Will Baude

Although, again, to be fair, he's already been convicted once.

The normal rule of res judicata for lots of litigation is if you had a beef with somebody once and lost and you decided it wasn't worth your time to appeal, then the next time it comes up, like, you don't get to relitigate it just because you care more now.

So this is one of my favorite circuit splits.

It's like of the – there are like 10 circuits that have disagreed on this, maybe five to five.

You would think that's the kind of dispute the Supreme Court would resolve, but no.

The Supreme Court has a principle that if it has not gotten around to resolving a circuit split for a long time, it figures it's probably fine.

It's so-called stale.

You can just ignore it for a while.

But it is a weird question, right?

So if the premise of hack is you shouldn't engage in an end run or on habeas, the proper way for challenging custody—

Well, then what do you do if you say, well, look, what would have happened to Mr. Olivier if he tried to bring a habeas claim?

We'll get to footnote two in a second.

But if he was never in custody, when he tried to bring a habeas claim, they'd say, well, actually, you're already out, mister.

What do you want?

Like, habeas isn't a way to get a refund on a fine.

It's a way to get out of prison.

If you're never in prison, you can't use it.

And so there was at least a good argument that if you're in that category, if you never even were in custody, this bar shouldn't apply to you.

He was on probation, which counts as a form of custody.

And so, yeah, during that year, he could have filed a habeas action, I think.