't have to accept concerns normally you would have to protect wi the statute of limitations such as concerned about faded memories of witnesses for sale edee. if anything those concerns will count against the prisoner. >> does the cca grant rehearinmo frequently than the square does western mark.

>> i'm not certain how often th easy grant rehearing. we found where they have rented rehearing where it can take time for the courto so i would say going back to the point the importance for the federal courts to lo the state procedures to play out use as hurst concedes on page 25, you heing can change theoutcome . so you, you run the risk of having a prisoner to the federal court to be timely only to have pending rehearing proceedings or the suggestion theprisonerad to hurry up . >> you were going to take through a list of plaque practical problems and i want to make sure you didha. >> i think thank you justice kavanaugh. the other point here is the courhasuggested to the prisoners in osborne and skinner athey go pursue the court procedures and

that's what mister reid did in this send i think it would put prisoners in a tough position to be expected to pursue a sa pcedure as justice alito was talking about and then say but we're going to start the clock at some rly point. the other problem i think wi hurst's rule which i understand to be a noticeable. 's not looking at the 2014 initial trialurdenial, to step back and say what happedn 2014 , he's looking at the 2016 ni so what happened in this case was triacot initially assigned dna testing in 2014, didn't make any findings or holdings about non-contamination. it went up to the court of federal appeals and they wanted furerindings and one of the in, one of them was the chain of commissaryrequirements which you eventually have non-contamination requirements in the chain of custody requirements, send it back down and hurst exits only in 2016 when the trial court on remand is saying there's a non-contamination, making a finding of non-contamatn that now the prisoner, the administrator has noticed

this may ruirement is being used against it. i'm not sure what that rule would do because i think anytime you have multiple opinions whether it's muiple trial court opinions or an opinion from the trial court, terminal appeals, the litigants would be expected toompare the different opinion and say wh was i supposed to know the way the courofriminal appeals or the way the state hi court was going to come up with all thisitr first issuance of the opinion or ondeal of rehearing ? that seems like a burdensome andunworkable regime . i think thsimplest rule that everyone can understand and ofoue we know how to administer the litigants, know how to understand from the begiinis as long as their invoking available state procedures just like the federal system the cca makes the rehearing or mechanism available for the cause ofctn has not approved, note the statute of limitations. >> can i ask a question, if we think about the pce

you've been given in article 64 which allows you to make the motion to the iacourt which you did and i'm understanding correctly you dn't even know about the no current contamination requirements until the process darted unfolding you couldn't have brought your challee before you into article 6. >> that's right your honor. >>'m thinking article 64 sets out the process that you're doing. gives you the trial court an then the direct appeal to the cca andcca have to take it . >> and cavanaugh cases. >> we've got the appeal to the cca so it ul't have made sense for you to file your suit at the trial court beuse the process and run and part of the process tex is giving you is allowing stes to stay corrected . then i think it matters whether at that point all r article 64 says is it stops after it says you get the direct appeal t cca. as part of the cca's other procedures that you can file petition for rehearing

but should we really think about as part of the ocedure given in article 64 fothprisoner to run through? >> i don't kw would agree it's not part of the predure for article 64 because once you put into the court of criminal appeals like this courts jurisdiction ndto be law jurisdiction but if you have any jurisdiction that gets you to thcourt you can invoke the courts procedures and in any event the practical coideration and federal considerations are strong. it would be this court for the federal court essentially saying tthstate courts we don't care what other mechanisms you have that are availab. we don't care how often you may or may not changyour reasoning because that could happen so the only distinction that the court draw between the issue saying at the cause of action should accrue under the trial cours opinion rs the cca opinion versus t hearing is saying we think it's a lesser an company is going to happen agn procedure exist for a reason publicly justice sotomayor at

the beginning i don't think anyone can come to this court when they receive a denial of rehearingor a romantic . in much the same way. >> iq counsel, justice thomas . >> did you file the station in district for? >> we did your honor >> if we had granted that without han improperly filed west and mark. have been improperly granted. i think as a practical matter it was i think going back to the colloquy is typical for mister reid due process challenge to the tcas instructional article 64 until that construction a petition with the score ile raising one of the things due process challenges the court did not review. >> justice alito. >> this case can be viewed as

having been drtilly narrow as a result of breach soyou have verified the rticular claim you're pressing is authoritative construction. your challenging the way the statute was interpreted by the court of criminal appls and you couldn't know that would be the interpretation until the court of criminal appeals issued that decision. >> that's right your honor. >> t question then, if you have other arguments they may mitorious but if we looked at that, the difference let's say the issue real icase is really quite narrow whether in this particular case the involvement of authorities constructiondu process claims the statute bens to run. when that construction is noced by the cca or whether it doesn't begin to run until the time for a

petition f rearing as elapsed for a petition for hearing has been denied. i think that the only question the court needs t answer your honor your colleagues have asked questions as to when it would occur. i don't think the court needs a whole framework but it provides some methods as to how could. >> justice sotomayor. >> all the other issues, e fifth circuit decidedthis was a jusdtional issue . the fifth circuit decided there was no salmon problem, no expert problem. erwas no problem i believe as well just result on the statute of limitations . >> as far as what the trial court decision. >> the first trial court decision. >> justice kagan. >> justice gorsuch. >> thank ynsel. general stone.

>> thank you mister chief justice and me please the cot we claim is both juriiconal he barred an untimely . on jurisdictn, the renamed claim d the relief he seeks don't line up. we sued goertz regarding chapter 64. chapter 64 governs onlyaccess to testing through texas ur . it does not control goertz's mm-law authority to agree. the declaration regarding chapter 64 against goertz would not affect goertz's common-law authority by in texas courts that mismatch clests reliance. the merits, everyone agrees due process is the relevant constitutional right and everyo aees that wallace supplied the presumptive rule, reads claim

accrued when hhaa complete present causeof action . he forlad it somewhat differently in his complaint d his petition, the brother of reads claim is the cour violated due process. if so we had a cause of action and therefore his claim accrued no later than when the court of criminal appeals issued itspion and judgment. is that opinion and judgment impose the legal consequences one-hat he says violated due process? the wallace lehould apply here. he would respect, he by trting the matter of state law the same as thiscourt treats its judgment . it's iedtely effective. it would work regardless of how a given state structures its dnapostconviction testing regime. it would discourage prisoners manipulating their accrual, their motions practicen state courts. and nay it would supply

and accrual date by which all litigants including those serving noncapalentences with strong interest earlier resort to a federal forum to predictably measure limitations. i welcomthcourts questions . >> just so i'm clear because i'm not clear. exactly what is the deprivation of liberty here and who is the perpeat? >> i understood your honor the deprivation was that texas courts had prent mister reid on having fair access to article 64 ocdings so they imposed the condition that caused those ocdings to be fundamentally unfair but that's correct. it's the court of criminal appeals in its decision revealing this component of article 64 inflicted that harm. >> so general, you don't agree with the fifth circuit whenit said the injury was inflicted by the trial court

? >> yes and no your hor this is part of the consequence, this narrowing over time. originallyin his complaint mister reid brought both a facial and apied claim. the originalfacial claim is w told no by the trial court . ahoritative construction claim originally accrued as soon as a texas court in its inn and judgment included the violation of due process which is the most promeny includes is the non-contamination requemts. the texas trial court on remand to the court of criminal appeals in paragraph 17 and 18 of his opinion made it clear sent artie wasn't satisfied precisely because the evidence had been touched by a number of jury and court personnel consequence it's impossible to get useful dna access. >> can you restate your argument about jurisdiction in so far as you suggested that goertz retains

common-law authority despite anruling of the court? that sounds an awful lot like you're saying that if the federal court were to decide that mister reid wins under article 64, otherwise his due process claim goertz could cite i don't care, i'm not going to give it to you so could youhelp me understand what you mean by this ? >> certainly your no as mister reed acknowledged, mister goertz has two separate avenues bwhh prisoner in texas can seek dna testing. once by agreement with the prosut. article 64 does not bind that in any way. does not channel prosecutor's discretion, does not impose any requiremen, essentially a plenary common-lawprivilege that the court of criminal appea i

recognized. chapter 64 governs how individuals seeking protns in chapter 64 seek dna through the court system. an elaborate procedure that once it's been done an invidual who has relevant dna evidence has to suender . >> so what hpe if a person seeks dna testing unr chapter 64 through the courts and the courts decide person with. aryou suggesting that prosecutors independent common-law authority could override that and the prosecutor could say i disagree with the court and i'm not going to give it to you ? >> tex l requires the people who brought moon with relevant dna have to deposit that witthe court. the urwould issue an order providing for dna testing on its own a tt order would be followed . >> so if your point is we have a jurisdictional problem in this case because mister reed has named goertz and

gotz would only have authority under his common-law principles, why ist e answer just let him amend the complaint to suethe relevant person ? that's sort of what happens it's not that we say don't know standg d we missed the case ordinarily . a trial court would say u have a problem becauseu' named the wrong official, let's just allowr substitution . why isn't it that the answer ? >> in part because you ultimately have a problem under ex parte because that court had a plurality joined by justice thomas requirements for freestanding ex parte for getting around the sovereign immunity for exple the court of appeals required immediate or impending enforcement action, there is no ch >> test is not the article the forecast, is given be enforced the cost to the extent that the court is the e at would hold the evidence and other article 64 you as a prisoner or come to

the court and invoke that provision but it's the court that holds it in under ex parte young you can't see the court, you're just saying th t there's no right and i don't understand how the law woulbeonstructed in that way. >> respectfully sagree for two reasons, the more important one being that the petition thamier reid sought under section 1257 to this court was pper vehicle for alleging the due process problem in the court of criminal appeal. he has a matter of fact in the petionaises substantively identical to proceschallenges. >> so you're saying there's no 1983 claim brought to enforce an article 64 left. >> at least not like this. angree that that's inconsistent with the ercise of jurisdiction this court impliedly allowed in skinner as turt has put in steel told of those sorts of questions that are neither passed upon nor briefed. >> was the basis of the

isn't that what the court said in in osborne you can ring this kind of claim in federal court. nce this court in osborne and skinner, n weston mark. >> first is this court puts in steel toe is essentially applied exercises are in a jurisdiction that are not actually made holdings of the court don't bind the court going forward. the court did jurisdictional determination garding rocker feldman they actually it is important thi he state also because the court determined opinion is typically relying on a ession that not been made by mister reed not challengything other the prosecutor did or court of criminal appeals did . mister reed as indicated in his response that his claim does in fact challen certain aspects of how the court of criminal appeals reits decision-making so even on the narrow brother feldman point.

>> the one about the osborne point that seems psee the ability to bringa 1983 claim that raised procedural due process concerns ? and you're saying here there really is no way for mister reed to bring such a claim in . isn't that inconsistent with what i guess you're sayi the court implicitly held in osborne but that was sort of the basis of the courts constitutional analysis? >>t'certainly inconsistent. the reasonwere not calling for skinner to be overruled is this court has said specifically it is not bound by those ajuice scalia colloquy put it drive-by jurisdictional analysis but we agree this is inconsistent beforehand. neeless even if this court were to essentially bless the exercise of jusdtion asserted in skinner , and continued from the merits we should nonetheless fail on the merits because for some reason mter chief justice one important coern you was

the practical concerns about everyone else. mister reed's rule just far as we can scern involves his claim accrues as soon as he chooses to stoplitigating in a state court system and not a moment before . is a profound disservice to the typical dna applicanwh is not fighting off a capital sentence, who's been accused and convicted of a crime and o nts one of two things . either resort to constitutionally sound system that does not violate due procesforesort to a federal forum as soon as possible. while he says his claim might have existed as ons he exited the forum the clms on page 17 of hisbrief that his claim didn't even exist yet until he hadexhausted going through the state appellate process minimum . it's an important shift 's made . justice alitpoting out a person would have a claim the

prosecutor said i understand my right, my authority to run with chapter 64 and thcot of criminal appeals said such and such. it certainly the claim applies and because he's suffered a denial based on that constitutional nvtion but the other point is it's an incredibly administeredul because of skinner arises from a judicial decision in all postures every single had stamp date. >> if he goes to federal cot pursuant to your rule while he istate court to federal court will just stay the action until the state court action mmces or concludes? so what difference does it make? the most compelling partf mister reid's merit claim was that the principal find that

doctrine obtained in your, that it doesn't matter whether or not to keep a prisoner from being able to bring a feraclaim. >> quite the opposite your honor. most cases ere calls to mister reeves rule requires emto go through the state appellate system before in fact or at least the rule he advocated for in his brief before they have a claim for crew. someone like that the person suering under a term limit ... >> the statute of limitations isoslikelythe person bringing the ai it's about the defendant . the puosi'm trying to focus in on for the traditional purposes of the statute ofimation that affects the defendant so why is t dendant in any different position, not the person bringing the claim, the defendant stes that we will rule your way versus eser reads way.

>> t me explain what i believe that type of approval on the plaintiffs time. best served by having to find tharnot made illegal individuals looking to extend the length of their claim as long as limitations in some way a statute or because it gives someone exposed to tort claims or other claims definition as to when they no longer have to be on essentially preparing for litigation for those things. the flsi is an accrual rule typically marks when a person makes a firstege suit . this court discussed t possibility of a claim that could be brought but that has t t accrued. that is a very san possibility. when we're talking aboutn accrual rule that happens, it gives states defedearlier and faster knowledge ou what kind of claims are against it.

it serves plaintiffs because once their clas crue they have to resort to a federal forum . an individual has to labor under mister reeves rule... >> there's no exhaustion so he's just fine. do you disage th the representation that he can go to federal court at any time in this row? >> i bie he may go to federal court as soon as he has suffered essentially the due presviolation . it's inconsistent with what he briefed. >> there's ninnsistent. >> 'sclaim hasn't accrued at asas far as this court suggested. an individual cannot bring a claim not yet accrued. an indidu can say your claim isn't right yet for one reason or other and that is the function of an accrual date from a patient side . >> statute of limitations. >> yes youhonor. if a claim is not accrued a courtcan bring it at all .

>> attention on the difference of the state of the court of appeals decision versus the rehearing date. why should we prefer your view to your colleagues view on rehearing date? >> a couple of reasons, the first of which bngor purposes this works presumptive rule und wallace, the constitutional violation that happens, the thing that caused the chge of legal rights was the judgment . the hearing changed nothing about the rights and obligations under texas law or u.s. constitution t mister reid. that's just becausemister reid's hearing wasdenied. if the reader had been granted then it wouldn't change . why shouldt understand that this aiof mister reeves which is focusing on thauthoritative construction is cung on the final authoritative construction which we don't kn about until the end of

the court oflsprocess? >> first of all, rule takes account of that in the rare to answer justice alito's question it's rare . the rare case where there's a rehearing and the rehearing leads to a different deciwhich then imposes an unconstitutional conviction ofome kind, that will be the accrual date. ve uncommon but at least that will be a defined order which would have changed the rights and obligations of st reid and any other litigant like him. >> but tt ggestion that changing the accrual date, without the accrual date was this but now we think it's that, why isn't the simpler rule just to say we don't know what the authoritative construct of the court of appeals is until the court of appeals processis concluded, the end . >> first of all i think the hypothetical you describe is just an ordinary application whereasothing allegedly interview and then everything changed in a fundamental way, urirst point but may have on . to answer your question

regarding what's easiest fidelity line that doesn't work is the matter of administrative ability it's simple mister reed did not articulatenyprinciple that was to sort out his petition from any other petition for ceiorari, motion for essentially a state equivalent of rule 60 bmotion . the motion to recall a mande,ll of which texas courts entertained and that the only rule he's offering asell, as soon as someone exits the state court syst then they have their accrual, we're left with exactly the system this court cautioned against in lawless were essentially a court can choose the accrual date he finds most genial and they n bring lawsuits. >> a question i wanted to ask you about the mandateyou argue further e ate of the judge at the very latest, i know ur arguments earlier your colleagues argues that the rehearing date i'd neither side argues of the issuance of the mandate, why? >> because in texas much like this crthe mandate is a

ministerial option. a ministerial document that instructs the lowercourt officially as to the nare of the judgment of the superior court . it does not affect the rights and duties ofhearties, judgment is appealable or immediately effective fromthe court of cminal appeals unless someone successfully seeks estate or other sort of exceptiol pellate . >> >> let me give you hypothetical . state court denies testing on one ground. party, you have taken a position in your brief that e accrual should befor that decision, assuming the background is a constitutialiolation yes . >> now they go on appeal and the there was no appeal there. they go on appeal and the appellate court in texas says they were wrong on ground one . but they were right on an

alternative ground. and now you say the plaintiff should aeafrom when? he should have appealed from the first decision or now he should appeal from e second or both? >> ii derstand correctly you got a trialcourt that imposed one unconstitutional conviction .>> they should have appealed and. >> i assume it's because the appellate courts involvedin the appeal of that fir judgment . >> are you saying that him appealg saves the time he has to file? >> know your honor, he can go immediately to fer court on whatever. >> let's assume he doeswhat thste tells them there's a timely appeal . if he came to federal court in the middle of may would you argue ate doesn't have to filethe claim yet ? >> no your honor. >> the appellate court ha't

decided this issue. >> certainly not, on the assumption his claim is that the trial court's decion included some condition that violates due process. >> that is the same as here so you're saying what ou we thferal court do? should it stay the weight of thappellate court yes, sir no. >> it needotour honor.i might point out to practical purposes for specifically mister reis aim even how you waited past rehearing is ev happy waited past certiorari being denied he still had about 10 monthsleft on his two-yea. >>. >> putting all of that aside, you stl intain that there's some practical importance to not letting him, not exhaust the pending appelle process? >> email your honort you wishes . >> so now theedal court should wait or not wait? >> it need not your honor. >> if parties request that weight.

>> that seem like aul waste of time. >> but the id tre would be a freestanding state or freestanding essentially pause on the accrual of 1983 actions merely because there are topics of issue in state and federal court is what this rejected in lawle. >> i have a question about this suggestion that he cld exit after the trial cot denied the evidence because maybe i'm thinngbout this incorrectly but in a procedural due process claim , your claim ith procedures given by the state were not adequate to protect, to ensure an unconstitutional deprivation of the liberty instance. and in the case of article 64, the full run of the ocure was the trial cour and then the direct appeal and the capital case, direct appeal to the cca but you have this dispute about whether the petition is inuded or not i don't understand why you could exi at the trial court state beuse the way article 54 is set up, to ensurth he's

not deprived of constitutional rights erneously is giving him the opportunittoappeal and let the cca correct y stake that thetrial court has made . so am i understanding that correctly, i just don't understand how the cause of action exists until the predures have failed him. >> two point your honor, a moredirect one and the last, the more direct one is i think he makes a different kind of do process claim . his claim isnot the processes were insufficient . his claim is the processes are basically unfair when individuals in the state is suected me to a process which is basically unfair, it cannot possibly gi ma fair to. that person has a full and compteause of action at that moment regarding whev the regime is that they say and try to but which is pbay partially why my friend on the other side specifically agreed he could for example in justice exit the atcourt system and begin his suit in federal court .

>> but that's notthis case . maybe this case s been narrowed that the case before us is not that the case before us isypally conditioned on a court of appeals determination. so he couldn't exit before he gets the court of appeals determination . >> as he described the harm that befell him that harm to sell him originally in the trl court. understandably as part of his tactic to both narrow the claim and put forward the accrual date he now says in his reformulated question presented is only from the court of criminal appeals. in that circumstance where the original condition is unconstitutional origina in the court of appeals the first time, that's the first possible time he has a claim th arued and even accepting the narrowing of his case with these untimely justice kagan, this isn't a

narrow case. this is about whether individuals seeking to press enter style claims are able to avamselves of endless procedure in state courts whether or not procedurally required. >> but the procedure that article 64 kids and i guess i don't see how thticular claim would have accrued at court after the trial court ruled because the claim is that the procedure said was fundamentally unfair if the cca could have unfair corrected any mistake that thl court had made. these are the opportunities for theprocedure to run its course in a way that would correct any unfairness or an mistake made below . >> i think there's a basic difference between infficient procedures, due process claims and unfair procedures . but even if i'm wrong and you'reig your honor that still means article 64 provides an appeal to the court of criminal appeals and nothinel. it does not provide in its own terms with motions to recall the mandate, these other additional

miscellaneous potential motionth could extend the accrual or purposeof forestalling position so at the veryor this claim is still untimely because he filed severalmonths too late after two yes from the issuance of the opinion and judgnt which marks the end of the apllate process . >> it seems to me the question here involves tension between two principles, one is principle i the state does not deny procedural due process until the state provided procedure have ended. and the other is that a person bringing august 19, 1983 claim including presumably that 19 due process claim does not have to eau state remedies. how do we reconcile those two ? >> ihi your honor you go back to the theory on which this can or aisix which is that for robert fdm

purposes for theoretical purposes is not the court that's doingthe arming, it's the statute . at the court does is provides a binding authoritative construction . so for purposes of when mister reid was authoritatively bod,when his gh and duties were liquidated by article 64 that was the fit ial court judgment and included the term he dislikes. it was not requid appeal, he certainly wasn't required to pursue a mio for rehearingas mister rensered today before he bought a 1983 action . there are no further qus. >> i'm sorry. >> justice thomas. justice cavaug further. justicejackson . >> so even if he had the full and complete cause of action afr the trial court rules, this is what i understood you s.

do you dispute that in determining when the accrual date should be when the statute of limitations runs, we look at l sorts of things not just when the poor the koran put an injury occurred, let's say that was the injury at the time. gus what i'm worried about is the suggestion that the accrual date necessarily has to start fr a moments in you can identify an injury such as you have in this case when in cas ke the general and manualthe court seems to suggest that the accrual date isein light oer considerations including the fact that in this case you would have parallellitigation , that the accrual date is really in this case it seemed to make any differen terms of heinthe state cause of

the litigation in the state is gngn so it's not like they don't have tice that the person is interested in ligating this claims all the reasons why you would t it early don't seem in my vi to be happening here. so you ncede that we don't just look at when the injury occurred. >> i can agree with yowith one caveat which is that this court for example in mcdoldstart out with what it calls its presumptive rule under wallace and turns to see whether there's either inspired common-law analog or a particular practical reon to choose another date r the various reasons we've discussed so far i don't believe there is one and there are practical concerns with choosing leother than the lawless state but it makes clear that there's sometimes reasons either analogous to commolatort or otherwise that speak very finely about t weather or not the state concerned here. of course the state concerned with having the accrual period being sooner rather than later because ultimately

fend on the other side commented he can't imagine how retry or how timely can ssly harm the state. in 202up remand from the cca the trial court gave officially attena hearing for mister rd ere mister reeves series of incidents were fairly litigated what we will see from the 50 page opinion is many of the originalwitnesses or individuals involved either dementia or di. so additional delay aside from pretending how dna evidence as justice alito put it in a parate opinion in osborne, additional delay the state's ability to be to address this if for example it's a new trial for one reason or anotssued emphatically . >> thank you counsel. rebuttal mister romney. >> thank you mister chief justice. just three points. juicalito and barrett

asked about the exhaustion question and whether exuson would be required. i dot ink it is required, i don't think the course has to address it because mister reid if you look at it this way it exhaust all the available procedures and if that is a requirement but if it's not a requirement then we're safe by analogy you would look to traditional due process claims and there a practical ways procedures are over. the second point is i didn't hear any pctal concerns made until the end about capital defendants ato why goertz's rule is superior. i think it's clear it's densable,a simple rule here and y as to the delay question , many defendants are going to be non-capital dendts like osborne d ose people will be subject to the same gime and nothing is going to happen to them. they're not going to see thr freedom one day sooner if they don't prevail so there's no reason not to alw the proceedings to

folly play out. tmister reed, what i would say is that it's my detanding you do not get a stay of execution because you brout article 64 preeng or just because you are in section 1983 federal court is challenging the adequacy of th procedures. mister reed had a stay of execution from the texas courts on its nine subsequent abs petitionhe he raised evidence that finnell admitted to llg stites, that he made inculpatory statements and that we have all the other evidence that justice sotomayor is pointed to within the briefing and those are all serious we think the court should consider so the factno one's going tobe able to get a stay of execution without some