our first case of the morning is actually three cases we've given lots of time to lots of attorneys and we indicated i believe that the council could decide who would go first so whoever has decided to go first and come to the podium good morning your honor sir may it please the court my name is lisa freeland and i'm here today on behalf of michael pendleton the first place on the list your honors michael pendleton has satisfied the prima facia standard set forth  thanks for the reminder as this court is aware the standard under twenty to forty four is a prima facia showing and i want to start out just addressing that standard briefly because it is rather  unusual for the court to be having full briefing in argument under twenty two forty four and i don't know that there have been that many occasions where the court has expressly addressed that standard and it's a put ability in circumstances like this  the court has recently i guess in the last decade discussed the meaning of prima facia showing in goldbloom versus clam and there it said that it was a sufficient showing a possible merit to warrant f oration and the merit part of that sentence refers to the requirements of twenty two forty four b which in this case is whether or not the cases were made retroactive by the supreme court what about what about the comment from the circuit in the williams case you can you can take a quick glance and look through the merits to decide whether or not to for really got a constitutional issue and play this out have any effect here honor i don't think that it does have a fact here and i actually think it flies in the face of the plain language of the statute and by looking through behind to the merits and making america decision at this stage it's really a wracking a higher burden for the applicants than and the and then congress decided to have at this stage in the proceedings well how what what assume the counterfactual with me  that may be an easy way to do this is actually to have you jump ahead and i know you know representing mr grant but assume we were talking about the guidelines case and that it was clear on the facts a clear on the law i should say that the guidelines were not me and it tori just that you know they even said right and i'm not mandatory and that your client coming up through that system again we're talking counter factual here was trying to make the pitch to us that miller is retroactive and i was sentenced under a mandatory scheme and it was clear it wasn't a mandatory scheme are you suggesting that we would have  claim that relies on a new constitutional rule made retroactive by the supreme court and so the only question for this court at this point is whether the the applicant has raised a claim that we law is on would be required and let me give you a bit about how would it warrant further exploration if you've already looked at it and said you know it's apples and oranges it doesn't and i think that really in the in the guidelines case where you're looking at a sentence that was not mandatory and that's clear on the record before you you may be able to say that the claim doesn't rely on a case that's made retroactive by the supreme court because in a very real sense it's not it doesn't flow from the case so to speak because the case is about mandatory sentences in the in the claim doesn't flow from it but in terms of the equitable reasons because i think they're very important why the court should not at this stage naik that type of decision number one it would be unreviewable if you if you stick by the plain language and dictate of the south which requires a gate keeping function only as  described under the language it would go back to the district court and if it is clear as you believe that it is the district court would quickly reach that conclusion deny relief and then that claim could come back to this court even if it's just to preserve it for future review in the supreme court but there is there are equitable concerns that i hope that this court will take into account if it is inclined to look beyond the statute to the merits and that is that it would absolutely cut off review for actually your honor i was we didn't divide up the issues because we thought that you might have questions for all of us about the different issues but i'm interested in the jackson aspect of it and actually my my real response is that i believe th but really the sprinker didn't address retroactivity all decided was that jackson was like miller in terms of the constitutional problem and then sending it back to arkansas for our sort of decide based on its own rules r trip to vote is not correct and isn't that what happened also in florida that went back and they decided based upon the case of so don't we have a situation where you know perhaps to really isn't controlling on the retroactivity of a state case well i don't think so your honor for a couple of reasons first of all in sending the case back the court was silent with respect to the state court treatment of retroactivity they did not direct the state exactly right to address retroactivity under state law  real issue is that the application of miller in jackson's case was the vacating of the court of appeals opinion it said we've reached this rule in the miller case and we are applying it to vacate the order of the court children dolls question do we do we face a circumstance here where we should be waiting for the pennsylvania supreme court i mean your client and mr bates are both as i understand it because what if we say something in the supreme court of pennsylvania says something different does that put us a little bit awkward spot speaking in the air when what really is going able to reach the merits likely until exhaustion was complete and this proceedings would be stayed and in fact i represent probably about sixty petition petitioners in the district court right now that are seeking first really  district court on the issue of retroactivity which is the issue for before this court right now would not be bound by state court ruling on retroactivity the reason that we're here now instead of at some later point is because of the one year statute of limitation in the failure of the pennsylvania supreme court so there's a reason why we're here now but if you're suggesting nor did we just stay these proceedings and await a ruling if that's a question i'm asking a mascot right i'm asking because when you say he's the district  people found that's true but if since these people are on a state post conviction review if the state supreme court says it's retroactive then they get relief right so does it really matter whether the district court thinks they should get relief or not on a twenty to fifty four application they're going to get the relief from the state supreme court and so that this record will have rendered an opinion which has no facts correct well yes you're right but that's why i'm saying that the that the district court would not proceed i think the proper course of the for this court to decide this issue for these cases to be lodged in the district court and most likely for them to be stayed in the district court not in this court at this time yeah but what i'm trying to ask is if it if our sending it to the district court is only for the district court to wait because it makes sense to wait for the supreme court why do we send it to the district court why isn't it right for all the federal  this is in front of the state supreme court right now they're going to have the last word on it since the state post conviction relief these guys have been in the process and i'm not saying it's right or wrong i'm just trying to pull your  and i mean i'm almost right there with you i mean i see the argument why i perceive now if it's just going to wait and really the only answer that i can provide to you is that's the ordinary course of things we wait when state courts are deciding issues we wait we say petitions in federal court i can't really i'm not trying to be difficult and i see my light is on often ish the sansar and less than any other questions i'll sit down and wait for my rebuttal but i'm not trying to be argumentative i just think that  whether it waits in this court or waits in the district court is not really that significant of a difference from my perspective i understand from your perspective you have to make a ruling and so it may be from yours but on the standard which i hope my colleagues will have an opportunity to address more fully we i believe we need that standard and that it should be an easy decision for this court to make that decision send these cases back to the district court where they will likely a not i'll see you on good morning your honour's and may it please the court my name is david fine i represent franklin x veins and other applicants in these cases your honor if i could reserve just two minutes for a bottle for you are you substantive are procedures for both i'm going to argue substantive your honor and i'm happy to get right to that if you'd like me to i was going to try to address very briefly if i might the judge jordan's last question of this freeland and i sum it all definitely want us to decide that these federal proceedings by deciding that under pennsylvania retroactivity principles miller is retroactive in which case perhaps our clients could get relief then through the state court which is i think roger's point if the court says no it's not retroactive under state is since there is that prospect that it could make anything we say irrelevant perhaps we should be thinking about what we've got a sort of sanction issue here or do you disagree with i don't think you're on a right now you can consider moving this or center and i think what you could decide right now is to push the pause button until the pennsylvania supreme court decides cunningham and then once that court does that for example you could direct us to to brief the case further can help us talk to each other that's ok what what he's trying to say to you i think what george jordan's point is you might not even have to make the determination of all not that it will be informed by cunningham or anything else that the state court does but that it might move out the need for this panel to decide it but if i could let me move on to the issue of assuming that the court goes ahead and decides it which i think at some point it may very well unless anyone comes down in favor of retroactivity under the state rules judgment oh you asked me when i stood up what i was going to argue about a procedural or substantive and i think that if you look at the sherwood decision which i think is very important here notwithstanding how it came out what it describes here is that the effect of miller was fact substantive in two ways what miller did in the first instance take a look out for example at the pennsylvania sentencing scheme we know that the sentencing scheme in place certainly when when my client was sentenced in the late sevent said that juveniles were subject to to the regular world sentencing that adults were they weren't separated out including by the way for the death penalty at the time and that if you were convicted of murder was a mandatory life in prison without possibility of parole the effect of miller on that statute is to narrow it because what it says it well it actually narrows and broadens because what it does is with respect to the statute that makes mandatory life in prison it now carved out juveniles because we know that juveniles can no longer be treated as mandatory recipients at the very most there has to be a sentencing hearing with the individualized terminations which is a process well which is  process your honor but the distinction here is that in the usual case where we point at something and say that it's procedural under teac so you have a ring against arizona there it's a question of for example and bring who makes the determination of certain facts which is purely a procedural thing there was no question there that those facts were going to have to be determined that the process was going to be engaged in private this is that process has to be engaged and that individual i sense and penry says that that substantive involves you know regardless of regardless of procedure that if you have a substantive situation that it is regardless of procedure that this is this is really wedded to the courts have to do something that they're currently not allowed to enter until i think that that is the point this is not to be incurring with the procedure which is what we see in the other cases that the supreme court has looked at and said no no that's procedural ring a pretty all of those all of those cases those are dealing with you have a procedure in place we're taking with it the jury has to decide this as opposed to the court or ever might be in this case we're saying you have to have a procedure in the first place and what that does in effect is it changes to criminal statutes in pennsylvania one it carves juveniles out of a mandatory sentencing scheme and the second is it increases for juveniles the range of potential sentencing outcomes but the the supreme court in in miller seemed to be at pains to say we're not saying you can't sentence these juveniles to life in prison without parole you can do that you just have to take some extra steps so when you say take some extra steps aren't you saying there's a procedural issue here you know because they're not taking issue with the procedure they're taking issue with the lack of procedure and a mandatory sentence and we developed somewhat in our in our brief you're on hold on a second because that court has knocked them that they've said you can still have that consequence of course that's the fight in the eleventh circuit it's it's it's a pretty strong arguments on both sides of prose how how do we address how do we face the supreme court not removing the end of tory life without parole for juveniles of homicide cases only saying you have to take certain steps before you can do it your honor what i would what i would offer by way of an answer is that yes the supreme court did in the language that you're referring to say that it was not categorically banning all life sentences without possibility of parole but what it did do was it did categorically bar a particular kind schemes has nothing to do with the usual sorts of concerns that motivate procedural rules accuracy due process fairness mandatory sentencing schemes such as the ones that were in place and these cases drug mandatory sentencing schemes the whole host of them are there because they are a particular form of punishment they're there as a deterrent it's not to have any accuracy it's to say to people out in the community if you do this offense crack you know you're trading track the distinguishing feature from the language in miller that judge jordan pointed to because mandatory and it's the same way your honor with woodson which unfortunately ever got to retroactivity determination but woodson of course was the case of the no mandatory death penalty and we know that mandatory death penalty wasn't about accuracy or anything else that's procedural in nature it was there to say if you commit a b or c offenses that's it you go to the death chamber and that's that's more about required to be done and the rule they've set down really is all about accuracy but it's not a change it while you're out of that part of it i think you're quite correct about it is about accuracy but what it's changing from and going to is makes it substantive because we're going from a form of punishment to only a form of punishment in certain circumstances that narrows the criminal statute and i'll reserve the rest of my  retroactive in other words so it is looks like the posture we're in here people coming up from state post conviction review the supreme court has made a honor that's a difficult question because i think it raises some some level of confusion about how the supreme court handles this but i think that there's a response rooted in the posture of this matter before this court which is that as  they would apply to cases on collateral review it did not say that that did not make pretty or recollect if it did a different retroactivity analysis so i would submit to the court that there is at least a significant question about what the effect of those cases is and that comes back to the point your honor about where we are please recall that under the statute what this panel does on these applications is unreviewable not even rehearing petitions and probably final with regard to these gentlemen or at least there's a good argument that i would imagine the government would make which says that if later on some court decides in fact much more explicitly that miller is retroactive these fellows will be out of court and that suggests that this court's gatekeeping role is in fact a very modest one and that's the language from the close goldblum decision if there colorable claim if this is not a frivolous argument and there's something that should be developed you open up the gate we'll let it go to the district court where by the way that judge is not bound by whatever this court does it's not a binding it doesn't create the case goldblum says that so whatever that court does then it could come up before this court on appeal we're hearing all of the usual review mechanisms but all of that suggests that the scheme that congress created in the in the section  forty four does not want you doing to close an analysis because you know to use the language that afterwards that procedural well there's well there's up more to all right we'll hear from you right pardon me i suspect we all can't punt that is the first at the someone else now i think we're going to have to deal with with corey grant yeah the fact that it really wasn't mandatory sentence that was imposed on him in his youth was considered correct well if i would rely on booker i would say that it was it was mandatory judge with all due respect while the language of the guidelines pre book or were always that there is some opening there is some discretion i would argue respectfully to the court that really there really wasn't any part of part of what the government's position is in our case is that we pursued these arguments that we had several bites of the apple already and i would submit to the court that there really was no apple back in one nine hundred ninety two when we appeared for sentencing what was the purpose and in making the arguments because as you said the arguments were made and you say that because you ask me what kind of like what are my my what were my motives of doing this if i felt that there was no possibility if indeed it was mandatory and there was none how can i argue now that you know that i what was i thinking when i argued for an hour and a half  yes so you thought there was some discretion there i did not know what right frankly i may have been hopeful but but the truth of the matter was i had been through the case for over a year at that point i had never had in despite having considerable experience in criminal law i never had a juvenile waved up in federal court the entire procedure that was none was new to everyone when we appeared at the arraignment for corey grant the other juvenile vincent when i argued when i argued for the period of time that i argued that the sentence and i really felt the need at that time to put on the record because we didn't have a hearing because for the waiver that is for the transfer there was no hearing as such because all the government had to do was show we had two prior offenses and there's an allegation of violence and it's automatic you don't get a hearing that's it ironically the two prior offenses were two offens were part of the rico so there were not even new offenses they were offenses from before and that was part of my argument on appeal originally that you know that this should have been should have been some safeguards for that as well so the point the point that i'm i'm attempting to here is that when i argued for an hour and a half at that time throughout the entire procedure the fact that my client was thirteen to fifteen when most of these offenses allegedly occurred he was one month into his sixteenth birthday for the homicide nowhere on the record no where at any point in court does it ever come out that he was a juvenile well that has a so i say that i say that just because that's central to the miller the miller the solution you let me quote you something from sarah i read that and and i wondered is that almost conceding that that your complaint is you didn't like the way that court handled it not that the court didn't have the opportunity to consider but you just know that the court didn't meaningfully consider it i think it i think it goes back to what you originally said to me you know the court did say he you know that i'm considering this and i'm considering that with all due respect to responded to my grief back and it's and i can quote from the from the from the brief of the government that i can cite a single case to support my argument and they're saying the same thing today i can't supply you know whether i'm saying that they can support there were no cases no juvenile no juvenile to my knowledge if you didn't involve a juvenile no juvenile ever got a downward departure none i mean where was i going i felt the need to put on the record back in one thousand nine hundred when i appeared before judge ackerman so i have a record of who this person was you know everybody has a shred of the twenty five hundred twenty five hundred that they say in the pipeline everybody even though your fella wasn't at the top he certainly wasn't at the bottom in the comment that i bet you wish corey butts out there on the street indicated that the members of the conspiracy had a lot of faith in the violent tendencies and the retribution tendencies of your client so maybe isn't a post show but more to the point what we're dealing with here today all those things were put in front of the judge the judge heard all those while they were talked with you about right well they were put in by an attorney who felt the need that there should be on this record something for a corey grant that that isn't that's something that pertains to him that no where on the record you because he was a juvenile because he was different you know part of the part of the a guy be original by going against the law as having to do with mandatory sentencing you have a problem but aren't you in essence asking us i throw this happen because i want your opposing counsel to address it are you really asking is to read miller more broadly and where miller says that mandatory is reserved for the is the exception not the rule and indeed in the future will probably not be given to that many juveniles in this and to the extent that that's what that the opinion stands for it is diametrically opposed to what happened in your case where the mandatory was the universe and the except the non mandatory was the exception if you will not the rule  you please the court machine pettitte on behalf of the commonwealth in the matter in re my hope pendleton your honors i'd like to just start in with what i believe is the crucial imperative issue in this case and that is that miller i believe clearly set forth a new procedural rule isn't that isn't promise facia case really what we're here to it is your honors and i understand the argument that we're here in a gate keeping capacity but we you can't get past the gate so to speak without showing that miller is to be a fly or was made retroactive for this possible merit possible merit to warrant a further exploration correct and i believe that when you look at what the supreme court did in miller and you look at their specific deliberate language that it is very clear that they were announcing a procedural rule oh except they took me under tory right off the table they said you can't do this period as a matter of the eighth amendment of the united states constitution you can not mandatorily send a juvenile to prison now that sure sounds substantive doesn't it it is taking a category of punishment and setting it aside for ever on a constitutional basis when you phrase it that way i i think if they had made a categorical ban on life without the possibility of is where the process lies i mean the court stated this case mandates only that a sentence or follow a certain process considering an offender's use that is the per se language the precise definition of what a procedural rule is they went on to say our decision does not categorically bar a penalty for class of offenders or type of crime ok you can you can see that sounded like you did a minute ago that it's at least arguable that the mandatory character of the life sentence is part of the punitive piece of the sentence and that by his sealing mandatory life sentences off there's a substantive ru that that's at least it's not a frivolous argument but something being frivolous and being arguable are two different things and when it's her there's a good faith argument that can be made in that respect is there not but the punishment is life without the or is there at least at ace is there at least a plausible argument that can be made that that that is part and parcel of the punishment and if it is that's a substantive rule but ultimately that may not be the right answer but it's a it's an argument that has plausibility that you can think about you can from noodle around in your head and work with and try to figure out whether it's right or not sure judge not enough to just say it's arguable it must be sure at the end of the day that's the end of the house but at the prime aphasia stage we've sudden goldblum it only has to deserve further thought and development so if that's where we are and you can see that and i think you know i think you're well advised to think about whether you can really say oh that's just of crazy because think about it i'm not sure i'm not sure where you go because if if goldblum says what it's seems to say they're over the prime official threshold are they not i disagree i really think because when you read miller and you look at the analysis and they took steps to say we are not like those other cases we're not like akon where this is not a case of roper simmons of action graham i think that that takes away any except the thrust of the opinion when you read it is that children are different children are different there shall be no mandatory and obviously if you follow procedures district courts have discretion courts have discretion to sentence you can't take you know life without possibility of parole away from in the rare case i mean that's the other aspect the fact that justice kagan and the court says this is we predict that going forward mandatory is will be the exception it will be rare so while not closing the door there totally and i know this the range of options means not just the range of options have been  expanded it's giving him an option for ninety eight six percent of the cases that was never there before how can that not be substantive well i think there's a couple responses to that first uncommon does not mean impossible does not mean unconstitutional  do think about what do think about the future with with juveniles and courts considering life without the possible possibility of parole or get to the miller court makes it clear that their position is children are different and because of that we're going to change the process in which they are sentence they are not changed the sentences are going to effectively change the practical matter the sentences they receive yes and i and i that there are pot there are different possibilities there are different ranges if you will of what but i think to say that that therefore makes it a substitute of new rule is and this character is ation of what the issue is and what the issues are under t and what makes a new real substantive versus perceived role because there is more possibilities if you will that in of itself certainly does not make any real substantive anytime you know it's a new constitutional rule there's going to be i mean i would argue there's going to be differences that happen and consequences of that but not every new rule is applied retroactively and the courts have been very very clear on that and if i can you can you answer the question about which i ms freeman about whether we should be moving forward or not i mean you're representing the commonwealth in a case where clearly the state supreme court is going to say something pretty significant probably hopefully pretty soon why why should we be deciding this now well as i did put that as my first matter in my brief is just the fact that he does have a timely mr pendleton has a timely piece here a pending in state court i believe he filed it five days after the miller decision came out so he was on the ball that case has been stayed pending cunningham this issue that he wants to raise  exhaustive so i do think that that's another consideration and and should factor into the decision here and if i could i'd just like to respond to the question that was posed about the jackson case and how that if at all affects this issue right now time i would like to say that i think i agree with judge randell here that what what the miller court did in re manning the case back down to state court i do not think that that made a t decision for us i think it's really counterintuitive to say that what happens in a case that was on state collateral review is going to determine how this court is going to decide it teeth issue and i think that once you want to start looking the supreme court in t did not say you know this this supposed this applies to federal cases constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review they didn't say all defendants on federal collateral you were all defendants except the ones on state collateral view it's all  on collateral review that's pretty broad language why would we insert a modifier i believe that subsequent to t that the supreme court in danforth first of minnesota i believe that the case name cracked you know what that is of the state can be more generous in its retroactivity and they do use the word federal court federal court a lot but they don't say there it has never said there are different rules for its collateral review it's speedier of this question the question is what does he mean when it says when we announced this rule apply it it's going to apply that everybody on collateral review in an unmodified way it's as we the fact don't believe that it would make the best sense to rely on that what happened with control jackson to then make a broad finding that it was meant to be collateral on federal hate us review because in order for that to be the case  it please the court ronald eisenberg for the commonwealth in the things case i'd like to pick up on a point that's been discussed to some degree so far but i think this is a little more attention and that's the reference to the idea of miller as changing the range of options available for sentencing you heard something similar from my colleague mr fein when he spoke about narrowing and broadening  it all over the justice department's brief when they speak about expanding the range of sentences and they say that miller does that and i totally acknowledge miller does do that and it does it in a large number of cases as  is that's not the test for retroactivity if it were we'd have some larger problems well isn't it first just as and let me curious have you ever found yourself in a situation where the united states and the and the curiouser when you play it out when you play out the standard that the department has advocated along with the defense which is well let me hold on let me ask you this should it matter to us that the united states of america advocate the same standard in other situations and i'll take you back just a few months ago to this week after miller with the side of when the united states supreme court sort court decided the case of eighteen versus united states in which they helped that mandatory minimums as he or two for it ministered throughout the united states were unconstitutional since that time in that short time there have been at least twenty eight district court decisions addressing the retroactivity of  conciliation are you suggesting are you suggesting that because the department of justice doesn't believe that everything is retroactive big now believe that anything is wrong no i'm not your honor what i'm saying is that in a lean the united states supreme court that is the test if that is now become the test not just for the ruling in a lean but for retroactivity then a lean must be retroactive ilene automatically by virtue of that decision in june has become retroactive to all cases in all times in the united states and yet as far as i can tell from looking at those dozens of district court decisions the government has not conceded the retroactivity of aliens so we can't believe these guys well i think you have to question what they're saying i think there's a reason that they're not conceding that they're nuts because that the standard that they are a spouse in here today doesn't play out doesn't work and it's worse when you go beyond dealing to booker because what booker did was not to invalidate the sentencing guidelines but merely and the court was very clear about this but merely to excise the mandatory aspect of the sentencing guidelines and yet the department of justice has not advocated for the retroactive application of booker in options available to defense in huge way in a dramatic way that could affect thousands of cases and yet booker is not retroactive in a lean as far as we know so far is not retroactive and the department agrees with me in those contexts but the standard is what counts that's not the standard for us so what do we what are we can make of this isn't slate out of the circuit or commentary from some of the judges on the eleventh circuit that say it is the mandatory character of the sense that that is a piece of the punishment itself you heard mr fine dresses and what is is what erroneous about that logic if that logic were correct then it would raise retroactivity concerns in the alien booker context as well as i've indicated of punishment but i don't see the analogy this case to miller where they took something the supreme court took something off the table they changed the range of punishment by taking mandatory off the table they change the range of punishment and it gets back i think that word to your comment during the argument of my opponent who said that this isn't a procedure it's a lack of procedure in your response i thought was correct which is it's procedure either way well requests i'm posing questions i'm not taken position firing and i also like in my my question to you is the same one that judge greenway has just put isn't there a distinction not just in the greed but in kind when one says the guideline regime is going to have discretion now involved with it and saying here is a kind of punishment which you may not impose any more no may not impose a mandatory life sentence without parole on it you period no your honor because the question is still how you get to that punishment for the guy who's serving life without parole it's going to be the same punishment when whether he got there by a mandatory sentence or a judge's exercise of discretion and as we've just been discussing in the federal case here the effect of the federal guidelines was the defendant says to essentially mandatory that what judge randell has noted as the key aspect of miller would not be considered it was mandatory that the court couldn't look at you but can i ask you something that puts your colleague for the for retroactivity and if that's true can we all just go home no your honor i think it actually means exactly the opposite because how so arguable is not the ultimate standard here how possible m time in order for the case no no no no not if you're yeah you're late i'm going to have yeah yeah that's it's no different than any other look ahead at the at the merits of the claims as you were exploring over your potential marriage how you're trying to draw a said response to something you know is in this was intentional right and you had argued a moment earlier that there are no it's arguable so you're attempting to draw a distinction between necessary for the defendant to go forward and those elements differ in this case the crucial threshold element is the question of retroactivity and that is a major roadblock for the defendant and you cannot talk about the private patient standard without considering the that because that's not the question the question is is there a new rule of constitutional law made retroactive by the supreme court previously unavailable those are the things you're supposed to think about and those are the only things are supposed to think about if you think about some else you're wrong then i will go home and i think that everything that we've been discussing today is whether there is a new rule made retroactive by the united states supreme court and everything we've been discussing today is about how you determine now whether in fact that new rule has been made retroactive by the united states supreme court in the way in which was i'm asking you is isn't the question we're supposed to be asking is there a prime a patient case that it's retroactive not whether it is retroactive but whether there's at least this potential merit deserving a further development yes your honor a prime official case of whether it was made retroactive by the court which means is there a  that the existing case law absolutely dictates and you don't and then you don't think it's significant in our thinking about that but the people who you're sitting at the table with i think there's at least on the face not insignificant but since the government's own standard in this case is not applied by the government in other cases i think that's significant the weekend that possibility the bottom line remains that the prime official standard has to be applied to the underlying question of whether existing case law absolutely dictates and as judgment delp pointed out herself the united states supreme court has been very clear about that that in order for a rule to be substantive not be true regardless of any procedure is followed the punishment has to be off the table says henry regardless of any procedures followed in that is obviously not true amanda story is off the table regardless of any procedures fol mandatory is the way you get to the punishment your honor in the same way it was with with the guidelines and with mandatory minimums it's the way you get to the punishment and that there is obviously still a way and you've pointed out there won't be very many of those cases and in the future we predict there might be none think about how we're we are now the underlying standard is whether the existing case law absolutely dictates retroactivity and yet that depends on a prediction about what will happen in the future not even what's happened yet almost cream but whatever what the court the wording the dictate i mean the case when the supreme court decides something they they don't tell you in their opinion whether it should be retroactive and i mean that doesn't appear in miller but you need to look at the reasoning of the court and you know there's a way of looking at the way justice kagan wrote it and she uses the word process at one point but the majority  of the majority opinion is all about youth is different youth is different which is a substantive concept and while the cases to date haven't dealt with this issue i mean obviously every every time it comes up with a new holy this is going to have to be a consideration based upon the opinion of court not based upon what they said in the past that it's to do may i may i just touch on the point that you made about how the court doesn't always say whether it's retroactive in this context or honor that's not completely true and what i mean is that as the court has observed in your versus banks a federal court must address t unless the state doesn't raise that question it that and the talents are in the united states supreme court's decision in this case the federal court didn't address in jackson and in miller and it's obvious from the papers that the state didn't raise that question that's the only possible explanation for why the court didn't address teague because in beer versus banks we are told that in order to make a retroactivity decision the court must address he that that can't be so doesn't necessarily say it's a point that you can else but the retroactivity has to fit the ticket now says and the one thing that miller said most clearly about the language of retroactivity that looks like the language of retroactivity that looks like all the cases discussing the standard before was where it said that its decision doesn't categorically bar the penalty it only establishes a process for it it's the one place in the opinion we we have the clearest  statement that might relate to retroactivity i understand the defense as a victim of i don't think there's much other choice for them but how ironic it is that on the one hand the defense says miller was a holding about retroactivity to say that it's retroactive under t but only as long as we ignore the actual language and miller that looks like it talks about referenda to vittie that mirrors the standard for rector activity can't be holding in that one way and not in the other like thank you thank you status and nothing the supreme court did and we had to do with the status of the fine if they just changed the procedure they applied there six of them holding a pretty to mandatory minimum so that range of punishment is still there you can get a mandatory minimum it just has to be the jury that makes a combination of how holdings right that dictate that this is a substantive rule and i think for all the reasons a fourth in our brief opening up the range of punishment where you formally had nothing but good for you life without parole and now you have the the application to everybody else news or you know what cases dictate the that the expansion of the range is there for seven and i'd say henry one which which describes what kind of rules category and we'd say that they're holding the substantive component because we realize that there's a procedural aspect of miller as well but the something different potent of miller's holding which says statutory mandatory life without parole is off the table it could have said mentor a life without parole is off the table for all time for juveniles in case one and case two it could have said and going forward now in a different case you need this records the sense of courts need to consider these specific mitigating factors as a procedural matter if they did it if it proceeded in two steps like that i think we would agree that that second case is procedural and it can be applied retroactively cloud review because those would be just like the death penalty cases that are cited cited and in the in the state's race right saying that the jury couldn't adequately consider a certain mitigating factor in a definitely case is a new rule but that's something we have here the supreme court actually did this in one swoop it expanded the range and it said while we're doing that sense and courts going forward you must consider the specific mitigating factors and this is jackson argument that's been made to us in the other cases carry weight do you think that it's correct to think in the terms that have been pressed on this counsel for mr steyn and pendleton that because jackson was part of the same case holding in miller that that's a proxy for tikkun we can say retroactive to state collateral review cases no i disagree with that because because federal rule of decision retroactively they can say the rule in miller was violated and we will give you the benefit of the rule and if they do that the federal rule of decision is still in play right whether there was a  military lation but if if the state and collateral tack is willing to give a remedy but it says that we don't think that there was any violation of the memmott that still raises it in a memory question for the court but the decision whether to grant a remedy conceivable that the state of pencil well i guess it's conceivable that that the the florida supreme court could say we're we're doing all these things for mr jackson even beyond what the supreme court said but it certainly wasn't possible for them to say forget what the u s supreme court said it's not retroactive i mean it it's it is set up for actively and if they don't raise that objection which valve and they waived it i guess the supreme court had to do something with jackson once they took it and vacating it doesn't necessarily mean they were imposing the miller standard i mean  pot he was all in on that and nobody's even mentioned so i assume that people can can wait arguments and that the supreme court was just observing there was a waiver there and they didn't need to raise it themselves should you read more into it than case what about miller's application to grant given the fact that it isn't mandatory but it the scheme under which he was sentenced kind of turns the thrust of miller on its head in terms of what is i mean you talked about the range well the range of options there that wasn't a real bonafide range of option when he was sentenced to consider the aspects of  on direct review miller would clearly be important and it might might be dispositive but because it's our collateral attack the petition has to share of the not only the right combination of holdings but he has to show that its claim under the words of the statute relies on a new rule and what he was really asking for here is an extension of miller to say that the process that he got in in his one thousand nine hundred ninety thing with insufficient he has to concede that he got the opportunity right because he there a there was a little carvel extraordinary circumstances maybe you can get away with that when you're looking at criminal history but that was that was the smallest crack just a little bit of daylight come there for all practical purposes was it not toward it was it was not mandatory the presumption certainly was what was more than a presumption i mean you were told don't think about that except in these really narrow carvel's that the court made feels when the argument made to him back then was he can't point to a single case and now you're saying it's not really mandatory and he can see you can't point to a single case i mean for all practical purposes it sure  wasn't quacks like mandatory for the people who are facing it right i appreciate the irony as they say but i also have here a supplemental appendix with pages and pages of briefing an argument precluded from considering if he had said that that's a very nuts are all we know is a factual matter he was we've been district court judges and when you win you're not supposed to consider youth and you can only  consider it in extraordinary circumstances and these you know that's a very small it's a very strong language for a district court judge so you have to say my hands are tied they were what would have been the guidance given the fact that all at the time i mean what else would i do judge ackerman any other district judge think about whether they could fit the consideration of age into extraordinary circumstance other than you don't you know that if the guidelines when they're effectively mandatory you're told not to do stuff i would have thought would sort of fit that category or we understand that reasonable people can disagree gateway stage this argument is going to fly that it was imposed under a statute that allowed from zero to to life imprisonment but it was imposed under mandatory guidelines are doing but i would like to conclude if i may by saying that at least on the to the pennsylvania provision for life without parole is narrowed it no longer can be applied to juveniles and we also have as many people have said complete expansions to the full range of punishments now available  juveniles with respect to the argument and the word process that's used i think judge randell you've said repeatedly that you understand the full thrust of the decision but i think that it's notable that the single most important sentence to my colleagues on the other side is really dictum in the opinion the holding of miller could not be clearer in some sense that says we therefore hold that the eighth amendment  cases when it is that it goes out of its way to say we're not saying you can't do this we're only saying you've got it takes sort of steps to get there but i would say that if there's a reasonable reason for it within the context of this case as the court said immediately following that language we don't have to go here because we've got cases where the punishment was a mandatory life without parole we'll say for another day that other category of sentences but i don't think that you can use that language that seems to completely contrast as you've recognized in some sense with the absolute holding which says mandatory is off the table and you would have to believe that mandatory sentences are not a category of punishment and that's just not really support a ball  in light of all of the other things that the supreme court said and i want to respond to one other thing that mr eisenberg said that i thought was very significant is that one of the reasons why and also mr pettitte is that that the court he was talking about the booker line of cases and then and that the government's position is contrary but the booker line of cases relied on cases that were were not retroactive and that's a big part of each of those retroactivity decisions here we  have a decision in miller that relies on two winds of cases that are substantive and that does speak to the rule in miller as being substantive and fitting within forget fitting within being dictated by the line of cases that include that includes oh i do see my time is up if you would me for one moment because there's been a lot said about miller and sue a sponsor and waiver and whether there was a t holding and i think that it's very significant for this court to look at the cases  from the supreme court judge jordan you mentioned the decision from t the line that the supreme court has consistently drawn is between with respect to new rules is between direct review and collateral review not between state and federal and whatever dan forth sa and i think the court recognizes the limitation of the holding him down fourth the supreme court in davis versus united states returned to the direct appeal versus collateral line and whenever a new rule is at issue true activity as it is is that issue and whether it would be binding on the states is really not implicated here because we're talking about is whether the application of a new rule a new rule of constitutional law to a case where a conviction is already final what is the impact of that on a federal habeas case that's the question here not what the impact would be back in the state of arkansas but whether a supreme court decision that applies a new role after finality is indeed retroactive and i think everything in supreme court law says that it is the question under section twenty two forty four is not whether it's a legal matter this panel agrees that the fatah or against change standard has been met the standard for present purposes is that arguable is there a case worth fleshing out in a context in with in which the district judge one in the western district one in the eastern district and one in the district of new jersey can reach a determination fully and that determination as i said in my opening remarks that determination will be subject again to review by this court it plenary review the kind of review this court ordinarily did was to the run of the mining appeal and then subject to repairing  is there there and there is only something worth examining and the consequence of this court reaching beyond that prima fascia standard is tremendous as i said it's an unprovable determination by this panel but if this panel denies the applications that that the various applicants mr vane's my client mr pendleton and mr grant have proposed to the court have submitted to the court that's probably it for that if there's an even clear articulation in the future about miller and retroactivity they may be foreclosed from raising that before any court that means that the standard here should be a low one it should be is there something to use the vernacular to shew over and this discussion among this panel and the determinations by the second circuit the fourth circuit the eighth circuit and the united states department of justice at least tell