good morning and welcome to the th circuit we've got one case of submitting been submitted on the brief burlington insurance for his german motors corp we've got two argued cases this morning we have read research we look forward to your arguments the st is my name is scott sugarman i'm here on behalf of alexander bell bueno he was arrested in two thousand and six at the age of fifteen it's been in prison since then he is serving a sentence of seventy two years to life in prison he was not well served by his trial and state appellate counsel they missed in my view an obvious miranda violation which this court has twice held is in fact a constitutional violation and nobody in bland but they missed it he filed an appeal after he denied that the district question was already before you and has before you today right the district court decided that the request to add or reopen the position to a men was a nd or successive petition and therefore so the miranda claim was not raised initially in the petitioners habeas petition that is correct your honor he was representing himself and it was not raised it had not been raised in the state  so that i filed in his behalf a motion to reopen the proceedings under sixty b i argued there was extraordinary circumstances submitting declarations by counsel that they had become ineffective assistance of counsel which qualifies under the circuit's rules for extraordinary circumstances and then i was asked to leave to amend and i argued that the miranda claim in fact under the supreme court's structure of standards would qualify as a proper amendment the court never reached the issues that is at this record but rather just said we're not going to reach the issue it's both make very clear it's going to follow the nd circuit precedent in in changing and then later while up it's not so clear to me that the in fact they do say they're going to follow the woods point out inching pointed out the fact that a defendant is pro se as mr bell boy was is something be considered in what we do with it in beatty he had counsel throughout but more importantly than beatty court specifically talked about the chronology of events which is the mr bailey was denied in the district court the th circuit the night i didn't affirm with a lower court did and the supreme court denied sorority two years before he filed his petition which is now before the court and b so the whole process of appeal was in fact complete two years before i would direct you back to the opinion where the court says that mr bailey probably filed lots of petitions both pro se and with counsel and note one and b who says today we decide to b d cannot use woods to amend his petition after the district court has ruled and proceedings have begun in this court is that in your view overstatement or an imprecise statement well given the facts it is overbroad because the facts it had before it was that the circuit had already denied the appeal and the supreme court had denied cert and two years later mr brady ra that's certainly not our facts here so i think it was some ways it's one of those adages lawyers sometimes say which is bad facts make bad law mr abate he had made lots of petitions lots of levels over the course of fifteen years and he looked like if we'd done in the old system an abuse of the writ to the court doesn't have to get to that but certainly the nd successive petition standards are that they must have one final complete decision and the various circuits i've cited them in there including the  rd most recently the summer and the th and the nd and i submit this court in woods because woods adopts not only ching but growing it specifically cites grillin which is two years after ching also in which just clear and the sentence i just read you from the b d footnote is not an overstatement but it says and means as soon as the district court has given us a final ruling on that question that appeal to us and other words we just disagree with are there any other circuits that agree with us as i just described the government of the attorney general the petitioners claim was still pending in the district court which is different from what has occurred here and beatty draws that distinction in those cases and says this is different you know the  there that defendant's case was on appeal in the nd circuit that was decided before would and was cited in woods favorably secondly what was it cited in words for that proposition for something a little more broad in general the very point i was going to case is completed meaning the appeal is done that it's not final and therefore any other amendment would follow other rules for example the amendment rules by the defendant if he's seeking a review that was her analysis that's what woods adopted and i suggesting and that the facts are so different and ones where the claim still pending in the district court that the court wasn't holding that the claim is still open if you will while on appeal and so it's not a success if petition is just an amendment spending in the district court so you're suggesting that what would says is that it's going to adopt the analysis of the nd circuit citing to both the chain and to grow up and in doing so grill him was a case in which the defendant's case was on appeal to the circuit and they said whether it's on appeal or in the district court it's not nd or successive so long as in that line and that which distinguishes beatty because in fact under those circumstances the the claim by the defendant which is on appeal was denied and then denied by cert two years later so i victim too because woods does not present a factual scenario that we now have under that analysis i agree with you your honor but that i would just remind scored again that this court  submission to the court is nd to successive even though it's still pending on appeal and what this court does respectfully is look at what this report is and sometimes say you're wrong so the matter is not final if you use the analysis which adopted it almost all the courts and most recently in the  circuit this summer and sent a really which again was clearly a case on appeal you don't have to follow centrally it's a different sort of the attorney general cites a case from the th circuit a case from the th circuit and unpublished decision from the th circuit that go the other way i actually disagree with some of that there's a long footnote in my reply brief that says that overstates what's there but i believe there is at least one circuit that would agree with the proposition that once the district to take just a moment and then i'd like to reserve a few moments because i'd like to turn to the voluntariness question and i will be brief about that given the time constraints which the court treats me otherwise i think a key question here is the what the california court of appeals said was that immediate that follows very shortly after the fuse to say he had a gun after they continue to talk about how young he was and he had a special ability to have special kind of training that they were the only people who could help it the california court of appeals concluded that that wasn't a explicit promise it doesn't have to be i believe the california court of appeals in fact either applied the u s supreme court precedent improperly or it simply with its decision was contrary to it if this court compares that to brown from the couple years ago from the circuit where scutcheon was about a baby or not whether he could see his baby it's even less a clear that they're making any kind of promise any fifteen year old with no training would hear the sentence read and say if i cooperate i tell him what i want to know there needs to be a right bright line with these cases and the nd circuit has chosen one line and the th circuit has chosen and let me ask you a somewhat different question than the one we've been dressing so far later of course was somewhat different and that is as writing on a clean slate right ok i agree with you so there's two issues so one is finality and finality is you're talking about policy what's the policy right well yes exactly the policy arguments in favor of baby versus wab or the nd circuit's approach is find out well you get what you get finality in either event for now when you come sooner in one case rather than the other correct exactly so you're talking about speed rather than finality you want finality quicker exactly yes exactly so and this case is a good explanation of why we need to draw a line sooner rather than later and there in this situation this mr sugarman is is mr beltway knows th attorney he had a trial attorney he actually had a interrogation expert he had an appellate attorney and then he had an attorney assisting him in the district court so you know he finally got it he finally got a good lawyer people right so it's somewhat so every single attorney that gets the case decides every other attorney did a band and has a whole new way to look at and you know that may be but i think that i really want you to focus more on judge fletcher's question which is if we were writing on a clean slate why as a policy matter is it better to sort of stop the clock after the district court rules as opposed to stopping the clock after the whole st case is done with our ruling or theoretically the supreme court denying cert i i i don't understand why as a policy matter cutting it off after the district court rules makes more sense than cutting it off after we rule well then it would be a question of cutting it off to after the supreme court rules and then a lot of times these cases go back and forth and there there is an opening for in chang actually which is a different fact pattern in actually santa really a number of cases where the courts of appeal have said motion to dismiss as untimely is was wrongly decided and then they send it have a lot of time when his rules with respect assuming that the international petition is filed timely and that maybe a few years later because of the time it took an appeal through the state system i mean the fact that is years later is just built into the it's not a floodgates problem because we've got mail that is to say the amendment can't be just any old amendment it's got to be amendment it's fairly tightly tied to something it was already in the st petition correct that's right there is the relation back doctrine right so you can't just add anything correct you can't just throw anything in right but this is throwing in a new legal theory well it's a new legal theory but it's based on the exact facts the interesting question is what happened during the question beatty he had raised and i can't remember the number of issues he had raised several issues and the court of appeal granted the c e o way on the issue one issue and so it considered that a denial of the other issues so it's not like the court of appeal in beatty had ignored all of the other issues it it granted on one issue so when talks about we already ruled in this case once it's not talking about a full decision with argument and so forth baby the baby decision itself is describing its denial of the c o way on all but one issue as its ruling so this court could draw the line he brought up four issues or five issues and he this court denied the c e o way or grant denied it on for and granted on one so a deny a grant on one issue is an implicit denial on another so it's not like this court had never seen this case before and then a few months later a new claim is discovered so at some point a line needs to be drawn and beatty has drawn the line i have to say my line of questioning is not so much as to whether or not beatty controls but as i said i'm inclined to think that the language does and the un what i'm after is trying to figure out whether or not we should ask her on bonk i mean i'm just i'm trying to figure out what the policy question and then going to that statement as well i also want to back up and talk a little bit about i know i know it makes sense that the petitioner is wants this court's sympathy which is understandable but i just want to point out a few things just looking at the global scope of this case in that he is sixteen he said he was sixteen i don't want to beat that to death but he did say he was sixteen originally and many times his his attorneys have said he's sixteen and sometimes they say it's so that any way that's that i did it with fifteen year olds and sixteen year olds and they look pretty much the same to me and i don't want to go on and on about it but  there it is and i also want to point out he says about how it's a seventy two years to life sentence well you know because he is under at this point i think it's twenty six but he is parole in ten years he basically has a twenty five years to life sentence so going on and on about that seventy two years to life sentence is that really saying what the reality of this is and none of this has to do with voluntariness necessarily and i just want to point out when we're talking about the global picture of this case i also want to talk about the interrogation itself this court really i would encourage the court to look at the d v d i think we watch and ok ok and so you know how long it took the whole thing was  much less egregious the most than that right so thank you for i mean i think that the district court here in my view having watched the tape got it right that this is a remarkably non threatening atmosphere for a police interrogation perhaps quoting the state court in that but i mean i watch ninety minutes and you know it is what it is so i i can't say anything and i suppose we're kind of talking and there's more general saying it's pretty i would well i don't want to go too deeply into the chances of getting parole in california system you know as well as i do that doesn't happen very often with a crime like this and things are changing in california as well as everybody knows but th again has nothing to do with this what we're here for i got it right if there's no other questions thank you thank you thank you since many of your questions have focused on the question of nd our success of the focus my attention their course will take any question the court has let me specifically refer the court to my reply brief footnote three because the court asked about other circuits and almost all the circuit she cite in fact have a more complicated rule for example if you adopt her finale rule the th circuit wouldn't rule wouldn't be consistent with it because the th circuit allows a denial in the district court and then still can file a supplemental petition so long as the time for appeal is not run but the decision is final the court in question the court asked is what should be the policy assuming you had a free shot sort of and i would submit to you as the court has noted there are many restrictive rules  to go back and if you goes back it's a very difficult road he's got to st show extraordinary circumstance and rule sixty b and then meet the requirements of l a for amendment there are very few cases they will meet that this mr boyne in fact does so i would submit to you and then with regard to the later statement goodrem i would direct the court to what this is what the court itself said as a general principle the rule that emerged is that the petition will not be deemed nd or successive at a minimum an earlier file petition believe that baby for closes the decision in favor of the defendant here i would respectfully remind the court this circuit is twice held that what happened to mr bob wayne in fact violates moron in the constitution no court has ruled on that the lawyers from before to which he turned to her for all wrote declaration saying i was incompetent i should have seen that no court is ever ruled on it as this court rules against him on this issue of woods and goodrum the no court ever will as for her comment about will help you get out in ten years that i would like that to be true is families in the audience they would like that to be true but the reality is very few people get released i would ask the court in fact to conclude they make one last comment with regard to the statement the court referred to the fact that in the tape which you've all watched it's not threatening that's not the only standard is this court knows any kind of a promise implied or otherwise slight or otherwise is sufficient this is not a case where they beat him with a rubber hose or figuratively did so but they in fact may promise to throw out it and like in brown