and with that that's pretty convicted of homicide is unconstitutional under the eighth amendment prohibition against cruel and unusual punishment the state and we're not here to dispute that ruling what we're doing here today is to determine whether or not the  court takes an action and the action here was applying to the defendant on collateral review mr contrail jackson mr martin isn't the identical circumstance as mr jackson therefore should get the same identical relief as mr jackson which is what our united states supreme court upheld the sentence is not constitutionally permissible it is cruel and unusual and mr ruff and much like control jackson much like is entitled to be sentencing and all the solutions and all the questions that we have  rule to other defendants like mr martin on collateral review as applied there should apply here and again as as i noted this is completely in sync with the united states supreme court's substantive and procedural rulings as far as  s this ruling as the court said is fundamental and critical essential to an ocean of justice and instancing and punishment for these hearing on a motion to suppress that was held to be fully retroactive things like transcripts of the friend of the type of the transcript that's a purely procedural rule that was held to be fully retroactive this we are we are really on the edge of history here that this is the assurance that is patently on true there is nothing in the decision identifying the holding of retroactivity there is no t discussion there is no one else's of any sort instead what there is and we can see this of course is that one of the defendants involved in the case control jackson was in a appeal following a collateral attack in the arkansas state court and the reason why that significance is because it his condition was final long before the decision was reached but importantly there was no argument made by the arkansas authorities regarding retroactivity there was no discussion of retroactively in the lower se courts and i  this court to look at naturist precisely the no a decision but look at the underlying decisions and the arkansas authority and you will see that there seems to be no rhetoric to be analysis engaged anywhere in any arkansas courts were going any of these issues in the reason why that's important is because the united states supreme court has said that for purposes of teig retroactivity in a even more basis for purposes of identifying the holdings of the courts you have to look and see what was litigated before courts what was discussed in what was held you should not as a matter of course look to see for issues which are lurking in the record and there is a well established actor and of appellate procedure in the public half of that we don't look for her things that aren't r and it's important from a t v retroactivity standpoint because as we know from dan forth versus minnesota different states have different rules regarding retroactivity in the teeth doctrine is not mandated by the united states report to state courts relief from the united states court is not a sufficient basis for this court's order to reach a conclusion instead it must examine the teague two prong test in certainly it is undisputed that teague applies because it was a new rule of law prior to the miller decision the as we sail in ourself brief it had long been recognize that mandatory natural life sentences could lawfully be imposed there had before that never alabama there had been no holding there had been no reason to rule otherwise in so the decision by itself a sale which itself is a new rule of law and then under t it can only be applied retroactively to this defendant's case if it satisfies one of the two provisions one is a substantive rule any clearly it cannot be because the court goes out of its way to save it it's not a substance role as the court stated on page twenty four seventy one our decision does not categor there is a rule of procedure and we know from tee we know from the onus report cases and morrison all the cases and flowers rules of procedure can only be applied retroactively if they are watershed rules and we know from teagan from the other cases that water should rules are only those rules which dramatically alter our understanding of the process of the fairness of the process and the only case that the court has identified as being one that satisfies that is t is  courts that prior to t d there was a different rule of retroactivity which had been adopted by the united states record it was the linkletter standard the stovall linkletter standard in that was rejected in t and was replaced by this two prong approach precisely because there was it's deemed to be unconstitutional and that makes  questioning or raising is the potential argument that in my scenario for perhaps a question of judicial economy and it's very one we argue very cleverly disgu but why deal with two thousand or twenty five hundred cases may be the underlying issue and i'm just trying to figure that  therefore retroactivity is not appropriate may be very eloquent in its rationale but i'm wondering if it really cuts to the question if there is a new rule of law under the eighth amendment that we cannot impose a mandatory natural life sentence going forward but the fact that it isn't a for many case the fact that it is a determination of cruel and unusual punishment is not by itself  reason to reject nine retroactivity under teague and the reason why is explicitly stated in beard versus banks a case which we cite in our supplemental brief beer versus banks involved the question of whether or not mills versus maryland should be deemed retroactive mirrors versus male and held that it is unconstitutional to tell a sentencing jury that you can only find a mitigating factor to reject the death penalty if you unanimously agree that the mitigating factor exists the court said no individual jurors have the right to determine what's mitigating to themselves and decide whether or not death is the appropriate sentence so that it was a very important case in terms of eliminating the restrictions of the availability of mitigating evidence before the imposition of death penalty but then the question became is that decision is no sources maryland retroactively political and what the court held in beer versus banks is no it is not because even though it's an e amendment demands individual i sentencing of the mitigating factors individual licensing ration of the mitigating factors it doesn't mean that the sentence which was imposed prior to its decision being issued was cruel and unusual the time that it was it was an unconstitutional time in the respect that's necessary for the proceeding that occurred at the time in compliance with the law as it was understood at the time is a reason why the newer decision is not applied retroactive so in answer to your question i believe that we know today that this could not be imposed under the eighth amendment but that doesn't mean that it couldn't in what could be imposed back then under the eighth amendment and so that and that's why i prefaced my answer again with the power see of an retroactivity in seek and then in flowers are supreme court identified specifically the necessity of recognizing the finale of convictions that there must be terminations litigation that society demands that the courts demand it we need to know when the provisions are done because otherwise you'd be expecting the state expecting the courts to be really getting issues over and over and over again we have to be able to look and outright we are not claiming that miller should not be applied retroactively simply because we don't want to burden the court or ourselves with additional sentencing hearings it's really the question of rose the sentence deemed fa of the time that it was imposed in is this case final that there has to be some finality in that from the judicial economy standpoint but from a respect for the societal process standpoint if i challenges to his natural life sentence under a under the state constitutional regime but certainly wouldn't apply under the the eighth amendment in light of miller just one other point counsel mention sumner that the mandatory death penalty scenario cases which are if she said unequivocally retroactive just to clarify what some are involved some there was a case involving one of the heard over questions from from the earlier death penalty cases from the united states supreme court summer involved a defendant who was in prison for natural life in killed someone in prison was convicted of murder and was imposed it was sentenced samantha to death penalty as required by the law it was a mandatory death penalty and the question as it reached the united states supreme court was is there constitutional is any mandatory death penalty unconstitutional and the court ultimately said yes it was now the only case which counsel cites in the only case which i could find finding that they have the situation was retroactive  there is the only one which she cites in her supplemental reply brief is a case called people fig ten versus big pan out of the state of alabama and if you read that decision you will see that there was no teeth retroactivity analysis of any sort in that case instead the entire retroactivity analysis was under our say constitution this cannot be lawfully applied period so there was no analysis is would this court would have to engage in it because we tell flowers instead it was a question of state law that it applied retroactively if there are other cases saying that it applies retroactively elsewhere i was unable to find them and then finally i would just again point to the case that we cited initial authority state versus dieter out of the florida didn't undermine the fairness of the proceedings at the time importantly florida uses the more lax so called linkletter standards post of the t standard specifically record rejected the linkletter standard as being too easy to find retroactive application but in florida the florida courts still apply that in the current state of the law there is that it miller does not apply retroactively and so i would suggest this court read that decision carefully and see how another appellate court panel has determined that miller has not changed the the situation in such a way to be deemed a watershed thing in those reasons we would ask th remarkably like the two fourteen hour run kind of litigation that in louisiana the sentence is a legal and illegal under the so constitution under state law it's essentially void which means that that defendant in louisiana was entitled case never argued retroactively either so it's really a relevant for the purposes of whether or not what the supreme court said or didn't say that the state in the jackson case didn't effectively assyria because if you look at teague the court a address the retroactivity question it was raised for the first time in amicus brief and neither of the parties address the retroactivity question he wouldn't litigated the actual substantive claim and then the court came out with the surprise of teak so it's really relevant eighty that's not even dividing the county one of the considerations for the balance between the states need for finale which includes the burden on the state of the burden on the state of new proceedings versus the defendant's right to the benefit of the rule i would suggest that if we're talking about you know chicago me if we're talking about you know the process of reliving that is really a drop in the bucket that that should not especially with such a low number that we have in illinois right now