good morning and they have please the court my name is sarah bennett on we have mario solace mr salis appeals the denial of his role sixty the motion meaning that the focus of this appeal is on the merits of his role sixty motion not on the merits of the it's both your honor the motion was titled a sixty before motion but the dinner court correctly did not look at the title but the substance of the motion and construed as both had before motion and of the six motion and we do not dispute that the before motion is properly denied while we think the district court did make an error on timeliness because it will sixty before motion cannot be held untimely ultimately the judgment is not void so this court has other reasons to affirm not the jury made a finding as to the relevant drug quantity and this matter for mr salim because it meant the difference between a maximum sentence of twenty years and a maximum of life the judge decided this fact and sentence mr sallust to life and he has now been in prison remember but there was no argument that the amount was so low that it would have made a difference later on in the way that he's now or in the case before us there that's where your honor the ultimate quantity is a judge found me somewhere between ten and thirty kilograms to put him within the certain guidelines range and you have an a i guess the problem i have with this appeal in your case is that you really haven't can present any evidence to us that would call that into question you make all these arguments about his focus on the underlying or lying merits of the conspiracy conviction and whether or not the evidence was sufficient there but that's not what this case is about it's about growth quality and ultimately wires in this case want to harm us are there when we're considering it on plane or yes your honor i agree that we did not focus much on the drug quantity and the reason for that is because in the sixty be context the question is not the underlying judgment in this court may that holding and doubt about that correct your honor i think the important thing is not the him but i think what you really need to look at here on the merits of the role sixty claim if this if we get the sixty motion granted and it does go back to the district court for the district court to look at that pretty claim the court does not need to make a finding as to drug quantity again the questionnaire will be playing their review as you suggest and this court held in promise that an accredited error by its nature is a plain error affecting defendant substantial rights so those parts of the plane or if you have already been clear the way and we would suggest that that it may be enough to overcome a potentially meritorious claim that sixty context but looking further that last step is looking at whether the evidence is overwhelming and i think the helpful thing here is to look at some of the cases even some of the cases cited by the government in this case so looking at pettigrew for instance pettigrew is a case about procedural default but the prejudice question in similar to the overwhelming analysis in plain air review in that case the government presented physical evidence over the required drug quantity that was purchased by an undercover cop from the defend it so in that case and pettigrew it really does make sense that the jury could not have found anything different when faced with this physical evidence against him that's not the case here here or there while there was physical evidence the record does not reveal how much that physical evidence amounted to in this case so all you're really relying on here is the testimony of biased coconspirators now the government also cites i think it's they cite three witnesses as examples two of those witnesses did not even know mario salus and he testified to that ignores the facts of this case that could make that motion timely and i think that's where the abuse of discretion happened i would argue there is also an abuse of discretion in the fact that the court did not give mr sal's the chance below to make a case for timeliness before dismissing it on those grounds but to your question about the actual facts here the facts show that mr salazar is diligently pursued relief over the past twenty years but these extraordinary circumstances have kept him from having its claim heard well that  opportunities she's not been successful at every step of the way your honor i would i would disagree that he has had his bite of the apple the bite of the apple he is looking for is having his apprentice claim heard and no court has ever been willing to engage on that well no no no i mean it's been he's presented specifically overruled so this is not a case where the district court made multiple alternative findings on why mr solace as a private claim should be denied this is a case where they made one holding based on taurus and that was over rolled so i think we're looking at the the court this court case there's no way that they could approve it just on those grounds so i think that is why here you know that is that's the difference and that's court has not looked at that before y a similar point you know the government seems to look to other reasons to affirm and they mentioned their very st argument is a lot of the case doctrine which just categorically does not apply here you did mention prior panel rulings in prior panels have looked at this you're on i apologize i must have misunderstood your question when i was referring to the decision below i meant the decision below here in two thousand and eighty which is where the district court denied this motion based on timeliness and in that case they really only looked at clay and then was and i think that's where the sanders case came into play in that opinion so i disagree that the court really grappled with the president and that claim what the court was looking to was whether mr sallis was trying to improperly use a sixty motion to bring this excessive pay vs petition and i think they relied on weinstock as well and the wind stopped opinion which was confirmed by the supreme court's opinion and gonzalez hell is a true sixty motion when the attack is on the non merits aspects of the hay vs proceeding and that is what mr sallis was attacking then and that is what he is focused on now this not merits aspect where the district court answered the procedural question of when his conviction became final so i would circumstances as we say that ties back together in this case you know the crux of this appeal is timeliness your honour's and this is a neat case where the same set of facts that show that mr sallust filed this rule sixty motion i don't see how that makes it extraordinary or i don't think that standing alone makes extraordinary your honor and that's not our point in this case we are raising it as one of the many facts in this case that go to the extraordinary circumstances i mean this is in this case the watch changed in two meaningful ways that directly affected mr salazar neither of which he's gotten the benefit of i mean the supreme court decided a pretty while his lawyer was ignoring him on direct appeal and the supreme court then decided clay during mr sila appeal overturning the only basis on which the district court had relied in denying his havey its claim and then as we discussed your honor the district court that improperly dismissed mr celsus effort to raise this ere you know the whole purpose of rule sixty six dollars as courts of recognize is to provide a safety valve to prevent injustice and providing relief in a case like this where all of these circumstances are happening in one case to one man are exactly the type good morning your honour's may please the court the defendant seeks to raise a claim arising from a trial that took place over twenty years ago and support of that claim he cites three intervening supreme court decisions a pretty on which a claim is based clay which changed the law when a conviction becomes final and gonzales which alter the way the courts review rule sixty b motions but there has been no change in law and no change in the underlying facts since two thousand and five and against that backdrop this claim fails for three independent reasons st granting the rule sixty b motion in this context would contravene various canons finale nd the defendant cannot show that he satisfies the requirements under rule sixty as to timeliness or extraordinary circumstances and rd whether viewed through the framework of harmlessness on collateral review or cause and prejudice or even plain error review this claim is utterly without merit i'd like to start with the finale point and i can think of no better place to begin than with your question a moment ago judge wattle bomb which was if we were reject the claim now could he refile again in the district court i think the correct answer to that question is no because what would happen if you file again in the district court is we would argue that under the rule granting was leaf would contravene the order of this court denying relief on appeal and here's i think where the critical difference between my friend on the other side and the government lies in a normal rule sixty b a motion that seeks to correct a district court judgment because the law has changed the law has changed after the appeal process has been exhausted and that makes great good sense you might want to give a safety valve in those circumstances for litigants to come in and say the law has changed or the district courts st judgment was invalid but here and just as you made this point a moment ago at every moment where the law changed the defendant was savvy enough and aggressive enough about pursuing his a pretty claim  president in torrance he gets to this court and it is in form opening brief he says tour it is wrong it's just an incorrect precedent then the supreme court decides clay and he files a petition for rehearing on bart where he says my entire appeal of the a pretty claim was based on tours being wrong a position that has now been vindicated by the supreme court and yet this court still denied relief saying that he had failed to show a substantial violation of his constitutional rights the only way to see great relief in that context is to say that this court heard even though it had all of the facts and all of the law in front of it and i would submit to your honor's that's a frontal assault on the principle of horizontal comedy among panels if that's correct then any defendant could always find a rule sixty b motion in which is argument is just the th circuit previously rejected my claim but it was wrong and you kno not to consider is opinion is position in september two thousand and three when he does frame the clay issue at that point on th the court didn't read his petition for rehearing on bach and was unaware the claim happened because this court remanded and we explain this in footnote thirteen of our brief several cases after clay was decided essentially because it must have reasoned that the change in law works to finality by clay might if change the merits resolution of the chase if that's true then i think the explanation is the explanation that we offer in our brief which is the court must have taken a look at the merits of this claim circumstances in two thousand and three was that while the court thought the claim might have affected the resolution of some claims it didn't think that it would affect the resolution of this claim but if the opinion rather than being as cursory as it was actually  grappled with the finale issue and had just gotten clay wrong then i think they would have a much stronger argument that you might import some of the exceptions that apply to finale rules like the law of the case doctrine or even the mandate sixty b motion raising this claim again he did not appeal for whatever reason that ought to factor into the timeliness analysis which we can get to in a moment he then biles a nd rule sixty b motion where he for the st time couples has a pretty claim to an ineffective all of the facts are here again there is no change in the law at this point gonzales has decided and he raises it in his papers before this court and the court again denies relief so even if there was some discomfort judge sussing out what happened in two thousand and three just can't exist in two thousand and five and indeed that if it goes a step further involves a motion to recall the mandate on the grounds of the ineffective assistance with respect to th considers that on the merits it asks defense counsel to file a response and then it denies that motion so there's just no way to grant relief here without this panel sort of saying our colleagues got it wrong at least three times before and i'm not aware of any case law that would  the other reason it can't be timely is there are very long gaps in the record here where nothing happened in the period between the denial of cert in his nd post conviction appeal and his motion to recall the mandate for years off the clock then after the court denied the motion to recall the mandate nothing happened for six years before the defendant filed the rd rule sixty b motion that gives rise to the  in which nothing a curse i have not seen a single case anywhere that says ten years is timely for purposes of rule sixty p this court has said and wells fargo bank two years was too much it said moses fifteen months was too much is seven mclaws or four months was too much so there's just no basis in law d to say that a ten year gap this timely and with respect to extraordinary circumstances there are bound on both sides on the one hand to the extent they argue that the law changed gonzalez forecloses that kind of claim based on a pure change of the law the supreme court was very clear about that to the extent that they say in their reply brief as i take them to say they can solace doesn't apply because we were raising our claim before judgment was filed on our st appeal for denial of a b s relief then we're right back into the conversation we were having a moment ago about how then their argument for extraordinary circumstances is just a free floating claim that this cape court hear not once but three times and again i am not familiar with any case that says the court of appeals got it wrong is an argument sufficient to constitute an extraordinary circumstance i want to move to the rd point which is whether this aim has any the court's question the government's error in metzger was that it had a procedural defense i think in that case it was an appellate waiver on appeal to this court rather than invoke the appellate waiver in its standard of review section the government said we grew the defendant that the standard of review in this case is to know so what metzger said was the government had waived to the waiver because it had blown through procedural issues and gone straight to the merits we didn't do that here the government's opposition to the hate b s petition from the early two thousand it's made two arguments the st argument was that the drug thresholds appearing in title twenty one dollars are sentencing enhanced months and not statutory elements which is not a merit argument it's an arcane about not cognize ability i think and the nd argument made was and also a pretty is not retroactive which is another procedural argument so my st response to their point about waiver is we never blew through th procedural defenses and went to the merits i think what we're doing now is raising an alternative everybody driving argue most of the fault is an affirmative defense it's not enough to say well we didn't raise any merit space the fence we raise some other procedural defenses you didn't raise this efficiency conservation of scarce judicial resources and orderly and prompt administration of justice that's a three of three thousand seven hundred and fifty eight this case has been here three times already this is the th i think if any case raised interests relating to efficiency and conservation of resources this would be it and therefore has applied that exception in a case called linder from two thousand and nine where the government had waived waiver but the th circuit nonetheless said that it was going to apply waiver because otherwise it would contravene interests and judicial efficiency and here's my rd argument judge he has even if you disagree with those two we get to the same place and here's why we have only found three cases in the entire federal reporter that raise this very odd procedural posture where an a pretty claim is raised after an appeal is resolved but a pretty comes down after the judgment becomes final in this gap before the conviction it court were suspicious of the cause and prejudice argument i think we've sufficiently preserved the harmlessness argument on page thirty two of our briefs and it gives you the exact same place because the court would ask the question as the defendant met his burden because it's his review to show that this error was not harmless and then this is precisely why we ordered the case file from the archives and submitted the trial transcript to the core the court reads the testimony of the st two witnesses and the air was i is is the aside from whether we preserve the procedural all or it is that procedural default is she one of the ways we even if you review it as a very late nd or successive ineffectiveness quite he's got to show prejudice under strickland so i agree with you are that you could i also make this point just quite a bomb the courts decided including this court in sanders very early  pretty was not retroactive and so one of the things that happened is the doctrine grew up around late filed a pretty claims recognizing that was going to be very hard to show a pretty araf you had preserved the claim in the district did not do and so we make the point in our brief judge quite a bomb cities aside prejudice he can't show cause i mean this court has said you can't get over the cost arsenal by arguing a pretty was so novel and it also said in dyess the you can't show ineffectiveness on the theory that defense counsel should have anticipated to predict that that's the field i mean it's very very difficult or impossible for a defendant who has not raised the ante claim in the district court to come in later and say somehow someone ought to have raised it earlier those avenues have largely been foreclosed in the final analysis your honors we think that the th circuit got this exactly right in its brooks against bobby decision from two thousand and eleven that we cited in our brief whatever rule sixty b allows it does not allow a litigant to lose in the court of appeals and raise the claim again and again and again seeking a different result in the you have some time for a vote thank you are a few points the st case the last case that the government referred to as book speed bobbie and i would encourage the court to read that case that case was actually decided it was the young are you leaving early ride your honor i would encourage the court to read books feed bobbie that case was actually deciding a motion to stay execution and ohio and that was decided about five days six days before the execution was happening so the question when there was do you have a likelihood of success on your real sixty motion and the court listed off five reasons to maybe say it was this law the case was one of them i would also note that the case that they relied upon for that statement does not actually support their argument that while the case applies in the real sixty context but getting to the other points made by the government your honour's they said multiple times that the court heard not once but three times and we are trying to ask you to find that this court heard three times that is not our argument recall a mandate and this court has held that you only recall your mandate in extraordinary circumstances so we did not argue that that decision was wrong what we're focused on is the appeal of the heaviest judgment it self and as your honor said  it was a cursory opinion so we not we did not really have insight into what the court was thinking and the government says back the court must have taken a look at the underlying claim to figure out their reasons but i don't know that that case the a pretty claim in that case so that case was entirely different and as the government mentioned the law of the case different canons of finality involve the law the case specifically makes an exception for quote prior decisions clearly erroneous that would work a manifest in justice and i think if you look at that opinion from two thousand and three the only basis for which the district court decided decided to present it was overturned so i think that case was clearly may that is that is part of our point yes your honor i think if you look at other cases that have held overwhelming evidence they had physical evidence they had if they have biased coconspirators they had multiple conspirators corroborating this testimony which you do not have here the two other witnesses the government sites after that st witness they keep looking at didn't even know mr salim i think the other point on that your honor is i mean but the jury made a finding of respect so the question is yes what was the record show about drugs which really was the only issue with the it was focused on so what about that it's interesting you say only issue because in the government's opening statement at mr salazar trial they said that the only issue was guilt or innocence th case is also different some from some of the cases cited by the government pettigrew cotton promise derm and all of those cases there was an information or an indictment at some point that listed the drug weight so it gave notice th to those opinions and those trials that did not happen here mr one thousand die even in this case only said a detectable amount of heroin and then you got to trial and the government said the only issue in this appeal is guilt or innocence s suttles was not on notice that drug weight was an issue that would put him in jail for the rest of his life so i think that come but the lack of notice to mr salazar combined with the fact that you have no physical evidence directly attributable like you do in pettigrew like they did in cotton and also the fact that you're really principally relying on a biased coconspirator combines to show that the evidence in this case is not overwhelming but your honor i would go back to the point that this is the not the question that should be before this court and the rule sixty b context he only needs to