Legal Case Summary

. There is not a blanket exception. The government absolutely has access to it. All of that analogy is no reason to have a fourth minute. Absolutely. Every citizen should give up your rights because of the security that you can get by having your home search that will and do whatever you wanted it. The founders chose the warrant requirement as the way to balance the government's interest and the public or the citizens' interest in privacy. Going back to just that question about the third party doctrine, what if a person kept a journal? What if your client had kept a journal every stop, every place he went and turned it over to a friend who then gave it to the government? The different, which would be allowed, you agree? Yes. The difference is just because a phone is different than writing. Is that the difference? Judge Shadda, that's where we need to look to what writing is. Well, I'm asking you. What do you say is the difference between somebody writing something down about everywhere he went, is a tenor area and giving it to a third party, and the third party getting that information from the cell location, cell phone location. What's your distinction there? Is it lack of people understanding that cell phone towers track you? What's the difference? That is potentially a factor, but that is not the specific difference. First of all, the simple list does not include information about associations. It also cannot... What if the diary did? What if the diary put down associations? Did what? The fact that the same information might be available in some other format in a physical record. What I'm just asking is the difference? Is it the difference that in the in Judge Shadda's example, it was a voluntarily made document that was turned over and here with the cell information. It's just walking around with myself. Absolutely. That's not voluntarily creating information about where I am and what I'm doing. Isn't that the difference? That is a critical difference. What if the person... I ask you about the knowledge. What if the person using the phone? I ask you was it the lack of knowledge. If the person using the phone knows that information is going to be available and it's being transmitted, that puts us right back in the same scenario, doesn't it? It does not. There's a couple of reasons, Judge Shadda. First of all, it does not because the sharing of the location information between the handset and the cell site, that is not sharing the same precise information as if you had written down exactly the address. Why is it so? The cell phone user does not actually know which tower which site is... Well, what do you know generally that it's going to indicate what... It doesn't matter which tower it goes to, but I know what the phone company said. We want you to understand this information is ours. We have third party. We can give it to anybody we want to. Would that take you to your concern? It would not, because that would be a compels disclosure, which is definitely not... Well, you don't have to go by cell phone. You don't have to have one. And you know you're going down the highway. You know that you're using those cell towers because they're sitting everywhere. They're ugly out there on the landscape. If I don't have a cell phone, I won't get the call from my child's school nurse that I need to come and pick up a sick baby. That goes to Judge King's question. That it is a conscious choice one makes to avail themselves of that convenience. Help me understand, is it your argument that in order to invoke the third party exception, a person has to make an active conscious decision to submit information to that third party? It is, Judge Duncan, you have to... It cannot be compelled. And... Could that be part of the subscription agreement? In other words, if the cell phone company said everything you wanted in there, that is we're going to be collecting your cell phone emissions or calls in towers located in the service area, and that that will be used for our billing and business records and determining our coverage and so forth. And they put all that in some detail when you subscribe. Would that satisfy? It would not satisfy. And that's because there's also a normative aspect to privacy, simply because you might know that you live in a totalitarian. When you buy the phone. In other words, when you buy the phone, the phone is a form of technology that requires these towers. And they tell you that in the end of disclosure when you sign the agreement. How about if you went further and you said, I agree that this is third party information. Would that help? It would not help. Nobody's forcing me to have a purse, but I still have a privacy interest in the contents of that purse. Judge, Judge Shaddai... I'm sorry. You know, this whole conversation has an underpinning that we should be the ones to strike the final balance here between privacy and security. And you haven't mentioned Congress at all, and what role Congress might actually have in this very important problem. And in Section 203, Congress has legislated very comprehensively. You can't read that statute without thinking that Congress gave an awful lot of thought to this problem. You have subsection B that deals with content, disclosures, and then you have subsection C, which deals with non-contant information. And there are four or five prerequisites to get content information. There are four or five prerequisites to get non-contant information. And then at the end you have subsection D, which sets forth the requirements for a court order, which is the governmental entity must offer specific and articulable facts, showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records of other information, are relevant. Now, why should we shut Congress out of the constitutional dialogue? I mean, Congress has a place in the constitutional dialogue with respect to the Fourth Amendment. One might think that these issues are better resolved in a legislative hearing than in a court proceeding. And what why should we say Congress is no longer a contributor to the constitutional dialogue, sort of set aside these minds of effort and say no problem will set the whole standard? Finding a warrant requirement here does not set aside Congress's role at all. First of all, in 1986 when this statute was written, cell site location information did not exist. Well, it would set aside it because what you want is a warrant supported by probable cause, and that exceeds substantially the requirements set forth in 2703D. But it does not set, exceed the requirements set forth in 2703C where Congress did envision a warrant. In addition, after, so 1986, this information- Yes, I mean, it does set it aside because C says you can get electronic, you can get these information not including contents if you obtain a court order for such disclosure under subsection did. And you're saying no, that's not enough. That's correct. That is not enough. So then why aren't you exactly what you're doing is you're reading Congress out of the picture? I'm suggesting that the court needs to look at a different section to decide the issue. And also it is sometimes true that Congress passes laws that violate the Constitution, and that's the whole point of judicial review

. This court needs to step in and say whether that was a valid exercise of authority or not. Well, the Congress can set a nationwide standard. And, you know, courts have the difficulty when we're dealing with it. And the circuit courts can be all over the place. In this case, there's a perfect example of it because we are creating a split with your position with three other appellate courts. And that, as to what the standard is, you don't have that difficulty when Congress legislates a nationwide standard, the way it did here. Well, the split is deep and wide, and will exist regardless of what this court says among sovereigns as well as the circuit. So that is certainly an issue. I want to take you back to the third party doctrine. Just be sure and send your position. Is it your position in response to these questions, or should I understand it, that no amount of agreement, information, knowledge between the cell phone user, and the provider, the owner of the tower, information owner, can allow a third party doctrine to apply to a cell phone? That the amount of agreement and the amount of no- I'm not saying there's any amount. Well, there may be a point where no matter what, it is a relevant factor for the court to consider. However, what is a relevant factor for the court to consider? I was trying to ascertain the answer to a similar question with the active decision to submit information, because it would seem to me that if you included notice in the subscriber agreement, that would satisfy the active decision requirement. So it would also help me to understand if it would ever be the case that a telephone user, that a provider, would become a third party in a scenario such as this. So I do believe that it is a relevant factor to consider, but it is- The fact that there's an agreement that the subscriber- The existence of a subscriber agreement. Right. It's a relevant factor, but it is not the deciding- Could it be conclusive? You don't think it could be conclusive, do you? I do not think it could be conclusive. But why is that under third party doctrine, is this a cell phone, is a cell phone, is a cell phone? Well, the fact that it's a cell phone is also relevant, but the reason is because what Smith and Miller are really getting at is whether the disclosure actually eliminates the privacy interest. And in those particular cases, the specific information that the parties disclosed- What if you know all that in the subscriber information? What if- I'm just asking you, do you think that a cell phone can ever be part of a third party doctrine that the user could have enough information, enough disclosure, that the third party doctrine would apply in a situation generally like this? Yes or no? Ultimately no. The question if you will factor in, this is just not the situation where the cell phone is just collecting cause it wants to. There is a communication assistance for Law Enforcement Act from 1994 that requires them to at least have this information available. And how are you going to have available if you don't have the history of it? So even if they make the agreement, as is asked by Judge Shed and others here, even if they make the agreement, they got to make the agreement because they already require to do this. Doesn't make a difference. They don't need a agreement. They have to take this information anyone. Absolutely. It is compelled. The government is playing a substantial role here. We know that when Congress enacted Kalea, they also specifically said that historical cell site location information, or excuse me, cell site location information, is not available in a number of actors. But that takes your argument that a person has to make an active decision completely out of play. There are many factors in play. The fact that, but an active decision is not going to be relevant when it's compelled to government action. And there is simply no way to control the flow of this information. In the page 7 of your supplemental brief, you say the government's subpoena required sprint to create a pattern data set. It never previously possessed and had no use for. Could you explain how that factors into the equation here? Absolutely. That describes what the government action is. That the defendant's location seven months ago was secret from sprint until the government stepped in and not a business record that they maintain. It is something that actually maintained. They had to create it. They had to create it. They, um, sprint has an interest in single phone calls. Sprint does not have an interest in the movement over time. And movement over time is critical when you're looking at this kind of. Don't they have, um, don't I'm here? Don't they have a obligation to find out they have to know which tower is being connected so that. And that's where you have been all of this as I understand from my law clerks. All of this, yeah, cell phone stuff is now out of date. That issue in this case. 2010 technology. It's things have changed a great deal. But we're still we're frozen in what exists in this case and didn't you need the cell phone tower to get the cell phone information so the. The cell phone company had to know that I have two responses to that judge. Once first of all, we are not frozen in 2010 and and that. Well, yeah, and that's a really good. How would you propose that we deal with the future? Because I think that's a really interesting question. Are we supposed to write some Dicta here that you were not. I see my time is about no, I think you can answer a question. Are you want to do it in the future? I think we need a time machine. The reason why we can't be frozen in 2010 is basically because what the Supreme Court said in Kylo, which is there could be a crude technology in play in a single case. But law enforcement needs guidance and we do have a general sense of where things are going because we can look at the. From 2010 to now and we know that the precision is getting greater the amount of data is increasing and those are relevant factors for the court to consider. Thank you. Thank you, Ms. Guilt. It's a rosist thing. Thank you, Arname. Please the court. I'm sorry, Rod Rosenstein for the United States. Your honors, I understand the concern about the prospect of round the clock, government surveillance. But I think that concern is misplaced in this case. I'd like to explain three reasons why that's true. Number one, self-site location information, the information and issue in this case. This is not what we know as GPS information. This is very general location information. In fact, you know the defendant is within a two mile radius, perhaps of a tower. But you have no way of knowing exactly where that defendant is located unless you have another piece of information. The information you need is some indication of where he actually is. In other words, you need to have information from another source, a third party to tell you we think he was at the McDonald's. We think he was at his wife's doctor's office. You need that reference point in order for the self-site information to have any significance. Yes, you have a better reference point if you get it for two hundred and twenty-one days. You don't, Your Honor. The reason for that is that... So you can do it for a lifetime? I don't think so. And as I said, Your Honor, I... What prevents you from doing it for a lifetime? What prevents us from doing it for a lifetime are a couple of things, Your Honor. First of all, this information is obtained by the government only from spring. If this is 1984, as some people fear

... You can't do it lifetime because it didn't exist back then. I'm sorry, let me rephrase this. So I got you. If this is George Orwell's 1984, who's big brother? We submit the big brother in this case is Sprint, Apple, Google. It's the companies that are actually collecting this information in real time and actually are transmitting your phone calls, your emails, your internet search. It's a precedent because the government requires them to. So the government is big brother. Absolutely, Your Honor. We resist. We reject that proposition which is the defendants of race without reference. And I submit Your Honor, the defense have not identified any law that obligates the Sprint to keep this information. They keep this information in this case. What is the effect of the communications assistance for law enforcement act? It doesn't go directly to what's here, but the type of information it must have available. How is it going to have available if it doesn't have it historically? I think what it says, Your Honor, we reference this in our brief. I believe it may be note 16. Collier requires providers to have the ability to locate people. For example, for 9-1-1 call. One of you able to locate somebody who calls 9-1-1 and is disabled and unable to speak and disclose the location. That's not cell site location information. That is, as we said, prospective. They need the ability to get that. They may get that with GPS information. They may get it with triangulation. But that is not the records they routinely maintain. The information that is here, as Your Honor, my examples of Google, and- Prophecy to keep in this kind of information in and away. I'm not aware of any compensation for keeping the information Your Honor. They may be like many- Prophecy to deliver. But like many recipients of subpoenas, they may be entitled to reimbursement for the costs incurred, caused by the- What would- Might otherwise be a burden of producing the records? There's nothing in the record about that in this case. One of these little frames businesses. There's probably a lot of money that arises from doing this kind of activity here. Having this information that you collect. Let me ask you that a follow-up question. I'm sure that point the others. May an individual who has a cell phone tell Sprint, I don't want you to collect this information. I doubt it, Your Honor. And the reason for that is that Sprint makes clear in its privacy policy. They alert their customers. We are collecting this information from you for business purposes. Okay, let me take a note step. In Sprint, say, agree to this with them without not- Stand the policy. We will not collect your privacy. Yes, it can, Your Honor. And in fact, I believe there's some providers that don't collect it. There's certainly some that don't maintain it. Different providers have different retention policies. In fact, I wanted to address your question about why 211 days or just over seven months in this case. And I believe the answer to that, Your Honor, is that the company's only retained for a limited period of time. And if it were not sought- That's the only thing that keeps the government from surveilling somebody for a lifetime to answer Judge Wenz question is because they don't keep it that long. But if they did, you could get longer than 221 days. Let me say theoretically, Your Honor, if they kept it forever and the government had a justification for getting it. And they were willing to disclose it or court were to order them to disclose it. Then we could get it. But we submit, Your Honor, that's similar to all of the third party information. That is, if a third party acquires information and knows where you were five years ago and we ask, and they remember they can tell us. So that's information that they know or they choose to retain. But I think- Councilor, let me ask you this. And it's in its totality when you step back. Isn't the appellant asking us to take a perfectly audacious step in three years? Because it's basic premise is that information for the government to access information in the hands of a third party, you have to have a warrant supported by probable calls. That's its basic position. And in taking that position, doesn't that run afoul of the way in which two Supreme Court decisions have handled information in the hands of third party? Landline phone records and bank records? And doesn't that create a conflict with three of the circuit courts of appeals as to the standards that were required to access the information? And doesn't that read Congress out of the picture and its efforts and its standard? So cumulatively, we're reading the other courts of appeals, we're saying that they're wrong. We're saying essentially that the Supreme Court's whole doctrine of third party of information located in third party hands is wrong. And we're saying that Congress hasn't given inadequate or insufficient thought, or whatever it came up with, is not a appropriate balance of these various factors in the hands of the Supreme Court. No both of us are in play. Now taking in is totality. That's a brazen stuff for us to be taking. Don't you think? I-I think its audacious you're under two respects actually to audacious lips that the defendant is taking in this case. First of all, I think Council was very candid in response to Judge Niemeier's question about the easy pass, they're really are asking you to abrogate the third party doctor. They're not simply asking for a cell phone exception to the third party doctrine. We're asking for you to abrogate the third-party doctrine. And that isn't just a matter of two cases. Your honor, we submit. It's not just about Smith and Miller. It's also about Jerry Teobrein incorporated. It's also about Fisher. There are a ray of cases where the Supreme Court is upheld. Subpoenas the third parties, sometimes for very sensitive information, sometimes more sensitive than the information that's available in these print records. So that's the first step that they're taking, but there's a second audacious step. And that is that they're arguing that even if this court or judges of this court were to believe that were to conclude that there is a fourth amendment privacy interest, then it needs a warrant. Because your honor, the case law, we submit, it's also quite clear that subpoenas are the default process for obtaining information from third parties, not warrant. It's not a response simply to say if it implicates the fourth amendment, get a warrant. The Supreme Court has said no if it implicates the fourth amendment, but it's in the third party's hands, you can obtain it by subpoena. I think there's no way to get a warrant for this type of information. Well, your honor, we don't need a warrant. I mean, I'm not quite sure. Is there any way to get a warrant for this kind of information? I would say your honor, if a court is willing to issue a warrant, I suppose we could get a warrant, but no, the fact that you believe the facts is sufficient. Which is what will issue a warrant for this kind of information. Obviously, you think that it's not easy to get one, because you'd rather go this route than to go the fourth amendment route and simply get a warrant and do it in that way, and you good, you wouldn't be before it. So my question is, in this kind of information, it's just, you're not going to be able to get a warrant, this kind of information, generally, is that correct? I understand your question, Your Honor. I think it depends on the facts and circumstances. But these facts do

. In these facts, well, if you look to the application, and I think it is useful to look to the record, make it, make it simple for me, because I know others want to ask questions. Can you get a warrant in this kind of a situation or not? And that's the reason you're before us, because you cannot get a warrant. Therefore, you need another way to get this information, because a warrant is too difficult for you to do. In this case, it's likely we could have gotten a warrant. You know, I can't say for sure, because the application, why wouldn't you try? Why wouldn't we try? Well, your honor, there are a couple of reasons. As I said, when we conduct criminal investigations, most of what we do is obtain information from third parties. And most of what we do doesn't require judicial supervision. We issue subpoenas. And if the third party believes the same thing. Yes, yes, yes, yes, yes, yes, you want 21 days of information. You've got the general's case out there. You've got other cases out there. You know where technology is going. You know this is not going to be even when we can talk. We can joke about the future we want to. Those law clerks have just marked the correct. We know that there's a time coming where they're going to pinpoint your location. They're going to know you right in this courtroom, right where you're sitting, right now. And you're going to have a 221 days of where you are every movement. And the question is, does that require a warrant? And is it difficult to get a warrant for it? Well, when you say your honor, that they're going and over you are. I don't want to know. I don't want to stay on a warrant question. OK. OK. And so, but my explanation was your honor that the reason we didn't just get a warrant in this case is because what we did is more than what we usually do. Usually we go to third parties with a subpoena without prior judicial review, without making any show and whatsoever. But because Congress did this balancing, because Congress thought that wasn't enough. But you had a court order. That's right, because Congress has required us to go to court under 27. I mean, that's the point is you didn't just go charging in and say, hand over the information. You had a court order and you had a court order under the standards that Congress had set forth. That's correct. Judge Wugger sent my response to the court. So does that require if we say this is OK? Do you need that in the future? I'm sorry, aren't you? Would we need a court order after this? If we say OK with what you've done, you need a court order because this is a Congress has acted and has said that although it's not repealed that statute, we'd be fine, right? You would not need a court order. You would need no court supervision. You could go in. I want 221 days and no neutral magistrate or judges ever looked at that request. I think that's an excellent question. Your answer is that in the absence of 2703, we would be able to serve process that is a subpoena. And the recipient would have the opportunity to object if they thought it was unreasonable. So it wouldn't evade judicial review. There'd be no prior judicial review. But it wouldn't be a matter of our business charging and get it without the holder of that information, have an opportunity to object just as in all of the processes. That would be sprints in this instance. Sprints in this instance, easy pass in judge Neemir's example. Or easy pass. They would, they would, if you issued a subpoena to the third party, easy pass, they could come in and move to watch the subpoena. And I think you're under that sign. They's overly broad or strong or whatever they want to do. That's not a fanciful suggestion either because if you look to the position, for example, Apple is taking another litigation. I think we can expect these providers when they believe the government requests are unreasonable to object. Under the third party doctrine, it requires, does it require knowledge and consent that you give it to a third party? And if so, which seems to me clearly is so, where does that come in this situation with the cell phone? You're under the case law does not support that for opposition. And if I could respond to that in a question that Judge Thacker raised with regard to opposing counsel. If you are walking down the street, somebody peeps out their window and sees you. You don't know that they're there. You haven't consented to their seeing you, but they've seen you. Now that third party has seen you. What have you done that's voluntary? You were just walking down the street. As in this case, you were simply using your cell phone, but you made the decision to use the cell phone, which necessarily creates a record in the- In your hype-o, where is the conveyance? In my hype-o, you're on it. It isn't conveyance. And that I think is the flaw in the defendant's argument. And that is because they- Should I be required to pass on to a third party? It says pass on. If it's your information, yes, Your Honor. And counsel represented that- What the hypothetical was, you can walk down the street and you said a person looking in the window, you don't know that very. You said that would meet the third party, so conveyance is not required. I'm sorry, Your Honor. My point is that that information in- Third party has made an observation. Third party has made note of something that occurred. You can be- It is single- It's your opinion. It's not a document to your president- It is a single point in time, though, not for 221 days where the government can basically surveil you throughout your- I'd level months. I would like to address that issue, Your Honor. And I think I'd started out saying that there were three reasons I thought that the concerns about a surveillance state being implicated in this case were overwrought. And I explained the first reason, which is that CSLI is very general information. My second reason, Your Honor, is that most people do not constantly use their cell phones. And so if we were inclined to surveil somebody, we wouldn't rely on the fortuity of them making a phone call to- But you don't have to constantly use your cell phone to convey this information. Do you- You don't have to pick- This information is created whether the cell phones just laying on the seat beside the appellant or he's using it or he's not using it, receiving a call. You don't have to do anything. That's not consistent, Your Honor, with trial record in the case that I want to point you directly- I'm not having to investigate. There wasn't that technology at this point. Isn't that right? That's not the way Sprint collected data and that data wasn't obtained in the case. And I just followed up a question that was raised to one of your colleagues, which I was unfamiliar with. And that is the record clear that Sprint created all of these records in response to a government request. I'd like to direct the court's attention in response to that, Your Honor, and your stackers question to the Joint Appendix pages 1954-2021. This is the testimony of Sprint employee Jeffrey Strom, who discussed why this information is maintained and how it's maintained. And Mr. Strom explained the information that Sprint routinely maintains and produces when they receive a request for cell site for cell phone information. It includes a column that has the other phone number, which we submit is generally going to be more sensitive than it's who you're talking to. It's generally going to be more sensitive than where you're standing. And it includes in the last two columns the locations of the cell towers if they were recorded by Sprint. And those cell tower locations are recorded, Mr. Strom explained only when a call is received or made. Those phone records, if you look at them, Your Honor, and they are in the Joint Appendix- Received and answered or just incoming call

. Received and answered. And let me point the court to where that is in the record, Your Honor, because the record reflects the text messages and voicemails. Maybe reflected on that spreadsheet, but there's no location information because Sprint does not retain location information. Actually, I had a simpler question in that. Because I do remember looking at those charts in another time and another year. But what I had thought your colleague had said in response to a question, first time around, was that Sprint created these records when requested to do so by the government. I hadn't understood that. Maybe that's true. I don't understand it, Your Honor. And I know Jets Thacker quoted from their brief. They talk about information kept in an array and a computer. That's no different than the way any company, any business keeps its records. Everybody's cuter as? Something what was the question? This is from the defendant's brief. They talk about information being stored in an array. In an array? I don't know if that's true or not. That's what they say in their brief. But it's true, Your Honor, almost all cases involving businesses in the 21st century. The information's in a computer. But they have the information. It's still a physical business record. I mean, I'll be visible, Your Honor, but it's still a physical business record. And so the fact that they had to create it in the sense they had to punch a key in print it. Mr. Rosenstein, when the government seeks access to this information, in the ordinary case, do you go the route of an administrative subpoena, or do you go the route of securing a 2703 D-Court order? They seem to need to be alternative paths to securing the information. Which of those paths does the government ordinarily take and why? Well, Your Honor, with regard to information that's protected by Section 2703 because Congress has elevated the protection for store communications, with regard to that information, we're required to get a court order. For routine third party information, we use simply routine subpoena. What do you mean by routine subpoena? Well, it would depend, Your Honor. I mean, in a criminal case, the grand jury subpoena, an administrative investigation, an administrative subpoena, it would depend on the nature of the investigation. Council would respect that the breadth of the request in this case. What was the significance of the 211 days? As I understand it, that wasn't the amount. That information was not ultimately the breadth of the information that was used at trials. That right? Not by us. I think that's a very insightful question, just to be honest. The reason for that is that if you look at the chronology of this case, the defendants were arrested essentially fleeing the scene of two armed robberies on February 5th of 2011. First indictment was returned on February 23rd. One month later, we secured a 2703 D-order. This is on March 24th, and this is in the record at Joint Appendix page 244, for four discrete periods of time, surrounding the robberies of which they were suspected. We subsequently on July 8th, we obtained a second 2703 D-application. That application recites the same specific and archedical facts in the first plus an additional fact. That additional fact is evidence they were involved in yet another armed robbery that was not within the scope of the first application. And this actually goes to a question I was asked earlier, Your Honor. I think it's significant. The reason the government went back for more information was because we had reason to believe that defendants had been engaged in a wider and more long-standing robbery conspiracy. And we wanted to make sure we obtained that information before it would be routinely purged by the provider. You went before the court and the court approved that request. That's correct, Your Honor. I think what's particularly significant regarding the volume information, I think this is really telling because it belies the defendants complaint here that this information somehow intrudes in their privacy. And that is this, as Judge Diaz pointed out. The government introduced a very limited amount of information to this trial. It was only the cell phone information for a couple of hours before and after several of the robberies for which we had cell phone information. In fact, this is a joint appendix 2656 to 2662. Less than seven pages were introduced by the government at the trial. And we use that information to, as we typically do, to create a map with the location of the robbery and the proximate circumference of where the defendants' cell phones were located at that time. But what's significant, Your Honor, with regard to the defendants' claim is that they introduced the 557 pages, not at the pre-trial suppression hearing, at the trial. And I would direct your attention to page 2010 to 2012 of the trial transcript. Now, let's explain why. The defendant introduced 557 pages of his own records. Why? Because he thought they were exculpatory. And that, of course, is also legitimate reason to obtain information in criminal case. It's not just to incriminate, but also to excopate. The defendant introduced all those records. But because he wanted to try to demonstrate that it wasn't unusual for him to be in that location. And he then was able to argue the jury will look on frequently in this general neighborhood. Therefore, it's not unique that I was there at or about the time of the robbery. And Your Honor, I think that balance. The implications, is that analyzed at the time the information is obtained or is analyzed at the time of the trial? Do we look at a situation where information has been obtained in violation of privacy? And then say, well, at trial, they got introduced. And so, no humpile or trial, there's no privacy. I think it goes your honor to you. Just because he's entitled to defend himself once the government has indicted him, how does that get, how is the entitlement to defend yourself at trial mean that you give up your privacy interest at a time? That's precisely my point, Your Honor. It really goes to what would have been, what will be my third reason for why the concern about privacy is overwrought in this case. And that is that this information is not very dramatic. And I invite you to look at the information. You know, it's the final two columns that indicate which cell tower the defendant was using at the beginning and end of each call. For most people, that carries little real significance. There are a lot of more things in life that are more sensitive than where you were within a four mile radius when you use the phone. He put them in the record and we submit, he has suffered no adverse consequences. I'm sorry, I take that point, but can I ask you a question about the case law? I just want to go back to sort of the audacity of the arguments here and the sort of where the Supreme Court is on this. And so, I mean, I know you, there's Miller and Smith in all these third party cases, but there are also cases like Kylo and Riley. And I know I'm missing one, Jones, that your colleague is relying on. And I know you would say, right, in response to those cases, well, they don't abrogate the third party document. Those aren't third party cases. So my question, and this is really what I'm struggling with in this case, is sort of at what point are we allowed to look at cases like Kylo and Riley and Jones, not as sort of isolated kind of pinpricks, but as establishing a general principle that does have some bearing even in third party cases. That when it comes to this new technology, the Supreme Court is telling us, don't apply the old rules kind of mechanistically in a bright, line way. Don't apply them in a way that's not sensitive to the scope of the privacy invasion that's now implicated by these new technologies. I mean, are we at that point, can we derive a more general principle from those cases? No, we submit, you know, that we cannot. I mean, even the judges, justices of the Supreme Court who made no to that issue, at no point did they suggest that they had abrogated the third party document, or that... In fact, just so to my honor, it says that donors have to be a reconsideration presumably by the Supreme Court of third party documents. Recognizing the existing precedent, you know, but also the distinction between GPS pinpoint information and cell site information. I think to answer Judge Harris's question, if you look to cases like Kylo and Carro and the whole range of cases the defendants rely on, when they say, as Council said in her introduction, that we follow the defendant in into private space, the answer is respectfully, we did not. I mean, in fact, this information is far more general than what the Court is upheld

. You can follow the defendant's car with a tracking device to the driveway, assuming you haven't violated Jones in the installation of the state of the law is, that you can follow the car to the driveway, you can know the defendant when inside his house, you can't follow him around inside the house, that's Carro. But in this case, we haven't done that. You think this is not... You think this is not a third party document case, this is just a records case. I'm asking you because you said earlier, no consensus needed that somebody sees you. To me, that's just somebody's keeping records that you don't know about. It seems to me your argument is, it's just a records case. It's not any third party doctrine at all. I understand your question, Your Honor. I think that there's some legitimacy to that. That is that... Thank you. What we're talking about... To the point, and certainly to your question, what we're talking about here, Your Honor, is we refer to as addressing or routing information, that the analogy to the real world, to the tangible world is the address on an envelope. But it's actually even less private than that, because it isn't information that the defendant submitted. It isn't even information that the defendant knew. It's how sprint-fulfilled his request for someone. No, no, but that's not my question. My question is, how would you have us analyze this? As something where the cell phone user has to know that records are being kept, you said somebody can fake out of the window. Yes, third party doesn't matter. Or is this just records? There are records, whether you know it or not, it doesn't matter, user. There are records. We know the fact that you know it doesn't matter at all. We can just go get business records. Seems to me you're talking business records or records. That's correct, Your Honor. And I think that if you look at, for example, Miller, which is the first in the series of the Supreme Court cases, in Miller, the Supreme Court's first approach to the issue was as you suggested, these are records of the bank, period and a story. However, the Court said, what's the relevance in this case of the fact that there's a federal law that requires the company to keep those records? And only then did they go in and analyze the voluntary conveyance issue. And so I agree with Your Honor that this case can be resolved at the threshold. You're not agreeing with me. I'm asking. Well, with the implication of your question. Yes, we would argue that you resolve this at the threshold. That is, this is an observation that's front made. It's not information that was conveyed to them. It's an observation they made. There's a customer in our neighborhood who wants to use our cell tower. We're going to honor that requesting, complete the call. Check the box, we use the cell tower. If there's any billing controversy, we have a record, we use it at this particular meeting. Does it help your argument that is I understand that those cell towers are line of sight? Does that help your argument? Sometimes they're line of sight, Your Honor. It doesn't necessarily, it's not always visible to the user. So when you get into the whole area of voluntary conveyance and what is voluntary conveyance and what is not, that's, that could, it points up, I think, some of the value of Judge Sheds observation because these are, they're not entirely voluntary in the sense that the individual is saying, well, I know you're going to turn these over to the government and I'm giving them to you nonetheless and I'm doing so with your own free will, of my own free will. And that's not spread out in so many words and it's not something that people really focus on so it's not voluntary in that sense but it is voluntary in the sense that it's not coerced that people seek a benefit in this case, the convenience of using a cell phone. So you can, you can argue this voluntary conveyance point either, either way, I mean, I'm not signing some sort of form that focuses my attention on voluntary conveyance but on the other hand, nobody's forcing me to do this. I'm, I'm looking for convenience but I'm just wondering down the road if, if hinging everything on voluntary conveyance is setting up a very litigable issue as you go to Judge Sheds position. It's, it's, they're in the hands of third parties. They're business records. The third party keeps and that gets you out of all the back and forth on voluntary conveyance and what is the specific language of the contract between the bank and the customer or what is the specific language between the telephone company and the customer. Some of that's highly litigable stuff whereas if you take a view of, that suggested by Judge Sheds which is that these are business records that they're required to keep by federal law in most, in most cases or state statute or what that saves you a lot of thrashing in court, don't you think? Yes, Your Honor. I mean, even if, I think our answer is in our brief, we actually argue why it's voluntary and then point out that it doesn't matter and the answer is that if it's not only litigable but I think very confusing. Do you think these are business records they are required to keep? No, no, Your Honor. I mean, as I said, the defense have made that representation but they haven't identified any evidence in the record and the fact that the records are routinely expunged by the company certainly belies that suggestion that they're required to keep these records. And the rule, Your Honor, would be unclear, litigable and ambiguous if it depended upon things like voluntaryness. And that's why we think the case law, if I may conclude the case law is quite clear from the Supreme Court that voluntaryness in the context of the Fourth Amendment means compelled by government. And the absence of government compulsion, voluntaryness has no real relevance because when it's- Whether it's voluntary speech, we don't definitively know but what we do know is that it's not compelled speech, is that fair? It's not compelled by the government, that's correct, Your Honor. And if I may just briefly conclude, Your Honor, we submit that the Court should not abrogate the third-party doctrine and that even if it did and found that this information was protected by the Fourth Amendment, that it would still be reasonable for the government to obtain it in this manner. Thank you very much. Thank you, Mr. Rosenstein. Ms. Guilt, reply. Thank you. Thank you. Thank you, Judge Schachzler. Under Skinner and this Court's decision in Jarrett, actual government requirement to maintain a record is not necessary to implicate government action. Simply authorization and encouragement is. And in fact, in 47 USC, 1,000 and 2 A to B, Kalea requires the government to maintain CSLI so that it can obtain that information at any time after the completion of a call that is convenient. And that- And that was- And that requires the government to maintain the information- I'm sorry, it requires sprint two, I'm a spoke Judge Diaz. So it is- but regardless, there- so there is actual- an actual statute that requires it. There's also an FCC regulation and I'm sorry I don't have it. I can find it for the Court, which requires cell service providers to keep this information for 18 months for billing purposes. But I thought you said in response to a question first time around, is that the cell phone company created these records in response to the government request? That- Either they had them and they were required to have them or they created them. Which one was it? These are not mutually exclusive judgments. I see. Okay. And in fact, it doesn't- it never has to be one or the other. The fact that there is some other purpose as well does not eliminate the factor of the government action. And that's Ferguson. No, no, no, no, no. But are they- are they pre-existing before the government request them or are they not? No. Since 1990- They're not pre-existing. So, is that what you're saying? That's- that's not my only question. It's not a trick question. I really just don't know. I- I had thought they what did exist

. I- I don't- I don't want to- I don't want to get myself tripped up here. The- the actual record that- that tower information existed before the issuance of the subpoena. However, it- it existed because of the government's requirement that they maintain that. Which happened- And I think Judge Mott's question is going back to- to what I asked you about a statement in your brief that says the government subpoena required Sprint to create a patterned data set. It never previously possessed and had no use for. And I think you're saying they had the data, but not the data. They had to create a data set. That's correct. The government action is obtaining the information. What do you mean they just got it from one customer? Just as the telephone company get the record from one customer? Is that- is that what you mean by data set? I mean the location information. You mean they had the- they had the raw data, but to respond they had to go to that number or something and pull that information out of the data set to create the document, is that what you- That's correct. I also want to- Okay. I mean- I mean- go ahead. Thank you. I- I also want to respond to whether the- the issue of this information being available by a subpoena. Rather it's a subpoena or a warrant or a warrant exception, the touchstone of the Fourth Amendment is reasonableness. And here reasonableness simply requires more than a warrant. Um- Well, to skeleton, why is the order of provision in the statute constitutionally insufficient? Because it seems to me you're arguing it's a black and white situation. You just have to get a warrant. But you haven't really told us yet why the specific requirements of specific and articulable facts, reasonable grounds to believe the reference are relevant in material to an ongoing criminal investigation. Why is that constitutionally insufficient? Because that is so much lower than probable cause and probable cause is what is required when- Well, no question. It's- it's lower than probable cause, but why is it insufficient in this case given the nature of the information that it saw? Because the intrusion into the privacy interest is so extensive. And, um, when there is a- this is simply a categorically- In your view, but not in Congress's. Well, Congress, when they passed this law, this information did not exist. When they most recently amended it, it still didn't exist in the way that it does now. So, Congress's action needs to be taken with that perspective. Are you making an as-applied constitutional challenge to the statute? It certainly is unconstitutional as applied, but the statute itself is also unconstitutional. But this case- I mean, this case with 21 days- Change with 21 days- Yes. But- Yes? Yes. But with 221 days- I'm- I'm sorry? As any case, struck- and stricken down this statute for unconstitutional at the end of the Fourth Amendment. Um, there have been cases reckoning- Circuit court. Circuit court, no. There have not. What do you say? We are asking us to amend the statute. If the statute needs to be brought up to date again, I don't understand why that isn't Congress's job, because they may say, yeah, we need to update this statute, but we don't want to go all the way up to a full probable cause warrant. In other words, technology is- is changing underneath our feet. And if every time we see a technological advance, we look at a statute and say, oh, well, we need to update the statute, um, we're just once again taking over Congress's job. Whatever the statute says, if it is less than a probable cause warrant for this type of information, it is unreasonable under the Fourth Amendment. Thank you. Thank you very much. Those were fine arguments. We'll come down to a great council and then take a break for you, sis. Bill, we're going to conference. No? Okay. We're going to vote on this now. We'll get back to you after. I'm sorry. I'm sorry. How could you? I'm sorry. I'm sorry. I'm sorry. Thank you. Thank you. Nice to meet you. Thank you. Did you have fun? We did. Thank you. Thank you. Great. Oh, he's so good to see you. Thank you. Thank you. Thank you very much. I know. Thank you. Thank you. Thank you. Well done. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you

. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. I'm a goodie. Thank you. If I could have your attention, please, we're going to go back and meet with the judges and we'll be out momentarily. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you

. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Thank you. Thank you. Thank you. Mr. Hester, welcome back. Whatever you're ready. May it please the court and Hester representing Raymond Sarat. This court, let me ask you a jurisdictional question first before we get into everything else. You have argued that the 2255E provisions are non- jurisdictional to claim processing rule. It basically advocated the position. I think the seventh circuit has taken. And I think post-Gonzalez, the seventh and the eleventh, have set out pretty good arguments on both sides of that issue. And you can tell us why you think that is the right way to get, which will require overruling rights versus review error. Certainly. But I'd be particularly interested if that was the decision of this circuit over rule rights. What would happen in this case? Well, in this case, relief would be granted. Because there's no dispute. Relief granted here or remanded. For relief to be granted. Because there's no dispute on the merits of this case. There are three reasons why the traditional tools of statutory construction don't plainly show that this provision is jurisdictional. First of all, the savings clause uses a phrase which is shall not be entertained, which Congress has used in only two other contexts, both of which are statutes of limitations. And statutes of limitation are almost never jurisdictional. So Congress's use of this phrase reflects an attention to treat the savings clause like statutes of limitations. And that makes sense. How would you differentiate that language from the language in 2253 C1 that the Supreme Court did find to be jurisdictional? Well, the difference here is 2253 is a jurisdictional statute. It gives the courts of appeals jurisdiction to hear appeals from 2255 cases in certain circumstances. And I think that this case is in the Supreme Court has held that that is an important consideration in determining whether a provision is jurisdictional or not. A more comparable provision is the one in Redell, severe versus much nook, which was not a jurisdictional statute. And there the court held that a phrase saying no civil action shall be instituted was not jurisdictional. So this case is more similar to read a Selvia than it is to the Miller L versus Cockro case because 2253 is a jurisdictional statute. 2255 is not a jurisdictional statute and 22558 doesn't mention jurisdiction. And that contrasts with 2241 for instance, which is a jurisdictional statute. And when it divests the courts of jurisdiction, it specifically uses the term jurisdiction. And the Supreme Court also has repeatedly held that the term shall is not jurisdictional. And that read a Selvia case for one and also in the Kwaifun Wong case where some pretty mandatory language, which is shall be forever barred, it was held to be not jurisdictional in the context of statute of limitations. And again, the Congress has put this provision on a footing with statutes of limitation by using the same kind of language here that it has only used in statutes of limitation. They, under that position, Ms. Hester would a first time filer, then be barred by the statute of limitations, or would the first time filer simply be able to walk in notwithstanding our decision in white side? Well, it's, what does your position, how do you reconcile this statement that it's akin to a statute of limitations entitling the defendant to relief under the savings clause with our decision in white side? Well, it's the same principle because the government can waive the statute of limitations just like it can waive this provision. And in white side, the government didn't waive the statute of limitations, and that's why we had problems there. So your saying is just the fortuitous fact that the government has waived it, saves it, that it would otherwise be enforceable in all cases? Doesn't that detract from the language of the savings clause itself, and undercut your argument? Not if we're talking about the jurisdictional issue, I don't think so, because it's just, it's putting the savings clause on a footing with the statute of limitations, which is another procedural bar that the government is able to waive. Right, but the savings clause uses the, the adjectives in adequate and ineffective. Right. Right, not. Okay, so some sort of measuring and balancing has to be done. Does it not under that? But are we still talking about the jurisdictional question, or are we talking about the, I'm asking about white side, about the statute of limitations? Yeah. Well, and what happens to the rest of 2255E under your position? Well, under my position, the government's consent, the government is free to consent to relief under 2241. That doesn't waive the merits of the claim. Okay, so you're saying if the government hadn't waived, then it would be entirely different? Yes

. Yes, that's what I'm saying. Your position would be, it would be a jurisdictional bar, or it would be a statute of limitations, but it would be a mandatory bar if the government doesn't waive. The statute of limitations? No, it would be a statute of limitations, but it would nonetheless bar the action, but for the government's concession in this case, or agreement to waive. Well, I'm not saying, I'm not saying that Mr. Serrat doesn't have entitlement to relief under the savings clause, if that's what you're asking. I'm saying that the reason that it's not jurisdictional, well, it's not jurisdictional, and the government is free to waive, and it is done so here. But there's another reason why he is entitled to relief under the savings clause. If you could just follow up, because I'm trying to follow it, and I'm not sure I am, Judge Kimman's question about what happens when the government does not waive, because you're proceeding on the assumption that it does. Okay. What's the effect? Okay, I think I'm just not understanding the question. What happens when the government does not waive is that we have to go back and decide whether the petitioner has satisfied the requirements of the savings clause. And the court should hold the savings clause relief is available when a petitioner's claim does three things. First of all relies on a retroactive decision of statutory interpretation. Second was foreclosed by Circuit President through the time of his initial 2255 motion. And third exposes a fundamental sentencing defect that results in a miscarriage of justice. In Innery Jones, the fundamental defect was actual innocence of the offensive conviction, but Jones allows for the possibility that some sentencing claims could amount to a fundamental defect. But Jones was limited solely to, in fact, the only place it used the phrase in a footnote, fundamental defect was to say a fundamental defect is actual innocence of the crime. But it did rely on decisions that found fundamental defect to be the basis relying on the Davis versus the United States case in the Supreme Court, where the Supreme Court talks about actual innocence being a fundamental defect or miscarriage. It's here to four of the mental defect has essentially been a term of art used in a first 2255, not a second. Is that right? That's true except for the four circuits that have used it in the savings clause, which would be include Brown versus Careway and Bryant versus Warden, where sentencing defects were found to be fundamental and relief was granted. But your position is basically a pretty open-ended one, which is a 2241 relief is available under the savings clause. Any time that an initial 2255 motion was foreclosed by existing law, any time of an initial 2255 petition is foreclosed by existing law, you think that's inadequacy and ineffectiveness under 22558? That's where it seems to me position has. That's right. If that's the case, that seems to me just incredibly open-ended because one can always litigate forever the question of whether something is or is not foreclosed by existing law, whether it was partially foreclosed, or to what extent it was foreclosed. And what you're saying is that essentially the statute of limitations doesn't matter, particularly if the government waves it, and you don't have to get any kind of pre-authorization permission from the court of appeals the way you normally would and a second or successive petition. And we're going to accord retroactive effect to circuit law and we're going to accord retroactive effect to non-constitutional ruling. And we're going to find retroactive effect of a decision where there's no question of factual innocence of either the instant offense or of the various predicate offenses. And it's a, I've never seen something as open-ended as this. You take words like inadequate and ineffective and then you take words like miscarriage of justice under the third prong of your test. But we are going to be swamped, literally swamped with something that is open-ended as what is proposed here today. And perhaps that's just the matter of our own convenience. Nothing more, nothing less than it shouldn't weigh in the balance. But what troubles me from a more fundamental standpoint is this sentence was imposed under the law, the law is it existed at that time. No one disputes that the rule of law was properly applied. There was no abrogation of due process. The sentence was within the statutory maximum. There was no error, normally subject to very limited collateral exceptions. Collateral review is to impeach an illegality in the direct proceedings. But there was no illegality here. It's just a change in the law and changes in the law and in circuit law occur all the time. We are going to be literally overrun with petitions and situations where the underlying conviction shows no indication of innocence and where it was imposed in accordance with law, with the rule of law. There was no infirmity here. Why should we buy off on something that is this broad and that it midst of no limiting principle? Well, your honor, first of all, the sentence was not imposed according to the law because when the court makes a decision of statutory interpretation, it interprets the law as it has always been. Congress never changed the statute, North Carolina never changed their statute. That's the important recognition of the limitation of that premise that this was all done in accordance with the rule of law. Surely it was, but every mistake here was done by the court. Congress didn't change the law. No one has changed the law. The court has done it. And the end result is that we've got to work harder because a man has to stay in prison for life as opposed to perhaps a lesser term he may be entitled to. We can only blame ourselves in the manner in which it came about. You said to me just now in response to my question that this was not imposed in accordance with law because it was a statutory interpretation question or whatever. But the point is that harp, whether we don't like it now, we've overruled it, I understand it, I totally accept it. But at the time, harp was the law. The law is a combination of a statute and the decisions of this court that interpret it. It's the best we have. And harp was then the law and he was sentenced in accordance with that decision. Well, reverse, first of the Supreme Court disagrees and reverse versus redway express. I mean, there the court says that the law, when the court interprets a statute, it says what the law has meant all along. But there are four reasons why Serrat's erroneous life sentence is a fundamental defect. First, as the Supreme Court has repeatedly recognized, life without parole is unlike any other Senate short of the death penalty. And erroneously imposing it raises special fairness concerns that are not raised by a term of years. But also, as the Supreme Court explained in Miller versus Alabama, mandatory life is a harsher and different punishment than discretionary life imprisonment. And you can see that here. If I could assume this as a premise to each of the arguments that you want to make, but I'm assuming from your answers to the earlier questions that following Jones, you would base your argument on having as a pre-wark was it a new circuit court decision? Overturning prior circuit decision, yes. It strikes me as odd that that would be an acceptable argument under 2255. In view of the care, it would appear Congress took in writing that statute and limiting access to post-conviction relief in a number of circumstances. Obviously, H2 limits on Supreme Court decisions made retroactive in two very narrow circumstances. You also look in F1, which is a limitations period, where it does very specifically address Supreme Court cases not limited to constitutional issues or due evidence of actual innocence, but also with respect to new rights that could be statutorily recognized and made retroactive actively applicable by the Supreme Court. Then it strikes you as odd that Congress would take that much care to spell out these rationales and limited windows of opportunity limited to the Supreme Court and never mentioned circuit courts. No, because Congress left in the savings clause as a failsafe, and the savings clause does not require a Supreme Court decision. Jones does not require a Supreme Court decision, and I think further you have to take into consideration that if you- I understand that, but really a question goes to Congress has been very specific, and it is the authority for all intents and purposes, and it's something that rare circumstance where the suspension clause comes into play. That's entitled to limit access to post-conviction review, and here this is Congress writing through Ed Pah and other predating statutes, always limitations on this sort of relief, and it just-it strikes me as exceptionally odd that there would be this enormous window as you view it in the savings clause, never mentioned by Congress, and very specifically limiting all the relief to Supreme Court cases. Well, I think you have to look at H to-the H to provision and the savings clause and understand that they-the each one of those provisions covers some things that the other does not, because the savings clause requires inadequacy or ineffectiveness. Well, H to does not require- There are two words, inadequacy or ineffective to test, and every time that argument comes up, it's not just ineffective and inadequate, but it's to test, and in this case the-that's a procedural term, and in this case the to test was not foreclosed by 2255. The to test was foreclosed because the circuit law foreclosed him from making that claim. Substantive. He could make the argument, and he'd lose because the law at that time provided that he would lose. Harp was the law at the time, but he was able to test it, and the whole process was-2255 was intended to be parallel to 2241. It was not-2241 was not designed or the escape clause was not designed to provide an end run around the 2255. And so long as the 2255 was available to test, it seems to me, and in this case it was available to test. You don't have such a broad opening in the savings clause as Judge Wilkinson has pointed out. If you limit-aluminate the to test, and just use those two terms and say anything that's unfair or fundamentally unfair, can bypass it, then you're just basically overriding all of 2255. Can I respond? Sure, please. Two things. First of all, the to test interpretation. It's the language of the statute. It's the language of the statute, but the Court rejected- I mean, the Congress rejected a previous iteration of that statute that would limit that just to procedurally being unable to get to the Court. So it's more than just to getting to the Court, and also the Supreme Court and Swayne, and I believe Sanders makes pretty clear that there is a substantive component to that question. And also, I'd point out to the Court that of the eight circuits that have ruled on this, I believe seven of them, have held that the foreclosure test does apply. Thank you. Is it Maley? Maley. May I please the Court, Eric Amaley representing the National Association of Criminal Defense Lawyers, Amicus in support of Mr. Sarrat. In addition to the reasons given by the United States and Mr. Sarrat, the interpretation of the savings clause that they advance should be adopted under the canon of constitutional avoidance, because a contrary interpretation would raise serious constitutional concerns. As many courts have recognized, one of the purposes of the savings clause is precisely to avoid any doubt as to the constitutionality of 20255, making application of the canon particularly crucial to a cracked interpretation of the clause here. Interpreting the savings clause to prohibit recourse to a habeas corpus from mandatory minimums that were wrongfully imposed under erroneous statutory interpretations required by binding precedent at the time of the prisoner's 20255 motion raises a number of serious constitutional questions, including under the due process clause and the separation of power doctrine. First, the interpretation raises serious questions under the due process clause, pursuant to the Supreme Court's decision. How would that differ from all the decisions after a book that decided the imposition of sentence when the guidelines were mandatory, does not constitutionally offensively? Your Honor, the difference there in booker is that you don't have a substantive fundamental defect because well booker held that the sentencing guidelines were not mandatory, the sentencing guidelines would still remain substantively the same. And so in the applicability that are the extent to which they would bind the courts was completely different. Yes, the extent to which they would bind the courts was completely different, but they would remain in place as advisory and in the majority of circumstances, they still would have been followed as advisory. And for that reason, courts held that- Do you mean post booker or after booker? For people who are sentenced pre-booker, the holdings that the booker was not retroactive, requiring all those people to be resensed. A lot of the reasoning behind that was because in most of the cases, the same sentences would have been imposed. Hereby contrast Miller held that Simmons was a retroactively applicable decision because substantively, it changed the punishments that could be imposed for a class of defendants due to their status or offense. And that's because it alters the mandatory minimum sentences applicable to the crime. And in that way, it's much more like Hicks v. Oklahoma where the Supreme Court said that if the sentencer is wrongly stripped of discretion due to a mandatory minimum error, that does raise due process concerns because the defendant has a liberty and trust in the exercise of that statutorily provided discretion. So Ms. Maley, let me make sure that I understand what you're saying. Are you saying then that under the principle of constitutional avoidance, the relief available to someone in Sarat's procedural position is essentially the same as a first-time file or under 2255. But that is required to give the first to give him exactly the same relief that would be available had he been a first-time file or under 2255. I believe that's correct, Your Honor, to give him essentially that because he hasn't had previously a meaningful opportunity to have those rights vindicated and as would ordinarily be the case in 2255, that raises the serious constitutional concerns and to put him in that position as though his, the claim had not been foreclosed by precedent would redress that those constitutional actions. Does that just become a new rule on retroactivity of application cases in that the nut affect of it? Retroactivity? Retroactivity, we have rules on retroactivity. Doesn't this nap a new rule on retroactivity? No, Your Honor, because it would only apply to rules that are retroactive. If you had an instance such as Booker, as we were discussing, where the rule is not retroactive, then the savings clause would not be triggered and we would not have those constitutional concerns, but to have a rule that is retroactive as Simmons is retroactive and still to not give any, the defendants in that position, any chance to raise that. Is that an extension in scope of that retroactivity then? No, Your Honor. I would say it's- Because those people can't raise it otherwise, it's my point. If I may respond, it's not an extension in retro- I said of the scope. I said of the scope. It would be an extension of the consequences one might say in finding a rule retroactive, but the rule would have to be retroactive under the teeth doctrine before it would trigger the savings clause. Thank you very much. Mr. Drieven. Thank you, Chief Judge Traxler, and may it please the court. I'd like to start where Judge Wilkinson began the discussion, which is, what is the scope of the rule that's had issued for this court and what are the implications for finality? In the government's view, this case implicates a very narrow but important and logical extension. Of the doctrine of this court's decision in Inri Jones, which represents essentially the law in nine circuits, one circuit disagreeing. And that is when an intervening decision has fundamentally altered the substance of the criminal law by either altering the definition of the crime or changing the boundaries of punishment. It has worked a significant- I don't know what those circuits have limited their decision to cases of actual innocence of the crime or legal innocence. Isn't that correct? Judge A. G., I think that the only two courts that have squarely addressed this situation where a statutory ruling was incorrect as to the boundaries of sentencing authority. Both of those circuits, the 11th and the 7th circuits have found that there is a cognizable claim under the savings clause. I will certainly grant that there is language in several of the issues. The issue in all the other cases was, and I think the 11th circuit, the on-bomb, 11th circuit case is a little bit different. We talk about that later because that raises a whole different set of issues. But all those other cases were actual innocence of the crime cases, or they were, like Jones, a derivative of the Supreme Court decision on use of a firearm. So the cases that have granted relief are much like in Regions in the sense that the Supreme Court or a Court of Appeals had reinterpreted a statute that defined the elements of the crime in a way that was narrower. But your articulation of the test to us that you use the words change the boundaries of sentencing law. Well, we have circuit decisions that change the boundaries of sentencing law all the time. You say, well, it's only a statutory change in the boundaries of sentencing law. But no, this was a decisional change in the boundaries of sentencing law from harp to summons. So what is the limiting principle to the phrase that you just used? If any change in the boundaries of sentencing law, including a change in circuit decisional law, is going to open up the savings clause, I realize the term parade of harbors and floodgate is used far too promiscuously. But here it's a real concern, and there's no formulation that I've heard that alleviates the concern. Perhaps you can narrow the phrase changes in the boundaries of sentencing law for me. Well, I think that it's changes in the statutory boundaries, because that implicates the fundamental separation of powers concerned at the heart of the definition of crimes. How is this a statutory change when we move from harp to summons? It's an interpretation of the statute. Congress all along. But that happens all the time, and why wouldn't the guidelines have a force of statute? And there can be a change in interpretation of guidelines, and is that going to bring the savings clause into play? No, because the guidelines don't set the statutory boundaries of punishment. But they certainly made their advisory, I recognize, but they certainly set the boundaries of punishment. Well, they don't set the boundaries of punishment, Judge Wilkinson, because a court has the obligation to apply Section 3553A, consider the guidelines and impose a sentence that is sufficient but not greater than necessary to achieve the purposes of punishment within the boundaries that Congress has set. The problem in this case is that the court never operated within the boundaries that Congress set because of an error in law that was later corrected in summons, but that represented the interpretation of the statute from day one. The court believed that it had no sentencing discretion whatsoever, that the only punishment that was available was mandatory life. Mr. Dreeben, I understand, and I'm sympathetic to the fact that you don't like the length of a sentence here. I don't like the life sentence here either. I don't like it. I'm with you on that. And I understand that you don't like mandatory minimums. I don't like them either. I'm with you on that. I just wonder whether this raises the question of hard cases making bad law because to get where you want to go, you have to sweep away so many of the prerequisites to access and hold on a second to a second or successive motion. And you have to take all those limitations in 2255 H and say they don't apply here and this is really opening things up. I agree with that. And that's why it's like you to be able to see if you can address them. So I don't think that it is opening up. First of all, we have had a jurisprudence for more than a decade, decade and a half, that has recognized that when an intervening change in statutory law produces the conclusion that the person has been convicted of something that has not been applied. This wasn't an intervening change in statutory law. It was an interpretive change. So there's a difference, Mr. Dreeben. Well, Judge Wilkinson, I think that what was going on in Jones and all the other cases was a change in the interpretation of the law that corrected previous errors. When the Supreme Court in- Yes. The factual innocence of the crime. Yes. Almost uniformly. Yes. I agree with that. And that, I think, is the novelty of this case. We submit that there is a logical and limited extension of the Jones principle from cases in which the reinterpretation of this statute establishes. How do you go from factual innocence to sentence in your factual innocence of the offense, to sentence in your, and say this is a logical and limited extension of Jones? It's not. It's a quantum leap. I don't think it is a quantum leap. I mean, in both cases, what you're assessing is what did Congress intend to be punished and how did it intend to be punished? We've got to start right there with that proposition

. May I please the Court, Eric Amaley representing the National Association of Criminal Defense Lawyers, Amicus in support of Mr. Sarrat. In addition to the reasons given by the United States and Mr. Sarrat, the interpretation of the savings clause that they advance should be adopted under the canon of constitutional avoidance, because a contrary interpretation would raise serious constitutional concerns. As many courts have recognized, one of the purposes of the savings clause is precisely to avoid any doubt as to the constitutionality of 20255, making application of the canon particularly crucial to a cracked interpretation of the clause here. Interpreting the savings clause to prohibit recourse to a habeas corpus from mandatory minimums that were wrongfully imposed under erroneous statutory interpretations required by binding precedent at the time of the prisoner's 20255 motion raises a number of serious constitutional questions, including under the due process clause and the separation of power doctrine. First, the interpretation raises serious questions under the due process clause, pursuant to the Supreme Court's decision. How would that differ from all the decisions after a book that decided the imposition of sentence when the guidelines were mandatory, does not constitutionally offensively? Your Honor, the difference there in booker is that you don't have a substantive fundamental defect because well booker held that the sentencing guidelines were not mandatory, the sentencing guidelines would still remain substantively the same. And so in the applicability that are the extent to which they would bind the courts was completely different. Yes, the extent to which they would bind the courts was completely different, but they would remain in place as advisory and in the majority of circumstances, they still would have been followed as advisory. And for that reason, courts held that- Do you mean post booker or after booker? For people who are sentenced pre-booker, the holdings that the booker was not retroactive, requiring all those people to be resensed. A lot of the reasoning behind that was because in most of the cases, the same sentences would have been imposed. Hereby contrast Miller held that Simmons was a retroactively applicable decision because substantively, it changed the punishments that could be imposed for a class of defendants due to their status or offense. And that's because it alters the mandatory minimum sentences applicable to the crime. And in that way, it's much more like Hicks v. Oklahoma where the Supreme Court said that if the sentencer is wrongly stripped of discretion due to a mandatory minimum error, that does raise due process concerns because the defendant has a liberty and trust in the exercise of that statutorily provided discretion. So Ms. Maley, let me make sure that I understand what you're saying. Are you saying then that under the principle of constitutional avoidance, the relief available to someone in Sarat's procedural position is essentially the same as a first-time file or under 2255. But that is required to give the first to give him exactly the same relief that would be available had he been a first-time file or under 2255. I believe that's correct, Your Honor, to give him essentially that because he hasn't had previously a meaningful opportunity to have those rights vindicated and as would ordinarily be the case in 2255, that raises the serious constitutional concerns and to put him in that position as though his, the claim had not been foreclosed by precedent would redress that those constitutional actions. Does that just become a new rule on retroactivity of application cases in that the nut affect of it? Retroactivity? Retroactivity, we have rules on retroactivity. Doesn't this nap a new rule on retroactivity? No, Your Honor, because it would only apply to rules that are retroactive. If you had an instance such as Booker, as we were discussing, where the rule is not retroactive, then the savings clause would not be triggered and we would not have those constitutional concerns, but to have a rule that is retroactive as Simmons is retroactive and still to not give any, the defendants in that position, any chance to raise that. Is that an extension in scope of that retroactivity then? No, Your Honor. I would say it's- Because those people can't raise it otherwise, it's my point. If I may respond, it's not an extension in retro- I said of the scope. I said of the scope. It would be an extension of the consequences one might say in finding a rule retroactive, but the rule would have to be retroactive under the teeth doctrine before it would trigger the savings clause. Thank you very much. Mr. Drieven. Thank you, Chief Judge Traxler, and may it please the court. I'd like to start where Judge Wilkinson began the discussion, which is, what is the scope of the rule that's had issued for this court and what are the implications for finality? In the government's view, this case implicates a very narrow but important and logical extension. Of the doctrine of this court's decision in Inri Jones, which represents essentially the law in nine circuits, one circuit disagreeing. And that is when an intervening decision has fundamentally altered the substance of the criminal law by either altering the definition of the crime or changing the boundaries of punishment. It has worked a significant- I don't know what those circuits have limited their decision to cases of actual innocence of the crime or legal innocence. Isn't that correct? Judge A. G., I think that the only two courts that have squarely addressed this situation where a statutory ruling was incorrect as to the boundaries of sentencing authority. Both of those circuits, the 11th and the 7th circuits have found that there is a cognizable claim under the savings clause. I will certainly grant that there is language in several of the issues. The issue in all the other cases was, and I think the 11th circuit, the on-bomb, 11th circuit case is a little bit different. We talk about that later because that raises a whole different set of issues. But all those other cases were actual innocence of the crime cases, or they were, like Jones, a derivative of the Supreme Court decision on use of a firearm. So the cases that have granted relief are much like in Regions in the sense that the Supreme Court or a Court of Appeals had reinterpreted a statute that defined the elements of the crime in a way that was narrower. But your articulation of the test to us that you use the words change the boundaries of sentencing law. Well, we have circuit decisions that change the boundaries of sentencing law all the time. You say, well, it's only a statutory change in the boundaries of sentencing law. But no, this was a decisional change in the boundaries of sentencing law from harp to summons. So what is the limiting principle to the phrase that you just used? If any change in the boundaries of sentencing law, including a change in circuit decisional law, is going to open up the savings clause, I realize the term parade of harbors and floodgate is used far too promiscuously. But here it's a real concern, and there's no formulation that I've heard that alleviates the concern. Perhaps you can narrow the phrase changes in the boundaries of sentencing law for me. Well, I think that it's changes in the statutory boundaries, because that implicates the fundamental separation of powers concerned at the heart of the definition of crimes. How is this a statutory change when we move from harp to summons? It's an interpretation of the statute. Congress all along. But that happens all the time, and why wouldn't the guidelines have a force of statute? And there can be a change in interpretation of guidelines, and is that going to bring the savings clause into play? No, because the guidelines don't set the statutory boundaries of punishment. But they certainly made their advisory, I recognize, but they certainly set the boundaries of punishment. Well, they don't set the boundaries of punishment, Judge Wilkinson, because a court has the obligation to apply Section 3553A, consider the guidelines and impose a sentence that is sufficient but not greater than necessary to achieve the purposes of punishment within the boundaries that Congress has set. The problem in this case is that the court never operated within the boundaries that Congress set because of an error in law that was later corrected in summons, but that represented the interpretation of the statute from day one. The court believed that it had no sentencing discretion whatsoever, that the only punishment that was available was mandatory life. Mr. Dreeben, I understand, and I'm sympathetic to the fact that you don't like the length of a sentence here. I don't like the life sentence here either. I don't like it. I'm with you on that. And I understand that you don't like mandatory minimums. I don't like them either. I'm with you on that. I just wonder whether this raises the question of hard cases making bad law because to get where you want to go, you have to sweep away so many of the prerequisites to access and hold on a second to a second or successive motion. And you have to take all those limitations in 2255 H and say they don't apply here and this is really opening things up. I agree with that. And that's why it's like you to be able to see if you can address them. So I don't think that it is opening up. First of all, we have had a jurisprudence for more than a decade, decade and a half, that has recognized that when an intervening change in statutory law produces the conclusion that the person has been convicted of something that has not been applied. This wasn't an intervening change in statutory law. It was an interpretive change. So there's a difference, Mr. Dreeben. Well, Judge Wilkinson, I think that what was going on in Jones and all the other cases was a change in the interpretation of the law that corrected previous errors. When the Supreme Court in- Yes. The factual innocence of the crime. Yes. Almost uniformly. Yes. I agree with that. And that, I think, is the novelty of this case. We submit that there is a logical and limited extension of the Jones principle from cases in which the reinterpretation of this statute establishes. How do you go from factual innocence to sentence in your factual innocence of the offense, to sentence in your, and say this is a logical and limited extension of Jones? It's not. It's a quantum leap. I don't think it is a quantum leap. I mean, in both cases, what you're assessing is what did Congress intend to be punished and how did it intend to be punished? We've got to start right there with that proposition. And there's the fundamental question that brings the judicial choice to us right now. What you just said right then, if you're going to take the fact that when a court decision is made, it interprets the law of Congress as it is. And then later on, it's decided the word I would use is wrong, that was wrong. That effectively means a man's liberty. It was given by that court decision more. It used to be a big thing in terms of liberty of a human being. We're not talking about a court decision that says that he should have gotten more. He could have gotten the same. We're talking about some court decision that says it was wrong to give this man a longer term of period under that law. He could have gotten it, but you got to do it in a different law. That's the fundamental difference if we're going to stop with this. You've got to deal with that premise right there, the effect of what Simmons was in the light of Hawk. Because if you're going to accept that all Hawk was, we were just doing our job. And we just made a mistake and so what? Some of the men of Greece, we made a mistake. Defended degrees, we made a mistake. The court doesn't like the fact it's getting ready to do some more work. So let's look at the procedural rules and stick to them right to the T and make sure we don't get a floodgate of work based upon an interpretation. We made wrong in terms of existing congressional law. That's the exact law it was when this man was sentenced. So I agree, Judge Wynn, that the point of retroactivity doctrine is to establish what new decisions will be applicable on collateral review. And it is well settled that substantive criminal law decisions are retroactive. I think that that answers the question about when the error occurred and whether a change in law somehow unsettles past practices. Retroactivity answers the question. There are retroactive applications, but the problem is when you have words as open-ended as inadequate or ineffective, you can let retroactivity doctrines run riot and Congress address the specific question of retroactivity for second or successive motions. And it addressed it in H2 and retroactivity applies to a new rule of constitutional law. This is not a new rule of constitutional law. It has been made retroactive to cases on collateral review by the Supreme Court. And this has not been made retroactive by the Supreme Court. And Congress has laid down the conditions for retroactivity in 22255 age. And this is not one of them. That is correct. And this is not in 2255 HK. That is correct. Both of those points are correct. And I think that this court confronted in the Jones case how does 2255 H interact with 2255 EW, which Congress did not abrogate when it passed the AEDPA. And the conclusion is that under certain very limited circumstances, the circumstances that I have described. Could you go ahead? Go ahead. You haven't really called us any limiting. Well, I think you're the chance to do so. Yeah. He's been trying. I appreciate the opportunity. And let me try to get that right. No way. Judge Duck and you have a question. I forgot. I'm trying to try to try to. Let me take a more pass. It's my turn. I was interested in the dialogue that was beginning when Judge Mott's followed up on Judge Wilkinson, because I share the concern that I think you keep trying to get to, which would help me an awful lot, about the limiting principle. Because I had read in red Jones, it's being very helpful that the limiting principle was, if there were a case of involving actual innocence. And I believe, if I understand, if I understood it correctly, Ms. Hester was beginning to answer a question with, by referencing the very unique characteristics of mandatory life without parole. And I was not entirely sure, and you may not be either, but you're in front of me, so I'm going to ask you. Is that one of the limiting principles you foresee? And if so, how do, what text do we rely on as support for your premise that that is, in fact, such a limiting principle? Judge Duncan, my limiting principle is, as I tried to state it, at the beginning of the argument, intervening decisions of statutory construction that alter the substantive criminal law, either the definition of the offense or the boundaries of punishment. So, whenever there is a change, so it- This is not a broad rule. This is a narrow- Well, actually, I think that remains open to question whether it's a broad rule. It could be very broad, if there is an instance in which a court goes on-bought and decides that a prior existing interpretation of the same statute is incorrect. So, if your only limitation is, every time we change the parameters of a sentence, that's a lot broader than I think Joan supports. Well, I wouldn't put it that way, Judge Duncan. It's not every time it changes the parameters of a sentence. That seems to me fairly vague. I am- Well, I'm sorry your response seemed to me pretty vague. No, my apologies, Your Honor. I am not critical of the test that you're discussing. What I'm trying to do is make it a little bit more precise. Thank you. And the precision that I am putting into it is perhaps best done by explaining how I think the movement from Joan's to the sentencing cases is important. No, actually, just a test would be fine. All right. Well, the test, as I have articulated, is an intervening decision of statutory construction that alters the substance of the criminal law by redefining the offense or establishing that a minimum or a maximum was erroneously implied. And this is why- And do you equate that to being a fundamental defect or a disparity justice? Yes, I do think that it is a fundamental defect. And I think that it is retroactively applicable as a decision of substantive law. It's very different from the multitude of procedural decisions that the Court confronts. It's not like a guidelines claim. This was a statutory directive on what the mandatory minimum would be, other cases it could be, what the maximum would be. And the way that courts have looked at this, and I think Judge A.G. has a very apt point that most of the cases in this area have involved actual innocence. But when the 11th Circuit in the Bryant case looked at an instance in which, in erroneous statutory interpretation had resulted in a man being sentenced above the correct maximum as properly understood, that that equally implicated a fundamental concern of justice because at that point- Where do you get that from the statute? I mean, that's- I mean, that's a lovely parareration, but where is that in the statute? I mean, if you look at the actual statute, doesn't the specific control the general and the actual statute in 2255 H is the specific here, and it controls second or successive motions? And if we allow the words inadequacy and ineffectiveness to simply supplant, Congress is very specific, um, directives about second or successive motions, we're off to the races. And, you know, it- it struck me that your statement, frankly, was a statement of policy against sentences that are too strict and against mandatory minimums. I agree with- with that as a matter of policy, but I do not understand why the- how the words you've used in this argument come out of the statute. That test that you've articulated is nowhere to be found in the statute. So I am trying to reconcile the fact that Congress left in the statute 2255 E and enacted 2255 H with the fact that this Court, as well as most other courts, have recognized that 2255 H is not exhaustive because if it were a case of a man like Mr. Jones, who's in jail for something that is- turns out not to be a crime, has no avenue of relief if he's previously filed a 2255. In this Court and the other courts that looked at it concluded that the presence in the statute of 2255 E afforded the Court's latitude in a narrow range of cases to provide relief even though 2255 H does not. But in this question, in this case, you want to read 20- the savings clause as directly contradicting 2255 H. 2255 H limits application for a successive to a new rule of constitutional law made retroactive by the Supreme Court. So you now want to say, but the exception is if there's a new rule of circuit law, a new rule of sentencing law made retroactive by a circuit court. So you're speaking directly to the language that is included in H and saying the exception now counter-man's that. This isn't something in a different kind like actual innocence of a crime. This is a situation where you're suggesting the exception directly overwooled the specific because your couching of the exception is in this sense a sentencing error made retroactive by a circuit court

. And there's the fundamental question that brings the judicial choice to us right now. What you just said right then, if you're going to take the fact that when a court decision is made, it interprets the law of Congress as it is. And then later on, it's decided the word I would use is wrong, that was wrong. That effectively means a man's liberty. It was given by that court decision more. It used to be a big thing in terms of liberty of a human being. We're not talking about a court decision that says that he should have gotten more. He could have gotten the same. We're talking about some court decision that says it was wrong to give this man a longer term of period under that law. He could have gotten it, but you got to do it in a different law. That's the fundamental difference if we're going to stop with this. You've got to deal with that premise right there, the effect of what Simmons was in the light of Hawk. Because if you're going to accept that all Hawk was, we were just doing our job. And we just made a mistake and so what? Some of the men of Greece, we made a mistake. Defended degrees, we made a mistake. The court doesn't like the fact it's getting ready to do some more work. So let's look at the procedural rules and stick to them right to the T and make sure we don't get a floodgate of work based upon an interpretation. We made wrong in terms of existing congressional law. That's the exact law it was when this man was sentenced. So I agree, Judge Wynn, that the point of retroactivity doctrine is to establish what new decisions will be applicable on collateral review. And it is well settled that substantive criminal law decisions are retroactive. I think that that answers the question about when the error occurred and whether a change in law somehow unsettles past practices. Retroactivity answers the question. There are retroactive applications, but the problem is when you have words as open-ended as inadequate or ineffective, you can let retroactivity doctrines run riot and Congress address the specific question of retroactivity for second or successive motions. And it addressed it in H2 and retroactivity applies to a new rule of constitutional law. This is not a new rule of constitutional law. It has been made retroactive to cases on collateral review by the Supreme Court. And this has not been made retroactive by the Supreme Court. And Congress has laid down the conditions for retroactivity in 22255 age. And this is not one of them. That is correct. And this is not in 2255 HK. That is correct. Both of those points are correct. And I think that this court confronted in the Jones case how does 2255 H interact with 2255 EW, which Congress did not abrogate when it passed the AEDPA. And the conclusion is that under certain very limited circumstances, the circumstances that I have described. Could you go ahead? Go ahead. You haven't really called us any limiting. Well, I think you're the chance to do so. Yeah. He's been trying. I appreciate the opportunity. And let me try to get that right. No way. Judge Duck and you have a question. I forgot. I'm trying to try to try to. Let me take a more pass. It's my turn. I was interested in the dialogue that was beginning when Judge Mott's followed up on Judge Wilkinson, because I share the concern that I think you keep trying to get to, which would help me an awful lot, about the limiting principle. Because I had read in red Jones, it's being very helpful that the limiting principle was, if there were a case of involving actual innocence. And I believe, if I understand, if I understood it correctly, Ms. Hester was beginning to answer a question with, by referencing the very unique characteristics of mandatory life without parole. And I was not entirely sure, and you may not be either, but you're in front of me, so I'm going to ask you. Is that one of the limiting principles you foresee? And if so, how do, what text do we rely on as support for your premise that that is, in fact, such a limiting principle? Judge Duncan, my limiting principle is, as I tried to state it, at the beginning of the argument, intervening decisions of statutory construction that alter the substantive criminal law, either the definition of the offense or the boundaries of punishment. So, whenever there is a change, so it- This is not a broad rule. This is a narrow- Well, actually, I think that remains open to question whether it's a broad rule. It could be very broad, if there is an instance in which a court goes on-bought and decides that a prior existing interpretation of the same statute is incorrect. So, if your only limitation is, every time we change the parameters of a sentence, that's a lot broader than I think Joan supports. Well, I wouldn't put it that way, Judge Duncan. It's not every time it changes the parameters of a sentence. That seems to me fairly vague. I am- Well, I'm sorry your response seemed to me pretty vague. No, my apologies, Your Honor. I am not critical of the test that you're discussing. What I'm trying to do is make it a little bit more precise. Thank you. And the precision that I am putting into it is perhaps best done by explaining how I think the movement from Joan's to the sentencing cases is important. No, actually, just a test would be fine. All right. Well, the test, as I have articulated, is an intervening decision of statutory construction that alters the substance of the criminal law by redefining the offense or establishing that a minimum or a maximum was erroneously implied. And this is why- And do you equate that to being a fundamental defect or a disparity justice? Yes, I do think that it is a fundamental defect. And I think that it is retroactively applicable as a decision of substantive law. It's very different from the multitude of procedural decisions that the Court confronts. It's not like a guidelines claim. This was a statutory directive on what the mandatory minimum would be, other cases it could be, what the maximum would be. And the way that courts have looked at this, and I think Judge A.G. has a very apt point that most of the cases in this area have involved actual innocence. But when the 11th Circuit in the Bryant case looked at an instance in which, in erroneous statutory interpretation had resulted in a man being sentenced above the correct maximum as properly understood, that that equally implicated a fundamental concern of justice because at that point- Where do you get that from the statute? I mean, that's- I mean, that's a lovely parareration, but where is that in the statute? I mean, if you look at the actual statute, doesn't the specific control the general and the actual statute in 2255 H is the specific here, and it controls second or successive motions? And if we allow the words inadequacy and ineffectiveness to simply supplant, Congress is very specific, um, directives about second or successive motions, we're off to the races. And, you know, it- it struck me that your statement, frankly, was a statement of policy against sentences that are too strict and against mandatory minimums. I agree with- with that as a matter of policy, but I do not understand why the- how the words you've used in this argument come out of the statute. That test that you've articulated is nowhere to be found in the statute. So I am trying to reconcile the fact that Congress left in the statute 2255 E and enacted 2255 H with the fact that this Court, as well as most other courts, have recognized that 2255 H is not exhaustive because if it were a case of a man like Mr. Jones, who's in jail for something that is- turns out not to be a crime, has no avenue of relief if he's previously filed a 2255. In this Court and the other courts that looked at it concluded that the presence in the statute of 2255 E afforded the Court's latitude in a narrow range of cases to provide relief even though 2255 H does not. But in this question, in this case, you want to read 20- the savings clause as directly contradicting 2255 H. 2255 H limits application for a successive to a new rule of constitutional law made retroactive by the Supreme Court. So you now want to say, but the exception is if there's a new rule of circuit law, a new rule of sentencing law made retroactive by a circuit court. So you're speaking directly to the language that is included in H and saying the exception now counter-man's that. This isn't something in a different kind like actual innocence of a crime. This is a situation where you're suggesting the exception directly overwooled the specific because your couching of the exception is in this sense a sentencing error made retroactive by a circuit court. And yet the statute says it has to be a constitutional principle made retroactive by the Supreme Court. I think if that reading of 2255 H takes you to the point where a man like Mr. Jones stays in jail for the rest of his life for a non-crime. And this court rejected that and it concluded that 2255 E which is also part of the statute. You see the state that you just made doesn't follow in this case either. That's very telling about the breadth. In this case he remains guilty of the crime. There's no question about it. And not only that, the range of his sentence is 20 years the life. And so we're not talking about a man who's actually innocent, which is different and kind from H. Well, I don't think all that's going to be taken the very formulation of H and changing the words. It's not different from H because H1 provides for claims of actual innocence based on newly discovered evidence. So Congress did address some circumstances that it thought were compelling reasons to allow a second or successive petition, but it did not address intervening changes in statutory construction decisions. And that's the foundation stone of the courts analysis in Treesman, Dorsenville, Davenport, Jones, all of the cases that have recognized that an intervening decision of statutory construction presents a situation that 2255 H did not address. It did address it because it indicated when changes in law should be accorded retroactive effect. So I think Judge Wilkinson that does address it quite specifically. It addresses the whole question of changes, the very thing we're talking today. When should a change of law be accorded retroactive effect? And notwithstanding the fact that Congress has addressed this Judge Neemire points out, that particular question before us today with extraordinary precision and specificity. We're going to overrule that specific directive and embark on some journey on the rules of inadequate and ineffective, which we're going to be litigating that. We're going to be litigating inadequacy and ineffective and what are the exceptions to the retroactivity set forth by 2255 H. We're going to be litigating the question of when is something for close. This is just, it's putting the entire criminal process on the back end to the neglect of cases on the front end. It is a major change and shift of emphasis on what our Constitution has put forward, which is if you read the Constitution its emphasis is on trial and on the front end of the criminal justice process. And your interpretation shifts the front end emphasis of our Constitution on trial and direct appeal and puts it more and more on endless successive reviews of collateral attack. That is a sea change you're proposing to us. Can I explain I think that there's a legal and a practical answer to that. The legal answer. I'm really trying to understand the legal argument here. I got policy and practical implications in the sea changes. I really want to hear this argument that you're connecting up the sections of 2255 and how it is to be interpreted in light of the cases here. That needs to be a focus here. And then we'll deal with the practical implications if we have to because we don't have a choice if the law tells us to do. Let me start then with the legal framework here. The Supreme Court's decision in McQuigain versus Perkins I think is very illuminating on the degree to which Congress's specification of one procedure in 2255 or 2254 excludes judicial recognition of other procedures that are in the same general domain. McQuigain's involved the question of whether there was a judge made actual innocence exception that could apply to the statute of limitations and the argument that was made in descent against that is much like the argument that's been made here today the 2255H occupies the field. There are two other provisions in the ADPA that specifically addressed actual innocence. One of them told the one of them allowed a seconder successive motion the other one allowed a new evidentiary hearing and the argument in the descent was by focusing on actual innocence in that way the ADPA had eliminated any further judicial craftsmanship to apply actual innocence as an exception. The majority rejected that and it read the ADPA in context and we think that the same approach is appropriate for H. It does definitely occupy field for new decisions of constitutional law that are to be applied retroactively. That's what is addressed in H.2 and it occupies the field with respect to new claims of factual innocence but it doesn't address statutory claims at all and that leaves an interpretive question. The reason it doesn't address them is because it didn't want them to be accorded a statutory effect. The old rule is inclusive one, exclusive the other. I think the current Congress includes one thing as being a courting retroactive effect under the most elemental interpretations of the statute. It did not mean to include the other. It could have broadened, but it did not. Why doesn't it include CO1, exclusive the other apply here? That was the exact argument that Justice Scalia made in descent in Perkins that the ADPA should be read by specifying certain pathways for relief to exclude others. And the Supreme Court majority rejected that approach and recognized that there is more latitude in the statute to apply doctrine. In that case, wasn't it dealing with questions of actual innocence, factual evidence? It was. All right. Well, this is different, is it not? True, but if you concede Judge Wilkinson that a person who is actually innocent under an statutory reinterpretation may go over to 2255E and obtain relief, then that refutes the argument that the 2255H is exclusive. That is my only point here. It's that you cannot have it both ways. Either a person can get to 2255. It's not a exclusive in a general sense, but in this case, Congress addressed the specific formulation you are making for the exception. When you stood up to argue, you made a formulation for the exception under the savings clause, under E, that was directly conflicting with the language in H. You changed it from the Supreme Court to the Circuit Court, and you changed it from constitutional law to statutory change of sentencing law. And it seems to me that formulation just obliterates H. And you wouldn't read an exception to that obliterate. You'd read an exception that accommodates the limitation and goes somewhere else if we didn't cover it. And actual innocence has been held to be the one narrow exception in Jones. But I think the danger is we now, anybody who finds a sentencing change is going to come under 2241 and ask us for a change. I think that that's not really a likely result. I can't just say that's not true. Well, you can just say that's not true. I mean, you can just say that's not true. I know you're hard to say, but it's not true. Because it has to be retroactive. A lot of things that, E, you can't read it out of existence. It has to be both retroactive and cognizable on collateral review. And virtually nothing is other than constitutional change. What would you say is going to be retroactive and cognizable on by that? I think it's the 11th Circuit case, which I think is Williams and may have the name wrong, where it would seem like your argument. And the principle as you describe it is limiting. It sets up the actual situation, where as in that case, the petitioner brings this claim in the District Court in the 5th Circuit. It's denied. It's reviewed by the 5th Circuit. It's denied later in the Circuit of his incarceration, a different circuit. The issue comes up and the Circuit applies a different law in the directs of the District Court and that District to apply this law, which may require it to then counterman the District Court in the 5th Circuit, which is relying on its Circuit. So it seems like me you set this conflict up, may not apply in this case that we have here, but it certainly does apply in the real world, where you have the circuits and effect at war over the same case with the same parties or the same petitioner. And an extremely rare event that might happen, but I think my answer to that case. The Webster case involved disagreements potentially over what the facts were in those cases. I don't actually think it was a legal disagreement, but it hasn't been, I see all of these cases nationwide. I haven't seen the practical problems. Is your rule, will your rule, the two pronounced today, be redefined by the next harsh case or case with the harsh result that doesn't fit your rule? No. The rule that I'm talking about. You're speaking for yourself, but he's speaking for the government. I'm speaking for the government. I think we all know that I can't speak for the future, but I am describing the rule that the government believes is the correct one that addresses a fundamental defect that is narrowly defined. And you said non-crime. That's great. What is the non-crime? You mean the synodition? So, I think I need to back up and try to explain why I think this kind of sentence and claim is included. We start from the premise that a person who has been convicted under an interpretation of a statute that is too broad and that is later corrected back to where it should be is actually innocent of an offense

. And yet the statute says it has to be a constitutional principle made retroactive by the Supreme Court. I think if that reading of 2255 H takes you to the point where a man like Mr. Jones stays in jail for the rest of his life for a non-crime. And this court rejected that and it concluded that 2255 E which is also part of the statute. You see the state that you just made doesn't follow in this case either. That's very telling about the breadth. In this case he remains guilty of the crime. There's no question about it. And not only that, the range of his sentence is 20 years the life. And so we're not talking about a man who's actually innocent, which is different and kind from H. Well, I don't think all that's going to be taken the very formulation of H and changing the words. It's not different from H because H1 provides for claims of actual innocence based on newly discovered evidence. So Congress did address some circumstances that it thought were compelling reasons to allow a second or successive petition, but it did not address intervening changes in statutory construction decisions. And that's the foundation stone of the courts analysis in Treesman, Dorsenville, Davenport, Jones, all of the cases that have recognized that an intervening decision of statutory construction presents a situation that 2255 H did not address. It did address it because it indicated when changes in law should be accorded retroactive effect. So I think Judge Wilkinson that does address it quite specifically. It addresses the whole question of changes, the very thing we're talking today. When should a change of law be accorded retroactive effect? And notwithstanding the fact that Congress has addressed this Judge Neemire points out, that particular question before us today with extraordinary precision and specificity. We're going to overrule that specific directive and embark on some journey on the rules of inadequate and ineffective, which we're going to be litigating that. We're going to be litigating inadequacy and ineffective and what are the exceptions to the retroactivity set forth by 2255 H. We're going to be litigating the question of when is something for close. This is just, it's putting the entire criminal process on the back end to the neglect of cases on the front end. It is a major change and shift of emphasis on what our Constitution has put forward, which is if you read the Constitution its emphasis is on trial and on the front end of the criminal justice process. And your interpretation shifts the front end emphasis of our Constitution on trial and direct appeal and puts it more and more on endless successive reviews of collateral attack. That is a sea change you're proposing to us. Can I explain I think that there's a legal and a practical answer to that. The legal answer. I'm really trying to understand the legal argument here. I got policy and practical implications in the sea changes. I really want to hear this argument that you're connecting up the sections of 2255 and how it is to be interpreted in light of the cases here. That needs to be a focus here. And then we'll deal with the practical implications if we have to because we don't have a choice if the law tells us to do. Let me start then with the legal framework here. The Supreme Court's decision in McQuigain versus Perkins I think is very illuminating on the degree to which Congress's specification of one procedure in 2255 or 2254 excludes judicial recognition of other procedures that are in the same general domain. McQuigain's involved the question of whether there was a judge made actual innocence exception that could apply to the statute of limitations and the argument that was made in descent against that is much like the argument that's been made here today the 2255H occupies the field. There are two other provisions in the ADPA that specifically addressed actual innocence. One of them told the one of them allowed a seconder successive motion the other one allowed a new evidentiary hearing and the argument in the descent was by focusing on actual innocence in that way the ADPA had eliminated any further judicial craftsmanship to apply actual innocence as an exception. The majority rejected that and it read the ADPA in context and we think that the same approach is appropriate for H. It does definitely occupy field for new decisions of constitutional law that are to be applied retroactively. That's what is addressed in H.2 and it occupies the field with respect to new claims of factual innocence but it doesn't address statutory claims at all and that leaves an interpretive question. The reason it doesn't address them is because it didn't want them to be accorded a statutory effect. The old rule is inclusive one, exclusive the other. I think the current Congress includes one thing as being a courting retroactive effect under the most elemental interpretations of the statute. It did not mean to include the other. It could have broadened, but it did not. Why doesn't it include CO1, exclusive the other apply here? That was the exact argument that Justice Scalia made in descent in Perkins that the ADPA should be read by specifying certain pathways for relief to exclude others. And the Supreme Court majority rejected that approach and recognized that there is more latitude in the statute to apply doctrine. In that case, wasn't it dealing with questions of actual innocence, factual evidence? It was. All right. Well, this is different, is it not? True, but if you concede Judge Wilkinson that a person who is actually innocent under an statutory reinterpretation may go over to 2255E and obtain relief, then that refutes the argument that the 2255H is exclusive. That is my only point here. It's that you cannot have it both ways. Either a person can get to 2255. It's not a exclusive in a general sense, but in this case, Congress addressed the specific formulation you are making for the exception. When you stood up to argue, you made a formulation for the exception under the savings clause, under E, that was directly conflicting with the language in H. You changed it from the Supreme Court to the Circuit Court, and you changed it from constitutional law to statutory change of sentencing law. And it seems to me that formulation just obliterates H. And you wouldn't read an exception to that obliterate. You'd read an exception that accommodates the limitation and goes somewhere else if we didn't cover it. And actual innocence has been held to be the one narrow exception in Jones. But I think the danger is we now, anybody who finds a sentencing change is going to come under 2241 and ask us for a change. I think that that's not really a likely result. I can't just say that's not true. Well, you can just say that's not true. I mean, you can just say that's not true. I know you're hard to say, but it's not true. Because it has to be retroactive. A lot of things that, E, you can't read it out of existence. It has to be both retroactive and cognizable on collateral review. And virtually nothing is other than constitutional change. What would you say is going to be retroactive and cognizable on by that? I think it's the 11th Circuit case, which I think is Williams and may have the name wrong, where it would seem like your argument. And the principle as you describe it is limiting. It sets up the actual situation, where as in that case, the petitioner brings this claim in the District Court in the 5th Circuit. It's denied. It's reviewed by the 5th Circuit. It's denied later in the Circuit of his incarceration, a different circuit. The issue comes up and the Circuit applies a different law in the directs of the District Court and that District to apply this law, which may require it to then counterman the District Court in the 5th Circuit, which is relying on its Circuit. So it seems like me you set this conflict up, may not apply in this case that we have here, but it certainly does apply in the real world, where you have the circuits and effect at war over the same case with the same parties or the same petitioner. And an extremely rare event that might happen, but I think my answer to that case. The Webster case involved disagreements potentially over what the facts were in those cases. I don't actually think it was a legal disagreement, but it hasn't been, I see all of these cases nationwide. I haven't seen the practical problems. Is your rule, will your rule, the two pronounced today, be redefined by the next harsh case or case with the harsh result that doesn't fit your rule? No. The rule that I'm talking about. You're speaking for yourself, but he's speaking for the government. I'm speaking for the government. I think we all know that I can't speak for the future, but I am describing the rule that the government believes is the correct one that addresses a fundamental defect that is narrowly defined. And you said non-crime. That's great. What is the non-crime? You mean the synodition? So, I think I need to back up and try to explain why I think this kind of sentence and claim is included. We start from the premise that a person who has been convicted under an interpretation of a statute that is too broad and that is later corrected back to where it should be is actually innocent of an offense. That was the Jones case. The next case, I think, in the sequence would be a person who has been sentenced to a punishment that is above the properly understood maximum. But is that a non-crime or is that a sinisting problem? Well, which do we have here? In a sinisting problem? This is a sentence in the same problem. But you're called a non-crime. Well, I call the non-criminal ones instances like the Jones case involving the application of the handling. In this case, I wouldn't call it a non-crime. I would say that equally fundamental to Congress's prerogatives that do not belong to the courts, but do belong to Congress, is to define the limits of punishment that an individual can get. And so when an individual has been sentenced, as I think I was trying to explain Judd Shed, in a circumstance where the correct maximum is ten years, but because of a judicial error and interpretation, everybody thinks that it's a minimum of 15 and a maximum of life, and the person is sentenced to 15 years. They're serving time that Congress never authorized. Is your rule in any way limited by mandatory life? Or that's just an application of your rule? That would be an application of the rule that it would be certainly within the courts prerogative to conclude that mandatory life presents a unique kind of defect and to treat this problem incrementally and not go further than it needs to, but are you not going to formulate it that way? Well, Judge Wilkinson, I'm trying to provide the Court what I think is the proper analytical path here, but I'm- And the government's position going forward so that we know what the consequences of the rule are. Yes, and we have had cases involving mandatory minimums that were not life in which the United States has gone to court and said, it's appropriate that this individual will be able to take advantage of a retroactive decision of statutory construction that establishes that there should have been judicial discretion there and there wasn't. Mr. Dredven, why wouldn't the picks and Miller and Montgomery line of cases be a sufficient rationale in the context of this light. In the case of a life imprisonment case without going further as you suggest to encompass all cases in which the mandatory, excuse me, the minimum or maximum was erroneously applied. Judge Canaan it would and I do think that you- But you don't have a problem with that because I think this Hester was suggesting that the difference between mandatory life without the rule and the ability of the fact finder to make that discretionary determination whether life is appropriate is a significant and fundamental defect when the fact finder is not given that ability. Absolutely. And so you'd be satisfied with that. I think that the Court can resolve it that way and it may be that it would be an appropriate incremental step to take. I will say that on behalf of the United States there are other people who have cases pending in district courts where they received improper mandatory minimums in light of their reinterpretation of the law. That's your language is precisely what makes me uncomfortable. You recognize it as a step in a sequence and an increment which cuts against to me your comforting and the fact that you are providing us with guidance because I don't know what your arguments or positions with respect to the next step in the sequence or the next increment are going to be. It makes perfect sense to me that I understood what Hester was saying about mandatory life without parole. I do not understand and derive no particular guidance from your formulation about your next incremental argument. Well, my primary argument is that if a decision alters the boundary of punishment by imposing a mandatory minimum that Congress did not prescribe because of a judicial error in construction that's later determined to be corrected and retroactive. That's the rule that I'm sponsoring but I acknowledge that and that I think is the limits. There's no incremental step beyond that. That's it. But if the court is concerned that it's better to look at this case as a unique case involving a unique and highly consequential error mandatory life when the statute really intended that the courts exercise discretion. Then I think that that's an appropriate step to take. Now I realize I've run over my time. I have one question on one. I think the answer can be simple. Would you agree that denying Sarat an avenue for relief would not constitute a suspension of the writ? We're not trying to trick you. I'm looking at your footnote. Yes. You stand still. We're not arguing that this is a constitutional violation that needs to be remedied or that the court needs to apply principles of constitutional avoidance in order to decide this case. We think that the statute left room in 2255 E for the court to remedy this narrow class of fundamental defects which I have perhaps unsuccessfully attempted to articulate. But that is what we think was left to the court to do the 2255 H did not totally occupy the field. If it did the court would have to overrule Jones. If the court tried to limit Jones to actual innocence, it needs a principle for doing that. My suggestion is that if the court analyzes what's at stake in this case, it's equally grave for an individual to suffer the rest of his life in prison with no opportunity for reliefs because of a judicial error that was later corrected. Thank you. All right. Let's hear if I'm Mr. Goldblatt. Thank you, Chief Justice Tracks. So I may please the Court. Let me just address one point which is tangential to the statutory construction which is going to control this case. But what is at stake here is not. If you do the rule against Mr. Sarat, it does not mean he's spending the rest of his life in jail. And I think that puts undue weight on the court and begins that there are two other branches of government that have powers in this area. 3582, the sentencing statute gives the government the discretion to go into the district court at the request of the Bureau of Prisons and request a reduction of sense in extraordinary circumstances. You argue that that's the saving aspect of the... No, no, let me finish. You argue that it's if that's the saving aspect of what Mr. Sarat faces in his sense. But our framers, they didn't leave it up to whether or not we have a good king or bad king. The whole protection, it was intended in terms of the great writ. The limitations in age and ultimate in 1996, it became so limited in the hunt for trying to have an effective death penalty and those type of things that it had done so that he was necessary to really save from being an effect, a suspension of the great writ. So, you know, so in that sense, why should we have to wait for the hand of mercy for another branch when it is before the branch that the framers intended to be to protect the great writ, and that's why he is there. The whole...most of the arguments that this morning has been about ancient, those kind of things, he was there to make sure you had taken so much away from it. If he wasn't there, it would be detrimental to the framers. So, I appreciate that somebody else may come along, but mercy is different than justice. And what you would encourage us to say is, okay to go ahead and let this through because somebody along the line is going to correct. As Carlisle said, the great Scottish historian in philosophy, he said, it's not to do what lies dimly at a distance, but to do what lies clearly at hand. And what is hand in terms of the statute, but not to wait for hope. So, I understand you start out that way as if there are somehow softens it because somebody else might do the right thing later on. No, that's not my point. What is your point? My point is, the great writ you're talking about, you could never get relief in this case because the fact that you were incarcerated pursuant to a conviction ended the matter. The only power the courts have to look at the constitutionally of the conviction was given to you by Congress. And Congress gave it to you and Congress can take it away. That's the fact that Congress can't suspend the writ. I was saying, on the very narrow circumstances. But this is not a suspension of the writ. I know it's not because that's what the saving clause does. That's what I disagree with. Felker versus Terpen said that the registered account of principles in Edba were not a suspension of the writ. Mr. Dreeben on behalf of the government says it's not a suspension of the writ. It's arguable that if they eliminated any second and successive review, it would not be a suspension of the writ. Because the reality is, Congress dictates what powers the court has. If the statute is clear and it is cutting off under 2255 age, review of retroactive claims to ones that are announced by the Supreme Court of the United States that are constitutional, it can do that. I don't like Edba. You know, we're talking about other things we don't like. I don't particularly like Edba

. That was the Jones case. The next case, I think, in the sequence would be a person who has been sentenced to a punishment that is above the properly understood maximum. But is that a non-crime or is that a sinisting problem? Well, which do we have here? In a sinisting problem? This is a sentence in the same problem. But you're called a non-crime. Well, I call the non-criminal ones instances like the Jones case involving the application of the handling. In this case, I wouldn't call it a non-crime. I would say that equally fundamental to Congress's prerogatives that do not belong to the courts, but do belong to Congress, is to define the limits of punishment that an individual can get. And so when an individual has been sentenced, as I think I was trying to explain Judd Shed, in a circumstance where the correct maximum is ten years, but because of a judicial error and interpretation, everybody thinks that it's a minimum of 15 and a maximum of life, and the person is sentenced to 15 years. They're serving time that Congress never authorized. Is your rule in any way limited by mandatory life? Or that's just an application of your rule? That would be an application of the rule that it would be certainly within the courts prerogative to conclude that mandatory life presents a unique kind of defect and to treat this problem incrementally and not go further than it needs to, but are you not going to formulate it that way? Well, Judge Wilkinson, I'm trying to provide the Court what I think is the proper analytical path here, but I'm- And the government's position going forward so that we know what the consequences of the rule are. Yes, and we have had cases involving mandatory minimums that were not life in which the United States has gone to court and said, it's appropriate that this individual will be able to take advantage of a retroactive decision of statutory construction that establishes that there should have been judicial discretion there and there wasn't. Mr. Dredven, why wouldn't the picks and Miller and Montgomery line of cases be a sufficient rationale in the context of this light. In the case of a life imprisonment case without going further as you suggest to encompass all cases in which the mandatory, excuse me, the minimum or maximum was erroneously applied. Judge Canaan it would and I do think that you- But you don't have a problem with that because I think this Hester was suggesting that the difference between mandatory life without the rule and the ability of the fact finder to make that discretionary determination whether life is appropriate is a significant and fundamental defect when the fact finder is not given that ability. Absolutely. And so you'd be satisfied with that. I think that the Court can resolve it that way and it may be that it would be an appropriate incremental step to take. I will say that on behalf of the United States there are other people who have cases pending in district courts where they received improper mandatory minimums in light of their reinterpretation of the law. That's your language is precisely what makes me uncomfortable. You recognize it as a step in a sequence and an increment which cuts against to me your comforting and the fact that you are providing us with guidance because I don't know what your arguments or positions with respect to the next step in the sequence or the next increment are going to be. It makes perfect sense to me that I understood what Hester was saying about mandatory life without parole. I do not understand and derive no particular guidance from your formulation about your next incremental argument. Well, my primary argument is that if a decision alters the boundary of punishment by imposing a mandatory minimum that Congress did not prescribe because of a judicial error in construction that's later determined to be corrected and retroactive. That's the rule that I'm sponsoring but I acknowledge that and that I think is the limits. There's no incremental step beyond that. That's it. But if the court is concerned that it's better to look at this case as a unique case involving a unique and highly consequential error mandatory life when the statute really intended that the courts exercise discretion. Then I think that that's an appropriate step to take. Now I realize I've run over my time. I have one question on one. I think the answer can be simple. Would you agree that denying Sarat an avenue for relief would not constitute a suspension of the writ? We're not trying to trick you. I'm looking at your footnote. Yes. You stand still. We're not arguing that this is a constitutional violation that needs to be remedied or that the court needs to apply principles of constitutional avoidance in order to decide this case. We think that the statute left room in 2255 E for the court to remedy this narrow class of fundamental defects which I have perhaps unsuccessfully attempted to articulate. But that is what we think was left to the court to do the 2255 H did not totally occupy the field. If it did the court would have to overrule Jones. If the court tried to limit Jones to actual innocence, it needs a principle for doing that. My suggestion is that if the court analyzes what's at stake in this case, it's equally grave for an individual to suffer the rest of his life in prison with no opportunity for reliefs because of a judicial error that was later corrected. Thank you. All right. Let's hear if I'm Mr. Goldblatt. Thank you, Chief Justice Tracks. So I may please the Court. Let me just address one point which is tangential to the statutory construction which is going to control this case. But what is at stake here is not. If you do the rule against Mr. Sarat, it does not mean he's spending the rest of his life in jail. And I think that puts undue weight on the court and begins that there are two other branches of government that have powers in this area. 3582, the sentencing statute gives the government the discretion to go into the district court at the request of the Bureau of Prisons and request a reduction of sense in extraordinary circumstances. You argue that that's the saving aspect of the... No, no, let me finish. You argue that it's if that's the saving aspect of what Mr. Sarat faces in his sense. But our framers, they didn't leave it up to whether or not we have a good king or bad king. The whole protection, it was intended in terms of the great writ. The limitations in age and ultimate in 1996, it became so limited in the hunt for trying to have an effective death penalty and those type of things that it had done so that he was necessary to really save from being an effect, a suspension of the great writ. So, you know, so in that sense, why should we have to wait for the hand of mercy for another branch when it is before the branch that the framers intended to be to protect the great writ, and that's why he is there. The whole...most of the arguments that this morning has been about ancient, those kind of things, he was there to make sure you had taken so much away from it. If he wasn't there, it would be detrimental to the framers. So, I appreciate that somebody else may come along, but mercy is different than justice. And what you would encourage us to say is, okay to go ahead and let this through because somebody along the line is going to correct. As Carlisle said, the great Scottish historian in philosophy, he said, it's not to do what lies dimly at a distance, but to do what lies clearly at hand. And what is hand in terms of the statute, but not to wait for hope. So, I understand you start out that way as if there are somehow softens it because somebody else might do the right thing later on. No, that's not my point. What is your point? My point is, the great writ you're talking about, you could never get relief in this case because the fact that you were incarcerated pursuant to a conviction ended the matter. The only power the courts have to look at the constitutionally of the conviction was given to you by Congress. And Congress gave it to you and Congress can take it away. That's the fact that Congress can't suspend the writ. I was saying, on the very narrow circumstances. But this is not a suspension of the writ. I know it's not because that's what the saving clause does. That's what I disagree with. Felker versus Terpen said that the registered account of principles in Edba were not a suspension of the writ. Mr. Dreeben on behalf of the government says it's not a suspension of the writ. It's arguable that if they eliminated any second and successive review, it would not be a suspension of the writ. Because the reality is, Congress dictates what powers the court has. If the statute is clear and it is cutting off under 2255 age, review of retroactive claims to ones that are announced by the Supreme Court of the United States that are constitutional, it can do that. I don't like Edba. You know, we're talking about other things we don't like. I don't particularly like Edba. I've been accused of taking a crab view of the statute. It's a crab statute. Mr. Goldblatt, you know, you're looking at 2255 age and then you compare it with E. Isn't it significant that Congress decided to leave intact these adjectives that the remedy by motion is inadequate or ineffective? Didn't that give the court some direction that the court still has to evaluate exactly what is being done in the case and how egregious the error has been, how fundamental the error has been, notwithstanding subsection age of the same statute? Let me make two responses. One, we have a historical analysis in our brief. That gives meaning to both inadequate and ineffective. It's the suspension clause and its practical problems, which were real in the evening. I agree with you. If we disagree with your historical analysis. If we disagree with the historical analysis, I think the way that most courts have dealt with this is to say, okay, we've got to give meaning to 2255 B. And the limiting principle that Judge Duncan was looking for is called actual innocence. That's the limiting principle. And that makes sure that you don't overrule 22. But where does that come from the language of the statute, actual innocence? Actual innocence comes more from the language of the courts. You've got the basic concept that is a habeas concept. Okay, because it's guarded from the statutory language in order to allow the relief of actual innocence, right? Yes, I don't know if it's in. So why is that departure permissible and no other departure, including life without parole, erroneously imposed? Our basic argument is even that limiting principle is questionable. We understand that. We understand. So we get by that and say, that's the only one you have left that you can manage. And it's interesting that Webster came up, because Webster is in the seventh circuit. It's the first one with Davenport that went down this road. In the middle of it, Judge Eastbrook was writing statements rather than he'd been asking for rehearing on Bonk because he knew he couldn't get it. Last year in 2015 in Webster, the seventh circuit kept the rule, but the vote was six to five. I were very interested in all that, but I would also be interested in your answer to my colleagues' question. Which is, where is the limiting principle? Well, no, you've been awarded from the language of the statute in acknowledging that Jones departs from the language of the statute, and accepting the premise that we're not going to do anything about Jones here. Well, I've asked you to do something. I'm assuming that one's off the table. I really should. But just a few minutes. I'll go ahead and do anything. I've got it. Right. Just a few minutes. We're not going to do anything about Jones then. Actual innocence is in anywhere in the statute. So why is nowhere in age? I think it's nowhere in age. So how does your argument that we have to, we've already departed from the statute. So don't we have to then decide in what instances it is appropriate or constitutionally mandated to depart from the statute rather than to simply say we're bound by the language? We've already departed from the language. You've departed from the language, but I think the departure from the language had limiting principles built into it. And the Court has always used actual innocence and said when using it as a judicial tool, don't stretch this. This is supposed to be kept rare. Even a case like McGwiggand, it beats it using it now. The reason it's there is because fundamentally in habeas terms, the concept of keeping someone in custody who has committed no wrongful act is at the core of what habeas is about. That's where actual innocence comes from. Wasn't that derived from T. The actual innocence. I'm not sure I'm following each other so I don't want to go down this route with you. It's going to get worse for me so I'm sorry. I just... No, no. It's a routine indicated that new rules of constitutional law were not to be retroactive, except into very basic ways. And one of those ways would seem to, one of those formulations would seem to incorporate a case where someone was found actually innocent. I think that's true. I mean, it's a fundamental concept. It's been a safety valve that's been used in a number of different contexts. No, actual innocence is a gateway to excuse procedural default. Actual innocence is a fairly recognized exception in the law. To excuse procedural defaults that were traditionally created. That's why McGwiggand was a much harder case because that's the first one to ever apply it to a statutory bar. I thought you were going to carry a little bit further the notion that the exception really was to allow this parallel statute, which is not a habeas statute, to accommodate the fuller procedure of a habeas statute when there's actual innocence. In other words, newly discovered evidence for actual innocence is addressed, but there may be other circumstances of actual innocence that are not addressed, and that's really where the core of habeas. But this statute is intended to put this whole procedure in the sentencing court and be parallel to the habeas statute. As I understand it, it was intended to be very parallel, and to the extent it didn't fulfill habeas, you still had that savings clause. I think that's true. It was designed to make sure that when habeas was moved from 2241 to 2255, it was intact. So there was a requirement, and that's why how Sanders got decided, and Davis, that you couldn't be construed 2255 to provide anything less than 2241. That's why when Edga was passed, Congress was very careful to make the restrictions on Second and Successive Review in overruling Sanders to apply to the habeas statute and 2255. So the parallel is there. They exercised their prerogative to limit the authority to consider Second and Successive petitions, and that was a main concern that led to Edga passing in the first place. And what the problem that you heard in the arguments from the other side is there's no limiting principle. There are attempting to use 2255E to essentially aggregate the primary reason why Edga was passed in the first place. And that can't be right. Maybe there's an argument for actual innocence. I'm not sure you even have to address it here, because this case is not about actual innocence. It's just not about it. I mean, it's been this type of claim. And the fact that it's a life sentence, I don't think it changes it, because if you look at, even when the Supreme Court extended actual innocence to the death penalty, it limited it to eligibility for the death penalty, not whether a jury would necessarily have found the death penalty anyway. It had to be eligibility. Right. The Supreme Court recently, in its cases, has been discussing the improper stripping of discretion in terms of life sentences, and that the sentencer should be that there's a due process violation. Yes, but that's also, as a matter of constitutional law, there's no, this is different in the sense that we're talking about whether review is prescribed by the habeas statute, not whether if you get review, how does it come out? So in other words, there was one case where it came through, and I'm, the name is slipping me for the second, where it came through on a first 2255, and there you might get relief for a Simmons violation. If it was preserved, if you had no procedural defaults, you filed it within one year, and everything else was fine, you might get 2255 first review. Mr. Gowin, when you say that there's no limiting principle, I'm over here. Okay, I'm sorry, it's me. When you suggest that there's no limiting principle, are you making that argument as a matter of theory or in practice? Because as I understand it, we're expected this case, and this particular class of defendants, if I remember just Gregory's dissent correctly, we're talking about a very finite number of prisoners who would be eligible for relief under this particular, if we were to grant authority to proceed under the Savings clause. In other words, is there really a floodgates problem that we're going to be dealing with here? There's a floodgates problem if you can't, on a principle basis, confine it to life sentences, mandatory life sentences. And even if you can do that, the other limitation is that the law has to be clearly settled at the time that the prisoner has the right to petition for collateral review

. I've been accused of taking a crab view of the statute. It's a crab statute. Mr. Goldblatt, you know, you're looking at 2255 age and then you compare it with E. Isn't it significant that Congress decided to leave intact these adjectives that the remedy by motion is inadequate or ineffective? Didn't that give the court some direction that the court still has to evaluate exactly what is being done in the case and how egregious the error has been, how fundamental the error has been, notwithstanding subsection age of the same statute? Let me make two responses. One, we have a historical analysis in our brief. That gives meaning to both inadequate and ineffective. It's the suspension clause and its practical problems, which were real in the evening. I agree with you. If we disagree with your historical analysis. If we disagree with the historical analysis, I think the way that most courts have dealt with this is to say, okay, we've got to give meaning to 2255 B. And the limiting principle that Judge Duncan was looking for is called actual innocence. That's the limiting principle. And that makes sure that you don't overrule 22. But where does that come from the language of the statute, actual innocence? Actual innocence comes more from the language of the courts. You've got the basic concept that is a habeas concept. Okay, because it's guarded from the statutory language in order to allow the relief of actual innocence, right? Yes, I don't know if it's in. So why is that departure permissible and no other departure, including life without parole, erroneously imposed? Our basic argument is even that limiting principle is questionable. We understand that. We understand. So we get by that and say, that's the only one you have left that you can manage. And it's interesting that Webster came up, because Webster is in the seventh circuit. It's the first one with Davenport that went down this road. In the middle of it, Judge Eastbrook was writing statements rather than he'd been asking for rehearing on Bonk because he knew he couldn't get it. Last year in 2015 in Webster, the seventh circuit kept the rule, but the vote was six to five. I were very interested in all that, but I would also be interested in your answer to my colleagues' question. Which is, where is the limiting principle? Well, no, you've been awarded from the language of the statute in acknowledging that Jones departs from the language of the statute, and accepting the premise that we're not going to do anything about Jones here. Well, I've asked you to do something. I'm assuming that one's off the table. I really should. But just a few minutes. I'll go ahead and do anything. I've got it. Right. Just a few minutes. We're not going to do anything about Jones then. Actual innocence is in anywhere in the statute. So why is nowhere in age? I think it's nowhere in age. So how does your argument that we have to, we've already departed from the statute. So don't we have to then decide in what instances it is appropriate or constitutionally mandated to depart from the statute rather than to simply say we're bound by the language? We've already departed from the language. You've departed from the language, but I think the departure from the language had limiting principles built into it. And the Court has always used actual innocence and said when using it as a judicial tool, don't stretch this. This is supposed to be kept rare. Even a case like McGwiggand, it beats it using it now. The reason it's there is because fundamentally in habeas terms, the concept of keeping someone in custody who has committed no wrongful act is at the core of what habeas is about. That's where actual innocence comes from. Wasn't that derived from T. The actual innocence. I'm not sure I'm following each other so I don't want to go down this route with you. It's going to get worse for me so I'm sorry. I just... No, no. It's a routine indicated that new rules of constitutional law were not to be retroactive, except into very basic ways. And one of those ways would seem to, one of those formulations would seem to incorporate a case where someone was found actually innocent. I think that's true. I mean, it's a fundamental concept. It's been a safety valve that's been used in a number of different contexts. No, actual innocence is a gateway to excuse procedural default. Actual innocence is a fairly recognized exception in the law. To excuse procedural defaults that were traditionally created. That's why McGwiggand was a much harder case because that's the first one to ever apply it to a statutory bar. I thought you were going to carry a little bit further the notion that the exception really was to allow this parallel statute, which is not a habeas statute, to accommodate the fuller procedure of a habeas statute when there's actual innocence. In other words, newly discovered evidence for actual innocence is addressed, but there may be other circumstances of actual innocence that are not addressed, and that's really where the core of habeas. But this statute is intended to put this whole procedure in the sentencing court and be parallel to the habeas statute. As I understand it, it was intended to be very parallel, and to the extent it didn't fulfill habeas, you still had that savings clause. I think that's true. It was designed to make sure that when habeas was moved from 2241 to 2255, it was intact. So there was a requirement, and that's why how Sanders got decided, and Davis, that you couldn't be construed 2255 to provide anything less than 2241. That's why when Edga was passed, Congress was very careful to make the restrictions on Second and Successive Review in overruling Sanders to apply to the habeas statute and 2255. So the parallel is there. They exercised their prerogative to limit the authority to consider Second and Successive petitions, and that was a main concern that led to Edga passing in the first place. And what the problem that you heard in the arguments from the other side is there's no limiting principle. There are attempting to use 2255E to essentially aggregate the primary reason why Edga was passed in the first place. And that can't be right. Maybe there's an argument for actual innocence. I'm not sure you even have to address it here, because this case is not about actual innocence. It's just not about it. I mean, it's been this type of claim. And the fact that it's a life sentence, I don't think it changes it, because if you look at, even when the Supreme Court extended actual innocence to the death penalty, it limited it to eligibility for the death penalty, not whether a jury would necessarily have found the death penalty anyway. It had to be eligibility. Right. The Supreme Court recently, in its cases, has been discussing the improper stripping of discretion in terms of life sentences, and that the sentencer should be that there's a due process violation. Yes, but that's also, as a matter of constitutional law, there's no, this is different in the sense that we're talking about whether review is prescribed by the habeas statute, not whether if you get review, how does it come out? So in other words, there was one case where it came through, and I'm, the name is slipping me for the second, where it came through on a first 2255, and there you might get relief for a Simmons violation. If it was preserved, if you had no procedural defaults, you filed it within one year, and everything else was fine, you might get 2255 first review. Mr. Gowin, when you say that there's no limiting principle, I'm over here. Okay, I'm sorry, it's me. When you suggest that there's no limiting principle, are you making that argument as a matter of theory or in practice? Because as I understand it, we're expected this case, and this particular class of defendants, if I remember just Gregory's dissent correctly, we're talking about a very finite number of prisoners who would be eligible for relief under this particular, if we were to grant authority to proceed under the Savings clause. In other words, is there really a floodgates problem that we're going to be dealing with here? There's a floodgates problem if you can't, on a principle basis, confine it to life sentences, mandatory life sentences. And even if you can do that, the other limitation is that the law has to be clearly settled at the time that the prisoner has the right to petition for collateral review. Doesn't that limit it somewhat? You mean in terms of procedural defaults? That's right. It limits it somewhat, but the law does change, and we're talking about, in other words, when you come up with that rule, then, so let's say it's a life sentence, is 50 years going to be that much different? Is there a principle basis to change one from the other? But the point, from my standpoint, is you also have to look at the statute and see what Congress wanted. I mean, we're not even talking about, in other words, let me take a back a step. When you look at in-ray Jones, what they did was, at that time, the thinking was, Congress made a mistake. They didn't anticipate statutory claims. It could be significant. So we're going to figure out a way to send those through the savings clause. But they came, kept the requirements, it wasn't an issue in Jones because it was Bailey. But most courts kept the requirement that it be a Supreme Court decision, couldn't be a circuit court decision, and I don't think it was only one other circuit that I know of that would allow it to be a circuit court decision. And it has to be actual innocence. So I mean, but they kept the other provisions in the statute. They didn't just say, well, once you get through the savings clause, the entire statute's gone. That's why, in using the gateway that you use for 2255, if you want to apply it to a statutory claim, you can do that, but it still has to be a Supreme Court decision. Because the reality is, from Congress's standpoint, Mark Simmons, for all I know, and the court is well aware, the Supreme Court come down with a decision next week in which they're both wrong. And what Congress wanted was nobody's getting back into court until the final court has the final say. Mr. Goldblatt, we've heard several themes that have run through this argument from the questioner from all parts of the bench. One is, what is the limiting principle? And number two is, how do you override the specific directives directed to this specific case by 2255H? And we've thrashed around about a limiting principle on whether it should be limited life sentence or whether it should be broader. And if it should be broader, how much broader it ought to be. And we've tried to somehow get the words ineffective and inadequate to override the specific directives of 2255H. But when you're confronted with two legal and analytic, I mean, either one of these problems would be significant in and of itself. When you're confronted with a basic statutory interpretation problem, plus a basic problem of not being able to describe a limiting principle to the non-stratutory test, whatever it is. It's one thing to prescribe a non-stratutory test. It's another thing to say, not only am I prescribing a non-stratutory test, but I can't tell you really what it is or how it's limited. That's a pretty serious defect in an argument, isn't it? It's several defects in the argument. And I think if you read the panel opinion, I mean, you go on and on to the various problems that are posed, any one of which would knock this out. And the only way they can get around it is by a very broad-based rule, and they've been candid about that. You're just to go about, if you could flip back both to the language of the savings clause, and saying we disagree with your historical proper as to the reason for that language, what's your second best argument? My second best argument is that- Is there a plus such? No, but there's a difference between relief being unavailable and inadequate or ineffective. And 155 A. The test is a balancing, though, doesn't it? If we disagree with your historical proper? If you disagree with the historical interpretation, then I think you would have to look at this, and the only thing that would make it inadequate. In other words, I don't think you can say that it's inadequate because it requires a Supreme Court decision. I just don't see how you can square that up. That's Congress's prerogative. I mean, that's unavailable. They have the right, and it would be anomalous because what you'd be saying is, if it's constitutional, you have to wait for the Supreme Court to say it. And as you're all aware with Dodd, that has a huge implications. But if you're going to use the savings clause, so statutory claims can be raised from a circuit court, then you've taken the statute and turned it on its head. I think your position, I just want you to take on what that language means if we disagree with your historical proper. If you disagree with the historical proper and the language becomes unclear, I think that you have to give it meaning that is consistent with the rest of the statute. And that's what the court- And what is that? I think that's actual innocence. I don't think it's anything more than that. Well, where do you read actual innocence to inadequate or ineffective to include actual innocence, but exclude mandatory life imprisonment, erroneously applied? How do you read that into inadequate and ineffective? I read it into inadequate and ineffective because having someone incarcerated who is innocent is a basic core principle of habeas law. And that's what actual innocence comes from. A mandatory life sentence. It was a mandatory life sentence that otherwise could be no more than 20 years. That's something the courts have looked at and said that's the same as actual innocence. That could come through as well. It exceeds the statutory maximum. If you can't get that in a courthouse, you said there were alternatives with commutation? It's more than commutate. What else, what are other alternatives? It's 3582. The deplicated. That's the court. What? 3582 is in court. No, there's a provision 3582 C that provides that the bureau prisons may go to the district sentencing court. Right. And it has to be a court. You have to go to court, but you said that there were alternatives to court proceedings. I thought you were talking about that. No, there's an old permutation or... No, alternative to habeas. Alternatives to habeas. What about rule 48? I don't think rule 40... It hasn't been raised, so I'm not sure where that would come from. Well, you're bigger with rice versus rarer, with rice versus Rivera was talked about here a while ago. The government came in and they said the fellow was actually innocent and moved to vacate to conviction. And we said they had authority to do that. Well, then that was one of those... That was one of those more... It was a baili case. It was a baili case. It was a baili case, like Jones. And that's just one more... Right, that's one more like 3582. And my only point there is, the habeas statute is limited. Congress has a great deal of authority to decide what it covers and what it doesn't. And that does not mean by saying that it's unavailable here that you're upholding this sentence. I don't disagree, I think, from his voice. It doesn't disagree that this should be reviewed. But does say that habeas is the only way that can happen. And the Congress has no authority here to cut it off because it's some form of fundamental error won't work. The savings clause is not that broad. If you open it up for that way, it's going to produce all sorts of problems

. Doesn't that limit it somewhat? You mean in terms of procedural defaults? That's right. It limits it somewhat, but the law does change, and we're talking about, in other words, when you come up with that rule, then, so let's say it's a life sentence, is 50 years going to be that much different? Is there a principle basis to change one from the other? But the point, from my standpoint, is you also have to look at the statute and see what Congress wanted. I mean, we're not even talking about, in other words, let me take a back a step. When you look at in-ray Jones, what they did was, at that time, the thinking was, Congress made a mistake. They didn't anticipate statutory claims. It could be significant. So we're going to figure out a way to send those through the savings clause. But they came, kept the requirements, it wasn't an issue in Jones because it was Bailey. But most courts kept the requirement that it be a Supreme Court decision, couldn't be a circuit court decision, and I don't think it was only one other circuit that I know of that would allow it to be a circuit court decision. And it has to be actual innocence. So I mean, but they kept the other provisions in the statute. They didn't just say, well, once you get through the savings clause, the entire statute's gone. That's why, in using the gateway that you use for 2255, if you want to apply it to a statutory claim, you can do that, but it still has to be a Supreme Court decision. Because the reality is, from Congress's standpoint, Mark Simmons, for all I know, and the court is well aware, the Supreme Court come down with a decision next week in which they're both wrong. And what Congress wanted was nobody's getting back into court until the final court has the final say. Mr. Goldblatt, we've heard several themes that have run through this argument from the questioner from all parts of the bench. One is, what is the limiting principle? And number two is, how do you override the specific directives directed to this specific case by 2255H? And we've thrashed around about a limiting principle on whether it should be limited life sentence or whether it should be broader. And if it should be broader, how much broader it ought to be. And we've tried to somehow get the words ineffective and inadequate to override the specific directives of 2255H. But when you're confronted with two legal and analytic, I mean, either one of these problems would be significant in and of itself. When you're confronted with a basic statutory interpretation problem, plus a basic problem of not being able to describe a limiting principle to the non-stratutory test, whatever it is. It's one thing to prescribe a non-stratutory test. It's another thing to say, not only am I prescribing a non-stratutory test, but I can't tell you really what it is or how it's limited. That's a pretty serious defect in an argument, isn't it? It's several defects in the argument. And I think if you read the panel opinion, I mean, you go on and on to the various problems that are posed, any one of which would knock this out. And the only way they can get around it is by a very broad-based rule, and they've been candid about that. You're just to go about, if you could flip back both to the language of the savings clause, and saying we disagree with your historical proper as to the reason for that language, what's your second best argument? My second best argument is that- Is there a plus such? No, but there's a difference between relief being unavailable and inadequate or ineffective. And 155 A. The test is a balancing, though, doesn't it? If we disagree with your historical proper? If you disagree with the historical interpretation, then I think you would have to look at this, and the only thing that would make it inadequate. In other words, I don't think you can say that it's inadequate because it requires a Supreme Court decision. I just don't see how you can square that up. That's Congress's prerogative. I mean, that's unavailable. They have the right, and it would be anomalous because what you'd be saying is, if it's constitutional, you have to wait for the Supreme Court to say it. And as you're all aware with Dodd, that has a huge implications. But if you're going to use the savings clause, so statutory claims can be raised from a circuit court, then you've taken the statute and turned it on its head. I think your position, I just want you to take on what that language means if we disagree with your historical proper. If you disagree with the historical proper and the language becomes unclear, I think that you have to give it meaning that is consistent with the rest of the statute. And that's what the court- And what is that? I think that's actual innocence. I don't think it's anything more than that. Well, where do you read actual innocence to inadequate or ineffective to include actual innocence, but exclude mandatory life imprisonment, erroneously applied? How do you read that into inadequate and ineffective? I read it into inadequate and ineffective because having someone incarcerated who is innocent is a basic core principle of habeas law. And that's what actual innocence comes from. A mandatory life sentence. It was a mandatory life sentence that otherwise could be no more than 20 years. That's something the courts have looked at and said that's the same as actual innocence. That could come through as well. It exceeds the statutory maximum. If you can't get that in a courthouse, you said there were alternatives with commutation? It's more than commutate. What else, what are other alternatives? It's 3582. The deplicated. That's the court. What? 3582 is in court. No, there's a provision 3582 C that provides that the bureau prisons may go to the district sentencing court. Right. And it has to be a court. You have to go to court, but you said that there were alternatives to court proceedings. I thought you were talking about that. No, there's an old permutation or... No, alternative to habeas. Alternatives to habeas. What about rule 48? I don't think rule 40... It hasn't been raised, so I'm not sure where that would come from. Well, you're bigger with rice versus rarer, with rice versus Rivera was talked about here a while ago. The government came in and they said the fellow was actually innocent and moved to vacate to conviction. And we said they had authority to do that. Well, then that was one of those... That was one of those more... It was a baili case. It was a baili case. It was a baili case, like Jones. And that's just one more... Right, that's one more like 3582. And my only point there is, the habeas statute is limited. Congress has a great deal of authority to decide what it covers and what it doesn't. And that does not mean by saying that it's unavailable here that you're upholding this sentence. I don't disagree, I think, from his voice. It doesn't disagree that this should be reviewed. But does say that habeas is the only way that can happen. And the Congress has no authority here to cut it off because it's some form of fundamental error won't work. The savings clause is not that broad. If you open it up for that way, it's going to produce all sorts of problems. And I don't think you can get around the fact that this is... It's a problem that the people who should have been sentenced to life without parole might have a chance to go back and have reviewed. That would be a problem. I don't think that's a problem. I just don't think it's available in habeas. I think there are other ways to get that rendered. So you read everything out of it. Why did they use the word detention rather than conviction? Was that just happenstance? Well, detention is the term that habeas normally used because you're dealing with a custodian holding someone. That is what you're targeting in that situation. So I don't think... So you have an answer, Professor Foy. Every historical aspect, every word. So the detention, that really means something... I don't disagree with you on the fairness side of this. But I just don't think it's a fairness question. That's not the issue for the political. Because the statute terms you read everything out. I mean, he said, well, no, they didn't really do that. 25 hate to read me out. But detention meant just the people holding them. Right? It's just a perfunctory aspect of whoever is holding you. But it didn't mean you can... It includes your sentence as well. That's what you're saying? I'm saying that Congress wrote the statute in a way that it doesn't reach this problem. And you can't use it to solve the problem out of a sense that that's what the Great Rit is for, because the Great Rit would not have solved this problem either. Councillor Tanya, just clarify something. So over here. The sort of the ad hoc limiting principle you're giving us actual innocence. I did hear you refer to statute setter in excess of the legal maximum. But is that something that you think can be addressed under the savings clause or not? I wasn't clear on where you were on that. That, and I guess that would address just Kenan's concern. Is the where it is the same. Several courts have indicated that a sentence that is above the statutory maximum would qualify as actual innocence or be akin. That would be something else that the savings clause could reach. Because that would be a sentence that Congress has not authorized itself. So that comes up in the gay type situations. A main-datory life sentence. That was not authorized by Congress. Congress at best authorized a discretionary life sentence. So how isn't this in excess of the maximum? You can analyze it that way, but that's not consistent with the way the court has done it with regard to calculating sentences. And the fact that it's mandatory is a calculation issue. And I don't think it's going to, and I don't see a principle distinction between a mandatory life sentence and a situation where a life sentence is authorized. And if you follow that point of the juvenile life sentence case. Well, that was a constitutional eighth amendment problem. We're beyond that. We're now talking about when can you get in the back in the door to raise a second and successive claim. And it's cut off as Congress is dictated. And I don't see a mandatory life sentence as being the same thing as actual innocence. It's a calculation error. It's the worst one. You know, it's at the top level, but it is below the death penalty. And even in the death penalty cases, you don't get, if you're eligible for the death sentence, then you don't get relief. And he's eligible for a life sentence. And I don't think you can say he's not eligible for a mandatory life sentence and create a different crime. You've made a point there that is interesting. And I just want to make sure I understand it. You said, I think you said you don't see essentially the difference between a mandatory life sentence in terms of innocence and purposes. And one that's, therefore, that's discretionary that can be given. That there's, that they're basically the same. And yet here you have a district court judge who struggled mightily on at least two occasions. It was pretty clear. It didn't want to do it. He says, I got to do it. I don't have a choice. Isn't there a difference between when you're answering such a question between this imposition of a maximum sentence through that is imposed as a result of an incorrect interpretation of congressional law? Which if you accept the law is that it is, Congress didn't intend this to be the law. And yet this is what he has. I don't think it's a difference in this context. And there are a number of other other factors that get into this because you mentioned what the sentencing judge said. There are, you know, if we get beyond even this point and it goes back to the original point that Judge Aegee had about Riceview Rivera, there's also an issue that I've raised here that we, that it may be Judge Mott's another one that I should travel on. But there's a guilty plea in this case. He pled guilty and negotiated an arrangement with the government that he would cooperate. And in return for operation, he was going to get a reduction that would take it out of a life sentence. That was the plea agreement that was negotiated and he waived his right to appeal. He was even aware of this issue at the time they discussed it because he preserved the right to challenge the mandatory life sentence at sensing. I'm sorry. The panel in this case did not rely on that, did it? They didn't address it one way or the other. But they did rely on it. They relied on it. They would have said that they were relying on it, right? No, they said they did not read, they had no occasion to reach it. They didn't reach that and they didn't agree. Well, the government didn't assert it. The government didn't assert it. And we've always held the government can waive guilty plea. But again, I think Judge Mott's, I'm in that area where I'm, it's an issue that we raised, but if it's not getting me anywhere, it's not getting me anywhere

. And I don't think you can get around the fact that this is... It's a problem that the people who should have been sentenced to life without parole might have a chance to go back and have reviewed. That would be a problem. I don't think that's a problem. I just don't think it's available in habeas. I think there are other ways to get that rendered. So you read everything out of it. Why did they use the word detention rather than conviction? Was that just happenstance? Well, detention is the term that habeas normally used because you're dealing with a custodian holding someone. That is what you're targeting in that situation. So I don't think... So you have an answer, Professor Foy. Every historical aspect, every word. So the detention, that really means something... I don't disagree with you on the fairness side of this. But I just don't think it's a fairness question. That's not the issue for the political. Because the statute terms you read everything out. I mean, he said, well, no, they didn't really do that. 25 hate to read me out. But detention meant just the people holding them. Right? It's just a perfunctory aspect of whoever is holding you. But it didn't mean you can... It includes your sentence as well. That's what you're saying? I'm saying that Congress wrote the statute in a way that it doesn't reach this problem. And you can't use it to solve the problem out of a sense that that's what the Great Rit is for, because the Great Rit would not have solved this problem either. Councillor Tanya, just clarify something. So over here. The sort of the ad hoc limiting principle you're giving us actual innocence. I did hear you refer to statute setter in excess of the legal maximum. But is that something that you think can be addressed under the savings clause or not? I wasn't clear on where you were on that. That, and I guess that would address just Kenan's concern. Is the where it is the same. Several courts have indicated that a sentence that is above the statutory maximum would qualify as actual innocence or be akin. That would be something else that the savings clause could reach. Because that would be a sentence that Congress has not authorized itself. So that comes up in the gay type situations. A main-datory life sentence. That was not authorized by Congress. Congress at best authorized a discretionary life sentence. So how isn't this in excess of the maximum? You can analyze it that way, but that's not consistent with the way the court has done it with regard to calculating sentences. And the fact that it's mandatory is a calculation issue. And I don't think it's going to, and I don't see a principle distinction between a mandatory life sentence and a situation where a life sentence is authorized. And if you follow that point of the juvenile life sentence case. Well, that was a constitutional eighth amendment problem. We're beyond that. We're now talking about when can you get in the back in the door to raise a second and successive claim. And it's cut off as Congress is dictated. And I don't see a mandatory life sentence as being the same thing as actual innocence. It's a calculation error. It's the worst one. You know, it's at the top level, but it is below the death penalty. And even in the death penalty cases, you don't get, if you're eligible for the death sentence, then you don't get relief. And he's eligible for a life sentence. And I don't think you can say he's not eligible for a mandatory life sentence and create a different crime. You've made a point there that is interesting. And I just want to make sure I understand it. You said, I think you said you don't see essentially the difference between a mandatory life sentence in terms of innocence and purposes. And one that's, therefore, that's discretionary that can be given. That there's, that they're basically the same. And yet here you have a district court judge who struggled mightily on at least two occasions. It was pretty clear. It didn't want to do it. He says, I got to do it. I don't have a choice. Isn't there a difference between when you're answering such a question between this imposition of a maximum sentence through that is imposed as a result of an incorrect interpretation of congressional law? Which if you accept the law is that it is, Congress didn't intend this to be the law. And yet this is what he has. I don't think it's a difference in this context. And there are a number of other other factors that get into this because you mentioned what the sentencing judge said. There are, you know, if we get beyond even this point and it goes back to the original point that Judge Aegee had about Riceview Rivera, there's also an issue that I've raised here that we, that it may be Judge Mott's another one that I should travel on. But there's a guilty plea in this case. He pled guilty and negotiated an arrangement with the government that he would cooperate. And in return for operation, he was going to get a reduction that would take it out of a life sentence. That was the plea agreement that was negotiated and he waived his right to appeal. He was even aware of this issue at the time they discussed it because he preserved the right to challenge the mandatory life sentence at sensing. I'm sorry. The panel in this case did not rely on that, did it? They didn't address it one way or the other. But they did rely on it. They relied on it. They would have said that they were relying on it, right? No, they said they did not read, they had no occasion to reach it. They didn't reach that and they didn't agree. Well, the government didn't assert it. The government didn't assert it. And we've always held the government can waive guilty plea. But again, I think Judge Mott's, I'm in that area where I'm, it's an issue that we raised, but if it's not getting me anywhere, it's not getting me anywhere. Can we get back to that? That's a matter of accepting the United States attorney thing. He was appointed to defend the district court's opinion. District court's ruling, because I understand it. That's correct. And so, and when the panel considered it, it seemed to me it had accepted Jones as our law, accepted everything that was circuit precedent, as circuit precedent in a way that you don't want to. But if we go back to the panel opinion, which I think you would still defend, right? Yes. It's a secondary, not your favorite opinion, but your secondary opinion. And I thought, in a response to some answers from my colleagues, you said, well, okay, this provision would apply if you were actually innocent. That is sole place where this would apply. And that's it. Is that correct? Actual innocence of the crime of conviction. Right. Well, the Supreme Court has said, not just the government, but the Supreme Court has said, that upping the anti-forek criminal defendant, and the fact that does so, forms the quote, because the functional equivalent of a new aggravated crime. That's a lien. And we use that language and Simmons on bank, and you haven't suggested that Simmons is error, right? So, too many issues in this case already, so I wasn't going there. Well. That's for purposes of the sixth amendment analysis. I don't think it's relevant to the habeas analysis. I just don't think it is. And if you open this up to all mandatory minimums, then Judge Diaz, you're going to be getting a lot of cases. They're completely different analyses, and keep in mind, most importantly, what is a lien exempt from that rule? Residivist enhancement of punishment by virtue of prior convictions. What is Al Mendoza's Taurus exempt from the basic rule as well that a lien is based on, apprendi? Exactly what we're talking about here. So I don't think that gets you anywhere. Mr. Goldbatt, one thing I'm just not entirely clear on in your position is, would a defendant who had been erroneously convicted about the statutory maximum in an acquissence? Would that person be entitled to relief under 2255 in your view? In my view, I take two positions. My primary view, which basically I don't think is going to resonate here all that well. I'm not talking about it. It's set to door. But secondary view, one decided we left it open when we briefed it before the panel as an open question. But I think that presents a conceptually different question where the extension from actual innocence to a sentence above the statutory maximum might work. Okay, but why isn't the mandatory imposition of life imprisonment stripping the sentencer of discretion and increase not authorized by Congress? If Congress has said that the sentencer is entitled to it, in fact, must consider the discretionary range of punishment. And then we're saying you're saying no, that the mandatory imposition of sentence doesn't make any difference. Why isn't that an increase in the punishment, the mandatory imposition of life? If the mandatory imposition really puts you in the act of context, it is. If the mandatory only pushes you to the top of what is otherwise authorized by Congress, I do not see that as changing the penalty for the offense. I don't see any way a mistake made us to whether it's mandatory or not would make any difference if it was a wrong calculation that resulted in somebody spending 10 more years in jail. But what if it resulted in spending, uh, 60 or 70 more years in jail and the act of only 15? I mean, I think any of those are calculation errors. First, habeas, maybe. Second, under the term set by Congress, no. So I think it's the statutory language. I don't think you can stretch 20 to 55e to override 20 to 55e. But what you're saying is simply that there's a bright and discernible line between questions of factual innocence and any sentencing issue. That's correct. And because you can always find sentencing issues that you think are too strict or unjust or whatever. And so that's where we're headed is that later interpretation that makes an earlier sentencing inadequate or ineffective. And that's enough to bring the, um, to make 2241 relief available. I don't think you can go there, but if I have permission to take 10 seconds, the other thing, Judge Keenan, is you still got to deal with the fact it's not the Supreme Court. And I don't think you can use 2255e to just wipe away all the other provisions. Maybe the fact that it's statutory, but the fact that it's not the Supreme Court, Congress has the ability to insist that nobody gets into court second of success without a Supreme Court ruling. So, David Jones didn't, wasn't Supreme Court either? It was Supreme Court. It was Bailey. Oh, okay. It was Bailey Bowsley. It was Supreme Court. That's why they didn't have to address the issue. But the main argument is this is curfewries to conduct. Right. Simmons is also was connected to Supreme Court decision as well. It was not announced by the Supreme Court. It has to be announced by the Supreme Court as well as be a decision of the Supreme Court. So merely applying caracherty and it has to be made retroactive by the Supreme Court. You don't have that here either. Because it's not required in E because Congress could have put that there. It could. It did. I guess the rule of limited it doesn't apply here anymore, does it? I'm not. No, I'm not. My point, Judge Gregory, is quite simply. It's not, I don't think if Congress wants to cut it off, it can and it did. That's my point. And these other arguments just don't work. It didn't cut out by stature. I got to understand that's your opinion. Well, that's the issue. If they did cut it off by stature, they can. That's the issue. Obviously that. I agree with it. You said right. If they had. That's correct. But you certainly don't think they did. You don't think they did cut it. You think they cut it off. I think they cut it off. But the words don't say that. And I think the argument you heard and the inability of my colleagues to give you limiting principles as to where this is going plus where it went in the seventh circuit is indication of what's wrong with the argument. Thank you, Mr. Goblach. Mr. Hester. Mandatory life is a different and harsher sentence than discretionary life. And there's two reasons for that

. Can we get back to that? That's a matter of accepting the United States attorney thing. He was appointed to defend the district court's opinion. District court's ruling, because I understand it. That's correct. And so, and when the panel considered it, it seemed to me it had accepted Jones as our law, accepted everything that was circuit precedent, as circuit precedent in a way that you don't want to. But if we go back to the panel opinion, which I think you would still defend, right? Yes. It's a secondary, not your favorite opinion, but your secondary opinion. And I thought, in a response to some answers from my colleagues, you said, well, okay, this provision would apply if you were actually innocent. That is sole place where this would apply. And that's it. Is that correct? Actual innocence of the crime of conviction. Right. Well, the Supreme Court has said, not just the government, but the Supreme Court has said, that upping the anti-forek criminal defendant, and the fact that does so, forms the quote, because the functional equivalent of a new aggravated crime. That's a lien. And we use that language and Simmons on bank, and you haven't suggested that Simmons is error, right? So, too many issues in this case already, so I wasn't going there. Well. That's for purposes of the sixth amendment analysis. I don't think it's relevant to the habeas analysis. I just don't think it is. And if you open this up to all mandatory minimums, then Judge Diaz, you're going to be getting a lot of cases. They're completely different analyses, and keep in mind, most importantly, what is a lien exempt from that rule? Residivist enhancement of punishment by virtue of prior convictions. What is Al Mendoza's Taurus exempt from the basic rule as well that a lien is based on, apprendi? Exactly what we're talking about here. So I don't think that gets you anywhere. Mr. Goldbatt, one thing I'm just not entirely clear on in your position is, would a defendant who had been erroneously convicted about the statutory maximum in an acquissence? Would that person be entitled to relief under 2255 in your view? In my view, I take two positions. My primary view, which basically I don't think is going to resonate here all that well. I'm not talking about it. It's set to door. But secondary view, one decided we left it open when we briefed it before the panel as an open question. But I think that presents a conceptually different question where the extension from actual innocence to a sentence above the statutory maximum might work. Okay, but why isn't the mandatory imposition of life imprisonment stripping the sentencer of discretion and increase not authorized by Congress? If Congress has said that the sentencer is entitled to it, in fact, must consider the discretionary range of punishment. And then we're saying you're saying no, that the mandatory imposition of sentence doesn't make any difference. Why isn't that an increase in the punishment, the mandatory imposition of life? If the mandatory imposition really puts you in the act of context, it is. If the mandatory only pushes you to the top of what is otherwise authorized by Congress, I do not see that as changing the penalty for the offense. I don't see any way a mistake made us to whether it's mandatory or not would make any difference if it was a wrong calculation that resulted in somebody spending 10 more years in jail. But what if it resulted in spending, uh, 60 or 70 more years in jail and the act of only 15? I mean, I think any of those are calculation errors. First, habeas, maybe. Second, under the term set by Congress, no. So I think it's the statutory language. I don't think you can stretch 20 to 55e to override 20 to 55e. But what you're saying is simply that there's a bright and discernible line between questions of factual innocence and any sentencing issue. That's correct. And because you can always find sentencing issues that you think are too strict or unjust or whatever. And so that's where we're headed is that later interpretation that makes an earlier sentencing inadequate or ineffective. And that's enough to bring the, um, to make 2241 relief available. I don't think you can go there, but if I have permission to take 10 seconds, the other thing, Judge Keenan, is you still got to deal with the fact it's not the Supreme Court. And I don't think you can use 2255e to just wipe away all the other provisions. Maybe the fact that it's statutory, but the fact that it's not the Supreme Court, Congress has the ability to insist that nobody gets into court second of success without a Supreme Court ruling. So, David Jones didn't, wasn't Supreme Court either? It was Supreme Court. It was Bailey. Oh, okay. It was Bailey Bowsley. It was Supreme Court. That's why they didn't have to address the issue. But the main argument is this is curfewries to conduct. Right. Simmons is also was connected to Supreme Court decision as well. It was not announced by the Supreme Court. It has to be announced by the Supreme Court as well as be a decision of the Supreme Court. So merely applying caracherty and it has to be made retroactive by the Supreme Court. You don't have that here either. Because it's not required in E because Congress could have put that there. It could. It did. I guess the rule of limited it doesn't apply here anymore, does it? I'm not. No, I'm not. My point, Judge Gregory, is quite simply. It's not, I don't think if Congress wants to cut it off, it can and it did. That's my point. And these other arguments just don't work. It didn't cut out by stature. I got to understand that's your opinion. Well, that's the issue. If they did cut it off by stature, they can. That's the issue. Obviously that. I agree with it. You said right. If they had. That's correct. But you certainly don't think they did. You don't think they did cut it. You think they cut it off. I think they cut it off. But the words don't say that. And I think the argument you heard and the inability of my colleagues to give you limiting principles as to where this is going plus where it went in the seventh circuit is indication of what's wrong with the argument. Thank you, Mr. Goblach. Mr. Hester. Mandatory life is a different and harsher sentence than discretionary life. And there's two reasons for that. The first is recognized in Miller and that's that mandatory life means that there is no individualized sentencing that takes place when the court imposes it. Would you limit relief here if you got it to mandatory life sentences? The court could decide to. I'm asking you. Would I? Well, that's hard for me to answer because I have other people who have mandatory minimums that are not life. But I think that that's a valid way. I've been raised another, but other members of the panel about whether mandatory life is different from any other sentence and whether that's part of some incremental concept. So I think. I think you if the court is that something you would urge the court to do. I do urge the court to do that in this case because mandatory life is different from any term of years. And I think that it requires special considerations. I want to point out another thing. I think you would be perfectly happy if there was an opinion which limited this to mandatory life sentences and just address the thing and incrementally because then we wouldn't get into the in your in your view. You wouldn't get into the whole question of a limiting principle and the formulation of it and the vagueness which is formulated. That's right. But you would argue in other cases there are other limiting principles that might apply. I will. I would have to. Thank you. Yeah, in other words, you've had to win today, but you want to win tomorrow next week. Certainly. I'm like you're saying you'd be perfectly happy. That's what does Wilkinson said. Well, not perfectly. Perfectly happy. I mean, that's what it'd be perfectly happy to get. You said yes. To get Mr. Surrat relief and that's that's good. I want to point out another different. Then just let you go on. In the next case, Fennett was sentenced. Fennett was 60 years old sentenced to 35 years in the penitentiary. Is that going to be the equivalent of mandatory life in the next case? I don't have that situation. I know that. I can't say. Yet. Yeah. Well, not in the Simmons. I'm pretty familiar with the Simmons room. I know that is not coming up. I want to point out one more different. We do need to get to this greater question. I don't know. You put previous case. We had a case just before it. We may not have made a difference one way or another to defend it. But we dealt with the issue because it can come up again. And that's that's the important part of this case here. Right. As we can duck out and carve another exception like actually, the witnesses now go here. But we know we're going to be sitting back up. You're going to have to decide it because the cases are pending. So it will it will be bad. One other difference between discretionary life and mandatory life that I want to make. Be sure to point out is the fact that if Serrat had gotten discretionary life in this case, he would have been eligible for two crack reductions so far. But the mandatory label has prevented him from being eligible for any reductions based on a lower sentencing guideline. So that's a concrete distinction between a discretionary life sentence and a mandatory life. I want to talk for a minute about the actual innocence case that Amicus relies on to point out to the court that those are all in the context of the actual innocence gateway around procedural default, which is a judge made rule. In this case, we're not talking about a judge made rule. We're talking about the savings clause, which is a statute and it has particular terms in it that have to be followed. And one of those terms is detention. It allows a person to seek relief from his unlawful detention and that certainly my question in that regard simply was framed to indicate that that is that is an exception that is made in other contexts as well in the collateral review. Right. And I think there's some messiness about using the same terms in different contexts, but it is a totally different context than here where you're talking about having to interpret a statute that Congress is enacted, which extends relief to people who are challenging an unlawful detention, not just an unlawful conviction. And we know that Congress knows the difference because it distinguished between those two things in subsection age. And if it had wanted to do that here, surely it would have invented the savings clause. So how do you deal with the two words to test? To test. Well, he's unable to test it because there is there is circuit precedent against it, which would result in its summary reversal and his inability to get a certificate of appeal. By definition, a successive petition has already tested the detention in the initial petition. I mean, he did the initial petition wasn't filed just to have a nice Sunday afternoon conversation. It was filed to test the detention. That was the whole purpose of the initial petition. But not to test it on these grounds, your honor. And furthermore, if you interpret test to mean that he only that all that that requires is the opportunity to file a paper at the courthouse. Basically, your lovely. The test has a very specific meaning, which is that it was going to that it was testing whether the detention was imposed in accordance with the law as it existed at the time. That is really the most we can do given this statute to a defendant as to say, we will follow the rule of law when we impose this punishment. And the test means that you have tested whether in the initial proceedings trial, the plea hearings, direct appeal, whether the state followed the rule of law. And if you have a basic opportunity to test whether the rule of law was observed, then requirements of the statute seems to me have been satisfied. That's what that language means. Well, if you interpret the savings clause to mean that, then there's nothing left of the savings clause. No. Indeed, we would have to overrule in Ray Jones. Right. We didn't have that interpretation. That's correct. I want to add one more point about actual innocence. And I believe Judge Mott said you brought this up about whether a person can be actually innocent of a recidivist. I know what your position is. Okay. Well, on that note, I thank the court. All right

. Thanks for those arguments. Just to go, Blatter, we know that you're a court of one. And we appreciate very much your undertaking representation of the judge in this case. And we're all personally appreciative of that. We'll come down. I asked the clerk to adjourn court and they will come down to the green council