Legal Case Summary

Our first case of the morning is actually three cases. We've given lots of time to lots of attorneys and we indicated I believe that Council could decide who would go first. So whoever is decided to go first can come to the podium please. Good morning, Your Honours. May I please the court? My name is Lisa Freeland and I'm here today on behalf of Michael Pendleton, the first case on the list. Your Honours, Michael Pendleton has satisfied the pre-mafacious standards set forth in Section 2244 and this court should consistent with its gatekeeping function in such cases. Authorize Mr. Pendleton's application to file a successive petition. Are you reserving rebuttal? I'm sorry Your Honour. Yes, I am. Two minutes for rebuttal. Thank you. Thanks for the reminder. As this court is aware, the standard under 2244 is a pre-mafacious showing and I want to start out just addressing that standard briefly because it is rather unusual for the court to be having full briefing and argument under 2244. I don't know that there have been that many occasions where the court has expressly addressed that standard and its applicability in circumstances like this. The court has recently, I guess, in the last decade, discussed the meaning of pre-mafacious showing in Goldbloom versus Claim and there it said that it was a sufficient showing a possible merit to warrant fuller exploration. And the merit part of that sentence refers to the requirements of 2244 B which in this case is whether or not the cases were made retroactive by the Supreme Court. What about the comment from the Fourth Circuit in the Williams case that you can take a quick glance and look through to the merits to decide whether or not you've really got a constitutional instrument play. Does that have any effect here? Your Honor, I don't think that it does have effect here and I actually think it flies in the face of the plain language of the statute. And by looking through behind to the merits and making a merits decision at this stage, it's really erecting a higher burden for the applicants than the Congress decided to have at this stage in the proceedings. Well, how... Assume a counterfactual with me. Maybe an easy way to do this is actually to have you jump ahead and you're not representing Mr. Grant. But assume we were talking about the guidelines case and that it was clear on the fact or clear on the law, I should say, that the guidelines were not mandatory. Just that you know, they even said right in them, not mandatory and that your client coming up through that system again, we're talking counterfactual here, was trying to make the pitch to us that Miller is retroactive and I was sentenced under a mandatory scheme. And then it was clear it wasn't a mandatory scheme. Are you suggesting that we would have to go ahead and send that to the district court and say, prime face of case has been shown, even though as a legal matter was clear, it had nothing to do with your client? Isn't that kind of looking through the merits to see if there's a... Well, I do think that the hypothetical that you presented in the situation in our cases is slightly different, but let me go with you. And suggest that under the plain language of the statute, all an applicant needs to do is raise a claim that relies on a new constitutional rule made retroactive by the Supreme Court. And so the only question for this court at this point is whether the applicant has raised a claim that relies on

. And I suppose... Even if we're just clear on its face that it had nothing to do with the person. Well... You'd send it back to the district court to make the district court deal with it? If I believe under the clear language of the statute that yes, that would be required and let me give you a... But how would it warrant further exploration if you've already looked at it and said, you know, it's the Tapples and Aranges, it doesn't fit? And I think that really in the guidelines case where you're looking at a sentence that was not mandatory and that's clear on the record before you, you may be able to say that the claim doesn't rely on a case that's made retroactive by the Supreme Court. Because in a very real sense, it doesn't flow from the case, so to speak, because the case is about mandatory sentences and the claim doesn't flow from it. But in terms of the equitable reasons, because I think they're very important why the court should not at this stage make that type of decision. Number one, it would be unreviewable. If you stick by the plain language and dictate of the statute, which requires a gatekeeping function only, as I've described under the language, it would go back to the district court. And if it is this clear, as you believe that it is, the district court would quickly reach that conclusion, deny relief, and then that claim could come back to this court even if it's just to preserve it for future review in the Supreme Court. But there are equitable concerns that I hope that this court will take into account if it is inclined to look beyond the statute to the merits. And that is that it would absolutely cut off review for any applicant seeking relief under Miller. Are you going to argue that the Supreme Court's addressing Jackson is persuasive here on the retroactivity issue or one of your accounts? Yes, I mean, actually, you're on her. I was. We didn't divide up the issues because we thought that you might have questions for all of us about the different issues. But I'm interested in the Jackson aspect of it. And actually, my real response is that I believe that Jackson is a premium face of showing it establishes a premium face of showing. But you've argued that the fact that the Supreme Court decided Jackson means that this is retroactive to that the Supreme Court made it retroactively applicable. Yes, but really, the Supreme Court didn't address retroactivity. All it decided was that Jackson was like Miller in terms of the constitutional problem. And then is sending it back to Arkansas for Arkansas to decide based on its own rules. Retractor activities. Isn't that correct? Isn't that what happened in Florida that went back and they decided based upon the wit case. So don't we have a situation where you know, perhaps T T really isn't controlling on the retroactivity of a state case? Well, I don't think so, Your Honor, for a couple of reasons. First of all, in sending the case back, the court was silent with respect to the state court treatment of retroactivity. They did not direct the state to address retroactivity under state law. And it did. What isn't that necessarily what happens? There's a whole host of factors that could depend

. It could depend on whether there's robust retroactivity law in that circuit. It depends if the parties raise that and put that before the state courts. But the real issue is that the application of Miller in Jackson's case was the vacating of the court of appeals opinion. It said we've reached this rule in the Miller case and we are applying it to vacate the order of the court below. That's the application of Miller in Jackson. With respect to whether or not there was a retroactivity ruling for just a minute. Yes, George. Following up a little bit on Judge Rendell's question, do we face a circumstance here where we should be waiting for the Pennsylvania Supreme Court? I mean, your client and Mr. Bans are both, as I understand it, awaiting a ruling in the Cunningham case from the Pennsylvania Supreme Court. Do we have any mootness concerns here or extension concerns that we should be dealing with? Because what if we say something in the Supreme Court of Pennsylvania says something different? And doesn't that put us in a little bit of an awkward spot speaking into the air when what really is going to count is what the Pennsylvania Supreme Court says about the retroactivity of Miller? Well, no, Your Honor. I think that there are exhaustion concerns. Obviously, the petitioners are, you know, most of these cases throughout the state of Pennsylvania are held pending a decision. The state PCRA proceedings are held pending a decision in Cunningham. And so that if this court were to agree with us and find that there is a pre-mafation showing and remand it to the district court or send this to the district court for adjudication in the first instance, the district court would not be able to reach the merits likely until exhaustion was complete. And those proceedings would be stayed. And in fact, I represent probably about 60 petitioners in the district court right now that are seeking first relief under, you know, a first relief under the petition for rid of habeas corpus. And those proceedings are all stayed in the district court awaiting exhaustion. If they have to wait, I guess the question is if it's going to have to wait if it gets to the district court, why do you want us to make a ruling on prime aphasia applicability or retroactivity? Why shouldn't we all wait and see what the Supreme Court has to say in Pennsylvania? Well, I mean, obviously the district court on the issue of retroactivity, which is the history before this court right now, would not be bound by a state court ruling on retroactivity. The reason that we're here now instead of at some later point is because of the one year statute of limitation and the failure of the Pennsylvania Supreme Court. So there's a reason why we're here now. But if you're suggesting, should we just stay these proceedings and await a ruling? If that's a question I'm asking. I'm asking, right. I'm asking because when you say the district court wouldn't be bound, that's true. But if since these people are on state post conviction review, if the state Supreme Court says it's retroactive, then they get relief, right? So it doesn't really matter whether the district court thinks they should get relief or not on a 2254 application. They're going to get the relief from the state Supreme Court. And so the district court will have rendered an opinion which has no effect, correct? Well, yes, Your Honor, but that's why I'm saying that the district court would not proceed. I think the proper course would be for this court to decide this issue for these cases to be lodged in the district court and most likely for them to be stayed in the district court, not in this court at this time. But what I'm trying to ask you is if our sending it to the district court is only for the district court to wait because it makes sense to wait for the Supreme Court. Why do we send it to the district court? Why isn't it right for all the federal judiciary to say, okay, this is in front of the state Supreme Court right now. They're going to have the last word on it since this is state post conviction relief. These guys have been in the process of. I mean, I'm not saying it's right or wrong. I'm just trying to pull your. I mean, I'm almost right there with you

. I mean, I see the argument why proceed now if it's just going to wait. And really the only answer that I can provide to you is that's the ordinary course of things we wait when state courts are deciding issues we wait. We stay petitions in federal court. I can't really. And I'm not trying to be difficult and I see my light is on. I'll finish this answer and unless there are any other questions, I'll sit down and wait for my rebuttal. But I'm not trying to be argumentative. I just think that whether it waits in this court or waits in the district court is not really that significant of a difference from my perspective. I understand from your perspective, you have to make a ruling. And so it may be from yours, but on the premise face a standard, which I hope my colleagues will have an opportunity to address more fully. We I believe we meet that standard and that it should be an easy decision for this court to make that decision send these cases back to the district court where they will likely await what will be the first word on retroactivity from the state court, but certainly not the last. The few point is that the state supreme court ruling wouldn't affect our prime our prima facia. It would not you're on it would not it would not I'll see you on rebuttal. Thank you. Thank you. Okay. Good morning, Your Honors and may it please the court. My name is David fine. I represent Franklin X Bains and other of the applicants in these cases. Your honor, if I could reserve just two minutes for rebuttal. Are you going to argue substantive or procedural for both? I'm going to argue substantive your honor and I'm happy to get right to that if you'd like me to I was going to try to address very briefly if I might the judge Jordan's last question of Miss Freeland. And I may come out. You all definitely want us to decide this. Actually, you might be a little surprised judge. I'm not sure enough. The only thing about what judge Jordan says with which I would take issue is the suggestion that what the Pennsylvania Supreme Court does is the last word because it really isn't. It's only the last word if it moots out these federal proceedings by deciding that under Pennsylvania retroactivity principles Miller is retroactive in which case perhaps our clients could get relief then through the state courts, which is I think your honors point. If the court says no, it's not retroactive under state principles. We know under Danforth that that's not the end of the inquiry then because these this court would decide under T sure. But the question that I put in that I think I hear you answering is since there is that prospect that it could make anything we say irrelevant. Perhaps we should be thinking about whether we've got a mootness or an abstention issue here or do you disagree with that? I don't think your honor right now. You can consider mootness or abstention. I think what you could decide right now is to push the pause button until the Pennsylvania Supreme Court decides cunning him. And then once that court does that, for example, you could direct us to to brief the case further these cases

. These consolidated cases to address the effect of that. Hold it, hold it C.A.V. and what would happen? Yes. I don't think you could tell now whether there's a reason for abstention because I think in fact quite clearly there is no basis for abstention. Similarly, I don't think that you could address mootness now because the event that you're positing might cause mootness hasn't happened yet. So the most I think this court could do is stay at I'm sorry, I don't think so. Well, the thing is we know everything there is to know about the issues. I mean, the Pennsylvania Supreme Court, whatever it says, is not going to inform our determination of primafaceous case. I think it will not inform it, but I think you're at Jordan's point and I don't mean to presume to see. You can help us talk to each other this. Okay. What he's trying to say to you. I think what you're at Jordan's point is you might not even have to make the determination of all. Not that it will be informed by Cunningham or anything else that the State Court does, but that it might move out the need for this panel to decide it. But if I could, let me move on to the issue of assuming that the Court goes ahead and decides it, which I think at some point it may very well, unless Cunningham comes down in favor of retroactivity under the State rules. Judge Rendell, you asked me when I stood up whether I was going to argue about procedural or substantive. And I think that if you look at the Shurrow decision, which I think is very important here, notwithstanding how it came out, what it describes here is that the effective miller was in fact subverted and sub-synidive in two ways. What Miller did in the first instance, and take a look, for example, at the Pennsylvania sentencing scheme, we know that the sentencing scheme in place, certainly when my client was sentenced in the late 70s, said that juveniles were subject to the regular old sentencing that adults were, they weren't separated out, including, by the way, for the death penalty at the time. And that if you were convicted of murder, your sentence was a mandatory life in prison without possibility of parole. The effective miller on that statute is to narrow it, because what it says, well, it actually narrows and broadens, because what it does is, with respect to the statute that makes mandatory life in prison, it now carves out juveniles. Because we know the juveniles can no longer be treated as mandatory recipients. At the very most, there has to be a sentencing hearing with the individualized determinations. Right, which is a process. Well, which is a process, Your Honor, but the distinction here is that in the usual case where we pointed something and say that it's procedural under TEEG, say, ring against Arizona, there, it's a question of, for example, in a ring, who makes the determination of certain facts, which is purely a procedural thing. There was no question there that those facts were going to have to be determined, that the process was going to be engaged in. But this is that the process has to be engaged in, that the individualized sentencing. And Pennry says that substantive involves, you know, regardless of, regardless of procedure, that if you have a substantive situation, that it is regardless of procedure, but this is really wedded to, the courts have to do something that they're currently not allowed to do. And Judge Randall, I think that that is the point. This is not tinkering with the procedure, which is what we see in the other cases that the Supreme Court has looked at and said, minute, oh, that's procedural. Ring, a trendy, all of those cases. Those are dealing with, you have a procedure in place, we're tinkering with it. The jury has to decide this as opposed to the court or whatever it might be

. In this case, we're saying you have to have procedure in the first place. And what that does, in effect, is it changes two criminal statutes in Pennsylvania. One, it carves juveniles out of the mandatory sentencing scheme. And the second is, it increases for juveniles the range of potential sentencing outcomes. But the Supreme Court in Miller's seem to be at pains to say, we're not saying you can't send these juveniles to life in prison without parole. You can do that. You just have to take some extra steps. So when you say, take some extra steps. Aren't you saying there's a procedural issue here? No, because they're not taking issue with the procedure. They're taking issue with the lack of procedure. And a mandatory sentence, and we developed it somewhat in our brief year. Hold on a second, because that's a nice turn of phrase, but it's still about procedure. And what you need to help us, or at least you need to help me with, is that language in Miller that speaks in terms, you know, the retroactivity cases, they seem to talk about TIG talks about something that takes it categorically and removes people from a particular criminal consequence. And here the Supreme Court has not done that. They've said you can still have that consequence. Of course, that's divided the 11th Circuit. It's put some pretty strong arguments on both sides of the sentence. How do we address that? How do we face the Supreme Court not removing mandatory life without parole from juveniles in homicide cases? Only saying you have to take certain steps before you can do it. Your Honor, what I would offer by way of an answer is that, yes, the Supreme Court did in language that you're referring to say that it was not categorically banning all life sentences without possibility of parole. But what it did do was it did categorically bar a particular kind of punishment. That language was talking about one kind of punishment, which is any life sentence without possibility of parole. No matter what the procedure. So you're saying that mandatory, and I think Justice Kagan probably did this somewhat, the harshness of mandatory makes the mandatory phrase jump out as compared to the life sentence without parole. It does, Your Honor, and let me focus on what you said, Judge Rendell, because a mandatory sentence, and we said this in our brief, and I think that it bears emphasis in your honor, May I go ahead and conclude I see my red light is about to come on. Sorry, go ahead. The issue here is that I think that we can all recognize that the reason that legislatures put in place mandatory sentencing schemes has nothing to do with the usual sorts of concerns that motivate procedural rules, accuracy due process, fairness, mandatory sentencing schemes such as the ones that were in place in these cases, drug mandatory sentencing schemes. The whole host of them are there because they are a particular form of punishment. They're there as a deterrent. It's not to have any accuracy. It's to say to people out in the community, if you do this offense, crack, you know, you trade and crack a certain weight, you will be sentenced to this amount no matter what. It's a punishment. The mandatory is the difference between procedural and substantive treatment. In this case, Your Honor, yeah, I think it is. I think it's the, I think it is the distinguishing feature from the language in Miller that Judge Jordan pointed to because mandatory, and it's the same way Your Honor with Woodson, which unfortunately never got a retroactivity determination

. But Woodson, of course, was the case that said no mandatory death penalty. And we know that the mandatory death penalty wasn't about accuracy or anything else that's procedural in nature. It was there to say, if you commit A, B or C offenses, that's it. You go to the death chamber. And that's more about punishment and deterrence. So those sorts of sentences. But flipping around what you just said, the point of the Supreme Court's requirement for the individualized sentencing is accuracy. So what they've required to be done and the rule they've set down really is all about accuracy, isn't it? But it's not a change. Well, Your Honor, that, that part of it, I think you're quite correct about. It is about accuracy. But what it's changing from and going to is makes it substantive because we're going from a form of punishment to only a form of punishment in certain circumstances. That narrows the criminal statute. And I'll reserve the rest of my mouth. I have no further time to reserve for. I'm sorry, just short. Hi, my colleagues from Dulcim. I'd like any answer to the question about the Jackson argument as well. If you're argument about Jackson settling this case is correct. How is it that the Supreme Court in Chidez, I'm not sure I'm saying that case name right, which was a case on state post conviction review, collateral review from the state process. Could say that Padilla was not retroactive. In other words, Chidez looks like the posture we're in here. People coming up from state post conviction review. The Supreme Court has made a constitutional ruling in Padilla about the scope of six amendment rights. And they say, in Chidez, not retroactive. If it's an automatic rule the way you have argued it is, what are we to make of that? That's a difficult question because I think it raises some level of confusion about how the Supreme Court handles this. But I think that there's a response rooted in the posture of this matter before this court, which is that as Ms. Freeland said, the question that confronts this panel is one of whether it's a prima fascia argument for it, something that should be developed more by the district court. And I would submit to you that certainly, and I won't even try to pronounce the name of the case, but the case subsequent to Padilla that you refer to your honor and that I know the government referred to in its brief in the grant case, it did not say that that secondary tea holding the we won't decide new questions of constitutional law unless they would they would apply to cases on collateral review. It did not say that that did not make Padilla retroactive. It did a different retroactivity analysis. So I would submit to the court that there is at least a significant question about what the effect of those cases is. And that comes back to the point, Your Honor, about where we are. Please recall that under the statute, what this panel does on these applications is unreviewable, not even rehearing petitions, and probably final with regard to these gentlemen, or at least there's a good argument that I would imagine the government would make, which says that if later on some court decides, in fact, much more explicitly that Miller is retroactive, these fellows will be out of court. And that suggests that this court's gatekeeping role is, in fact, a very modest one, and that's the language from the Goldblum decision

. If there's a colorable claim, if this is not a frivolous argument, and there's something that should be developed, you open up the gate, you'll let it go to the district court, where by the way that judge is not bound by whatever this court does. It's not a binding, it doesn't create all the case. Goldblum says that. So whatever that court does, then could come up before this court on appeal, rehearing, certiorari, all of the usual review mechanisms. But all of that suggests that the scheme that the Congress created in the AEDPA in section 2244 does not want you doing too close an analysis, because to use the language... Obviously, after we were here, then it's procedural. Well, there's that part, too. All right. We'll hear from you on rebuttal. Thank you, Your Honor. Thank you. Good morning, Your Honor. May I please the court, David Glazer, appearing on behalf of Corey Grant. I also would like to reserve two minutes. You have a different situation here. I do, and I suspect we all can't punt on ours, right? Pardon me? I suspect we all can't punt. That is the furthest to someone else. No. I think we're going to have to deal with Corey Grant. Yeah, the fact that it really wasn't mandatory sentence that was imposed on him, and his youth was considered, correct? Well, if I would rely on Booker, I would say that it was mandatory, Judge, with all the respect. While the language of the guidelines pre-booker were always that there is some opening, there is some discretion, I would argue respectfully to the court that really there really wasn't any. Part of what the government's position is in our case is that we pursued these arguments that we had several bites of the apple already. And I would submit to the court that there really was no apple back in 1992 when we appeared for sentencing. Well, what was the purpose then in making the arguments? Because as you've said, the arguments were made, and if I'm correct, you were counsel then, and were commended by the district work. And were in the sentencing transcripts? I'm delighted. Or the effectiveness of your presentation. I mean, the court would now, it's way to say, you've said it well, it's highly persuasive, but I'm not persuaded. At the end, I'm not persuaded. What more would we say to a district court? I'm delighted. It's not about it, but think about it again. I'm delighted. I'm delighted, you say that, because you're asking me to kind of like, what were my motives doing this? If I felt that there was no possibility

. If indeed it was mandatory, and there was none, how can I argue now that, you know, that I, what was I thinking when I argued from an hour and a half in sentencing? Yeah. So you thought there was some discretion there, right? No, I did not. Frankly, frankly, I may have been hopeful, but the truth of the matter was, I had been through the case for over a year at that point. I had never had, despite having considerable experience in criminal law, I had never had a juvenile waved up in federal court. The entire procedure that was known was new to everyone. When we appeared at the Arrayment for Cory Grant and the other juvenile, Vincent Jackson, Judge Paulison made a rest in peace, had the statute book opened to look about, to look into what were the procedures for a transfer to adult court. Nobody really was familiar with it. When I argued, when I argued for the period of time that I argued at the sentencing, I really felt the need at that time to put on the record because we didn't have a hearing because for the waiver, that is, for the transfer. There was no hearing as such because all the government had to do was show we had two prior offenses, and there's an allegation of violence, and it's automatic. You don't get a hearing. That's it. Ironically, the two prior offenses were two offenses that were part of the regal, so there were not even new offenses. They were offenses from before. And that was part of my argument on appeal originally that this should have been some safeguards for that as well. So the point that I'm attempting to make here is that when I argued for an hour and a half at that time, throughout the entire procedure, the fact that my client was 13 to 15 when most of these offenses allegedly occurred. He was one month into his 16th birthday for the homicide. Nowhere on the record, nowhere at any point in court. Does it ever come out that he was a juvenile? Well, I say that, Judge, because that's central to the Miller decision. Let me quote you something from your brief. You say in imposing this on page 22, in imposing Mr. Grant's sentence, the district court did not meaningfully consider the significant gaps between juveniles and adults in various aspects of responsibility, etc. I read that, and I wondered, is that almost conceding that your complaint is you didn't like the way the court handled it, not that the court didn't have the opportunity to consider, but you just thought that the court didn't meaningfully consider it. Judge, I think it goes back to what you originally said to me. The court did say that I'm considering this and I'm considering that. And with all due respect to Judge Ackerman made your rest in peace, I'm the only survivor in this. You're making a service. I mean, isn't your point that the district court could not meaningfully consider it? Absolutely. The camel going through the... Sure, there was no appetite. Just look at the policy statements and 5-H. Just look at all it says. Age is not a factor

. Socioeconomic is not a factor. But you weren't able to take it into account at all. Not at all. Absolutely nothing. I mean, I practiced under shoot. Under shoot couldn't you have done it? You could have under extraordinary circumstances and you could have done it in the context of criminal history. That's what the shoot case says. Sure. So, you know, and this is far possibility with little, but... Well, the door was an open middle, much, but was it open enough to make a difference as a matter of law? No, it didn't make a difference as a matter of law with all due respect, Judge. When, you know, counsel, when they had, when counsel had responded to my brief back then is, and I can quote from the, from the, from the brief of the government, that I can't cite a single case to support my argument. And they're saying the same thing today. I can't separate, you know, rather I'm saying that. They can't separate. There were no cases, no juvenile, no juvenile, to my knowledge. You didn't involve a juvenile. No juvenile ever got it downward departure. None. I mean, where was I going? I felt the need to put on the record back in 1992 when I appeared before Judge Ackerman to have a record of who this person was. You know, everybody, I'm sure out of the 2500, there's 2500 that they say in the pipeline, everybody probably believes they have the poster juvenile. They have the poster juvenile. Well, I believe I have the poster juvenile. I mean, he was not the shooter. A 21-year-old was the shooter in this indictment. In this indictment, the main, the centerpiece of the government's case was a Belal pretlo. He committed suicide. On the merits of the case, I mean, I'm not sure I've been too much on that because the district court was at pains to point out that even though your fellow wasn't at the top, he certainly wasn't at the bottom in the comment that I bet you wish Corey was out there on the street indicated that the members of the conspiracy had a lot of faith in the violent tendencies and the retributive tendencies of your clients. So maybe isn't the post-child, but more to the point for what we're dealing with here today, all those things were put in front of the judge. The judge heard all those things. Well, they were talking with you about them, right? Well, they were put in by an attorney who felt the need that there should be on this record, something for a Corey Grant that isn't, that's something that pertains to him that nowhere on the record. Because he was a juvenile, because he was different. You know, part of the part of the indictment, the original indictment against Belal pretlo, which never comes out of trial, which I argued also before, to a jack of men, is that Belal pretlo, this rico conspiracy part of it was that they used juveniles

. They forced juveniles. Well, they were trying to kill the juveniles. Pardon me? They purposefully used juveniles. Absolutely. And he's named into counsel. That Corey Grant is named as the victim. Let me pass that indictment in terms of Miller. I mean, if we read Miller as mandatory, as having to do with mandatory sentencing, you have a problem. But aren't you, in essence, asking us, and I throw this out because I want your opposing counsel to address it, aren't you really asking us to read Miller more broadly? And where Miller says that mandatory is reserved for the, is the exception, not the rule. And indeed, in the future, will probably not be given to that many juveniles in this scheme of things. And to the extent that that's what the opinion stands for, it is diametrically opposed to what happened in your case where the mandatory was the universe. And the, except the non mandatory was the exception, if you will, not the rule. I would agree with that. I assume you would. I mean, that, but that requires us to read Miller in a different way to read it, having a broader holding than just mandatory. Correct? I believe so. All right. We will hear from you on Rebell. Thank you. Thank you. Thank you. May it please the court, regime, penit, on behalf of the Commonwealth, in the matter of enraged Michael Pendleton? Your honors, I'd like to just start in with what I believe is the crucial imperative issue in this case. And that is that Miller, I believe, clearly set forth a new procedural rule. Isn't the, isn't Pranafacia case really what we're here to discuss? It is your honors, and I understand the arguments that we're here in a gatekeeping capacity, but we, you can't get past the gate, so to speak, without showing that Miller is to be applied or was made retroactive. Or there's possible merit, possible merit to warrant a further exploration. Correct. And I believe that when you look at what the Supreme Court did in Miller, and you look at their specific deliberate language, that it is very clear that they were announcing a procedural rule. Well, except they took mandatory right off the table. They said, you can't do this period. As a matter of the eighth amendment of the United States Constitution, you cannot mandatoryly send a juvenile to prison. Now, that sure sounds substantive, doesn't it? It is taking a category of punishment and setting it aside forever on a constitutional basis. When you phrase it that way, I see a argument to be made, but when you look at their language, I don't know what that is. And then isn't that game up? The analysis is roper and addkins. I mean, that's, and they distinguish themselves from roper and addkins. They specifically say, this is not like roper, this is not like gram, this is not like addkins. Well, then tell me, tell me this, what would they have to have said for you to agree that it is substantive? I'm sorry, could you do that? I said, what would they have to have said in order for you to agree that it's substantive? I think if they had made a categorical ban on life without the possibility of parole. They have made a categorical ban on mandatory. On mandatory. That's all they can. That is where the process lies. I mean, the court stated, this case mandates only that a sentence or follow a certain process considering an offender's youth. That is the precise language, the precise definition under tea analysis of what a procedural rule is. They went on to say, our decision does not categorically bar a penalty for class of offenders or type of crime. What can you, can you concede and it sounded like you did a minute ago that it's at least arguable that the mandatory character of the life sentence is part of the punitive piece of the sentence. And that by sealing mandatory life sentences off, there's a substantive rule in place that that's at least, that's not a frivolous argument. But something being frivolous and being arguable are two different things. Well, there's a good faith argument that can be made in that respect. Is there not? But the punishment is life without the possibility of parole. And the mandatory is there at least a plausible argument that can be made that that is part and parcel of the punishment. And if it is, that's a substantive rule. Ultimately, that may not be the right answer. But it's a, it's an argument that has plausibility that you can think about. You can noodle around in your head and work with and try to figure out whether it's right or not. Sure. Judge Jordan, I would say that's plausible. But I would also say that this court has said that it is not enough for, for the appellant just to say that they've made an arguable claim that a new rule is substantive, that it must dictate it. It's not enough to just say it's arguable. It must dictate it. At the end of the day, that's the standard that has to be yet. But at the prime of face stage, we've said in Goldblum, it only has to deserve further thought and development. So if that's where we are and you can see that, and I think it, you know, I think you're well advised to think about whether you can really say, oh, that's just so crazy. And we could think about it. I'm not sure, I'm not sure where you go because if, if Goldblum says what it seems to say, they're over the prime of face threshold, are they not? I disagree. I really think because when you read Miller and you look at the analysis and they took steps to say, we are not like those other cases. We're not like atkins where this is not a case of ropers Simmons of atkins Graham. I think that that takes away any except the thrust of the opinion. When you read it is that children are different. Children are different

. They specifically say, this is not like roper, this is not like gram, this is not like addkins. Well, then tell me, tell me this, what would they have to have said for you to agree that it is substantive? I'm sorry, could you do that? I said, what would they have to have said in order for you to agree that it's substantive? I think if they had made a categorical ban on life without the possibility of parole. They have made a categorical ban on mandatory. On mandatory. That's all they can. That is where the process lies. I mean, the court stated, this case mandates only that a sentence or follow a certain process considering an offender's youth. That is the precise language, the precise definition under tea analysis of what a procedural rule is. They went on to say, our decision does not categorically bar a penalty for class of offenders or type of crime. What can you, can you concede and it sounded like you did a minute ago that it's at least arguable that the mandatory character of the life sentence is part of the punitive piece of the sentence. And that by sealing mandatory life sentences off, there's a substantive rule in place that that's at least, that's not a frivolous argument. But something being frivolous and being arguable are two different things. Well, there's a good faith argument that can be made in that respect. Is there not? But the punishment is life without the possibility of parole. And the mandatory is there at least a plausible argument that can be made that that is part and parcel of the punishment. And if it is, that's a substantive rule. Ultimately, that may not be the right answer. But it's a, it's an argument that has plausibility that you can think about. You can noodle around in your head and work with and try to figure out whether it's right or not. Sure. Judge Jordan, I would say that's plausible. But I would also say that this court has said that it is not enough for, for the appellant just to say that they've made an arguable claim that a new rule is substantive, that it must dictate it. It's not enough to just say it's arguable. It must dictate it. At the end of the day, that's the standard that has to be yet. But at the prime of face stage, we've said in Goldblum, it only has to deserve further thought and development. So if that's where we are and you can see that, and I think it, you know, I think you're well advised to think about whether you can really say, oh, that's just so crazy. And we could think about it. I'm not sure, I'm not sure where you go because if, if Goldblum says what it seems to say, they're over the prime of face threshold, are they not? I disagree. I really think because when you read Miller and you look at the analysis and they took steps to say, we are not like those other cases. We're not like atkins where this is not a case of ropers Simmons of atkins Graham. I think that that takes away any except the thrust of the opinion. When you read it is that children are different. Children are different. There shall be no mandatory. And obviously if you follow procedures, district courts have discretion, courts have discretion to sentence. You can't take a life without possibility to roll away from in the rare case. I think that's the other aspect. The fact that Justice Kagan and the court says this is, we predict that going forward mandatory is will be the exception. It will be rare. So while not closing the door, they're totally and I know this the range of options. It's not just that range of options have been expanded. It's giving an option for 98 6% of the cases that was never there before. How can that not be substantive? Well, I think there's a couple of responses to that. First, uncommon does not mean impossible does not mean unconstitutional obviously. But do think about the future with with juveniles and courts considering life without the possibility of parole for the juvenile court. The Miller court makes it clear that their position is children are different. And because of that, we're going to change the process in which they are sentenced. They are not changed the sentences. We're going to effectively change the practical matter. The sentences they receive. Yes, and I and I that there are there are different possibilities. There are different ranges, if you will, of what? But I think to say that that therefore makes it a substantive new rule is a mischaracterization of what the issue is and what the issues are under teak and what makes the new rule substantive versus procedural. Because there is more possibilities, if you will, that in of itself certainly does not make a new rule substantive. Any time you announce a new constitutional rule, there's going to be, I mean, I would argue there's going to be differences that happen and consequences of that. But not every new rule is applied retroactively and the courts have been very, very clear on that. And if I can you can you answer the question about which I put them is feeling about whether we should be moving forward or not? I mean, you you're representing the Commonwealth in a case where clearly the state Supreme Court is going to say something pretty significant probably pretty soon. Why why should we be deciding this now? Well, as I I did put that as my first matter in my brief is just the fact that he does have a timely peace here at Mr Pendleton has a timely peace here at pending in state court. I believe he filed it five days after the Miller decision came out so he was on the ball. That case has been state pending cunning ham. This issue that he wants to raise in district court is unexhaust it. So I do think that that's another consideration and and should factor into the decision here. And if I could I just like to respond to the question that was posed about the Jackson case and how that if it all affects this issue. I would like to say that I think I agree with Judge Rendell here that what what the Miller court did in remanding the case back down to state court. I do not think that that made a T decision for us. I think it's really counterintuitive to say that what happens in a case that was on state collateral review is going to determine how this court is going to decide a T issue. And I think that once you want to start looking. The Supreme Court in T did not say you know this this this applies to federal cases or in in any way limit that the court

. There shall be no mandatory. And obviously if you follow procedures, district courts have discretion, courts have discretion to sentence. You can't take a life without possibility to roll away from in the rare case. I think that's the other aspect. The fact that Justice Kagan and the court says this is, we predict that going forward mandatory is will be the exception. It will be rare. So while not closing the door, they're totally and I know this the range of options. It's not just that range of options have been expanded. It's giving an option for 98 6% of the cases that was never there before. How can that not be substantive? Well, I think there's a couple of responses to that. First, uncommon does not mean impossible does not mean unconstitutional obviously. But do think about the future with with juveniles and courts considering life without the possibility of parole for the juvenile court. The Miller court makes it clear that their position is children are different. And because of that, we're going to change the process in which they are sentenced. They are not changed the sentences. We're going to effectively change the practical matter. The sentences they receive. Yes, and I and I that there are there are different possibilities. There are different ranges, if you will, of what? But I think to say that that therefore makes it a substantive new rule is a mischaracterization of what the issue is and what the issues are under teak and what makes the new rule substantive versus procedural. Because there is more possibilities, if you will, that in of itself certainly does not make a new rule substantive. Any time you announce a new constitutional rule, there's going to be, I mean, I would argue there's going to be differences that happen and consequences of that. But not every new rule is applied retroactively and the courts have been very, very clear on that. And if I can you can you answer the question about which I put them is feeling about whether we should be moving forward or not? I mean, you you're representing the Commonwealth in a case where clearly the state Supreme Court is going to say something pretty significant probably pretty soon. Why why should we be deciding this now? Well, as I I did put that as my first matter in my brief is just the fact that he does have a timely peace here at Mr Pendleton has a timely peace here at pending in state court. I believe he filed it five days after the Miller decision came out so he was on the ball. That case has been state pending cunning ham. This issue that he wants to raise in district court is unexhaust it. So I do think that that's another consideration and and should factor into the decision here. And if I could I just like to respond to the question that was posed about the Jackson case and how that if it all affects this issue. I would like to say that I think I agree with Judge Rendell here that what what the Miller court did in remanding the case back down to state court. I do not think that that made a T decision for us. I think it's really counterintuitive to say that what happens in a case that was on state collateral review is going to determine how this court is going to decide a T issue. And I think that once you want to start looking. The Supreme Court in T did not say you know this this this applies to federal cases or in in any way limit that the court. This language was implicit in the retro activity approach we adopt today is the principle that habeas corpus cannot use a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review. It didn't say all defendants on federal collateral review or all defendants except the ones on state collateral view. It said all defendants on collateral review. That's pretty broad language. Why would we insert a modifier? I believe that subsequent fatigue that the Supreme Court in Danforth versus Minnesota I believe I have the case name correct. Yeah, but they said the state can be more generous in its retro activity and they do use the words federal court federal court a lot. But they don't say there it has never said there are different rules for it said it's collateral review. It's not limited. Well, we do certainly recognize that federal habeas collateral review is different from state. I mean all the different states. I mean there's obviously things that are cognizable under one under for example in the Pennsylvania peace. But that doesn't speak to this question. The question is what does TIG mean when it says when we announce this rule and apply it it's going to apply to everybody on collateral review. And an unmodified way it says that the fact that in Danforth they say if states want to go past that and be kinder and gentler to criminal defendants fine by us. How does that speak to what TIG says? I think that it still is not I don't believe that it would make the best sense to rely on that what happened with control Jackson to then make a broad finding that it was meant to be collateral on federal habeas review because in order for that to be the case it needs to be a substantive rule or a watershed rule. Thank you. Thank you. May I please the court Ronald Eisenberg for the Commonwealth in the Baines case. I'd like to pick up on a point that's been discussed to some degree so far but I think this is a little more attention and that's the reference to the idea of Miller as changing the range of options. It's available for sentencing you heard something similar from my colleague Mr. Fine when he spoke about narrowing and broadening the sentence possible you see it all over the Justice Department's brief when they speak about extending the range of sentences and they say that Miller does that and I totally acknowledge Miller does do that and it does it in a large number of cases as judge and dealt went to doubt the problem is. That's not the test for retroactivity if it were we'd have some larger problems well isn't it first just as enlighten me curious have you ever found yourself in a situation where the United States and the and the B.A.'s office are saying hey you know what completely different things about whether a defendant gets the benefit of a retroactive rule. It is curious your honor indeed it is it gets curiouser when you play it out when you play out the standard that the department has advocated along with the defense which is well hold on let me ask you this. Should it matter to us that the United States of America through the Department of Justice has taken the position it's taken. No you're honor because the department I would suggest doesn't seem to really mean it because they don't get it doesn't advocate the same standard in other situations and I'll take you back just a few months ago to this week after Miller was decided when the United States Supreme Court decided the case of a lean versus United States in which they held that mandatory minimums as here to four administered throughout the United States were on constitutional since that time in that short time there have been at least 28 district court decisions addressing the retro activity of a lean. So are you suggesting are you suggesting it because the Department of Justice doesn't believe that everything is retroactive they can't believe that anything is retroactive. No I'm not your honor what I'm saying is that in a lean the United States Supreme Court specifically inexplicably said that it is indisputable that was their word. It is indisputable that mandatory minimums alter the range of prescribed sentences. Yeah that was interesting turn of phrase since they were changing their own lines but go ahead if that is the test if that has now become the test not just for the ruling in a lean but for retro activity then a lean must be retroactive a lean automatically by virtue of that decision in June has become retroactive to all cases at all times. In the United States and yet as far as I can tell from looking at those dozens of district court decisions the government has not conceded the retro activity of a lean so we can't believe these guys well I think you have to question what they're saying I think there's a reason that they're not conceding it there and it's because the standard that they are espousing here today doesn't play out doesn't work and it's worse when you go beyond a lean to booker because what booker did was not to invalidate the sensing guidelines but merely and the court was very clear about that. But merely to excise the mandatory aspect of the sentencing guidelines and yet the Department of Justice is not advocated for the retroactive application of booker in fact no court of appeals has held that booker is retroactive including this one it is indisputable to use the courts word in a lean that booker altered the range of sentences it narrowed and brought in the sentencing options available to defend in a huge way in a dramatic way. There could affect thousands of cases and yet booker is not retroactive in a lean as far as we know so far is not retroactive and the department agrees with me in those contexts but the standard is what counts that's not the standard for activity

. This language was implicit in the retro activity approach we adopt today is the principle that habeas corpus cannot use a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review. It didn't say all defendants on federal collateral review or all defendants except the ones on state collateral view. It said all defendants on collateral review. That's pretty broad language. Why would we insert a modifier? I believe that subsequent fatigue that the Supreme Court in Danforth versus Minnesota I believe I have the case name correct. Yeah, but they said the state can be more generous in its retro activity and they do use the words federal court federal court a lot. But they don't say there it has never said there are different rules for it said it's collateral review. It's not limited. Well, we do certainly recognize that federal habeas collateral review is different from state. I mean all the different states. I mean there's obviously things that are cognizable under one under for example in the Pennsylvania peace. But that doesn't speak to this question. The question is what does TIG mean when it says when we announce this rule and apply it it's going to apply to everybody on collateral review. And an unmodified way it says that the fact that in Danforth they say if states want to go past that and be kinder and gentler to criminal defendants fine by us. How does that speak to what TIG says? I think that it still is not I don't believe that it would make the best sense to rely on that what happened with control Jackson to then make a broad finding that it was meant to be collateral on federal habeas review because in order for that to be the case it needs to be a substantive rule or a watershed rule. Thank you. Thank you. May I please the court Ronald Eisenberg for the Commonwealth in the Baines case. I'd like to pick up on a point that's been discussed to some degree so far but I think this is a little more attention and that's the reference to the idea of Miller as changing the range of options. It's available for sentencing you heard something similar from my colleague Mr. Fine when he spoke about narrowing and broadening the sentence possible you see it all over the Justice Department's brief when they speak about extending the range of sentences and they say that Miller does that and I totally acknowledge Miller does do that and it does it in a large number of cases as judge and dealt went to doubt the problem is. That's not the test for retroactivity if it were we'd have some larger problems well isn't it first just as enlighten me curious have you ever found yourself in a situation where the United States and the and the B.A.'s office are saying hey you know what completely different things about whether a defendant gets the benefit of a retroactive rule. It is curious your honor indeed it is it gets curiouser when you play it out when you play out the standard that the department has advocated along with the defense which is well hold on let me ask you this. Should it matter to us that the United States of America through the Department of Justice has taken the position it's taken. No you're honor because the department I would suggest doesn't seem to really mean it because they don't get it doesn't advocate the same standard in other situations and I'll take you back just a few months ago to this week after Miller was decided when the United States Supreme Court decided the case of a lean versus United States in which they held that mandatory minimums as here to four administered throughout the United States were on constitutional since that time in that short time there have been at least 28 district court decisions addressing the retro activity of a lean. So are you suggesting are you suggesting it because the Department of Justice doesn't believe that everything is retroactive they can't believe that anything is retroactive. No I'm not your honor what I'm saying is that in a lean the United States Supreme Court specifically inexplicably said that it is indisputable that was their word. It is indisputable that mandatory minimums alter the range of prescribed sentences. Yeah that was interesting turn of phrase since they were changing their own lines but go ahead if that is the test if that has now become the test not just for the ruling in a lean but for retro activity then a lean must be retroactive a lean automatically by virtue of that decision in June has become retroactive to all cases at all times. In the United States and yet as far as I can tell from looking at those dozens of district court decisions the government has not conceded the retro activity of a lean so we can't believe these guys well I think you have to question what they're saying I think there's a reason that they're not conceding it there and it's because the standard that they are espousing here today doesn't play out doesn't work and it's worse when you go beyond a lean to booker because what booker did was not to invalidate the sensing guidelines but merely and the court was very clear about that. But merely to excise the mandatory aspect of the sentencing guidelines and yet the Department of Justice is not advocated for the retroactive application of booker in fact no court of appeals has held that booker is retroactive including this one it is indisputable to use the courts word in a lean that booker altered the range of sentences it narrowed and brought in the sentencing options available to defend in a huge way in a dramatic way. There could affect thousands of cases and yet booker is not retroactive in a lean as far as we know so far is not retroactive and the department agrees with me in those contexts but the standard is what counts that's not the standard for activity. What do we what do we to make of decisions like out of the circuit or commentary from some of the judges on the 11th Circuit that say it is the mandatory character of the sends that that is a piece of the punishment itself you heard Mr. Fine address that what is what's a ronious about that logic if that logic were correct and it would raise retroactivity concerns in the alien booker context as well as I've indicated your honor it was the mandatory context what's off the table the question that George for Jordan is put to several of your colleagues is there is a category of punishment that is now off the table right so a mandatory life without role for juvenile is now off the table you're you're you're analogized this to a lean and and booker it's true that they changed ranges of punishment but what I don't see the analogy to this case to Miller where they took something the Supreme Court took something off the table they changed the range of punishment by taking mandatory off the table they changed the range of punishment. And it gets back I think judge Jordan to your comment during the argument of my opponent who said that this isn't a procedure it's a lack of procedure and your response I thought was correct which is it's procedure either way well I'm making the question I'm closing questions I'm not taking position. Fine and I will. So my question to you is the same one that Judge Greenway has just put you isn't there a distinction not just in degree but in kind when one says the guideline regime is going to have discretion now involved with it and saying here is a kind of punishment which you may not impose anymore. No, you may not impose a mandatory life sentence without parole on a juvenile period. No, Your Honor, because the question is still how you get to that punishment for the guy who's serving life without parole it's going to be the same punishment when he whether he got there by a mandatory sentence or a judge's exercise of discretion and as we've just been discussing in the federal case here the effect of the federal guidelines was the defendant says to make essentially mandatory that what you're going to do is to make a decision. But Judge Rendell has noted as the key aspect of Miller would not be considered it was mandatory that the court couldn't look at youth. What can I ask you something that I put to your colleague for the Commonwealth. Doesn't the very fact that I have two sovereigns competing sovereigns telling me a diametrically opposite things about the retro activity of Miller mean that there's at least a primaface case an argument to be made for retro activity and if that's true can we all just go home. No, Your Honor, I think it actually means exactly the opposite because how so arguable is not the ultimate standard here possible merit possible merit deserving for their development but possible merit of what possible merit of the retro activity of Miller and whether Miller is retroactive is a question that must be absolutely dictated at this time in order for the case. No, no, no, not at this time. You're you're jumping in. Yeah, yeah, that's it's no different than any other look ahead at the at the merits of the claims as you were exploring earlier potential merit. How you're trying to draw distinction between arguable and potential merit and I'm not I won't speak from my colleagues. I'm not buying. So let's. I'm sorry if I if I sounded like I was trying to distinguish between arguing potential I'm not at all I'm distinguishing between we judge Rendell said in response to something you said no the standard is potential right and you had argued a moment earlier that there no it's arguable. So you're attempting to draw a distinction between arguable as you've posed it and potential merit as we see the standard for primafation. So tell us why this why potential merit isn't met here so that we can make the determination that's primafation and to quote my colleague go home because because the primafation case has to be a standard has to be. So we apply to each element that's necessary for the defendant to go forward and those elements differ in this case the crucial threshold element is the question of retro activity and that is a major roadblock for the defendant and you cannot talk about the primafation standard without considering the underlying standard for the claim that he will have to meet and that's retro. Is that what goblum says we're not supposed to do because the goal will say in fact on the underlying merit whether the guy's going to win or not don't think about that because that's not the question the question is is there a new rule of constitutional law made retroactive by the Supreme Court previously unavailable those are the things you're supposed to think about those are the only things you're supposed to think about and if you're thinking about something else you're wrong and that would go home sense and I think that everything that we've been discussing today. So today is whether there is a new rule made retroactive by the United States Supreme Court and everything we've been discussing today is about how you determine now whether in fact that new rule has been made retroactive by the United States Supreme Court in the way in which question I'm asking you is isn't the question we're supposed to be asking is there a primafation case that it's retroactive not whether it is retroactive but whether there's at least this. Potential merit deserving of further development yes your honor a primafation case of whether it was made retroactive by the court which means is there a primafation case that the existing case law absolutely dictates and you don't think it's significant and are thinking about that that the people who you're sitting at the table with think there's at least prime a face it's not insignificant but since the government's own standard in this case is not applied by the government in other cases I think that's not the case. I think that's significantly weakens that possibility the bottom line remains that the prime a face a standard has to be applied to the underlying question of whether existing case law absolutely dictates and as Judge Rendell pointed out herself the United States Supreme Court has been very clear about that that in order for a rule to be substantive it must be true regardless of any procedures followed the punishment has to be off the table says pen. The right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of pornography facility, which could not be an experiment, if it was the resurrection of this looking at the way Justice Kagan wrote it, and she, I think, uses the word process at one point. But the majority of the majority opinion is all about youth is different. Youth is different, which is a substantive concept. And while the cases to date haven't dealt with this issue, I mean, obviously every time it comes up with a new holding, there's going to have to be a consideration based upon the opinion of court not based upon what they've said in the past, it's new. May, I just touch on the point that you made about how the court doesn't always say whether it's retroactive. In this context, Your Honor, that's not completely true. And what I mean is that, as the court has observed in Beard vs. Banks, a federal court must address T, unless the state doesn't raise that question. It must, and that in italics are in the United States of the Supreme Court's decision

. What do we what do we to make of decisions like out of the circuit or commentary from some of the judges on the 11th Circuit that say it is the mandatory character of the sends that that is a piece of the punishment itself you heard Mr. Fine address that what is what's a ronious about that logic if that logic were correct and it would raise retroactivity concerns in the alien booker context as well as I've indicated your honor it was the mandatory context what's off the table the question that George for Jordan is put to several of your colleagues is there is a category of punishment that is now off the table right so a mandatory life without role for juvenile is now off the table you're you're you're analogized this to a lean and and booker it's true that they changed ranges of punishment but what I don't see the analogy to this case to Miller where they took something the Supreme Court took something off the table they changed the range of punishment by taking mandatory off the table they changed the range of punishment. And it gets back I think judge Jordan to your comment during the argument of my opponent who said that this isn't a procedure it's a lack of procedure and your response I thought was correct which is it's procedure either way well I'm making the question I'm closing questions I'm not taking position. Fine and I will. So my question to you is the same one that Judge Greenway has just put you isn't there a distinction not just in degree but in kind when one says the guideline regime is going to have discretion now involved with it and saying here is a kind of punishment which you may not impose anymore. No, you may not impose a mandatory life sentence without parole on a juvenile period. No, Your Honor, because the question is still how you get to that punishment for the guy who's serving life without parole it's going to be the same punishment when he whether he got there by a mandatory sentence or a judge's exercise of discretion and as we've just been discussing in the federal case here the effect of the federal guidelines was the defendant says to make essentially mandatory that what you're going to do is to make a decision. But Judge Rendell has noted as the key aspect of Miller would not be considered it was mandatory that the court couldn't look at youth. What can I ask you something that I put to your colleague for the Commonwealth. Doesn't the very fact that I have two sovereigns competing sovereigns telling me a diametrically opposite things about the retro activity of Miller mean that there's at least a primaface case an argument to be made for retro activity and if that's true can we all just go home. No, Your Honor, I think it actually means exactly the opposite because how so arguable is not the ultimate standard here possible merit possible merit deserving for their development but possible merit of what possible merit of the retro activity of Miller and whether Miller is retroactive is a question that must be absolutely dictated at this time in order for the case. No, no, no, not at this time. You're you're jumping in. Yeah, yeah, that's it's no different than any other look ahead at the at the merits of the claims as you were exploring earlier potential merit. How you're trying to draw distinction between arguable and potential merit and I'm not I won't speak from my colleagues. I'm not buying. So let's. I'm sorry if I if I sounded like I was trying to distinguish between arguing potential I'm not at all I'm distinguishing between we judge Rendell said in response to something you said no the standard is potential right and you had argued a moment earlier that there no it's arguable. So you're attempting to draw a distinction between arguable as you've posed it and potential merit as we see the standard for primafation. So tell us why this why potential merit isn't met here so that we can make the determination that's primafation and to quote my colleague go home because because the primafation case has to be a standard has to be. So we apply to each element that's necessary for the defendant to go forward and those elements differ in this case the crucial threshold element is the question of retro activity and that is a major roadblock for the defendant and you cannot talk about the primafation standard without considering the underlying standard for the claim that he will have to meet and that's retro. Is that what goblum says we're not supposed to do because the goal will say in fact on the underlying merit whether the guy's going to win or not don't think about that because that's not the question the question is is there a new rule of constitutional law made retroactive by the Supreme Court previously unavailable those are the things you're supposed to think about those are the only things you're supposed to think about and if you're thinking about something else you're wrong and that would go home sense and I think that everything that we've been discussing today. So today is whether there is a new rule made retroactive by the United States Supreme Court and everything we've been discussing today is about how you determine now whether in fact that new rule has been made retroactive by the United States Supreme Court in the way in which question I'm asking you is isn't the question we're supposed to be asking is there a primafation case that it's retroactive not whether it is retroactive but whether there's at least this. Potential merit deserving of further development yes your honor a primafation case of whether it was made retroactive by the court which means is there a primafation case that the existing case law absolutely dictates and you don't think it's significant and are thinking about that that the people who you're sitting at the table with think there's at least prime a face it's not insignificant but since the government's own standard in this case is not applied by the government in other cases I think that's not the case. I think that's significantly weakens that possibility the bottom line remains that the prime a face a standard has to be applied to the underlying question of whether existing case law absolutely dictates and as Judge Rendell pointed out herself the United States Supreme Court has been very clear about that that in order for a rule to be substantive it must be true regardless of any procedures followed the punishment has to be off the table says pen. The right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of the underlying extent of pornography facility, which could not be an experiment, if it was the resurrection of this looking at the way Justice Kagan wrote it, and she, I think, uses the word process at one point. But the majority of the majority opinion is all about youth is different. Youth is different, which is a substantive concept. And while the cases to date haven't dealt with this issue, I mean, obviously every time it comes up with a new holding, there's going to have to be a consideration based upon the opinion of court not based upon what they've said in the past, it's new. May, I just touch on the point that you made about how the court doesn't always say whether it's retroactive. In this context, Your Honor, that's not completely true. And what I mean is that, as the court has observed in Beard vs. Banks, a federal court must address T, unless the state doesn't raise that question. It must, and that in italics are in the United States of the Supreme Court's decision. In this case, the federal court didn't address T, in Jackson and in Miller, and it's obvious from the papers that the state didn't raise that question. That's the only possible explanation for why the court didn't address T, because in Beard vs. Banks, we are told that in order to make a retroactivity decision, the court must address T. That can't be so, or the rule in Tyler wouldn't make any sense. I mean, Tyler says you can develop this dictation from more than one case. Well, but, anyway, I'm sorry, Your Honor. What that means is that you're applying the T. analysis. The court doesn't necessarily say it's applying the T. analysis, but the retroactivity has to fit the T. analysis. And the one thing that Miller said most clearly about the language of retroactivity, that looks like the language of retroactivity, that looks like all the cases discussing the standard before, was where it said that its decision doesn't categorically bar the penalty. It only establishes a process for it. It's the one place in the opinion where we have the clearest statement that might relate to retroactivity. I understand the defense says it's dictum. I don't think there's much other choice for them, but how ironic it is that on the one hand the defense says, Miller is a holding about retroactivity to say that it's retroactive under team, but only as long as we ignore the actual language in Miller that looks like it talks about retroactivity, that mirrors the standard for retroactivity. Can't be holding in that one way and not in the other way. Thank you. Thank you. May I please the court? I'm Stephen G. Sanders on behalf of the United States in the grant matter. I want to start, if I may, with point two of our brief and the exchange Judge Randall had with Mr. Glazer before he left. And that is, isn't he? I'd rather you didn't. You'd rather I didn't? Yeah. Why don't you start with? With rebutting the arguments of your colleagues at the table where you've considered. I'd be happy to. I'm going here. The argument that the position we're taking is somehow inconsistent in the lean and the cases with mandatory minimums just doesn't fly because the test under the Supreme Court is whether you're eliminating a class of punishment for defendants based on their status. And nothing the Supreme Court did in the lean had to do with the status of the defendant. They just changed the procedure. They applied their six amendment holding an apprendate to mandatory minimums. So that range of punishment is still there. You can get a mandatory minimum

. In this case, the federal court didn't address T, in Jackson and in Miller, and it's obvious from the papers that the state didn't raise that question. That's the only possible explanation for why the court didn't address T, because in Beard vs. Banks, we are told that in order to make a retroactivity decision, the court must address T. That can't be so, or the rule in Tyler wouldn't make any sense. I mean, Tyler says you can develop this dictation from more than one case. Well, but, anyway, I'm sorry, Your Honor. What that means is that you're applying the T. analysis. The court doesn't necessarily say it's applying the T. analysis, but the retroactivity has to fit the T. analysis. And the one thing that Miller said most clearly about the language of retroactivity, that looks like the language of retroactivity, that looks like all the cases discussing the standard before, was where it said that its decision doesn't categorically bar the penalty. It only establishes a process for it. It's the one place in the opinion where we have the clearest statement that might relate to retroactivity. I understand the defense says it's dictum. I don't think there's much other choice for them, but how ironic it is that on the one hand the defense says, Miller is a holding about retroactivity to say that it's retroactive under team, but only as long as we ignore the actual language in Miller that looks like it talks about retroactivity, that mirrors the standard for retroactivity. Can't be holding in that one way and not in the other way. Thank you. Thank you. May I please the court? I'm Stephen G. Sanders on behalf of the United States in the grant matter. I want to start, if I may, with point two of our brief and the exchange Judge Randall had with Mr. Glazer before he left. And that is, isn't he? I'd rather you didn't. You'd rather I didn't? Yeah. Why don't you start with? With rebutting the arguments of your colleagues at the table where you've considered. I'd be happy to. I'm going here. The argument that the position we're taking is somehow inconsistent in the lean and the cases with mandatory minimums just doesn't fly because the test under the Supreme Court is whether you're eliminating a class of punishment for defendants based on their status. And nothing the Supreme Court did in the lean had to do with the status of the defendant. They just changed the procedure. They applied their six amendment holding an apprendate to mandatory minimums. So that range of punishment is still there. You can get a mandatory minimum. It just has to be the jury that makes it finding that triggers it. And that I think is sufficient to dispose of that part of Mr. Eisenberg's argument. Let me turn to the Tyler versus Kane argument because I think that's where this court is. It has to be a combination of holdings, right? That dictate that this is a substantive rule. And I think for all the reasons that fourth and fourth, the opening of the range, a punishment where you formally had nothing but mandatory life without the role. And now you have exposure to every possible sentence underneath that. That expansion of the range is a substantive holding. And it dictates that as T requires. The application to everybody else. And is it? Yeah, what cases dictate the expansion of the range is therefore substantive? I'd say Henry, one which describes what kind of rules are substantive. Yeah, but then it says regardless of process. Those words kind of flash out from Henry. And staff also says that, right? That the barring a type of punishment based on the status of the defendant, right? That's so that's case one that's the category. And we'd say that the holding the substantive component, because we realize that there's a procedural aspect of Miller as well. But the substantive component of Miller's holding, which says statutory mandatory life without parole is off the table for all time for juveniles. That is a substantive holding. And it's those two cases, right? But what else other than Henry dictates? We were taking just as so connoisseurs, we can look at a whole number of cases. So which ones dictate? And Woodson might be in there. Well, Woodson wasn't retro. We know determined. It wasn't, but I'll turn to that because I think Woodson's an important situation, because we could have had the spring court could have addressed what it did in Miller in two separate steps, right? It could have said mandatory life without parole is off the table for all time for juveniles in case one. And in case two, it could have said, and going forward now, in a different case, you need district courts or sentencing courts need to consider these specific mitigating factors as a procedural matter. If it did it, if it proceeded in two steps like that, I think we would agree that that second case is procedural. And it couldn't be applied retroactively in cloud review because those would be just like the death penalty cases that are cited in our brief and cited in the state space, right? Saying that the jury couldn't adequately consider the certain mitigating factor in a death penalty case is a new rule. But that's not what we have here. The spring court actually did this in one fell swoop. It expanded the range and it said while we're doing that sentencing courts going forward, you must consider these specific mitigating factors. And I'm. Does this Jackson argument that's been made to us in the other cases? Carry weight. Do you think that it's correct to think in the terms that have been pressed on us by the council for Mr. Spain and Pendleton that because Jackson was part of the same case holding in Miller that that's a proxy fatigue and we can say retroactive to state collateral review cases. No, I disagree with that because because state courts, right, their statutes that allowed judges to vacate conviction of state collateral review, to allow them to vacate a conviction or sentence if it was imposed in violation of law. Now it's a matter of state law whether they want to give the benefit of a federal rule of decision retroactively, right? They can say the rule in Miller was violated and we will give you the benefit of that rule

. It just has to be the jury that makes it finding that triggers it. And that I think is sufficient to dispose of that part of Mr. Eisenberg's argument. Let me turn to the Tyler versus Kane argument because I think that's where this court is. It has to be a combination of holdings, right? That dictate that this is a substantive rule. And I think for all the reasons that fourth and fourth, the opening of the range, a punishment where you formally had nothing but mandatory life without the role. And now you have exposure to every possible sentence underneath that. That expansion of the range is a substantive holding. And it dictates that as T requires. The application to everybody else. And is it? Yeah, what cases dictate the expansion of the range is therefore substantive? I'd say Henry, one which describes what kind of rules are substantive. Yeah, but then it says regardless of process. Those words kind of flash out from Henry. And staff also says that, right? That the barring a type of punishment based on the status of the defendant, right? That's so that's case one that's the category. And we'd say that the holding the substantive component, because we realize that there's a procedural aspect of Miller as well. But the substantive component of Miller's holding, which says statutory mandatory life without parole is off the table for all time for juveniles. That is a substantive holding. And it's those two cases, right? But what else other than Henry dictates? We were taking just as so connoisseurs, we can look at a whole number of cases. So which ones dictate? And Woodson might be in there. Well, Woodson wasn't retro. We know determined. It wasn't, but I'll turn to that because I think Woodson's an important situation, because we could have had the spring court could have addressed what it did in Miller in two separate steps, right? It could have said mandatory life without parole is off the table for all time for juveniles in case one. And in case two, it could have said, and going forward now, in a different case, you need district courts or sentencing courts need to consider these specific mitigating factors as a procedural matter. If it did it, if it proceeded in two steps like that, I think we would agree that that second case is procedural. And it couldn't be applied retroactively in cloud review because those would be just like the death penalty cases that are cited in our brief and cited in the state space, right? Saying that the jury couldn't adequately consider the certain mitigating factor in a death penalty case is a new rule. But that's not what we have here. The spring court actually did this in one fell swoop. It expanded the range and it said while we're doing that sentencing courts going forward, you must consider these specific mitigating factors. And I'm. Does this Jackson argument that's been made to us in the other cases? Carry weight. Do you think that it's correct to think in the terms that have been pressed on us by the council for Mr. Spain and Pendleton that because Jackson was part of the same case holding in Miller that that's a proxy fatigue and we can say retroactive to state collateral review cases. No, I disagree with that because because state courts, right, their statutes that allowed judges to vacate conviction of state collateral review, to allow them to vacate a conviction or sentence if it was imposed in violation of law. Now it's a matter of state law whether they want to give the benefit of a federal rule of decision retroactively, right? They can say the rule in Miller was violated and we will give you the benefit of that rule. And if they do that, the federal rule of decision is still in play, right? The whether there was a Miller violation, but if the state on collateral attack is willing to give a remedy, but it says that we don't think that there was any violation of the amendment. That still raises an 8 amendment question for the Supreme Court, but the decision whether to grant a remedy is up to the states under the wrong state statutes and that's what Danforth settles. I'm not sure I followed you there, so I apologize. Danforth, as I understand it, says states can be more generous. So it's conceivable that the state of pencil, well, I guess it's conceivable that the Florida Supreme Court could say we're doing all these things for Mr. Jackson, even beyond what the Supreme Court said. But it certainly wasn't possible for them to say, well, forget what the US Supreme Court said. It's not retroactive. I mean, it's set, did it set a floor? Well, obviously, I think if a state, if a new rule is retroactive on federal habeas, right? And it or it's substantive. And then that ruling would be controlling on a state court. But I think we can, even if you disagree with me about the implications of Danforth because we're talking about being more generous, right? It's not clear that the state, even if there were a habeas, a tea objection that the state raised it or it was Arkansas, we'll leave you Jackson case. And so the case being remanded. Yeah, I'm sorry it was Arkansas. Yeah, in late a Miller would just be, it would just be up to the state then to decide. And I mean the prosecutors in that state to decide whether they have a valid objection to the new rule being applied retroactively. And if they didn't raise that objection, that was available to them. They waived it. Well, I guess the Supreme Court had to do something with Jackson once they took it and vacating it doesn't necessarily mean they were imposing the Miller standard. I mean, they had to affirm reverse or vacate and they vacated to send a pack to Arkansas for them to decide what to do basically. That's right. And they vacated the judgment not to sentence. And so and and this just comes up your honor as the question to Jordan about the Padilla, right? That Padilla came to the Supreme Court on state habeas. It was a state collateral attack and the decision that courts below is that there was no violation of the court. It's said as when out of its way in a footnote to say no T. Gargiman has been made to us. Footnote three has the Supreme Court saying they haven't even talked to us about T. We're here talking only about new rule. That's the that's that's what Mr. Chaita has put his whole pot. He was all in on that and nobody has even mentioned T. So I assume that people can can waive arguments and that the Supreme Court was just observing. There was a waiver there. They didn't need to raise it themselves. Should you read more into it than that? Well, that may be what happened, but even if it is, that may just be the simple explanation for what happened with the companion case with Miller

. And if they do that, the federal rule of decision is still in play, right? The whether there was a Miller violation, but if the state on collateral attack is willing to give a remedy, but it says that we don't think that there was any violation of the amendment. That still raises an 8 amendment question for the Supreme Court, but the decision whether to grant a remedy is up to the states under the wrong state statutes and that's what Danforth settles. I'm not sure I followed you there, so I apologize. Danforth, as I understand it, says states can be more generous. So it's conceivable that the state of pencil, well, I guess it's conceivable that the Florida Supreme Court could say we're doing all these things for Mr. Jackson, even beyond what the Supreme Court said. But it certainly wasn't possible for them to say, well, forget what the US Supreme Court said. It's not retroactive. I mean, it's set, did it set a floor? Well, obviously, I think if a state, if a new rule is retroactive on federal habeas, right? And it or it's substantive. And then that ruling would be controlling on a state court. But I think we can, even if you disagree with me about the implications of Danforth because we're talking about being more generous, right? It's not clear that the state, even if there were a habeas, a tea objection that the state raised it or it was Arkansas, we'll leave you Jackson case. And so the case being remanded. Yeah, I'm sorry it was Arkansas. Yeah, in late a Miller would just be, it would just be up to the state then to decide. And I mean the prosecutors in that state to decide whether they have a valid objection to the new rule being applied retroactively. And if they didn't raise that objection, that was available to them. They waived it. Well, I guess the Supreme Court had to do something with Jackson once they took it and vacating it doesn't necessarily mean they were imposing the Miller standard. I mean, they had to affirm reverse or vacate and they vacated to send a pack to Arkansas for them to decide what to do basically. That's right. And they vacated the judgment not to sentence. And so and and this just comes up your honor as the question to Jordan about the Padilla, right? That Padilla came to the Supreme Court on state habeas. It was a state collateral attack and the decision that courts below is that there was no violation of the court. It's said as when out of its way in a footnote to say no T. Gargiman has been made to us. Footnote three has the Supreme Court saying they haven't even talked to us about T. We're here talking only about new rule. That's the that's that's what Mr. Chaita has put his whole pot. He was all in on that and nobody has even mentioned T. So I assume that people can can waive arguments and that the Supreme Court was just observing. There was a waiver there. They didn't need to raise it themselves. Should you read more into it than that? Well, that may be what happened, but even if it is, that may just be the simple explanation for what happened with the companion case with Miller. And that is what it wasn't raised. And therefore there's no there's no T. implication of the applying the Miller rule in the Jackson case. What about Miller's application to grant given the fact that it isn't mandatory, but it the scheme under which he was sentenced. It just kind of turns the thrust of Miller on its head in terms of what is when you talked about the range. Well, the range of options there wasn't a real bonafide range of option when he was sentenced to consider the aspects of youth. Was there well, there was, but but let me and this is what I wanted to pick up with it with Mr. Glazer was saying to you. You asked him is he really asking for an extension of Miller, right? And if he is, right, or broader reading, but I see this case we're up on direct review Miller would clearly be important and it might be dispositive, but because it's on collateral attack, the petition has to show the not only the right combination of holdings, but he has to show that it's claim under the words of the statute relies on a new rule. And what he was really asking for here is an extension of Miller to say that the process that he got in in his 1990s, sentenced and was insufficient. He has to concede that he got the opportunity, right? Because there was no mandatory statutory mandatory minimum as was in play in Miller. But there was a mandatory guideline sentencing scheme and it said don't think about age. There was a little carve out extraordinary circumstances. Maybe you can get away with it when you're looking at criminal history, but that was that was the smallest practice, a little bit of daylight coming through there for all practical purposes. Was it not mandatory? It was not mandatory. The presumption certainly was flipped. It was more than a presumption. You were told don't think about that except in these really narrow carve outs that the court made. Well, the guy, it was the policy statement of the guidelines that age is not ordinary relevant. And I think I see my time as I may continue. Please. Thank you. I think there's a fair question to Glazer said whether the guidelines were even whether the five H1 point one policy was meant to apply to juveniles who are waved up and tried as adults. And so I think there could have been an argument that that that policy statement didn't cover those sorts of defendants, but be that as it may. He's going to appreciate the irony he feels when the argument made to him back then was he can't point to a single case. And now you're here saying it's not really mandatory and he can say you can't point to a single case. I mean for all practical purposes. It sure kind of waddles and quacks like mandatory for the people who are facing it, right? I appreciate the irony, but as I said, he, but I also have here supplemental appendix with pages and pages of briefing and argument about youth and immaturity and it's bearing on the fancy had the opportunity to make it. He's just displeased with the consideration that got. But he's the same thing in ability of judge acumen to take it into account because the very narrow opening, if you will, of extraordinary circumstances wouldn't allow age to fit into the extraordinary circumstances. But judge acumen didn't say that he was precluded from considering if he had said that I that's a very nice. But we know as a fact no matter he was. I mean, we've been district court judges and when you, when you're not supposed to consider youth and you can only consider an extraordinary circumstances. And these, you know, that's a very small, that's a very strong language for a district court judge

. And that is what it wasn't raised. And therefore there's no there's no T. implication of the applying the Miller rule in the Jackson case. What about Miller's application to grant given the fact that it isn't mandatory, but it the scheme under which he was sentenced. It just kind of turns the thrust of Miller on its head in terms of what is when you talked about the range. Well, the range of options there wasn't a real bonafide range of option when he was sentenced to consider the aspects of youth. Was there well, there was, but but let me and this is what I wanted to pick up with it with Mr. Glazer was saying to you. You asked him is he really asking for an extension of Miller, right? And if he is, right, or broader reading, but I see this case we're up on direct review Miller would clearly be important and it might be dispositive, but because it's on collateral attack, the petition has to show the not only the right combination of holdings, but he has to show that it's claim under the words of the statute relies on a new rule. And what he was really asking for here is an extension of Miller to say that the process that he got in in his 1990s, sentenced and was insufficient. He has to concede that he got the opportunity, right? Because there was no mandatory statutory mandatory minimum as was in play in Miller. But there was a mandatory guideline sentencing scheme and it said don't think about age. There was a little carve out extraordinary circumstances. Maybe you can get away with it when you're looking at criminal history, but that was that was the smallest practice, a little bit of daylight coming through there for all practical purposes. Was it not mandatory? It was not mandatory. The presumption certainly was flipped. It was more than a presumption. You were told don't think about that except in these really narrow carve outs that the court made. Well, the guy, it was the policy statement of the guidelines that age is not ordinary relevant. And I think I see my time as I may continue. Please. Thank you. I think there's a fair question to Glazer said whether the guidelines were even whether the five H1 point one policy was meant to apply to juveniles who are waved up and tried as adults. And so I think there could have been an argument that that that policy statement didn't cover those sorts of defendants, but be that as it may. He's going to appreciate the irony he feels when the argument made to him back then was he can't point to a single case. And now you're here saying it's not really mandatory and he can say you can't point to a single case. I mean for all practical purposes. It sure kind of waddles and quacks like mandatory for the people who are facing it, right? I appreciate the irony, but as I said, he, but I also have here supplemental appendix with pages and pages of briefing and argument about youth and immaturity and it's bearing on the fancy had the opportunity to make it. He's just displeased with the consideration that got. But he's the same thing in ability of judge acumen to take it into account because the very narrow opening, if you will, of extraordinary circumstances wouldn't allow age to fit into the extraordinary circumstances. But judge acumen didn't say that he was precluded from considering if he had said that I that's a very nice. But we know as a fact no matter he was. I mean, we've been district court judges and when you, when you're not supposed to consider youth and you can only consider an extraordinary circumstances. And these, you know, that's a very small, that's a very strong language for a district court judge. So he didn't have to say my hands are tied. They were what would have been the guidance given the fact that there's no case law. You'd acknowledge there was no case law at the time. I do, but I mean, the fact that there, I mean, there can only be case law if such a departure was granted and the government appealed it and it was affirmed, it would be one situation or if it. But extraordinary that at that point in 1992, the guidelines had been in for about five years as I recall, as I was an assistant with the guy. I came in. Isn't it extraordinary that there was no guidance at all at the time? I mean, what, what else would either judge acumen or any other district judge think about whether they could fit the consideration of age into extraordinary circumstance other than. That's supposed to do it. Well, but if he thought that he would have said that he would have said that's a very nice argument. I think I didn't know that. Yeah, some, some things that you actually think, quote, go without saying, unquote, and that you don't, you don't. You know, spit at the guidelines when they're effectively mandatory and you're told not to do stuff. I would have thought would sort of fit into that category. Well, we understand that reasonable people can disagree on whether Miller covers the situation. And in fact, the, as my letter from yesterday shows the eighth circuit apparently didn't think too far. Many of the government's argument on that point about whether at the gateway stage. This argument is going to fly that it was imposed under a statute that allowed from zero to, to life imprisonment, but was imposed under mandatory guidelines or seeing. But I would like to conclude if I may by saying that at least on the question whether Miller applies to defendants who were sentenced to statutory mandatory minimum like to juvenile government certainly stands by the position in a spree that there has been a primary fish is showing of retroactivity. And that if this court and in grants cases, nobody's into white because it's this court or nothing for him. Thank you. Thank you. Here, Rebuttal. Just a couple of quick points. Judge Rendell, you asked what's the line of cases that dictate my colleague from the Department of Justice. And I think the one that's missing is Cheryl, which Mr. Klein spoke to earlier that really it's post-Tagan. And it extends the idea of a substantive ruling that something that narrows the class of punishment specifically that's available. And here, particularly in these Pennsylvania cases, we have a narrowing and an expanding. We have the reach of 1102, the Pennsylvania provision for life without parole is narrowed. It no longer can be applied to juveniles. And we also have, as many people have said, a complete expansion to the full ranges of punishments now available for juveniles. With respect to the argument and the word process that's used, I think Judge Rendell, you've said repeatedly that you understand the full thrust of the decision. But I think that it's notable that the single most important sentence to my colleagues on the other side is really dictum in the opinion. The holding of Miller could not be clearer in some sense

. It says we therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. And to answer, if you would, the assertion made by Mr. Eisenberg that that that that you wanted to pose of and dismisses, that that you wanted to take the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the court to the cour