Good morning, Your Honor. Stuart Levin, on behalf of the appellate, Jermont Cox. The big legal question in this case is whether or not the district court applied the appropriate standard in its denial of Mr. Cox's rule 60D motion. More specifically, the question for this Court is to decide is whether the Supreme Court's decision in Martinez versus Ryan was such an extraordinary change in the law that coupled in a multi-factored analysis with other equitable considerations, could there be a case in which 60B relief is appropriate? Why would we have to decide that necessarily? I take it. What you think the district court aired in was by deciding that, per se, no change in the law is ever the extraordinary reason for the 60B relief, correct? Sure. Okay. But suppose we say, well, district judge may have aired there, maybe he didn't, but the equitable factors just don't add up in this case. And so then we wouldn't have to decide the big question as to whether there's a per se rule. Well, I think that if you're going to address the equitable factors, then then sub-Solensio, it's just going to create confusion that if you apply a multi-factor test, then you're implicitly are answering that question. Okay. And in this case, you apply the multi-factors and how does he win? Well, let me answer this two ways, Your Honor, if I can. The first is to say, I think there are a number of factors here that support it. One is the extraordinary change that Martinez versus Ryan affects in habeas litigation. Coleman versus Thompson established law for over 20 years. It set a bright line rule that ineffective assistance of post-conviction counsel can never be caused to overcome a procedural default. We all lived with that for over 20 years
. And quite frankly, if I had been before this court prior to Martinez and said, oh, by the way, Your Honor's, I think you should create an exception because the Supreme Court's about to do that, you would have raised your eyebrows and rolled your eyes at me and said, no one sees that comment. Martinez came out of the blue and it created an exception to a doctorate in favor of habeas petitioners. When does the Supreme Court create exceptions to laws that expand habeas petitioners' ability to get review? It was extraordinary. So that's one. Let's go back to basics here and what was decided. You said that Judge Brody said never, you know, can never. But Judge Brody's opinion was somewhat inconsistent because the bottom line, indeed, the holding, was that Martinez changed in the law without more is insufficient. That's correct. So she was looking for more. And the question really here is, what is the more that she was looking for? Well, let me tell her what it should be. Well, let me answer that first. Then let me have a chance to get back to why I think, although there's some inconsistency in Judge Brody's language, I think it's clear what she did. I think that we lay out, I think, eight factors in our brief as to what the equitable factors are. The change in Martinez, Mr. Cox's. What did you tell her? What did you tell Judge Brody? I think we told Judge Brody about Mr
. Cox's diligence. I think we told Mr. Judge Brody about how Martinez was closely. There was a Martinez claim, which is good to say, that he has a Martinez claim and he's been diligent in bringing it here. And he's been diligent in bringing it here. You didn't try to argue how substantial the claim was on the merits. And she didn't even deal with it. She didn't deal with that. That's correct. And we did refer that it's at least substantial enough that the last time we were before the court, in this case, we did have a certificate of the pealability on a procedural issue, which we couldn't have gotten under the law from the U.S. Supreme Court, if there hadn't been some substantial, some arguable merit to the ineffective assistance of counsel claims. So I think there is an implicit assumption that there is merit to these claims, although Judge Brody clearly never specifically went to. And we did lay out in our motion, referring her back to the prior pleadings in the case. What we thought were the reality is this was Martinez was decided. And then what, 2012, 2012, and then this was decided in 2013
. And there was not a lot of experience with the issue at that time. And there has been more experience now. But if we go right back to Martinez, they described the prisoner must demonstrate the ineffective assistance of trial counsel claim is a substantial one. And that is, he must demonstrate that the claim has no merit. Now, you know, I think that the claim has merit. Well, that's what I said. So when it's without more, maybe she thought that hadn't been demonstrated. Or maybe there was other more she was looking for. I think where I'm going to suggest is maybe given the advance in the law and the inconsistency of the opinion and perhaps it should go back for more, for some development as to because this is Martinez plus 60p. Correct. And we're going to apply the last key factors from what 1986 year in this case, do we need them all? Maybe a couple of them. What needs to be shown? How would she define the without more that was lacking? And I agree with you completely, Judge Barry, that that remanding this for more specific findings as to the substantial merit or lack thereof of the claims. And that would do it though. And of the fact that this was not a claim within the Supreme Court in Martinez's definition of substantial if it was not a substantial one, that's gave a certain match. Correct. But let me see the little related claims
. They have been disposed of already by the Court of Appeals. Just one of the little related claims that have been disposed of. There were a number of areas in which both Kimberly Little and her sister Mary could have been peaked. I think the ruling of the Court of the ruling was previously that the Little's testimony was not central. And therefore, things were, if that's true, then the other claims, even though not directly disposed of, are kind of gone, aren't they? They're kind of gone except for this, that they would have to be factored into accumulative prejudice analysis. Because we look at an effect of assistance of counsel claims in light of the cumulative prejudice that they could have. What I thought when I looked at what was happening here that really wasn't dealt with was his claim that he should have been allowed to testify. But there was already an evidence, the idea that this was a claim that this was an accidental shooting. And so I didn't understand exactly why that was the substantial failure of the counsel. Well, I think there were two issues that were involved. One was rebutting the Little's testimony about his role as a runner or a lookout in the drug operation. And also about the accidental shooting. And I think his testimony could be quite important as to the accidental shooting because of this essential problem from his statement. His statement to the police about an accident is very undeveloped. There's no explanation for how there might have been multiple shots. The police officers didn't say to him, well, Mr
. Koch, you say it's an accident, but he shot three times. How do you explain that? That explanation which became the heart, not only of the district attorney's closing argument in the case, but of the issue of prejudice when we were up here before in the circuit as to how accident can be with the in light of the firearms analysis testimony. Testimony which now based on new evidence that isn't involved in this is subject to question, but also might be a factor that Judge Brody or the district court should be as aware of and should look into within the context of the 60b. So I think Judge Barry has the right idea that what we really need from the district court is rather than this court jump to an issue that the district court didn't decide. Well, wait, we have to, she assumed, I think it was assumed, that because the motion is denominated as a 60b motion, an extraordinary circumstance must be shown. The Supreme Court in Martinez, which was a straight habeas case, didn't require an extraordinary circumstances, is that if an extraordinary circumstance is required here merely because this is a 60b motion, perhaps the substantial claim of ineffectiveness satisfies in and of itself satisfies that. I don't think any one factor is ever going to satisfy the extraordinary circumstances. Maybe there will be a case where there's something, some new evidence or some fraud on the court or something that could, but I think in a case like this, it will be a combination of factors. It will be Martinez plus the substantial merit. I think that you're right that the merits of the underlying claims could be both a factor for Martinez itself and a factor in the 60b analysis. I'd have to be, wouldn't it? I would think so. I would think so. Martinez is all about, that's what it requires. I would think that's correct. I assume that the procedural niceties have been, it's the first claim. And if in fact the claims are not substantial, that's grounds for finding both, it's not an acceptable circumstance and that Martinez doesn't apply
. I would agree with that. Wilson Beventons back in 82 said, you know, that a change in the Supreme Court law or law of our circuit can be an extraordinary circumstance. But is any case ever a part of circuit ever held that a change in the law is an extraordinary circumstance? Not that I'm aware. The case is, the case law in the circuit has recognized that it will be a rare circumstance when a change of case lock can constitute an extraordinary circumstance. But I'm not aware of a particular case that relies solely on a change of law. There is the Smith case that we cite, that was really a district court decision that relied upon a change of law. That was more timely, I think, it came on. Well, especially, we still know. Smith, you know, that was where somebody got changed three days before the district court ruled and they were just going. Right. So it's a little different. I think that's probably as close as there is in the circuit, but I recognize that there's the general proposition that it will be rare, but not impossible. The interesting thing is, I've played around with in my thinking, it seems to me, Judge Brody found that the fact of change of law period, whatever it is, without more is not an extraordinary circumstance, as opposed to a change of law which grants a new constitutional right and can never be. I think it's just you have to put some meat on the bare bones of the change of law to decide whether it's extraordinary circumstances. Well, if all you do is say, well, there's a change of law, we're not going to tell you what it is. That's an extraordinary circumstance
. Well, I think we know what the change of law is. But let me go back. I'm sorry. I thought Coleman left some more holes than you seem to think. Well, maybe so, and maybe your honors will wear a case law that I'm not or that I haven't found, but from my practice in habeas. And the practice I know in this circuit is there are no exceptions to Coleman. Okay. If you only have that, if the only chance you had to raise ineffective assistance was in the collateral proceeding, you. And you ineffective assistance could not apply, even if that was your very first chance. That's it. Was that the rule? What was the rule in your, in your, the rule was that if your chance to raise ineffective assistance of trial counsel, the first chance was in post conviction and your post conviction lawyer defaulted on that claim. When you came to federal court and tried to raise the claim, that claim was defaulted and the court could not reach the merits of that claim. Okay. I see you're getting a nod. So it sounds to me like she doesn't think there's any exception at the time of Coleman. Yeah
. I just, I just, I don't think so. Okay. Okay. But can I go back to what Judge Brody did? Because I, I agree there's that without more language at the very end, but the way she sets up her opinion, she says, there's a split of authority on these issues from the service that the fifth circuit has advanced a bright line categorical rule that Martinez can never be a change of certain, an extraordinary circumstance. And the nine circuit has recognized the possibility that it could be applying a multi factor test. That's what Judge Brody said. Judge Brody said, I followed the fifth circuit. But the fifth circuit didn't say what she said. The fifth circuit, Adams, our precedence hold that a change in decision law after the entry of judgment does not constitute exceptional circumstances and is not alone grounds, alone grounds for relief from final judgment. I mean, without more, that's what Adams said. But that's certainly not the way Judge Brody explained. She didn't read it that way. And, and maybe she's reading it that way. Maybe she's reading it the way your honor is and says there are no more exceptional circumstance. I've looked at the other factors in this case and I don't see anything more, but it's certainly not clear. And so at a minimal, I think that the, well, I think that's not just in a minimal
. I think the proper remedy in this case under any circumstance. And that's the remedy we asked for is, is to send it back to Judge. Yeah, there are tremendous. This is an aggravating factor in a death sentence, a capital case. So it's not this is weak. We take every case seriously, but we really have to take this one seriously. Martinez, if the case is in the right procedural form, essentially, the defendant should have a first bite at the apple. That's, that's what Martinez says. Not sure often unclear district court opinion if one can say the say that that's been done. Yeah. And that's what Martinez says. Martinez is an equitable rule. It describes itself as an equitable rule. Really, an equitable rule in design to protect a bedrock constitutional rights. So I think we examine the equities and that's what I'm asking for here. Thank you
. Thank you very much. Did I forget at the beginning to reserve time? Oh, we'll give you, we're going to be three minutes. Thank you. Is that what, is that what reserves Gina? Okay. Thank you. No, no problem at all. Mr. Lorber. Good morning, Your Honors. May it please the court, Molly Lorber, on behalf of the Philadelphia District Attorney's Office for Appellies. The district court did not abuse its discretion in ruling that the Supreme Court's decision in Martinez without more as Judge Barry says was not the type of extraordinary circumstance that all alone could justify reopening a long final habeas decision under. Is there any tension with that statement with with regard to what our court said 32 years ago in the Wilson defense in case that a change in law, either the Supreme Court or our circuit can not necessarily, but can be the basis to determine if you have extraordinary circumstances under rule 60. Well, I think your honor that there, that you can read it either way. You could read it that there's tension there or I think one way of looking at this is that the Supreme Court's decision in Gonzalez provides kind of an analytical short kind. I mean, the 2000 times Gonzalez becomes seven years and talking more Martinez and Martinez didn't even mention Gonzalez with all the respect that's if you're trying to turn this into a Gonzalez case. Well, respectfully, Your Honor, it's not just me turning into a Gonzalez case numerous other courts of appeals have read it as a Gonzalez case. And that's because the similarities are quite apparent on the face of it. Gonzalez was also about a change a US Supreme Court that changed the procedural landscape of habeas review and whether that new procedural landscape could apply retroactively to a habeas petitioner via a rule 60 B motion. And what the Supreme Court said in Gonzalez was no, it cannot rule 60. If it's not in Gonzalez, there was not a habeas claim because it was not as successful petition. And then it said it was a 60 B attack on a statute of limitations issue, which isn't an extraordinary circumstance under 60 B. It could have been raised on direct appeal. That's what Gonzalez did. Well, respectfully with the Supreme Court said in Gonzalez is that 60 B is not a vehicle for making changes in the law retroactive, especially where the change in the law at issue is one governing the procedural rules of habeas review. And that's exactly what Martinez does. Martina, look, all procedural rules have the potential to affect bedrock constitutional rights when you're talking about habeas review. Those are the only claims that are available to petitioners on habeas review is constitutional claims. So any time you have a procedural rule in habeas, what it does is it governs who gets review of a constitutional claim and who doesn't. And in Gonzalez, the procedural rule change at issue was one affecting the statute of limitations. So because of the way the statute of limitations was interpreted by the 11th circuit at the time that Gonzalez filed his original habeas petition, the reading was we can't review your claims on the merits. We're sorry, goodbye your time, part. When he filed his 60 B motion after the Supreme Court decided the R2's the Bennett case, it turned out that the 11th circuit had been wrong according to the Supreme Court about how to apply the statute of limitations
. And that's because the similarities are quite apparent on the face of it. Gonzalez was also about a change a US Supreme Court that changed the procedural landscape of habeas review and whether that new procedural landscape could apply retroactively to a habeas petitioner via a rule 60 B motion. And what the Supreme Court said in Gonzalez was no, it cannot rule 60. If it's not in Gonzalez, there was not a habeas claim because it was not as successful petition. And then it said it was a 60 B attack on a statute of limitations issue, which isn't an extraordinary circumstance under 60 B. It could have been raised on direct appeal. That's what Gonzalez did. Well, respectfully with the Supreme Court said in Gonzalez is that 60 B is not a vehicle for making changes in the law retroactive, especially where the change in the law at issue is one governing the procedural rules of habeas review. And that's exactly what Martinez does. Martina, look, all procedural rules have the potential to affect bedrock constitutional rights when you're talking about habeas review. Those are the only claims that are available to petitioners on habeas review is constitutional claims. So any time you have a procedural rule in habeas, what it does is it governs who gets review of a constitutional claim and who doesn't. And in Gonzalez, the procedural rule change at issue was one affecting the statute of limitations. So because of the way the statute of limitations was interpreted by the 11th circuit at the time that Gonzalez filed his original habeas petition, the reading was we can't review your claims on the merits. We're sorry, goodbye your time, part. When he filed his 60 B motion after the Supreme Court decided the R2's the Bennett case, it turned out that the 11th circuit had been wrong according to the Supreme Court about how to apply the statute of limitations. And so under that new analysis, he would have been timely and he would have received merits review of his constitutional claims, but the Supreme Court said, look, our interests in finality and respect for state court judgements override these fairness considerations. There has to be an end to this somewhere and you can't use will 60 B to make procedural rule changes retroactive to you. If the district court had considered additional equitable factors here, like what the mine circuit has done, would that have been an abuse of discretion? I don't think it would have been an abuse of discretion to consider them. Quite frankly, the district court's opinion was succinct and I think you could arguably say that it was big as Judge Barry points out she did say without more. So that does give an inkling that perhaps she was looking for more and looking to consider more and just didn't feel that it had been presented to her. So potentially, I think I mean, I would argue that what the district court did was she said, I'm being presented with a change in the procedural law governing habeas review. And that is the circumstance, which I am told justifies reopening habeas litigation according to the Supreme Court in Gonzalez, which she did say in her opinion. That's not extraordinary enough. I wanted to go back to the Coleman situation because I thought in Gonzalez, there was the statute limitations was subject to a circuit split. But it could have been, you know, this issue was like out there, they could have been raised on the appeal and your opponent said and you seem to shake your head and agreement that we all understood Coleman to be a Howard and fast rule with no exceptions. You just don't have an effective assistance that counsel claims regarding collateral proceedings. Okay, so I think we're nodding your head and I want to know because it sounds to me like Gonzalez thinks that well, maybe if there was like a shaky rule out there, you're responsible for raising it. And if there's a less shaky rule, you're not responsible. So I think weird question, but you can answer it. So I'll try my best to answer it. Your honor
. And so under that new analysis, he would have been timely and he would have received merits review of his constitutional claims, but the Supreme Court said, look, our interests in finality and respect for state court judgements override these fairness considerations. There has to be an end to this somewhere and you can't use will 60 B to make procedural rule changes retroactive to you. If the district court had considered additional equitable factors here, like what the mine circuit has done, would that have been an abuse of discretion? I don't think it would have been an abuse of discretion to consider them. Quite frankly, the district court's opinion was succinct and I think you could arguably say that it was big as Judge Barry points out she did say without more. So that does give an inkling that perhaps she was looking for more and looking to consider more and just didn't feel that it had been presented to her. So potentially, I think I mean, I would argue that what the district court did was she said, I'm being presented with a change in the procedural law governing habeas review. And that is the circumstance, which I am told justifies reopening habeas litigation according to the Supreme Court in Gonzalez, which she did say in her opinion. That's not extraordinary enough. I wanted to go back to the Coleman situation because I thought in Gonzalez, there was the statute limitations was subject to a circuit split. But it could have been, you know, this issue was like out there, they could have been raised on the appeal and your opponent said and you seem to shake your head and agreement that we all understood Coleman to be a Howard and fast rule with no exceptions. You just don't have an effective assistance that counsel claims regarding collateral proceedings. Okay, so I think we're nodding your head and I want to know because it sounds to me like Gonzalez thinks that well, maybe if there was like a shaky rule out there, you're responsible for raising it. And if there's a less shaky rule, you're not responsible. So I think weird question, but you can answer it. So I'll try my best to answer it. Your honor. And one way of answering is to just start off by saying that these hate procedural habeas rules are a mess. They're very complicated. They're tough to understand for everyone. There's tough for two and I to understand. And this is all we do. You've heard her one, Chamorinsky say that understanding habeas is like going through the seven layers of hell. I have not heard that, your honor, but I'm going to share that when I go back to the office. So the Ed Puh, the anti-terrorism and effective death penalty act, the 1996 amendments, right, to the habeas statue. One of the things that they did was change the timeliness requirements. So the rulings, the body of law that has grown up around what qualifies as an exception to the time bar is separate from the body of law that has grown up around what qualifies as exceptions to the rules about exhaustion in state court and procedural default. So I think that in Gonzalez and in Arches, which is the underlying change of the law, that was an interpretation of the timely filing requirement. And there was no ineffectiveness situation at issue in Arches. But what it was was in Arches, the question was, if you bring your, if you file your state collateral review petition in Pennsylvania, it's a PCR, if you file your PCR, a petition. And the state court rules, we can't review any of the claims in your petition because they're all waived, right? It's not saying your petition was on timely. It's saying that would be a paste, be, do you agree on my situation? It's saying your claims are all barred to us for other reasons. They're waived
. And one way of answering is to just start off by saying that these hate procedural habeas rules are a mess. They're very complicated. They're tough to understand for everyone. There's tough for two and I to understand. And this is all we do. You've heard her one, Chamorinsky say that understanding habeas is like going through the seven layers of hell. I have not heard that, your honor, but I'm going to share that when I go back to the office. So the Ed Puh, the anti-terrorism and effective death penalty act, the 1996 amendments, right, to the habeas statue. One of the things that they did was change the timeliness requirements. So the rulings, the body of law that has grown up around what qualifies as an exception to the time bar is separate from the body of law that has grown up around what qualifies as exceptions to the rules about exhaustion in state court and procedural default. So I think that in Gonzalez and in Arches, which is the underlying change of the law, that was an interpretation of the timely filing requirement. And there was no ineffectiveness situation at issue in Arches. But what it was was in Arches, the question was, if you bring your, if you file your state collateral review petition in Pennsylvania, it's a PCR, if you file your PCR, a petition. And the state court rules, we can't review any of the claims in your petition because they're all waived, right? It's not saying your petition was on timely. It's saying that would be a paste, be, do you agree on my situation? It's saying your claims are all barred to us for other reasons. They're waived. Then the question was, does that petition count as one that is properly filed such that it can toll the Ed Putt Statute of Limitations? 11 circuits said no, other circuits said yes. Later on, the Supreme Court clarified in Arches that the other circuits had happened to be correct in that instance, just because the state court rules that your claims are unreviewable, for whatever procedural reason, each individual claim is not reviewable, doesn't mean that your petition was not properly filed. It's complicated. So it seems to be that Gonzalez was faced with a situation where some of the circuits had interpreted this properly. And there was some responsibility to raising raising this issue on appeal, whereas an ineffective assistance accounts of claim, he said, and you said, not by nodding, that Coleman was clear, Martina's was a Earth-shaking change. There is no circuit that said, this is really unclear as to what you can do, and therefore everybody is responsible for raising this. He's saying this was Earth-shaking, and I didn't hear you saying this. So I will agree with you, I don't know if I would use the word Earth-shaking or not, but it was a big change in the habeas jurisprudence. Now, I think that my response to that, and the Supreme Court's response via Gonzalez, is it's not whether the change is significant or not, that we care about. The difference is procedure versus substance. In Gonzalez, they drew a distinction between when there is a change in the underlying criminal law, under which you were convicted, they said, they're, okay. When there's a change in the substance of criminal law, maybe there's going to be a case where that kind of thing will allow for 60-B relief. But when we're talking about trying to make a procedural rule retroactive to somebody via a 60-B motion, no, we're not going to allow that. So the ninth circuit sort of suggests in its Lopez decision, and they're the only circuit thus far that has said, okay, maybe under the right brew of circumstances Martinez could qualify as an extraordinary circumstance, in Lopez, they said, this guy doesn't meet it, but maybe under the right circumstances. They said, it's so significant that the ninth circuit said, it's such a significant change in the law, we're going to say that maybe sometimes with other factors, it could give rise to relief. What fact would you say if we were to decide or that you need some more beyond the change in the law, what would satisfy you? Well, personally, I think that the way to read Gonzalez is to say, there's almost no situation in which
. Then the question was, does that petition count as one that is properly filed such that it can toll the Ed Putt Statute of Limitations? 11 circuits said no, other circuits said yes. Later on, the Supreme Court clarified in Arches that the other circuits had happened to be correct in that instance, just because the state court rules that your claims are unreviewable, for whatever procedural reason, each individual claim is not reviewable, doesn't mean that your petition was not properly filed. It's complicated. So it seems to be that Gonzalez was faced with a situation where some of the circuits had interpreted this properly. And there was some responsibility to raising raising this issue on appeal, whereas an ineffective assistance accounts of claim, he said, and you said, not by nodding, that Coleman was clear, Martina's was a Earth-shaking change. There is no circuit that said, this is really unclear as to what you can do, and therefore everybody is responsible for raising this. He's saying this was Earth-shaking, and I didn't hear you saying this. So I will agree with you, I don't know if I would use the word Earth-shaking or not, but it was a big change in the habeas jurisprudence. Now, I think that my response to that, and the Supreme Court's response via Gonzalez, is it's not whether the change is significant or not, that we care about. The difference is procedure versus substance. In Gonzalez, they drew a distinction between when there is a change in the underlying criminal law, under which you were convicted, they said, they're, okay. When there's a change in the substance of criminal law, maybe there's going to be a case where that kind of thing will allow for 60-B relief. But when we're talking about trying to make a procedural rule retroactive to somebody via a 60-B motion, no, we're not going to allow that. So the ninth circuit sort of suggests in its Lopez decision, and they're the only circuit thus far that has said, okay, maybe under the right brew of circumstances Martinez could qualify as an extraordinary circumstance, in Lopez, they said, this guy doesn't meet it, but maybe under the right circumstances. They said, it's so significant that the ninth circuit said, it's such a significant change in the law, we're going to say that maybe sometimes with other factors, it could give rise to relief. What fact would you say if we were to decide or that you need some more beyond the change in the law, what would satisfy you? Well, personally, I think that the way to read Gonzalez is to say, there's almost no situation in which... How about under Martinez? I understand your honors question. So the question is, could the more that Judge Brodie was looking for be satisfied by the merits of the underlying ineffectiveness of counsel? Or lack, or lack, or lack, or lack, or lack. So I think that there's a problem with that approach, and the problem with that approach is that Gonzalez has to mean something, right? Because then what you're doing is you're basically reviewing the merits of the claims on the 60B motion when Gonzalez says, no, don't review the merits of the claims, the whole point is, you can't review the merits of these claims by retroactively applying a new procedural rule to you. So I think that I would say that the more shouldn't be the underlying merits of the claims, it should be some other type of extraordinary circumstance like, you know, I don't know, I would leave it to my opponent to say what that type of circumstance would be. Maybe an aggravating circumstance in a capital case. Just, just, you know, why doesn't Martinez, if Gonzalez is so important, why hasn't Martinez even mentioned it? Well, Martinez wasn't about 60 below. The question wasn't a habeas. Right, the question wasn't directly before the court. And I think that's why Martinez didn't say it. But you're really saying that this Martinez case is all about Gonzalez. And one would think the Supreme Court might have said something. Well, I don't, respectfully, I don't think I'm living, I don't think what I'm saying is that it's all about Gonzalez. The commissioners have exhausted all their remedies under habeas and they, you know, makes the whole success of petitioner routine. And they have to come back in under 60
... How about under Martinez? I understand your honors question. So the question is, could the more that Judge Brodie was looking for be satisfied by the merits of the underlying ineffectiveness of counsel? Or lack, or lack, or lack, or lack, or lack. So I think that there's a problem with that approach, and the problem with that approach is that Gonzalez has to mean something, right? Because then what you're doing is you're basically reviewing the merits of the claims on the 60B motion when Gonzalez says, no, don't review the merits of the claims, the whole point is, you can't review the merits of these claims by retroactively applying a new procedural rule to you. So I think that I would say that the more shouldn't be the underlying merits of the claims, it should be some other type of extraordinary circumstance like, you know, I don't know, I would leave it to my opponent to say what that type of circumstance would be. Maybe an aggravating circumstance in a capital case. Just, just, you know, why doesn't Martinez, if Gonzalez is so important, why hasn't Martinez even mentioned it? Well, Martinez wasn't about 60 below. The question wasn't a habeas. Right, the question wasn't directly before the court. And I think that's why Martinez didn't say it. But you're really saying that this Martinez case is all about Gonzalez. And one would think the Supreme Court might have said something. Well, I don't, respectfully, I don't think I'm living, I don't think what I'm saying is that it's all about Gonzalez. The commissioners have exhausted all their remedies under habeas and they, you know, makes the whole success of petitioner routine. And they have to come back in under 60. You know, is this not, this is certainly not beyond the realm. Well, I think what we have is a retroactivity problem, you're on earth, right? So the question is, the Supreme Court didn't say in Martinez, oh, and by the way, we are specifically making Martinez retroactive. So that's a problem when you're in the 60B context. And I think until the Supreme Court says, oh, no, no. And what we meant to say was Martinez is retroactive. You have a real problem as any kind of 60B litigant, including the habeas. The court, it may not be a retroactivity problem because despite what you two have agreed on, it may have been that Coleman did not, in itself, close off all possibilities. And the Supreme Court in Martinez was just recognizing some possibilities that Coleman had dealt with. And there is language in Martinez to suggest that, you know, there's language in Martinez. Because they don't want to say where we're wrong before. Precisely. They were very careful in their holding in Martinez. They tried to draft it. I think arguably as narrowly as they could draft it under the circumstances. They said, look, it's only applicable in very specific circumstances. It's only applicable where state petitioners were forced and had no other choice but to delay their claims to clad over you
. You know, is this not, this is certainly not beyond the realm. Well, I think what we have is a retroactivity problem, you're on earth, right? So the question is, the Supreme Court didn't say in Martinez, oh, and by the way, we are specifically making Martinez retroactive. So that's a problem when you're in the 60B context. And I think until the Supreme Court says, oh, no, no. And what we meant to say was Martinez is retroactive. You have a real problem as any kind of 60B litigant, including the habeas. The court, it may not be a retroactivity problem because despite what you two have agreed on, it may have been that Coleman did not, in itself, close off all possibilities. And the Supreme Court in Martinez was just recognizing some possibilities that Coleman had dealt with. And there is language in Martinez to suggest that, you know, there's language in Martinez. Because they don't want to say where we're wrong before. Precisely. They were very careful in their holding in Martinez. They tried to draft it. I think arguably as narrowly as they could draft it under the circumstances. They said, look, it's only applicable in very specific circumstances. It's only applicable where state petitioners were forced and had no other choice but to delay their claims to clad over you. Intruding now. The answer is this is not retroactivity. This was always the rule that you could always do this just to know but recognize. I don't know, you're on the right. I can't speak to that. That's to ask the Supreme Court justices. Well, there you go. This is another day came. So I see that my time is up. I also just wanted to say this is probably my last time before your honors as I'm leaving the DA's office. And I just wanted to thank you. It's been such a pleasure. What are you going to do? The US Attorney's Office in New Jersey. Oh, good luck. Thank you very much. Well, you can come back here once you're in there
. Intruding now. The answer is this is not retroactivity. This was always the rule that you could always do this just to know but recognize. I don't know, you're on the right. I can't speak to that. That's to ask the Supreme Court justices. Well, there you go. This is another day came. So I see that my time is up. I also just wanted to say this is probably my last time before your honors as I'm leaving the DA's office. And I just wanted to thank you. It's been such a pleasure. What are you going to do? The US Attorney's Office in New Jersey. Oh, good luck. Thank you very much. Well, you can come back here once you're in there. I'll do my best there. They've asked me to do trial work so it might be a while. Well, you did, you did try to come back here anyway. I recommend the appeal work that they are. That's where I started out. Did you hear on it? I remember making my last argument of this court before I went on the district court. Oh, wonderful. You did your all kinds of luck. It's a great office. Thank you very much. Thank you. What you love. Let me start with Gonzalez, which I just don't read as broadly as my colleague. Here it does. I don't think my Gonzalez made any broad proclamations about procedure versus substance and when 60 be as allowed and when it isn't. I think Gonzalez was a case specific case that looked at this statutory dispute
. I'll do my best there. They've asked me to do trial work so it might be a while. Well, you did, you did try to come back here anyway. I recommend the appeal work that they are. That's where I started out. Did you hear on it? I remember making my last argument of this court before I went on the district court. Oh, wonderful. You did your all kinds of luck. It's a great office. Thank you very much. Thank you. What you love. Let me start with Gonzalez, which I just don't read as broadly as my colleague. Here it does. I don't think my Gonzalez made any broad proclamations about procedure versus substance and when 60 be as allowed and when it isn't. I think Gonzalez was a case specific case that looked at this statutory dispute. It was a dispute of statutory interpretation in our two. It's about the meaning of the words properly filed that had split the circuits. And the court said us resolving the circuit split about statutory interpretation is not extraordinary. And besides, Gonzalez was intelligent because he had the opportunity to appeal that issue and he didn't. And so it's not a flat out straight rule, but it looks both at the specific circumstances of Gonzalez's case and the specific nature of the change of law. I want to say to you, Judge Restrani, that Mr. Cox tried to raise in his initial litigation of these claims. A cause and prejudice that collateral counsel at PCRA had been ineffective. And the magistrate had rejected that because of Coleman and a COA had been denied on that issue. So whether or not there was some exception to Coleman that could have been uncovered, it wasn't in this case that he tried to pursue this issue and he couldn't and he was shut down by Coleman. So those are really the two major points. Last I'd say this is not really a question about retroactivity because it's not that Martinez is retroactive to every habeas petitioner who wants to apply it. It's a question of exceptionality and how do we determine whether there's an exceptional case that should fall onto this one. And lastly, I'd say that I think the one thing we can all agree on, their office, my office and the court, that habeas rules are the second layers of how. So rare subject of agreed. Thank you very much
. Thank you to both counsel for exceptionally well presented arguments. And I would ask if we can have a transcript of this or argument and if the government would pick up the cost for that. Thank you very much. And we'll call our last. Okay, last case