it is appropriate for this court to consider the timeliness of that proposed to be a petition at the two to forty four day keep in stage if the court has any preference i can address one or the other time with us usually makes  to go st and that's what i was thinking your honor so are we believe that there's a circuit court split as we've briefed in this matter we think that the six than one thing the th circuit have the correct view that timeliness is not a proper consideration under the statutory text which directs the court to determine whether or not the petition has met the requirements of this section and when it says this section that's in distinction from references to so i don't necessarily think that the scrutiny will be or should be higher at the two dollars to forty four dollars stage because the statutory scheme contemplates that the matter is going to be reviewed under the stringent standards by the district court i spontaneous raising of the exhaustion defense by the court that is not a petition that is passing through the gate keeping stage however so our position is that it would be more analogous to consider whether or not the two dollars to forty four dollars gatekeeping stage is not analogous to an initial hades petitions only after we passed through the gate would we be in an analogous petition where an arguably erroneous decision would be accompanied by appellate rights for petitioner it also is a difficult line to administer if timeliness is to be considered in certain situations of course granted there are instances where some cases it doesn't matter when it is considered you put one foot through that gate if it's allowed to go to the district court it's getting thrown right back out it's we can all imagine the easy cases counsel on the other side might argue that this is one way of course contest that but the problem with allowing that in certain cases is it gets hard to administer where the line might be drawn with all the myriad of different issues that could be raised we could have a thermos kill if there's any doubt let it go forward but then we've got an issue here as to whether this is you know based on miller or is it based on  and if we think there's a clear answer there why shouldn't we just go ahead and apply it rather than making everyone go through d all the motions so we have our argument as to why six montgomery should be the start date and we also have our alternative argument as to equitable tolling equitable tolling is normally going to be kind of a missing issue you'd normally not going to have much of a record that's probably usually that can be left but let's say and you should get to your argument on this afterwards but if we think that they're right that this is not a month governed case that this is a miller case and so it's well past the year then don't you have to show us some way in which there could be acquittal polling if the couldn't be equitable tolling in the case without a couple polling you're out of time and a story why go through the motions correct because we think that the situation with montgomery is  doesn't have an exact analog in prior retroactive rules announced by the united states supreme court it throws a wrinkle into the assessment as to whether it would be miller mongomery this is starting to recognize that separate from the equitable tolling arguments but in the event that it's determined to be miller that would have put mr reside oh leave him in a position in which he would have ironically encountered to the structure of hey be a sort of you had to have filed in federal court prior to his actual legal ability to pursue a retroactive claim in state court even though he is does it is a correct view that mr r ohad that you have to exhaust in state court before coming to federal court that's hollandse florida and also it would exhaust is not possible what it's legally barred etc you just have to do all that you can at that point your position would be  couldn't have done anything else therefore correct and i'm glad you brought that up because i think our arguments a bit nuanced in this respect between miller in montgomery between june two thousand and twelve january two thousand and sixteen it is true that mr res anybody else who is in serving a life without parole sentence wanted to bring a miller claim in pennsylvania they did not have the remedy to exhaust so they could have i filed have said there's no available remedy mongomery changed the landscape and with the the decision in montgomery there now is the state remedied to exhaust and the state of state law thirteen and that held that miller wasn't retroactive earth that was the state of pennsylvania to two thousand and sixteen an argument as to the start date for statute of limitations is montgomery and did cunningham because montgomery held miller was retroactive triggering a new start date sixty days to get in on a post conviction relief act petition which mr resign did too but that's assuming that the relevant trigger date is the date when it's made retroactive decided in june th two thousand and twelve correct and he had a year before cutting it had not been decided yet so after miller's decided he could go into court just like mr montgomery didn't say the should be retroactive and he didn't do that right so he missed the one year window that he had we recognize it controls and you don't agree with the argument this  distinguishable because of the retroactivity issue in the state court erroneous determination and that then mr without a did not file within a year after miller that's where we would come with an echo or equitable to arguments which even though it's based procedurally on the record we think that there is a unique circumstance here in so far as we formulated it as a rule mr bizzaro would not have reached the one year after that june th two thousand and thirteen but he couldn't have been misled by cutting him because cutting him is not until four months later in october so equable tolling it was cutting him and come down to march or something maybe he'd have an argument but he should have filed before there was any precedent in the state court that would have misled him about this for a trick to i believe that would go to the due diligence aspect as to whether or not mr assad it was exercising due diligence at that time his st federal habeas petition was still pending in the eastern district court he was challenging his conviction his sentence he didn't read that claim at this time there's not i don't know if others want to talk about timeless i do want to leave some time to get to reliance here and i want to i want to know i think that the way that the state argument works is how can you be real lobbying on a decision that draws the express line that you're on the wrong d side of it says people under eighteen i know you say well miller only mentioned the what's the millers the culmination of all long enough cases you know like roper where it's very much about society draws the age of majority eddie eighteen this is not just a throwaway mention of eighteen and miller it's building on want you know these cases where the death penalty is taken off the table d always cases draw this line at eighteen so d how can it rely on that if if he's on the wrong side this is not like a case of extending exculpatory evidence to some new context like forensic sending strickland to some new context where no one has addressed sort of registration before but strickland could plausibly go there this is going over an express numerical law why is it still reliance on something that appears to foreclose the claim i would argue that the united states supreme court's line in that matter represented a holding for application of the procedural component of the substantive rule in the miller the supreme court referred to as a procedural components when talking about how it prohibited d the mandatory imposition of life without parole then in montgomery they went on to characterize the rule as the substantive rule as one that prevents the sentence of life without parole mandatory or otherwise if the defendant's crime reflected transient immaturity and you're characterizing that as part of the hol i think other people would read about them or differently i'm the supreme court said in montgomery that the rule of miller was that a defendant cannot be sentenced to life without parole if their crime reflects transients really describe that is the rule i think they said that explained why the court had come to that rule in miller but they didn't say we we held in miller that any crime from by transit immaturity if this penalty is bar it's just all of this was the thinking behind miller montgomery will say what it says i do believe that it says if the defendant makes the showing that their crime reflected transience immaturity life without parole cannot be procedural component of not permitting a mandatory sentence but i would also direct this court to look at in re hofner two of the cases relied on their deal with miller v alabama claims from other circuits and they also address they arguably have the same line in one case or i would argue perhaps a more meaningful line in another so in re williams which was cited as a my ask a question about hawking please hofner it recognized that a th circuit case sparks case in which a petitioner used graham which held life without parole unconstitutional for non homicide offenses could get through the two to forty four gate keeping phase despite having a homicide offense that that was permissible way to nd sparks was a case about whether in fact he had committed homicide offense it's about a factual predicate the distorted defined it wasn't the belt build legal scope of the rule sports was my understand aiding and abetting a carjacking resulting in characterized that way i also know in other situations in which we are representing those individuals we emphasize that there is no intent to kill but that is an offense that resulted in a death and is arguably a very sharp distinction between graham the florida which also had a line in the facts of that case similarly in ray williams which was also discussed in hofner that involve conduct that spanned somebodies th birthday so our argument is that the application of the substantive rule not extending the type of circumstances the science relied on by the court the attributes of use not extending or changing them at all but in exact application to petitioner who was five months and eleven days old or eighteen is application of the same rule and that the line at eighteen years of age whether or not that distinction applied to mr reside oh is so substantive as to preclude relief is a merits question or should be allowed but let me ask you a question let's say there's a forty two year old has been living his mother's basement like having her do his laundry make breakfast for him and he's just he's he's he's immature but he keeps talking about get getting his big business plan off the table whatever it's like forty two years old and they're going to get his big business play and all of he winds up pulling the armed robbery of some bank and shoot somebody you know is there any logical reason why your approach wouldn't allow him to argue transience immaturity and to get him to say like no this can't be taught as a matter of law easy easy mature he's only forty two dollars like eventually he's going to he's going to get it together is there is there a stopping point to this argument yes and i think the stopping point has to doesn't finish developing so i've seen that age as well but what i have seen cited more specifically based on the empirical research say by dr steinberg in cases in kentucky and connecticut was the empirical research now says that up t age twenty one that those individuals that are eighteen dollars to twenty one dollars have the same characteristics especially under situations of stress or peer influence that those who are younger than eighteen have which is also consistent with a lot other indicia of immaturity that we know from say what insurance companies charge for those are eighteen or twenty one the rates at which eighteen to twenty one year olds commit crimes of violence i don't think it is in and this does are such generalities i mean which is six you would concede would you not that there are seventeen year olds who are remarkably more streetwise a remarkably more experienced than some twenty five year old then what's wrong with judge b was this hypothetical i mean if it's all about transience immaturity and i i can't tell you that i could define the boundaries of that i guess we'd need to bring in a lot of smart doctors to do that in every single case but the law has a long history as george vi was of of picking these ages that in certain cases will appear quite arbitrary right but i agree i think that the right in miller however it is used based so if you're saying he's thirty five dollars or forty two dollars and we know he's going to get it together someday and maybe it won't be to his fifty or sixty but he should have a shot a pro and i'm not going to be arguing that case and i don't think the core of any difficulty getting rid of a case that's not rooted in an analysis of use by somebody who is recognized as an adolescent by not just social and developmental and neuro science but there are other legal ages of majority for various types i mean drinking alcohol is perhaps one of the the most common one  most common salient age of majority but not that it couldn't depict twenty one the drinking age or something but once it picked that line why should we move the goalposts because it's a function of courts to address rules as applied to comparable situations to determine if they should apply in those situations and developments of the constitutional common law this is not a claim that mr reside o has raised again and again and again since he's been convicted this is a claim that is emerged out of the constitutional standard that is itself evolving as is the science that underlie the miller a petition we're asking for but it's all about the rule right i mean this is one of the things that's interesting and i think tricky about cases like this is is it says new rule of constitutional law right and am i wrong to view rules differently than russian l's to me the rule  i sort of associate rule with holding the rule what's what's the rule of miller to me the rule of miller and correct me if i'm wrong the rule of miller is that you can't states or presumably the feds couldn't have a mandatory sentencing regime that puts those under the age of eighteen in jail for life without the possibility of parole in other words the judge the sentencing judge needs to have the opportunity to exercise some discretion to say this youth this youthful offender there's something about him or her that compels me the sentence or to not lock him up and throw away the  key is that not the rule of miller so i personally have come to understand rule is more consistent with right and distinct from hold in a think the st circuit discussed this in the more case but i read your you said more consistent with what rule in right interchange and so so it is you right of constitutional law which it wasn't a right of miller i believe you start with montgomery's characterization of the right of miller which is to be a you a juvenile offenders cannot be subjected to life without parole ok so the point of that is that if you're not a juvenile you don't have any opportunity now i guess that takes us to montgomery as i understood your argument before it's nuance that well that may be the rule or the right of miller but mcgovern he said something different montgomery said it's actually more expansive than what miller seems to suggest when you read miller that your argument i don't think that montgomery necessarily expands miller i just think it is the courts talking about what the right of miller is in and of itself i don't think what does montgomery define the rule or right  to be the substantive right is to be free from life without parole if the crime reflects transience immaturity and the court did not have an occasion to really examine the law and sure it said it at eighteen they were dealing with right here suggests that there's reasonable grounds to differ even if you know it might seem easy to one or the other of us i think that it is absurd reliant on miller whether or not it would ultimately get relief is something that should be allowed to be sorted out in the district court so there's the four range of development of the issue and the opportunity for appeals if there's no further questions sick my apologies and for forty years nobody's got it right i don't expect anyone to on the st try my name is kindly sic i'm with the berks county district attorney's office on behalf of the commonwealth of pennsylvania we are the respondents in this matter  much like opposing counsel i'll begin with the timeliness argument as well sometimes the bad part about going nd is all of your thunder gets stolen and some of mine was in this case in regards to timeliness argument there's nothing in our federal case law that prohibits course from exercising their inherent additional authority as part of this keeping function let me ask you this question counsel when you think of the statute here  when you have a mention of my meaning in no reference to time in v how do you interpret that with regard to how we should think about well i do understand your point that the timeliness is specifically mentioned in the but i think what as a court we have to hearken back to is that may as you pointed out in b because if this was a cut and dried it agree with the point that was made earlier may means there must be some other consideration as well if there was an additional consideration it would be a shall you jump through this hoop that you rely on a rule  shall be given permission to file a nd or subsequent to a nd or subsequent petition where it says may that's opening the door for the additional considerations that the court could make all right so that's a textual argument there but your friend on the other side's point is you know two thousand two hundred and forty four dollars d d you know the district court are supposed to be considering the timeliness here but there's nothing that tells the court of appeals to consider the timeline is isn't there a negative inference that we should just be leaving this timeliness stuff to the district court and i think that's one way of looking at it but i also think that if you're looking at generally a gatekeeping function inherent in the court is their ability to control the time to bar petitions and i think that rationale is important here because if you can look at a case on its face without any real in depth discussion there is no reason to make the additional work for the district court for the council when it can be decided here and now saying that it is on the key words there on its face right you would concede that if there is any uncertainty or an argument to be made that would not be the the type of case that we should block at the gate well if you look at the i agree with that your honor because if you look at the holding in nothing that if mr gross could argue to persuade us otherwise well then i think it's a lot of the dates that we talked about during co counsels initial argument miller which is should be the starting point for any timeliness here based on d start it there's no grounds under montgomery either because he didn't volunteer montgomery either additionally in regards to tolling statutory tolling here doesn't apply on its face because his initial p c or a situation and once we get back into equitable tolling i think the point was made during direct he didn't do everything he could do there wasn't a major impediment by the state because cunningham hadn't come along we have to come up with a rule d not just for this case but for the for the future of the bunch of other cases or is this handling this issues you know in the statute worse we're supposed to grant or deny these applications within thirty days we usually don't have the state record we often don't ever sponsor the government so in a typical case it doesn't seem like we're well equipped to consider timeliness right i mean doesn't it make sense as a d role even if you're educated or an exception here as is the norm or the rule or the general practice or presumption to defer timeless until we get to the merits stage not of the gatekeeping stage well if we were going to buy something go by the rule that we what we can be considering timeliness in the st place because of what the statute says but due to the fact the word may is considered in the role i think that's what opens the door to these considerations of time with us and doing that on a case by case basis it's not as if this court looks at it not be dealt with at this point in time i disagree with that point your honor i think sometimes when you can look simply at the docket and the things are filed on and quickly make a decision that this was not filed in a timely manner that can be done within thirty days how would you know how would you be able to make a determination about equitable all when you just look at  but i sure that it also comes between the edition of dates as well as what the defendant in their initial request for the nd or subsequent is arguing in this situation it was coming in as our impediment to it  cunningham just looking at the dates was not an impediment to filing as far as an equitable tolling so i think it can be done in looking at dates and what the defendant's initial argument is is it something they need to raise well let me choice whether we essential the buy in to the montgomery argument or we don't but your honor i believe that's that's entirely a legal argument and i think the supreme court precedent demarcation lines miller was decided this date and found to be retroactive much later by montgomery it all depends on how dod plays into it right now mr grote point is well i agree with that  define the role of miller to be what the holding was at the end of the st paragraph in justice kagan's opinion which that sentence was we hold that mandatory life without parole sentences for those under the age of eighteen change the holding the you just read in order to answer that question i have to go back a little bit to what miller talks about when miller goes to his initial decision of saying we're going to this line at eighteen and say the juvenile can't be given mandatory life sentences they talk about two lines of cases categorical bans and then these characteristic based bans categorical bans of course not being able to execute those  mentally handicapped not being able to execute juveniles under the age of eighteen that is a set line that says absolutely not to these things and then talks about some of the characteristic based issues those a maturity one of the buzzwords that's used through a lot of these when we get to montgomery versus louisiana though in its discussion of what miller is montgomery were st to the miller decision is a categorical ban that's how they get to the idea that this is a substantive role well they be it's a categorical ban on l wop for those with transit immaturity including judge b this is forty two year but i think it's looking at montgomery i think it does draw the line at eighteen because it hearkening back to miller's ruling of eighteen if anything montgomery would have been an opportunity for the supreme court to say we don't just mean i think at this point is i think you can call it frivolous because as a supreme court has shown throughout the years we don't always love drawing categorical lines but in some places for the effect of the ministration of justice that have to happen throughout society we draw plenty of line at the you can't vote can't serve in the military prior to eighteen some places you can drive a car without a license adult in the car eighteen is a line that society in the legislators have drawn in tons of places and it's acceptable for the court to have drawn that line right there as well but arguing for an extension would not be frivolous right i mean the supreme court might decide you know in a future case that though the more we think about it eighteen isn't the right number because the male brain keeps developing until twenty five so they change it to twenty five i mean is that your argument or is your argument is your argument that seeking an extension of miller would be frivolous or is subsequent k b s corpus petition isn't the place to be arguing for new glock which that extension would be the new law it's the heartland of that principle is to get the benefit of a rule that has been if the rule of law that montgomery made retroactive was that those with transitive maturity can't be sentenced to mandatory l wop you would concede i take it that we should grant the petition and there d would have to be a review here as to whether mr assad oh could qualify for as as having transitive maturity and i think if that's the way this court chose to fix  law then i think that's the the result that has to occur but i think that that expansion of the law is inappropriate at this juncture mr grote i don't remember how much time you read three minutes for a bottle government was seeking in a hofner essentially a teague analysis to see if a nd rule d applies that approach was rejected in hofner he says that the line might be necessary for the effective administration of justice which countered that individual ised sentencing is perfectly consistent with effective administration of justice and so has the application of the miller rule to more than five hundred dollars cases in pennsylvania so i don't think that that rule is necessary to uphold effective administ justice there's different ways to administer justice the constitutional question has to control the washington state supreme court they said that they were applying the rule of miller to one thousand and twenty one year old and only expanding the class of defendants i just cited that is what we would consider reasonable jurists that were coming out on the other side of that question and articulating it's consistent with the position that we're dancin in this court that it's the same rule applying it to somebody who was d over this line of eighteen however statutory tool and i did want to talk about we touch on this in the brief but if montgomery is the start to it then there are also have to be an assessment as to whether or not the statue of limitation was of attempted to bring his claim in the pennsylvania courts in his p c r a petition it was formally rejected on time in his grounds as similar case there is in the exact paraphrasing but they were it was identical the timeliness decision with determining the scope of the right and it was the u s supreme court in our is bennett which said quote in common use you and the question of whether an application has been properly filed is quite separate from the question of whether the claims contained in the application are meritorious and free of procedural bar so i just state that to rehearse that the statutory tolling question we also do not believe is cut and dried and there's no case directly on point in the rd circuit determining that all the more reason that it should be sorted out in the district court so that if either side objects to what happens with a rigorous review there it can go through the normal appellate process any further questions