-- next year. >> argument next in case 21-442, read verse gertz. mr. riderongmaid. >> thank you, mr. chief justice and make pleasehe court. a clay model afterkinner accrues at the end of the state court litigating seeking dna testing. doctrinally, a skinner claim challenges the lawot a judgment. it makes sen to challenge what e state court o last resort

authoritatively says theaw means after that construction becomes final onenl of rehearing. helen review does not proceed until the lower court denies rehearing and traditional due process claims are not complete until the states for procedures deny due process. the fact isehearing can change reshooting and results. while section 1983 president need not exhaust just as a the clock doesn't start takingg until the state court procedures second, as a practical matter time accrual to thend of state court litigio is simple predictable and sensible. timeccal to some earlier stages not. linking accrual to the trial courts judgment would disrespect e state court appellate process and require a state in almost every case. it would clutter dockets with ottiveomaints, motions and amended comai. it raises more questions than it answers. the fifth circuit said this crued in 2014 but nowhe say

2016. e rule is i principle and unpredictable. it will burden courtsnd litigants like with uncertain analyses comparing various state court opinions. acual before denial of rehearing is a much better. it treats the states rehearing process asrrevant. it threatens parallel litigation especially in states with busy courts andho limitations. here's the straightforward answer. a skinner claim accrues at the end of the state court litigation. i welcome the courts question. >> couel could you spend a minute on precisely what liberty interest tt you been deprived, that your client has been deprived of and to deprived him of it? >> your honor, o course. as a court recognized in osborne libert ierest is privy once innocence with newly dcovered evidence and so is the courts in osborne is a procedural due process to proceduseed to be fair to vdicate that. here the allegatio is that

there's a produl due process violation based on the way the court of criminal appeals and texas interpreted article 64. it is goertz as district attorney who is given a facts to that interpretation by continuing to deny dna testing without due process of law becaus - >> you mean by complyingith the court ruling? >> he's enforcing theourt ruling. i would back up and say as texas recognize on page five, he has authority to a dna test. he h choice. he can either allow to say i've ok at the construction of article 64, a look at the way thecaas interpreted it and i'm going to not allow lead to conduct dna testing. he's enforcing article 64. if the court were to say toim you must allowesting because reid satisfies article 64 then

would have to allow i but in this case he's enforcing article 64 by not permitting testing. >> he's permitting testing on some items? >> he has. >> not but by courder but by grant? >> that's right. you can look a page 43 of the petition appendix for that detail and, of course, page five of the brief cites a case called skinner from 2016 where ty make clear there is authority for district attorneys to permit testing. >> i'm assuming you know our own -- challenge the state court judgment runs under our rul. from the time a decision is rendered on a timely filed petition for rehearing, right? >> that's right, your honor. >> in his we expand the tionale behind that role. >> i think that's right. beus the court o rehearing could modify t judgment.

the texas court of appeals could that here, could of don that? >> that's right. >> could you have, i'm sry >> yes. there is a difference tween enforceability of the judgment and finale of a judgment, correct? >> i think that's right. we wouldoi to the analogy exactly that your honor is making and i think that rule goes far back in our tradition. i would cite to you texas cic railway versus murphy ich is in 1884 case which looks to older precedent and says if a pition for rehearing is presented, alexis, the te for an appeal does not begin to run until the petition is this bozo this has long been the law and you c also point to traditiona due process analogies that we pointed to and say what you want to do is allow the state court proceedingso come to rest before moving into federal court. >> could you filed your 1983 complaint right after t court of criminal appeals decision? >> your hor i think yes, we

could have. i want to te a step back a note that there's difference between injury, when you can bring a cause of action, and accrual dates. that's what this court's decision -- but can you bring suit on a clm before the claim accrues? >> your honor, i think you can. i think wallace makes the clicker andsi the definition from the courts cases that accrual is when the stu limitations begins to run. the crtakes clear someone ul file aouh amendment false imprisonment action at the moment there falsely arrested. the court calls refinementrom the common law looking to the false and prince mcaleenant common law and thingased on practical considerations those causes of actions didn't accrued until the lal process began, probably becse it's hard -- >> so there are those cases w is it that this case should be held to fall within thatet of

cases where theres a delta between the two? why shouldn't we just, isn't the simplest thing just to say the person isn't harmed intel the state process has come to an end and we know for a ft what the state judgment is? >> while, your honor, think you could look at it there is ways. you could look at it conceptually essay by analogy traditional due process claims come those claims are not complete until the full process is over and you know there's been a denial of due process. you could look at the traditional finality rule. those are analogies you could look to. you could look to the analogies inases like wallace versus cato or mcdonough where you're saying we have a favorle requirement because we look at the full process before the state courts. there's also the practical considerations which are importan >> but you are saying you don't care which method wedo? either justice alito's method where there's a a delta betwen when youan bring a claim and

en the statute of limitatns clock start early, or i was suggesting maybe there not be a delta. maybe the cause o action is complete at the same time tt the statute ofimitations start running, andot are with the state process has come to an end, inclunghe opportunity for reheang >> i just want to say a few things. it's not that i don't care what the rationale is. there are mutually suprtg rationale. >> we don't think that's an exhaustion requirement. if you were to say the harm is not comet in such a way that someone couldotring a suit earlr think that might be problematic down the road. >> an exhaustion requirement is just a requirement that says even once you he suffered harm you have to go through ctain processes rather than bring suit. buthi would be a statement that the harm doesn't occur ti the time when the oppouny for rehearing has gone by. >> i think i would sayt this way, your honor.

i think a prisoner could exit the state court procedures at any point and bring a a sectin 1983 action at the time and in all likelihood would allow as i thinke on deposits, the time for rehearing lapse and i think that would be okay. at would be harm at that point back. the procedures come the state court proceedings would of come to an end. it would b analogy because there was no request for rehearing. >> i mean you want to have your cake and eat it t my concern is your position would be that is going to put off the when people can bring claims or access to evidence because the claim is not going to be complete until u have the final decision by the cca under your viehich helps you because you want to put it offhe time at which this is, because otherwise the stat of limitations problem would be clear. ..

an authoritative determination from the cca >> your honor, i would say this. i'm sure why the court suggested in osbornet uld

be a good time to continue pursuing these processes was better positioned for showers. as always cca. practical concerns will insteachlenge these seizures can see what result they get hot withits where listing is rolling from the file will fail these requirements. it happens to be a state. the years in this case it comes up wn m not in a safe five years from now there's plenty of articles or needs you file porcelain is for class state in which there is no such process? we have taxes here that have this feeling wa room and getting inclusive determination. but i most texas didn't have to have rules in seymour 64

so you haveo y in which the case as i'm not giving you, i'm not going to give you dna testing cae 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 in whichthe person is denied r the purpose of going to federal court i saw your answer to justice keegan was going toe we're not really in the injury discovery rule world. in other words she suggested, whate y in his arms until

the end of the stick that seems to be assume we're lookg r an injury when all ts i understood justice e the trw case for example to say that in a 1983 case 'rnot really looking for injuriesinhat 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 inhisituation. >> i think the injury ur honor is the deprivation without due procs the liberty interest in your. >>uppose this case is resolved without a determination of the mers of your due process challenge to the court ocriminal appeals interpretation of xalaw. and now suppe other case arises similar to this and i'll make a different prisoner and prisoner asks the district attorney to

allow the testinof certain evidence, district attorney said no, it's been contaminated therefore on the interpretation is not, you don't have to write to have it posted. could that prisoner sue right away? ihink that prisoner could your honor because i think there's no exhaustion requirement will allege that there is without due process of laand procedures and challenges . >> is challenge this in court . now u went with the statute of limitations on the first you? >> i wouldovonly refusal the prisoner did not invoke process. the process. o until the child rearing by court of criminal

appeals. >> or whatever is e process . >> i have a question, let's say that i agree with you that your no contamination claim is n fired by worker told me to save the cca physician is accurate interpretation is was on the statute itself so i. is that true tuga delay finding and e imless error that the jury would have reached the same verdict lord according to findings? urffices will process challenge that ? >> we're challenging the reaspects >> to not mark the scenes in the lobby of the state standards to the facts of your case . >> we saw some of the merit series on pages 40 and 41 of the blueprint read what i say

is that the school will so what i thought it's a story's reirement is was the last year several problems but feels says that the ... >> exculpatory doesn't count mark. >> you can show as a is and discdid sotomayor's opinion is the problem. and then the unreasonable delay, the applicaonour dgments, probable you can use against the excellent, he is talking about is. >>that's very hopeful. quick quesona jew see an injunction? what did you territory judgment instead ? >> a few points, the first is not necessary.

th ithis court can accept x executive decision and really thk as far as the court would need to find responsibility or say if a fedestrict court were to say these procedures are unconstitutional, you have to provide a process version, evt that would remedy the injury because the injury is of dna testing. >> is at your heart, i was wondering why. >> i think it was necessary. what i'd like to do is perhaps move to the practical considerations and the probith benefits circuits rule. as i stated in the opening, on the circuits rule the only injury to is first in file for. that's the rule in eve single time prisoner is really in the court and seek

that teing, there is great risk of parallel proceedings the criminal loans in federal court lethe requirements and responses to figure out what he or she is with that otected complex. >> suppose the difference i between a rule that says statute of limitations arises when the criminal appeal renders its decisionnd rule that doesn't need to run until three hearing is that you're talking about of time i would imagine in this ca iseems to have dragged. so part of your argument is your re is better because it serv t interest of federalism but how weighty that if you're just talking about arelatively short period of time western mar. >> two points, the first is that i think symbolical i just disrespects the state

court process say federal court doesn't care about what happens after during the prehearing process and i think this is what is asked the court knows, the statute of limitations are borrowed from state law so that er state will have your reader for your of litions. thlouisiana tennessee one years is all of the. he is lots course we normally don't think this so conciliatory unless ey filed beyond the statute of limitatio. i think the hepoint i would go to is not clear to me what purpose the statute of limitations is here for texas. most states point to the entire in the esprit. most states follow the same time with these kind of postnvtion dna testing regime that they do for the

postconvictionads proceedings for example because they recognize the court set hf for the power of dna testing as well as incorporate. so we don't have to accept concerns normally you would have to protect with t statute of limitations such as concerned about fade memories of witnesses for sale evidence. if anything those concerns will count against the prisoner >> does the cca grant rehearing more fqutly than the square does western mark. >> i'm not certain how often this ey ant rehearing. we found where they have rented rehearing where it can ta time for the court to do so i would say going back to the int the importance for the federal courts to allow the state procedures to play out causashurst concedes on page 25, you rehearinca change theoutcome . so youyorun the risk of having a prisoner to the del court to be timely

only to veending rehearing proceedings or the suggestion theprisoner had to hurry up . >> you were going to take through a list of plaque prtical problems and i want to make sure you did that . >> i think thank you justice kavanaugh. the other point here is the court has suggested tohe prisoners in osborne and skinner that thegopursue the court procedures an that's what mister reid did in this case and tnk it would put prisoners in a tough position to be expected to pursue a safe proceres justice alito was talking about and then say but we're gog to start the clock at some earlpot. the other problem i think with hurst's rule which i derstand to be a noticeable. he'sotooking at the 2014 initial trialcourt dealto step back and say what happened in 14, he's looking at the 2016 denial s what happened in this case was trial court 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 further finngand one of the things, e them was the chain of commissary requirements which you eventually have n-ntamination requirements in the chain of custody quirements, send it back down and hurst exits only in 2016 when the trial urt on remand is saying there's a non-contamination, making a finding of non-contamination that now the prisoner, the administrator has noticed this maybe requime is being used against it. i'm not sure what that rule wod do because i think anytime you ha mtiple opinions whether it's multip tal court opinions or an opinion fr t trial court, terminal appeals, the litigants would be expected to comrethe different opinion and say what w i supposed to know the way the court of crinaappeals or

the way the state high court was going to come up with all this either rsissuance of the opinion or ondenialf rehearing ? that seems like a burdensome dunworkable regime . i think the sile rule that everyone can understand and of course kw how to administer the litigants, know how to understand from the beginning iss ng as their invoking available state procedures just like the federal system theca makes the rehearing or mechanism available for the cause of action s t approved, note the statute of limitations. can i ask a question, if we think about the process you've been given in article which allows you to make the motion to the trial cot which you did d m understanding correctly you didn en know about the no current ntination requirements until the process darted unfolding you couldn't have brought your challenge before you into article 6. >> that's right your honor. >> i'mhiing article 64 sets out the process that you're doing. gives you the trial court and 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 wouldn'tav made sense for you to file your suit at the trial court becausthprocess and run and part of the process texas is giving you is allowing stateso ay corrected . then i think it matters whether at that point all our article 64 says is it stops after it says you get the direct appeal to the a. as part of the cca's other procedures that you can file a petiti for rehearing. but should we really think about as part of the procurgiven in article 64 for the pron to run through? >> i don't know i would agree it's not part of the procede for article 64 because once u t into the court of criminal appeals like this courts jurisdiction tends toe w jurisdiction but if you have any jurisdiction that gets you to the cot u can invoke the courts procedures and in any

event the practical considatn and federal considerations are strong. it would be this court for the federal court essentially saying to the ste urts we don't care what other mechanisms you have that are available. d't care how often you may or may not change your reasoning because that could haen so the only distinction that the court draw between the issue saying thatthe cause of action should accrue under the trial court's opinion versus t cca opinion versus the hearing is saying we think it's a lesser chance company is going to happen again procedure exist for a reason publicly justice sor at the beginning i don't think anyone can come to this court when they receiva denial of rehearingor a romantic . in much the same way. >> iq counsel, justice thomas . >> did you file thion in district for? >> we did your honor. >> if we had granted that without have been prerly filed west and mark.

>> i don't think it would have been improperly granted. i think as a practical matter it was i think going back to thcooquy is typical for mister reid due process challenge to the tcas instructional article 64 until that construction issued so that's when we file a petition with the score raising one of the things due process challenges the court did not review. >> justice alito. >> this case can be viewed as having been drasticall narrow as a result of breach so that yohave verified the part claim you're pressing is authoritative construction. your challenging the way the statute was interpreted by the court of criminal appeals and you couldn't know that would be the interpretation until the co criminal appeals issued that decision. >> that's right your honor >> so the qstn then, if

you have other arguments they may be meritio but if we ok at that, the difference let's say the issue really is ca i really quite narrow. whether in this particular se the involvement of thorities construction, due process claims the statute beginso n. when that construction is announceby the cca or etr it doesn't begin to run until e time for a petition for reheangas elapsed for a petition for rehearing has been denied. >> ihi that the only question the court needs to 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, the fifth circuit decidedthis was a jurisdictialissue . >> t fth circuit decided

there was no salmon problem, no expert problem. there was noproblem i believe as well just result on the statute of mitations . >> as far as what the trial court decision. >> 2014, tht trial court decision. >> justice kagan. >>ce gorsuch. >> thank you couns general stone. >> thank you mister chief justice and me please the court . we claim is both jurisdiction hbarred an untimely . on jurisdiction, the renamed claim he and e lief he seeks n't line up. weued goertz regarding chter 64. chapter 64 governs onlycess to testing through texas courts .

it does not control goertz's common-l ahority to agree. the declaration rerding chapter 64 against goertz would not affect goertz's common-law authority by in tes urts that mismatch closes itselnce. on t mits, everyone agrees due process is the relevant nstitutional right and everyone agreeth wallace sulied the presumptive rule, reads claim accrued when he had a complete present causeof action . he formulated sewhat differently in his complaint and s tition, the brother of reads claim is the court violated due process. if so h a cause of action and therefore his claim crd no later than when the court ofriminal appeals issued its opinion and judgment. is that opinion and judgment

imse the legal consequences on re- thahesays violated due process? the wallace rule shod ply here. he would respect, he by treati t matter of state law the same as thisurt treats its judgment . it's immediate eective. it would work regardless of how a given state structures s dnapostconviction testing regime . it would discourage prisoners manipulating their accrual, their motions practice in state courts. and finally it uld supply and accrual date by which all litigants including those serving noncapital sennc with strong interest earlier resort to a federal forum to edtably measure limitations. i welcome the courts questions . just so i'm clear because i'm noclr. exactly what is the deprivation of liberty here and who is the perpetrator?

>> i understood your honor the deprivation was that texas courts had prevented mister reid on having fair access to article 64 proceedis they imposed the condition that caused those proceedis to be ndamentally unfair but that's correct. 'she court of criminal appeals in its decision revealing this component of article 64 inflicted that harm. >> so genal, you don't agree with the fifth circuit whenit said the injury was inflicted by the trial court ? >> yes and no your honor. this is part of the coequenceth narrowing over time. originally in his complaint mister reid brought both a facial and applieclm. the originalfacial claim is he was td no by the trial court . in authotave construction claim originally accrued as soon as a texas court in its opinion d dgment included the violation of due process which is the most prominently

includes is the non-contamination requirement. the texas trial court on remand to the court of criminal appeals in paragraph and 18 of his opinion made it clear sent article 64 wasn't satisfied precisely because the evidence had been touched by a number of jury d court personnel consequence it's impossible get useful dna access. >> can you restate your argument about jurisdiction ino r as you suggested that goertz retains common-law authority despite any rungf the court? that sounds an awful lot like yoreaying that if the federal court we tdecide that mister reid wins under article 64, otherwise his e process claim goertz could

cite i n'care, i'm not going to give it to you so cod uhelp me understand what you meany this ? >> certainly your honor. as mister reed acknowledged, ster goertz has two separate avenues by which prisoner in texas can seek a testing. once by agreement with the prosecutor. article 64 does not bind that in any way. it does not channel prosecutor's discretion, does not impose any requirements, essentially a plenary common-law privilege that the court of criminal appeals is recognized. chapter 64 governs how individuals seeking promotionsn apter 64 seek dna through the court system. an elaborate procedure that once it's been done an indivialho has relevant dna evidence has to surrenr . >> so what happens ia person seeks dna testing under apr 64 through the courts and the courts decide person with. are yosuesting that

osutors independent common-law authority could override that and the prosecutor could say i disagree with the court and i'nogoing to give it to you ? >> texas law requires the people who brought motions with relevant dna have to deposit that with the court. the court wod sue an order providing for dna testing on its own and that order would be followed . >> so if your point is we ve a jurisdictional problem in th ce because mister reed has named goertz and goertzou only have authority under his common-law principles, why isn't the sw 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 standing and msed the case ordinarily . a trl urt would say you have a problem becauseyou've named the wrong official, let's just allowfor

substitution . why isn't it that the answer ? >> in part because you titely have a problem unr parte because that court had a plurality joined jtice thomas requirements for freestanding ex parte for getting around the sovereign immunity for examplthcourt of appeals required immediate or impending enforcement action, there is no such . >> test is not the article the forecast, is given be enforced the cost to the extent that the court is the one thatou hold the evidence and other arcle 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 pae ung you can't see the court, you're just saying that the tre no right an i don't understand how the law would be conrued in that way. >> respectfully disaeeor two reasons, the more important one being that the petition that misterei sought under section 1257 to this court was a prope vehicle for alleging the due

process problem in the court of criminal appeals. he has a matter of fact in the petition rais substantively identical to process challenges. >> so you're saying there's no 1983 claim brought to enforce an article left. >> at least not like this. and we agrt that's inconsistent with the exerf jurisdiction this court impliedly allowed in skinner as this courput in steel told of those sorts of questions that are neither upon nor briefed. >> was the basis of the skinrocker analysis, n't that what the court said in in rne you can ring this kind of claim in ral court. but sinc court in osborne and skinner, no weston mark. >> first is this court in steel toe istially applied exercises are in a jurisdiction that are not ly made holdings of the court don't bind the court going forward. the court did make a

jurisdictional determination regarocker feldman they actually it is important this to the also because the court determined opinion is typically relying on a conceshat not been made by mister reed not challenging anytother the prosecutor did or the court of criminal appeals did . mister reed as indicated in hionse that his claim does in fact challenge certain aspects of how the court of criminal appeals reached itsion-making so even on the narrow brother feldman point. >> the one about the osborne point that seems preserve e ability to bringa 1983 claim that raised ocedural due process concerns ? and you're saying here there rely is no way for mister re to bring such a claim in . isn't that inconsistent with what i guess you're saying the court implicitly held in boe but that was sort of the basis of the courts constitutional analysis?

>> it's ceaiy inconsistent. the reason re not calling for skinner to be overruled ishis court has said specifically it is not bound by those as justicscia colloquy put it drive-by jurisdictional alysis but we agree this is inconsistent fohand. nonethels en if this court were to essentially bless the exercise of jurisdicti aerted in inner , and continued from the merits we should nonetheless fail on the merits because for some reasons, mistechief justice one important conceryowas the practical concerns about everyone else. ster reed's rule just far as we can discn volves his claim accrues as soon as he chooses to stoptigating in a state court system and noa ment before . is pfound disservice to the typical dna applicant who is not fighting off a capital seen, who's been accused and convicted of a crime and who wantonof two things . either resort to

constitutionally sound st that does not violate due process for rerto a federal forum as soon as possible. while he says his claim might have existed as soon as exited the forum the claims on page 17 of hisbrief that s claim didn't even exist yet until he hadexusted going through the state appellate process at minimum . it's an important shift he's made . justice alito pointi o a person would have a claim the prosecutor said i understand right, my authority to run with chapter 64 and the court of criminal appeals said such d ch. it certainly thclm applies and because he's suffered a denial based on that constitutional convicti b the other point is it aincredibly administered rule. because of skinner arises from a dial decision in all postures every single had a stp te.

>> if he goes to federal court pursuant to your rule while he's in ste urt to federal court will just stay the action until the state court action commenceor concludes? so what difference does it ma? the most compelling part of 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 federal clm. >>ui the opposite your honor. in stases whercas to mister reeves rule requires them to go through the state appellate system before in

fa oat least the rule he advocated for in his brief before they have a clm for crew. someone like that the person sufferg under a term limit ... >> the statute of limitations is most lilthe person bringing the claim, is about the defendant . the purpose i'trying to focus in on for the traditional purposes of the statute of limitatn at affects the defendant so why is the defenntin any different position, not the person bringing the claim, thdendant stateshawe will rule your way versus estherea way. >> let elain what i believe that type of approval t plaintiffs time. best served by having to find the are noma illegal individuals loing to extend the length of their claim as lo as limitations in some waa statute or because it gives someone exposed to tort claims or other claims denition as to when they no longer have to be on

essentially prarg for litigation for those things. the flipside ianccrual rule typically marks when a person makes a first-degree suit . this court discussed the possibility of a claim that could be brought but that has not yet crd. that is a very strange possibility. when we're talking about an accrual rule that happens, it gives states defined earlier and faster knowledge about what kind of claims are against it. it serves plaintiffs because once their claims accr ty have to resort to a federal forum . anndidual has to labor under mister reeves rule ... >> there's no exhaustion so 's just fine. do you disagree withhe representation that he can go to federal court at any time in this row? >> i believe hmago to

federal court as soon as he has suffered essentially the due process viatn . it's inconsistent with what he briefed. >> there's no inconste. >> 'sclaim hasn't accrued at least asars this court suggested. an individual cannot bring a claim not yet accrued. an individual c s 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 your hor. if a claim is not accrued a courtcan ing it at all . >> attention on the diffence of the state of the court of appeals decision versus the rehearing date. why should we prefer your vi tyour colleagues view on rehearing date? >> couple of reasons, the first of which being for purposes this works presumptive rule under wallace, the constitutional violation that happens, the

thing that caused the change of legal rights was the judgment . the hearing changed nothing about the rights and litions under texas law or u.s. constitution to mister reid. >> tt'just becausemister reid's hearing was denied. if the reader had been and then it wouldn't change . why shouldn't we understand that this claim ofisr reeves which is focusing on the authoritative construction is focusingn the final authoritative construction which we don't know autntil the end of the court of appealprocess? >> first of all, our ru takes account of that in the rare case. to answer justice alito's question it's rare . in tre case where there's a rehearing and the rehearing leads to a different decision whh en imposes an unconstitutional conviction of som, that will be the accrual date. very uomn but at least that will be a defined order which would have changed the rights and obligations of

mister rd d any other litigant like him. >> but that suggti 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 e urt of appeals is until the court of appeals process ccluded, the end . >> first of all i think the hypothetical you describe is just an ordinary application whereas somethg legedly inrvw and then everything changed in a fundamental way, your fir pnt but may have on . 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 articulate any prcie that was to sort out his petition from any other petition for certiorimotion for essentially a state equivalent of rule 60 bmotion . the motion to recall a mandate, allf which texas courts entertained and that the only rule he's offering as wel asoon as someone exits the state court system 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 can inlawsuits. >> a question i wanted to ask you about the mandate, yo argue further the state of the judge at the very latest, i know yourrgents 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 court theante is a ministerial option. a ministerial document that inrus the lowercourt officially as to the nature of the judgment of the superior court . ds not affect the rights and duties of the pare, judgment is appealable or immediately effective fromthe court of crimil peals unless someone successfully seeks estate or other sort of exceptional appeat. >> >> let me give you hypothetical . state court denies testing on one ground.

party, you have taken a position in your brief that the crl should befor that decision, >> assuming the background is a constitutional vioti yes . >> now they go on appeal and the there was no appeal there. they go on appeal and the appellate court in texas says ey were wrong on ground one . but they were right on an alternative grnd and now you say the plaintiff should appeal from when? he should have appealed from the first decision or now he should appeal from the co or both? >> if i undeta correctly you got a trialurt that imposed one unconstitutional coiction .>> they should have appealed d. >> i assume it's because the aplle courts involvedin the appeal of that first judgment .

>> are you saying that him appealing ves the time he has to file? >> know your honor, he can go immediately to federal crt on whatever. let's assume he doeswhat the state llthem there's a timely appeal . if he came to federal court in the middle of may would you argue that he est have to filethe claim yet ? >> no your honor. >> the appellate court hasn't decided this issue. >> certainly not, on the asmption his claim is that the trial court's decision included some condition that oles due process. >> that is the same as re so you're saying what should we the federacot do? should it stay the weight of the appellate court yes, sir no. >> it need not youhor.i might point out to practical purposes for specifically mister reid's claiev how you waited past rehearing is even hpywaited past

certiorari being denied he stl had about 10 monthsleft on his two-year . >>. >> putting all of that aside, you still maininhat there's some practical importance to not letting him, not exhaust the pending appellate process? >> email your honorbut if y wishes . >> so now the federalou should wait or not wait? >> it need not your honor. >> if parties request that weight. >> that seem like an awful waste of time. >> but the idea thereou be a freestanding state or freestanding esntially pause on the accrual of 1983 actions merely because there are topics of issue in state d deral court is what this rejected in lawless. >> i have a question about this suggestion that he could exit after the trial court denied the evidence because maybe i'm thinking abo ts

incorrectly but in a procedural due process claim , your claim is the 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 procedurwas the trial court and then the direct appeal and the capital case, direct appeal to the cca but you ha this dispute about whether the petition is includ onot i don't understand why you could exit at the trial court state becausthway article 54 is set up, to ensure that hs not prived of constitutional rights erroneslis giving him the opportunity to appeal and let the cca correct any miste that thetrial court has made . soam i understanding that correctly, i just don't understand how the cause of action exists until the procedesveailed him.

>> two point your honor, a rdirect one and the last, the mo dect one is i think he makes a different ki odo process claim . his claim isnothprocesses were insufficient . s aim is the processes are basically unirhen individuals in the state is subjecd to a process ich is basically unfair, it cannot possibly give me a fair to. that person has a full and complete cau oaction at that moment regarding whatever t rime is that they say and try to but which is probably partially why my friend on the other side specifically agreed he could for example in justice exit the state cot stem and begin his suit in federal court . b that's notthis case . maybe this case has been narrowed that the case before us is not that the case before us is typical conditioned on a court of appeals termination. so he couldn't exit before he ge the court of appeals determination . as he described the harm that befell him that rm to sell him originally in the trial ur 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 thorinal condition is unconstitutional originated in the court of appeals the fime, that's the first possible time he has a claim that accru a even accepting the narrowing of his case with these untimely opinion anment and stice kagan, this isn't a narrow case. this is about whether individuals ekg to press enter style claims are able to avail themsof endless procedure in state whether or not procedurally required. >> but the procedure that article 64 kids and i guess i don't see how this parti claim would have accrued at trial coter the trial court ruled because the claim said was fundamentally unfair

and not fundamentally unfair the cca could have corrected any mistake that the trial had made these are the opportunities fotprocedure to run its course in way that would correct any unfairness or any mistake made below . >> i think there's a basic difference between insuffie procedures, due process claims and unfair procedures . but even if i'm wrong and you're right yr nor that still means article 64 provides an appeal to the court of criminal appeals and nothing else it does not provide in its own terms with motions to call the mandate, these other additional miscellaneous potential motions that cldxtend the accrual or purposes of forestalling position so at the very worst this claim is still untimely cause he filed severalmonths too late after two years fromhe issuance of the opinion and judgmentwhich marks the end of the appellate ocess . >> it seems to me the eson here involves tension between two

principles, one is principle i the state does not deny procedural due process until the state provided procedures have ended. and the other is that a pers bringing august 19, 1983 claim including presumably that 1983 due process claim does not have to exhaust steremedies. how do we reconcile those two ? >> i think yr nor you go back to the theory on which this can or claim siwhh is that for robert feldman purposes for theoretical purposes is not the court that's doingthe arming, it's the statute . whatheourt does is provides a binding authoritative construction . so for purposes of when mister reid was authoritatively bound, when his rights a dies were liquidated by article 64 that was the first triacourt judgment and included the rm he dislikes. it was not required to appeal, he certainly wasn't required to pursue a motion

for rehearingas mister reconsider tay before he bought a 1983 action . there are no further questions. >> i'm sorry. >> justice thomas. justice cavanaugh, fth. justicejackson . >> so even if he had the full and complete cause of action after e ial court rules, this is what i understood you to say do you dispute that in dermining when e crual date should be when the statute of litations runs, we look at all rtof things not just when the poor the koran put an injury occurred, let's say that was the injury at the time. i guess at'm worried about is the suggestion that

e accrual date necessarily has to start from all men in you can identify an injury such as you have in this case when in cases likethe general and manual, thcot seems to suggest that the accrual date is set in light of otherconsiderations including thfact that in this case you would have raellitigation , that the accrual date is ally in this case it seemed to make any difference in tmsf helping thste becae the litigation in the state is going on is not like they don't have noti tt the person is interested in litiganghis claims all the reasons why you would set it early don't seem in my view to be happening here. so you conce at we don't just look at when the injury occurred. >> i can agree with you with one caveat which is that this cot for example in mcdonalds stt t with what it calls its presumptive ru under wallace and turns to see whether there's either

inspired common-law analog or a particular practical reason to choose another date for the various reasons we've scussed so far i don't believe there is one and there are practical concerns with choosing rules otr than the lawless state but it makes clear that there's sometimes reasons either analogous to common-law tort or otherwise that speak very finely about the atr or not the state concerned here. ofoue the state concerned with vi the accrual period being sooner rather than later because ultimately my frienonhe other side commented he can't imagine how retry or how timely can possiblyarthe state. in 2021 upon ranfrom the cca the trial court gave officially attend a hearing for mister reid whermister reeves series of incidents we frly litigated what we will see from the 50 page opinion is many of the igalwitnesses or individuals involved either dementia or die . so additional delay aside from pretending how dna

even as justice alito put it in a sepatepinion in osborne, additional delay the ats ability to be to address this if for example it's a new trial for one reason or another, is emphatically . >> thank you counsel. rebuttal ster romney. >> thank you mister chief justice. just three points. justice alito d barrett asked about the exhaustion question and whether exhaustionou be required. i don't thinits required, i n't think the course has to address it because mister idf you look at it this way it exust 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 itional due process claims and there are practical ways procedures are over. the second point is i didn't hear any practicalcoerns made until the end about capital defendants as to why

goertz's rule is superior. i it's clear it's demonstrable,a simple rule here and finally the delay question , many ndants are going to be non-capital defendantslike osborne and thospele will be subject to the same regi and nothing is going to happen to them. they're not going to see their eem one day sooner if they don't prevail so there's no reason not to allow e oceedings to folly play out. as to mierreed, what i would say is that it's my understainyou do not get a stay of execution because you brought an article 64 proceedingr st because you are in section 1983 feracourt is challenging the adequacy of the procedures. st reed had a stay of execution from the texas courts on its nine subsequent abs petition where hraed evidence that finnell admitted to killing it,

that he made inculpatory atents and that we have all the other evidence that justice sotomayor is pointed to within the briefing and those are all serious we think e court should one's going tobe able to get a stay of execution without some