this change chairs i assume you're ok mr lowry if you're prepared we're ready to hear from you and we thank you for accepting the appointment under the criminal justice act thank you your honor i am jeremy lowery i represent marcus d'angelo jones mr jones was convicted under eighteen u s c section one hundred and twenty two a six as a felon in possession of a firearm the issue before the court involves the extent of retroactivity of the united states supreme court case of her heath versus united states and there are a couple of opening facts that i think are important one is that the  and fifty five his notion we can see that this under twenty to fifty five would have constituted a successor under the twenty to fifty five rules if it does not fall in an exception he's filed multiple twenty two  fifty five is in adequate or ineffective to test the legality of the detention our position is that mr jones convection and i'll back up and discuss conviction here his conviction occurred without any finding without any charge without any instruction to the jury and without any finding that he knowingly possessed of that he would knowingly as a felon possessed a fire receive creates an intent element for the knowing possession of a firearm statue and there's no jury instruction and there's no finding in fact the th circuit in his original appeal found in footnote five that no evidence of knowledge that he was a felon was required in order to obtain a conviction at that point under the statute there is currently a almost complete circuit split on the issue of whether this type of issue falls under the inadequate or ineffective to test the legality test a subsection e have contended that this particular problem this is a problem in which there is no no jury finding beyond a reasonable doubt of the element no opportunity to find it no opportunity to fully litigate it falls in a special category they fought that for which this particular exception was in so thickly designed if we go all the way back to one thousand nine hundred and seventy one when we start talking about issues by the majority in that case with approval and i will concede it's dicta but it certainly influences subsequent successor petition case law in which he said that there is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose in other words just as harlan presented a narrow class of cases under a concept of substantive due process that were excepted from  successive petition fidelity jurisprudence our contention is that subsection easy is congress's move to in statute formalize exactly that exception that in other words this is a our contention is that that except refers exactly to the subsection e that permits you to bring a twenty to forty one action where there isn't any adequate or ineffective process to test the what the word ineffective or inadequate means there's been some discussion of the concept of futility in other words there is a u s supreme court case called loosely which the supreme court opines that futility is not cause for delay our contention is that first of all that but honestly futility involves a different kind of procedural bar it involves a plea agreement bar which is requires cause and prejudice to get by but the position that i would tell you curia is that because congress included this language it has to encompass something this is not a it's not a throwaway provision if one walks at what else has been included as an exception this is what's left this kind of claim and it's exactly equal it and it looks just like the kind of claim justice harlan is saying doesn't equate with finality concerns in other words that a situation which somebody is convicted of a crime where an element of the offense is not found at all is exactly the kind of substantive due process out issue that would render the prior process  process didn't give him it i know the supreme court found out later that this element was required but we've cited some case law and i'm of apologize i don't have it exactly on tap that indicated that that is because it was decided it is the state of the law all the way back in other words whether whether they found it or not at all and that was required at the times how do you reconcile though your argument that twenty to forty would would allow this breach is essentially you're asking for sort of a retroactive application of a statutory interpretation when twenty  question is this a new rule of constitutional law and your honor i it is not clearly it's not retreat if it's not right no and we're not contending it falls under t i don't believe i don't i agree with your honor i don't believe we can contend that it's a new rule of constitutional law what we are contending is that it is a part of a narrow class of substantive constitutional statutory interpretation and i know that sounds odd but there is case law that indicates there where the supreme court interprets a statute to include an element that that is part of that narrow class that narrows the class of persons that the law on issues and i would argue that there's really not any other provision for that under two thousand two hundred and fifty five dollars and that subsection he appears to be exactly the provision for that kind of situation and the only question becomes honestly from a standpoint of prudence in order to assure or finale in criminal convictions that that's the balance that we may and what we are saying is that there is a narrow class of cases in which that balance does not apply  to that this is exactly that class a class in which you were convicted of a crime that doesn't exist in other words you were he was convicted of possession of a firearm where is he should have been convicted of knowing possession of a firearm in other words knowing change in the interpretation of the statute under rehab does it make any difference that there was another conviction that the same time as the fa possession and that was the conviction for making false statements to acquire a firearm and that mr jones in fact testified about that a his position factually if that's all there is as it certainly feels that way i would i would submit that there are a couple of caviar it's to that st of all mr jones and this is interesting because he dead present some evidence and his original trial to the effect that he didn't know he was a felon now this was i don't believe this was fully developed at trial because and i'll note the prosecution argued at the end of trial that you don't have to find that he knew that he was a felon so it was sort of a side light for the trial in the th circuit sort of bore that out in the footnote to his direct appeal with regard to his knowledge of his felony status the defense that he presented at trial was that he knew that he had been convicted his understanding was that had been expunged you know there wasn't a lot of development if that at trial and frankly i'll be honest with you there's not a lot of development and that  the record what we have is essentially a swearing contest it's a it's an issue of credibility between two or three witnesses a trial a police officer the pawn shop owner who sold the gun and mr jones but ultimately would continue and that under these specific circumstances nobody ever made that credibility determination the journey never made that credibility determination with regard to the name the jury could have found he presented a false name and not found anything else and that would support have supported that conviction for the that other conviction but and one of the reasons that we present this case the way we're presenting it is that there is really no dependable trial record where you can go back and say the jury made credibility determinations the jury might have determination of whether he did this or not because it wasn't ever presented to them at any stage and so our argument would be that yes it walks there might be some concern as far as how that was presented or what was presented at trial but mr jones trial counsel would not have been particularly interested in the issue of knowledge of whether he was a felon or not and not a fundamental core strategic level because it wasn't an element of the offense at the time but stated every every other circuits addressed is point blank every other shark has indicated that they are in accord with the forty one release they do tend to require some form of actual innocen which is not legal in a sense but factual innocence and so that's our nd point on appeal with respect to our st point that the court didn't have subject matter jurisdiction the government's position is that twenty dollars to fifty five each under the plain language of the statute guarantees only an opportunity to test or to try and it doesn't guarantee any sort of relief or any sort of probability of success and in this case we have a petitioner who has a case that's over twenty years old he's had more than ample opportunity to challenge his conviction and sentence he followed direct appeal this court affirmed he filed an initial twenty to fifty five this court granted him some limited relief on one of the two of these cases and going there and it including the drug case where he has a concurrent term of three hundred and twenty seven months imprisonment but he's also serving in even the supreme court has a noted has noted that he has abused their process and so he is really the prime example of abuse of process here which is something that the congress center and in acting the a t p congress was concerned with hardening the court know there are a number of practical issues that expanding two thousand two hundred and forty one relief to challenge the substance of a conviction poses number one you don't have a statute of limitations in effect if you allow this sort of substance and challenge to number two if this court you know were to grant relief under twenty to forty one trying to bring a case it's over twenty years old back back to trial there's obvious issues where you have destroyed evidence you have testimony that may be not available anymore and church or less two or three points for congress because they're the ones who wrote the remedy by motion is that adequate or it affect the you get to go back to square one well you're armed opposition is that congress considered all these practical difficulties minute chose to implement twenty to fifty five in the a p a congress took into account that's that's really the whole point of twenty to fifty five is because they saw the problem with trying to have a court that's that sometimes states and across the country deal with the substance of a conviction that is really you know you have the p o p defending a case on the substance the merits of the trial when it really should be dealt with in the district conviction and that's why the twenty to fifty five was an act in the st place and that's clear from all the cases that discuss the history of two thousand two hundred and fifty five you also have a problem practically speaking with having twenty to forty one claims in multiple districts and then you have the potential of all this confusion duplicative effort and then you also could end up with inconsistent results you get up one court you know in one in one district say one thing in terms of whether relief is adequate or affective and then a challenge to that conviction and sentence as opposed to other twenty to forty one challenges related to the actual tension like the good time credits and things like that that are allowed to expire under two thousand two hundred and forty one that makes sense for the deal with that it also would undermine the finale judgments here like i said before we have an over twenty year old case and it has an adverse impact on judicial resources victims and witnesses whenever you're under jurisdiction question no you are i think that the cork could affirm that the subject matter jurisdiction and find that there is no subject matter jurisdiction in this case as the as as was held by the eastern district judge however if the court determines that some sort of of actual innocence analysis is required in this case i think what the court previously mentioned earlier to two is very telling this isn't a case where we have some question about the defendant's guilt or innocence as to the element that was not included in the instructions here he confessed during his testimony he said he was asked were you aware that you had been convicted of a felony and they're referring to at the time he filled out the application for a firearm and his answer was yes yes he was aware that he also told officer white as reflected in that the primary star jones opinion that he knew he wasn't supposed to have a gun and we guilty of this offense so there would be no miscarriage of justice or anything to that effect i think that it's also telling that this if the court were to open twenty to forty one and court like in holland show at those opinions if you looked at it if you if he pretended for a nd that mr jones had brought this case this claim on direct appeal he wouldn't when under the plane air standard that we have  put those in those cases and so really it's inappropriate to give him a better standard of review and a twenty to forty one as has been advocated by mr jones coun he tries to say well he kind of thought maybe it was expunged but he didn't actually check on it and he thought it was probably automatic but that doesn't really square with his statement to officer white at all that he knew he was prohibited from possessing a gun and his testimony earlier where he talks about how well were you aware that you'd been convicted of a felony whenever he felt up the application and he says yes and so whenever you look at the totality of that the trial transcript there there's not a valid actual innocence claim here you have somebody and keep in mind please that this is an armed career criminal this is not somebody with like one five felony convictions at least mention in the trial record and so you have a guy who also served more than one year imprisonment he had multiple three year terms of imprisonment imposed upon him and so this is not somebody who can be reasonably be said to have been unaware that he had been convicted of a crime punishable by more than a year because he spent more than a year in jail and this court's opinions and hauling said and virtually all the cases they're after court shouldn't put mr jones in a better position than somebody who brings his claim on direct appeal and should treat him consistently in terms of the actual innocence claims that he is attempting to raise i also ineffective whenever you just have kind of procedural bars or statute of limitations issues of dual is not inconsistent with with this the government's position being advocated in this case in this court sided and lee versus sanders they cited prost in finding that point out that defense counsels raised a clear state memorable there are no constitutional implications to finding in the government's favor here and the th circuit th circuit kind of touched on those in their opinions  state context and also it really it there is a separation of powers concern if this court is to override what congress clearly chose to do and in acting twenty to thirty five age to place limits on success at the titians mart argument they're making i don't think actual innocence is the standard with regard to the fact arguments again the statement she states about being made to the officer that goes back to that witness credibility determinations that were never made here with regard to opening the floodgates and i want to address this for just a nd we are arguing for a very narrow class of cases this is a case in which our my client was convicted without as required by enry winship and i would say that is absolutely of constitutional dimension without proof beyond a reasonable doubt of an element of the crime it was a charge it wasn't instructed no one to date has made a finding factual about whether he knew or did not know that he was a fallen at the time he bought firearm i understand he said i'm a felon in the transcript but then he said i believed and he talks about that for about two pages  and i believe you can find that on pages it's a transcript too and i think it's on to eighteen of trance the nd transcript he talks about his understanding at the time he was convicted would that he would be entitled to an expungement after a certain amount of time i also i'm not certain that all of those convictions in terms of date and time frame are established anywhere in the record i haven't been able find most of them but i believe a lot of them are concurrent and so with regard to those issues we would argue that there are still factual issues in play in terms of harmless error we would argue that because of the nature of the your parents and briefing cases submitted and we will decided a new course