good morning your honor and an issue in this case is whether this court should authorize a successive section twenty two fifty five petition for mr irby so that he can bring a johnson challenge to section nine twenty four c conviction for use of a firearm in connection with a crime of violence your honour's at this stage of the proceedings mr irby has a very low burden a burden that dictates that he has satisf hubbard this court held that a movement's application for authorization of section twenty two fifty five petition should be authorized when he makes a promise she showing of the gate keeping requirements of twenty to fifty five h two and hubbard further told us how that is to be satisfied hubbard said if the movement relies on a new case that the supreme court has that's constitution that produces a rule of constitutional law that the supreme a matter were not your honor you can do a very cursory glance of the marriage and that means that if we look at it just long enough to know that his claim is inval smaller peak and say the requirement that there has been a change in the law supreme court decision made retroactive to case collateral review applies only to the e it seems on a quick look as a residual clause maybe even more so but johnson only gives you plausibility on the residual clause well your honor johnson get our claim is that the we have a retaliatory killing yes a murder type of thing yes yeah and he wants a second look at this late stage in the process because the johnson but johnson doesn't implicate t right but it's not irrelevant because that's the claim that's the claim that's the new rule yawner of constitutional law under which we are bringing our claim as to whether or not something qualifies under the fourth clause that's a question of prejudice right that's not is the stand alone claim that they object saying if you have three claims and one of them is governed by a constitutional provision and you have to satisfy the other two we automatically have to give you a new second look  my only point is we're now looking at a chair that you satisfy the gate keeping yes yes under this more relaxed standard right and the gate keeping clearly requires you to demonstrate that there has been a change since since yes or twenty two fifty five right and that the change based on the supreme court decision that at all and that's what happened in hubbard i mean sixteen they found that sixteen i think there are some cases to a look at that are helpful on that point for example in the eleventh circuit there's a case called in re chance and there's another case called in re adams sort of addresses this point and says look the claim here is the johnson claim and they authorized the successor petition based on the johnson claim and then whether or not something actually qualifies under the remaining force clause is a prejudice inquiry it's not subject to the twenty two fifty five h two requirements because it's not a standalone claim and again if johnson gets rid of the residual right here it doesn't necessarily get you through the gate in other words we have to of prejudice the merits we get through the great i agree with you that i agree with you that if it's implausible that you know we can satisfy the horse clause then yes it should be denied but it's not well your honor a cursory glance of the marriage means that we just have to show that the claim is not implausible and so when we look at our i think you can look at this circuits case law which is still binding on this court torres miguel and in torres me gal the court said that of course serious bodily injury or death does not equal violent physical force the court then gave an example of poisoning which is in the murder statute as not proposition because actually in castle men the court said it wasn't deciding the issue of whether physical injury necessarily equal strong physical force or part of me  that the clause there which was the finding in mr minor crime of domestic violence only required to minimise force and then specifically said we are not deciding whether physical injury necessarily requires a violent physical it's clear here and there's no dispute i think that this physical force clause under nine twenty four c requires strong physical force violent physical force looking at the force falls and having these discussions and yeah it may be wrong you may be right on your analysis yes and what a cast one means is that looking at the merits you're looking at the mayor's of his claim when in fact it is we're just looking at the law that's applicable to his claim whether you call it gatekeeping or anything else strikes me very odd sort of focused on this if you say you you have to prove one two and three in the claim is  mean you could be proved on of one two or three and you go we have a claim that three does not cover us but everybody could agree that one and two duke of you could agree to that the court has to send the case back and let somebody develop three when this clears a bail that one and two in my hypothetical would prevent any relief that doesn't make any sense to me well your honor if it then they follow some formula  sense is that may well i think it makes it your honor if you're right if they did fall if if as a matter of luck for example and hubbard this i know that was so i measure that hypothetical if one or two as a matter of law would cover the conduct in support there's no claim of that you absolutely lose why would weeks but we're three yes i agree with you on that your honor of course i agree with but at the thing here is that we do have a  on both the residual clause and of course you have a clause will claim unless you have a new change in the law but as to the fourth clause you don't have a supreme court case that's retroactive that gives you that you could have raised all that earlier you're you're now  second shot right this is a success of twenty to fifty five right and order to get that successive to satisfy the statute you have to have a supreme court decision making your claim retroactive and it seems to me you were hurt by the supreme court kassam well your honor if we were to accept your position on that then that would mean that you hubbard have to would have to be guided and hubbard also there was an element  g hubbard signing a little bit of a different issue but it's the same thing because also in hubbard there was a remaining elements clause that johnson did not affect johnson in hubbard affected the re would couldn't be satisfied but see could under johnson that we address that issue your honor i believe i think it was just casually there's a footnote dropped really that's what it was well i think it was address because you know the court did find the that they denied the successor application on the bank robbery because this court had found that bank robbery qualifies under the force clause so again i mean i think i agree that if there isn't a plausible use a moment force you know johnson so that violent force means capable of causing physical pain or injury to another person yes and then also clarified that it must mean strong physical force or substantial degree of force and in castleman actually the court went on to say give an example of what that means and the court cited to a seven circuit place flores versus ashcroft to say even a squeeze of the arm that causes bruising is not violent physical force so there has to be substantial force for what wrong that is why is the landscape changed on the force clause there's been no change this all could have been argued earlier in the first you honor it could not have been because  three two six nine seven zero four and in that case your honor again the court says that the claim is johnson and then as to whether or not qualifies under the force clause that's not a standalone claim that's an issue of prejudice and the prejudicing curry all the courts that have been addressing this have said you apply the law that exists today there are several courts in the district courts we do that have you relief on the under johnson if you don't satisfy force clause in other words but your honor that's my claim is that it's dependent on johnson before johnson we had no claim that this did not pardon me you may still have a claim in other words if we're looking at whether retaliatory killing deliberate i mean this is probably the worst violent type of crime you could have and it's deliberate it's intended it's retaliatory and effects it kills a person if we can conclude that that's a that's a forced clause intuitively it seems to me and that's where the supreme court came from and even talked about the silliness of trying to decide whether pulling a so also you know there's a case that came out it's a district court this is an us versus winston and these dentistry of virginia that recently addressed that relies on language in twenty five h two and says it's not because the government was making the same argument there that you know this is a force clause claimed this is not a johnson claim in the court said that language doesn't say you have to exclusively rely on a new rule of constitutional law you know so here in what formula do you apply to be sure those words in it you know there are cases when we look at the actual words that congress uses in the statute yeah and we go to apply that word here is absurd and we're not going to do it when do we reach the point in the examination as a matter of law all of what required in force is judge neymar says yes to say this type of murder is not a violent crime who believes that nobody believes that the result all you can say courts have decided it and i still say who believes that i mean this that the result is absurd  say to anybody take somebody out retail eate shoot them five six times in the head spam a hundred seventy four times that's not a violent that's not violent crime the result is just so absurd i wonder and by the way that's not looking up the word that congress use in goble force can't mean force that's merely looking at some contra that some court cases have placed on there is do we not use common sense at some point and look at absurdity and just go this cannot be your honor but we have torres miguel which is binding problem in that he do we not look at in all i know what the analysis is yes do we not as some point just say but we have another doctrine which is absurd results we use that to invalidate actual words that congress uses right why in the world couldn't it be used to invalidate  words that's that's even one step weaker of difference to me you well your honor we have talked her a within the law of this circuit and and beyond that you honor also know that your view is no matter you don't agree with that but you can recast someone to say this is an intervening when court decision on some point about what force is but then why not in the in that conflict if we follow what the course is a just go every now and then we have to stop and just our results just cannot be absurd and how more absurd can it be by the way i'm not knocking any judges because they decided on of the what was presented to them how they argued but i'm raising this question i'm asking the government  same thing right to say that this type of incident is not violent crime what i mean what is the there is no such thing your honor i would argument i think it's important to look at like what congress is intent was when they passed when they you know what i wish we could sort of fire this to congress i don't think you would really like the answer if we said to congress do you think what happened here we tap leaned against somebody that snitched on a drug dealer i think it was a drug dealer who tracked him down and then executed him and mutilated him do you think we judges see there was this rescission will clause so yes absolutely congress's intent was to include murder under that residual clause i would give that to you and there is an easy thing oh no they put it under force they passed the residual clause to get everything else they couldn't think about at the time you know i used to work up there those people i know that yeah i do know that it was passed it was not yes with a nod toward around the world can we figure out of the future some complicated way that i want people would be punished i don't think that was at play at all well your honor with with torres big l in place again we have all we're asking for our offense here qualifies as a it doesn't qualify as a crime of violence your honor i mean i don't i know i think i think all you have to do is say yes and looking at cursory glance of the merits it's not implausible that the nine twenty four c conviction is bored and i think that that means that you look at the received your clause and our argument is not implausible under that and then if it's not for closed under the force clause i think it then it should be authorized just like in harvard they didn't go as goes to the force that goes to the foresee issue your honor just like in us versus mcneil and the government there was arguing that hassle men over rules the reasoning of torres make l that was a political ball to the force clause in their nine twenty four c and the court rejected that argument so all i'm saying you honor is that we mr irby should get his day in court and now we may be right maybe we're not right we don't have to show that we're right that we're likely right just that maybe we're right and that's all we're asking for johnson is the case that's our claim as to whether or not something qualifies under the force clause again that is not the stand alone claim every and every twenty to fifty five case is going to have a prejudice and alan if this is not granted because there has to be a forced clause analysis then that means that hubbard was wrongly decided and every case there been hundreds of cases where nine twenty four c successor petitions have been granted that every one of those observation because in this case we're looking about the success of a petition with respect to a conviction for retaliatory killing sure and whether that was properly used to enhance or to justify and i'm twenty four see right and the when you start with the retaliatory killing you don't even think in terms of the residual clause you think in terms also is murder in retaliation premeditated murder in retaliation a crime of violence and the forced clause seems to hit now you are you argue well of a lower court case our case later  says well poisoning isn't and since it's categorical they could have done by poisoning and supreme court may not have overrule that but the supreme court said that is force in defining force and and i know in even the johnson definition of force your stop while in force but they go on to explain what they maim and poisoning and firing a bullet or about the same thing you put into in the causation stream by physical force and event that causes somebody to be injured or dead and that's the definition and they made that clear and in castleman how to plausibility that we can grant decline and the question is the only possibility that congress has allowed is that it be based on a supreme court decision and i don't know the supreme court decision crime clearly violating the force clause we must look at again because a lesser argument that it may have violated the residual clause therefore opens a gate that isn't what we held but ideology i mean it's not clear it's in the statute you have to satisfy that but the statute statute says that there has to as interpreted by this court under sixteen they says there has to be strong physical force and torres made gal is right on point saying death does not and that's wrong physical force and firing a gun pardon me or how is their strong physical well i think because that's like taking a night and stabbing someone because stabbing somebody is strong physical force firing a gun is the flick of a finger well your honor we have tourism a gal which says that i don't know how the court gets around torres miguel because it's binding circuit and castle men which says that the court had isn't deciding whether there is a physical injury necessarily requires violent physical force so i think what we're left with your honor is  retaliatory murder in violation of section fifteen thirteen ease a crime of violence under the one twenty four c force clause and in fact i think hubbard which is a case that has been discussed a fair amount this morning squarely contemplates that where a nine twenty four c claim was raised in hubbard and the harvard panel said that that claim was not viable because armed bank robbery which is an issue judge said that was decided in mcneil  crime of violence under the elements cost the force clause and so they rejected the johnson based claim in hubbard and that very same principle applies in this case this court can certainly look to the nine twenty four see force clause just out of prime a factual level to determine whether or not witness retaliatory murder is a crime of violence now let me offer several reasons why i think pretty clearly murder is a crime of violence crime that has as an element was cited in our papers so certainly the i'm not saying the court should rely on a committee report i think you've got to look at the statute but everyone agrees that murder at that time under the aca which is a similar it's an identical force clause contemplated murder so when congress and acted section one twenty four see i think a couple years earlier might have in the same congress i'm not sure just within a couple of years he just doesn't meet the common sense test to say that when congress use the very same language in for you know to define the use of a firearm in furtherance of a crime of violence that it didn't include murder when the legislative history for the aca clearly includes it so that's my legislative history point i do want to talk about taurus miguel and poisoning before i get there let me make one policeman ery point at its root let's assume tourist miguel is still good law but let's assume that ok that claim is a statutory claim right the language about physical force is in both the nine hundred twenty four c force clause and sin the one twenty four c rescission will clause so if mr irby felt like he was actually innocent of his nine twenty four c conviction his claim is based on taurus miguel it is not based on johnson it is not based on a new rule of constitutional law made retroactive by the supreme court it's a statutory rule it's after tourist miguel came down guess what i have not committed any crime under nine twenty four c either  that hubbard authorizes him to file a second under johnson or one of them i don't think it does and here's why your honor because tor is miguel that rationale that poisoning does not equal physical force applies to both prongs right under his theory murder has never been a crime of violence because categorically it does not involve the use of violent physical force under both clauses except his argument is the residual is held unconstitutional the argues it is unconstitutional under johnson right and since it's unconstitutional we don't go in to interpret the residual clause no that's right he has a claim on that right you know i think and he said just because i may not satisfy the force clause i certainly have a plausible claim under the residual laws his name or i think my direct answer to you is that he didn't he didn't have a clayson under the residual clause after tourist miguel right supersedes tourist mackellar might be a little wedge where tourist miguel still survives but just under the theory the tourist miguel is still valid law he still loses because that argument should have been raised within one year of tourist miguel it's a statutory argument the arcade that he's making that poisoning is not you know physical force that is a statutory argument it is not an argument based on a new rule of constitutional law and then you would have had he would not have passed the gateway within one year of tours miguel because he doesn't satisfy twenty two fifty five  the court i know the court's aware of it here is the language of horace mcgill it's at page one sixty eight to one sixty nine of the decision a defendant can violate statutes like section four twenty two which is the california threat statute by the way which is all about injury judge a g and you've made that point earlier i think a very valid one it's a threat statute talking about injury never talked about force by threatening to poison another comma this is the key point here which involves no use or threatened use of force that's what this court ruled before castleman perfectly fair reading of the law at the time here's castleman which comes down to years later supreme court the act of employing poison knowingly as a device to cause physical harm beginning of the sentence is the use of force in terms of poisoning so that is a square overruling now we can talk about what force means and i do think that's the one wage where tourist miguel still sort of lives  i do think judge a g just to be very clear castleman did deal with a different statute it was the one twenty two g misdemeanor provision and define force in terms of the common law you know unconsented touching the day minimus so i do think  survive in that one little wage about what is force but it has been squarely overruled in the question of what is the use of force right which is a very important element of the one twenty four c force clause castleman has squarely overruled the notion that poisoning employing poisoning is not a use of force i've just read to the court in taurus miguel this court held that threatening to poison another person does not involve the use of force and in castlemaine the supreme court said no poisoning somebody is absolutely the use of force but that does raise the question just niemeyer of well what is force now your honor has mentioned several times the language from johnson the two thousand and ten johnson case the phrase physical force means violent force and of course the defendant never mentions the rest of it that is force capable of causing physical pain or injury to another person and i would submit to this court who is being somebody is absolutely force capable of causing physical pain or injury and judge should to get back to your earlier point common sense tells you that you're trying to kill somebody that absolutely is the case so that's how i reconcile your honour's tourist miguel with castleman i do think the mcneil court  probably had it right in that you know i don't think councilman squarely overrules tourist in its entirety it's certainly overrules tourism to go on the question of what is the use of force but then on the question of what is force you know what is physical force i violent force or is it just a minimum force i think you're back to johnson josh niemeyer and when you look at language i've described this court force capable of causing physical pain or injury two thousand  absolutely right judge a jury judge said i think any reasonable person standing on the street who hears about the court's opinions would say of course poisoning is an act now they have a law degree i think anyone would know that and many of our friends in congress you know don't have a lot of peace and they're the ones writing the laws right and so the question here ultimately is what did congress intend did congress really intend for witness murder not to be a crime of violence when it enacted section one twenty four c it doesn't make any sense doctrine to the words and go right that's an absurd result but that's what congress said that's the words could congress be stupid we'll leave that to the average person the street corner of it the answer to right but the point is we as a court say we can look at actual words and say congress is said it we know you said it but you couldn't have a minute and now we're looking at absurd results when are we not looking at the words and think that word can't mean it w contra we have created yeah leads to an absurd result but is sankoh saying you can't say anything about it and it all in a general sense the statutory construction right you know i mean that's a really important point judge you know the categor have many trials save judicial time do you folks think that that has saved any time and doesn't save me any time we don't have an to go state by state right violation bob violation to decide if that makes the definition of categorical broach it just it does not save any time that i can ever say right go ahead with the point you've made the broader point judge said which is you know judicially constructed aides of construction certainly can't trump common sense and it certainly shouldn't from what congress intended and again i just can't think of a way in which this idea that murdering somebody even though you know bank robbery everyone agrees after mcneal certainly is a crime of violence and now we're in th absurd position where his argument i think he may have this argument you're addressing but i i understand stronger argument is that he has made a claim application mr irby well i suggest that johnson was irrelevant he says that's where i made my claim well i mean i you know i mention to the court why i think even johnson as a statutory matter johnson is irrelevant because again this claim is a taurus miguel claim hubbard suggests that the force clause might apply but none the less afford allowed the man to resent his writ because he had a johnson pla well again i think i don't think the hubbard court held that if the particular predicate offense qualifies under the force clause that the application can be authorized because again johnson is irrelevant to the claim right johnson is irrelevant if the particular thanks a lot of sense and the question right is i'm not sure hubbard decided this issue directly i'm not sure he did either it's a little bit of a there is a little bit of a rub there isn't there well that perhaps proposed johnson riches rescission will cause clay meets the statutory criteria so that's what other circuits of held and i think it makes perfect sense if your offense qualifies under the force clause your application does not rely upon johnson because johnson is irrelevant to your claim you're barred or you're denied under the force clause i hope that answers the court's questions but i think you've clearly your predicate offense that you're attacking on his success of twenty to fifty five by the way not on direct appeal on an initial twenty to fifty five in a success of twenty to fifty five for the very first time you know if it qualifies under the force clause i don't think this court has to waste his time certainly the district court doesn't need to waste his time analyzing a question that is yes that's my first response judge a jury in my second response is this identical claim the one twenty four c e shoe was raised in harvard and the harvard court said we are not going to authorize your nine twenty four c claim because it qualifies under the that's exactly my point and here premeditated you know first degree murder which is retaliatory murder in violation of fifteen thirteen in my view clearly qualifies under the force was perfectly consistent with coverage is what i'm trying to say and as far as tours miguel goes i've offered the reasons why i think certainly you know there is a sliver i think there is a sliver where tourist miguel still lives although you can distinguish it number one and you pointed out earlier completely different statute it was a fit and i you know i read the language i think there's a square overruling of the idea that poising someone is in the use of force meant in force miguel has been pulled out and that in that aspect but there is this last little bit about physical force you know of force fine but what is force and that's where i think you have to go back to johnson two thousand and ten and say what is physical force and certainly poisoning somebody you know i think in any commonsensical you i recall the it's response to that is well that has to be strong force causing pain well i think i wonder if they put the word strong in that particular was the language i've read judge niemeyer which i think is a language you've been reading is the phrase physical force is a straight from johnson two thousand and ten means violent force and ash that is force capable of causing physical pain or injury i think that's the definition that justice scalia offered in johnson so you know does poisoning meet that definition a method by definition well of course it does because it's a force capable of causing pain and injury right and then the question is how much force you need  answer that question in hill vs united states which we've cited at page eleven of our brief the seventh circuit judge posner might have written the opinion denied an application for a successive twenty two fifty five holding that attempted murder under illinois killing but murder under section one one one one i am not aware of any perhaps defense counsel as i'm not aware of any thank you your honors the way you just laid it out is that he would have had a claim under the force clause but is precluded so then it falls on clearly fell under the residual clause johnson right there would have been that it would have been completely and utterly he still needs to have some decision that says worse clauses and out and with respect to murder right i mean there what they would have been know a claim that was viable at that point only after johnson to did it make sense for him to file a twenty to fifty five successor application under twenty two fifty five h two and there's lots of district court decisions you honor that have also  supposes that he would have to satisfy both the force clause in the residual or because because there may be a barrier to the force clause but he could rely on the residual clause and then johnson took that away well now that it's frivolous our claim on the force clause and i think that's the only way that you could deny his claim at this point laughter yeah that the guy and i don't know how the government can say with a straight face apted torrez me gallies johnson one also your honor after the court had defined what a violent physical force is and by the way the government did not read the rest of the definition when you go back it does absolutely say there must be strong physical force  win on the merits i mean that's all i hold me yet we may not win your honor i totally agree with you but did it is such a low bit of burden for us at this point and again i would just repeat that the hubbard court employs size this very strongly that the government has an almost and surmountable burden at this point so as long as it's clause a ball and i don't know how it can be said that it's not plausible a is white versus lynch it's a first circuit case which conclusively held that castleman does not overrule basically the torres me gal ruling that serious physical or physical injury does not necessarily require violent physical force it goes in great length to explain why castleman doesn't overrule that whole time i don't quite understand that you know a circuit courts there and tries to take a supreme court case which categorically and clearly shooting there that force was no greater than the force poisoning and i don't understand where in the circuit courts get the boldness to say they didn't mean what they said i will you honor our circuit to said that in mcneil that physical injury for example by horrible things judge said but starving a child to death or withholding insulin castleman didn't address that but murder can be committed by those means also so it's not just of these far out situations even in murder i guess you get somebody so reckless you say there's no premeditation well your honor i would disagree with there are some statutes i can point to forcibly breaking into a post office because by physical force or threat of physical force which is different from the murder statute here which just requires an intent to retaliate but doesn't the murder statute doesn't require physical force and then bank robbery to this court has found