include the force requirement that is necessary under johnson versus the united states to find that mr pitts is conviction qualified as an armed career criminal predicate for enhanced understand that but just so we c a requirement that's what that's what california law and then we now know that that's probably error under california law based on later decision but your and i guess i shouldn't really argue with you there's usually lawyers evade the question but your answer is not very evasive you just don't know but my answer is strongly inclined and i wondered if you could misapplied element clause because it misunderstood california law all based on subsequent decisions of the california supreme court we would not have been allowed to grant a  came in and said ok that may have been justifiable at that time or may be on the understandable but we now know based on later california supreme court decisions that that was wrong and for that that federal pay vs corpus the great risk i think is designed to remedy situations where individuals are being held against their will or incarcerated violation of the constitution and so i do believe that if in fact it was known and it can and it was demonstrated that the elements clause analysis was it improper i would believe that under the federal habeas corpus jurisprudence we'd be able to bring  before the court's attention and i believe that that that that that's part and parcel of the argument that we're making here today so any time there's been an error in the flying space wall and then that's an exception to the bar  your honor that's a difficult question for even for me to answer i can only i can only say that i do believe that the that the that the have federal habeas corpus jurisprudence would allow us to bring a constitutional error in which an individual is now being held in custody in violation or in excess of the statutory maximum i believe we'd be able to bring that before the court if we could establish that in fact the district court's decision was erroneous if in fact it was done in derogation of state law because as we know it's the state court interpretation of the statute that would control  elements into sixty one dollars are that that what's required is an act of sexual intercourse and the part and elements are that it is accomplished against a person's will by means of force to go back to be even before understand that and here's how the california supreme court and people versus christen made it very clear that force at least not johnson force is not a part of that particular statute that would have been  california supreme court decision would have been known to the district court in our case in november of two thousand and nine so therefore the although it would not have made the analysis to the direct application a nine  have been the case that the district court would have looked to now i know you mentioned the th circuit and potter my view in one thousand nine hundred and fourteen years before the people versus griffen i would note that st of all potter would not have had the benefit of the california supreme court's decision on the elements and we do know that it's the california states interpretation of the elements or the state courts interpretation of the elements of a particular statute that we have to look to now that's correct that's correct but what i would say and i think we see this in the picket case is that the the issue is the historical fact what was the historical fact at the time of the sentencing and pickett tells us that that is what is in the district courts mind at the time so at that particular time if there's a decision which there was like people versus griffin which acts absolutely indicates that this is not would not fit under the elements clause then he most likely or should i say would have more likely than not imposed the sentence under the residual clause ok so let's let's let's let's assume i agree with you on that and i have not sure i do but let's assume i agree with you let's  the california robbery because there we held in this very few days on direct appeal that those apply both under the residual and the elements calls how can we say that at least of the robbery appeal which the court held that is is no longer the law of the case and that is because there's an intervening change in the law that's people versus anderson in two thousand and eleven where the california supreme court clarified that negligence council how is that relevant if we're trying to get into the mind of the district court back when the sentencing took place in two thousand i'm sorry i was i was answering the question about california robbery and why that doesn't control the case and i believe it's because there's an intervening change in the law that no longer that that that tells us that that the direct appeal decision reported knew at the time not what happened later on that's correct so even the extra three minutes stepped even with three honor back in two thousand and eight the th circuit rules in u s vs the ceral lopez that california robbery could be accomplished by a threat to property which we know from this court decisions one was two thousand and eight no no i understand that but there was there was other case law because we concluded it was one of the elements clause for the california robbery that it could have been obvious or holding for the district court is that time because i indicated the california robbery could not qualify because it contained a threat against property and we knew at that time as we know now that a threat against property cannot qualify as a crime of violence that that decision was in two thousand and eight out of the out of the th circuit and the district court would have known that so that's why he would not have relied upon california robbery under the elements that's all i have to thank you thank you counsel will give three independent reasons any one of which is sufficient to affirm the district court's order denying relief st as a threshold matter his claim fails because he hasn't shown that his acca sentence in any way turned on the use of the residual clause when it was turn st to the beam an argument as your honour's have pointed out there is no dispute that the record is silent as to which aca cause or causes a district court using classifying pits as an armed career criminal not of the nor the parties filing suggested that his california rape or robbery convictions qualified solely under the residual clause and therefore there's no hint on this record that the residual cause was essential to his aca classification importantly perhaps there was no law on november two thousand and nine holding or otherwise making obvious that either pits of california rape or robbery convictions qualified solely for the residual cause at that time convictions because indeed on direct appeal this court specifically addressed those robbery convictions post curtis johnson and how to unequivocally that they qualified under the elements cause of the armed career criminal act the court also made a ruling a residual cause but clearly there wouldn't have been a reason to believe in november two thousand and nine that the district court would have been constrained to rely solely on the residual clause when this very court on direct appeal federal violent felony definition that california late by force qualified and the gryphon decision which is really a question of case about whether to instruct the jury as to a specialized meaning of the term force wouldn't have silently abrogated potter or in any way undercut it i mean our position remains that griffin doesn't alter the violent felony status of california late by force but even if you assume that griffin had that effect the th circuit's potter decision about sort of the hypothetical situation there would have been no basis to authorize a nd or successive application because the claim he wanted to raise in the nd or successive application would have been a johnson claim and a johnson claim the claim that your sentence tainted or infected by constitutional residual clause error if there is no residual cause air district court hypothetically made clear that relied on the elements clause then there never would have been a basis to authorize a nd or successive because those applications are limited questions of constitutional law and there would have been no constitutional error to speak of if there are no other questions related to be penetration plus that overcoming victim will requirement plainly makes this crime a violent felony under the elements clause so either way mr pitts is not entitled to twenty dollars to fifty five  helpful for the government in this case so we rely on still going as well on the merits with perspective the forcible rape conviction what what about the adoption of justice scalia's concurring opinion  unwanted minimal touching and the references and still cling to hitting and slapping and pinching make it very clear that the bar is not high is still going you have a violent felony in the case of a robbery where there's only very slight victim resistance and the court made clear for example that in the common law you could have a robbery when all you had was the perpetrator pulling out a diamond pin out of somebodies hair if doing that cause the ripping of certain ha that is a violent felony then i see no basis in law to conclude that forcible rape against a victim's will is not a violent felony any other question honor it's very clear from people versus griffen that the only force that's required is to demonstrate that it was the acts against the individuals will that is all that was required that is very different from curtis johnson that is also very different from still cling and and because of that this this particular crime does not include johnson's force i do want to speak to the fact that the government and judge luck asked a question about still calling in still cling the issue was overcoming resistance yes they did speak about will but it was in it was in the context of overcoming resistance that is not what we have in would my really have to be it would have to be that that did not that that it did not qualify under the you're saying i didn't have to follow potter because of a state supreme court decision and i want to speak to potter i do not believe that the clear holding of potter is that that it qualifies that it's an element clause analysis i don't believe that that was the clear holding and potter in potter they and that they analyzed to sixty one they mentioned both the elements cla had would have been the people versus griffin again a clear statement that for the resistance had been eliminated the only force was the force that would indicate whether the act was against the individual's will california the only thing that would be required to sixty one dollars is that they be sexual penetration a victim indicate their will say no or please stop and penetration continue that's a violation of two  that's california rape that cannot qualify under the elements cla have i believe it would have clearly the district court answering your question judge the district court would have concluded that this crime only would have qualified under the residual clause and as the court knows many many cases were being were being upheld or were being declared crimes of violence under the residual clause we know this burglary attempted burglary conspiracy to commit robbery felony d y carrying concealed weapon fleeing in a looting all of these were being held under the residual clause and i believe that that was the default of many district judges i know it was of at least one in the southern district of florida judge site who has said in a in a published opinion that that was her default if it looked like there was a question as to whether a crime qualified and the elements clause even a question she would default to the residual clause because it was a catch all and certainly that would make sense so in answer to your question yes if i was a if i was a district court judge in in november of two thousand and nine wherever i was but in california i would have ruled that that too sixty one dollars did not qualify under the elements clause but would have qualified under the residual clause and that's why i think we need beeman but if this course thinks otherwise than perhaps a limited remain and pursuant to pick it would be appropriate to ask judge conn he's on the bench i asked judge con what was in your mind what was the it's good to debate these issues but the chances of remembering a particular case and what was in his mind on uttered and on written a decade ago is a different matter all he would probably do  something else about judge science was not the judge in this case so we don't know any other judge in the circuit much less the judge in this case followed the same rule but she did it seems to me like an equally reasonable rule is if you had a doubt as to whether the elements clause applied why not yes the element qualls applies i believe it does but if it doesn't the assume that everybody would would hit as many reasonable alternatives is possible and let the court of appeals sort of them because that would be speculation your honor and it would be storable fact analysis conducted by likely that in fact he knows exactly what he did and that that was his default you're arguing again council for an evidentiary hearing you're not far as i'm concerned going to get one because that's not how we do this analysis because you know what was in your head a decade ago and once you tell us that we'll know whether it was playing error or not we've never done that we've suggested that approach in a number of cases after  but i'm trying to get you to focus on that the supreme court comes out tomorrow and says there shall be no remand evidentiary hearing stood firm and what the judge said in his mind years before that's off the the beam in analysis i think that the legal landscape at the time would have would have persuaded would have indicated to the judge or to this court that in fact the elements clause would not have been