the report and recommendation in favor of and that was overruled by in this case were contrary which would go let me go back let me go back to something a little more d polemic there is barraged applicable at all in other words you have to demonstrate that or or the case that we have an i'm not arguing about the retroactivity i'm arguing about the scope of brush raj has not addressed different statute similar language in a different statute but district court in this case was applying death results under section two hundred and forty two in the instructions and essentially gave a proximate cause type of instruction right just that well  circuit sanction these instructions are four dead the barrage of argument at the martinez case out of the six circuit specifically says that back or has not interpreted the results and  if he didn't raise a been a court and no court told him you know we disagree with that argument and no one ever raised her eyes on the six circuit law never foreclosed and that the th circuit law devore suggested that that this was not a requirement wheeler analysis that's the st question is whether the settled law was or was to the contrary originally and usually in those cases we have an opinion from the court that says you know this is we interpret the statute one way and then you have an intervening decision that says no we interpret it the other way and and so the settled law is pretty clear but here and no one's really pointed us to settled law that that  because he could have radius this challenge to his conviction earlier in his direct appeal or on his st he is petition there was no case law that rendered such a challenge util because he could have raised this challenge before he cannot do so  now nd even if there were a jurisdiction marlo's challenge necessarily fails on its merits because the jury instructions used the trial so biased under barrage rd even if the jury instructions were insufficient that error was nonetheless harmless because that evidence a trial when it was uncontested that had marlowe provided medical care earlier death would not have resulted affirming says required at every stage of th analysis i'm happy to answer any questions about any of these points but let me take them each in turn starting st with jurisdiction i'd like to focus as judge russian again on this court's decision in re jones and the points raised on pages sixteen and seventeen of the government's brief under in re jones which applies here because marlowe is challenging his conviction and the jury's finding under eighteen u s c section two hundred and two marlowe must show that he was foreclosed from challenging his conviction because of binding case law that at the time of his direct appeal and st gave his petition that the big death results language in se and forty two dollars can be satisfied without but for causation and for the reasons the judge rushing alluded to marlowe cannot make this showing because the issue of the requisite level of causation under section two  open legal question in the th circuit at the time marlowe was convicted in two thousand and six he filed an unsuccessful appeal of his sentence in two thousand and seven he filed his st hideous petition in two thousand  alleging ineffective assistance just assistance of counsel that same year the th circuit in united states v martinez made clear that it had never interpreted the death results language in section two  this meant that at the time of morals st gave us petition there was no binding case law on the level of causation one way or another because marlowe therefore could have raised this challenge earlier and because he could have raised this challenge earlier he cannot do so now under the savings clause in a nd petition and i think this is made clear based on the many cases this court has issued regarding the savings cla starting with in re jones and following the thrust of those cases it is a if you didn't challenge your conviction earlier because during your direct appeal or your  proceeding it would have been futile under then governing law then we'll excuse that failure and we'll let you bring that challenge your conviction years later if the law subsequently changes and that change is held to be retroactive on appeal but the counter point to that is where you had an opportunity to raise that challenge earlier where the petitioner had as this court has termed it and uno procedural shops where the prisoner had an unobstructed procedural shot to raise that challenge earlier that we've blown excuse we won't let you raise that challenge years later such as here where the the petition the nd he  petition was filed eleven years after conviction and it is higher only different circuits this is a high bar but we're talking about statutory retroactivity and by design the savings cla rexx high bar the savings law specifically requires that the prisoners original section two thousand two hundred and fifty five remedy be inadequate or ineffective to test the legality of detention under read jones construing that savings clause at no three this court noted that the savings clause operates for prisoners who through no fault of their own lack a source of redress here that does not apply to mr marlowe marlowe had a source of redress and that was his direct appeal and his st a b s proceeding and indeed the th circuit has made this a pretty straightforward case regarding jurisdiction or as it turns out the lack thereof this is not a case where this court needs to parse another circuits law and figure out what this president stands for how far this other opinion may extend rather what we have here is a direct statement by the th circuit issued the same year as marlo's st he is titian stating that we have never interpreted the death results  language under section two hundred and forty two dollars what that means is marlowe was free to raise this challenge earlier he was not foreclosed in any way such a challenge was not in the words of in re jones futile he had it available to because the level of causation required under section two hundred and forty two dollars was an open legal question in the th circuit at the time barrage did not affect any change indeed there cannot be a change in the law if there was nothing to change and here there was nothing to change because there was no binding circuit president that foreclosed marlo's current challenge having been brought earlier on his direct appeal or in his  and for that reason this court lacks jurisdiction over his nd petition but even if there were jurisdiction it's clear that marlowe's challenge fails on its merits marlowe asserts that the jury could not find but for causation because under the jury instructions the jury was told that the government did not need to prove that marlowe's conduct was the media direct or sole cause marlowe's view that meant the jury could not find blood but this isn't a misunderstanding but for causation because a but for cause does not need to be a media or direct or the sole cause of a result indeed the irony here is that barrage the case on which marlowe relies for jurisdiction doom's his his challenge on the merits writing for a unanimous court in barraged justice scalia offered the following example of but for causation a baseball game where the leadoff batter it's a home run and that team wins by a one  twenty score now that leadoff home run is up but for cause of the team's victory even though it's not an immediate cause of victory indeed there were nine more innings left to play it was not a direct cause a victory the team was not instantly made victorious and it was not the sole cause of victory as just justice scalia noted there could be other but for causes of the victories such as skillful pitching and indeed the supreme court just last term in bastar in an opinion authored by justice course it noted that there can be multiple but or causes for a single out so here it's clear that the jury instructions comply with  barrage moreover it's clear that the that marlowe's challenge is for close under stick circuit law and here i'm referencing the united states the martinez order that was attached for a nd twenty eight chain and here i would like to refer to judge me meyers comments earlier we did we agree that that that the jury instructions did require the jury to find proximate cause we said that specifically on page two thousand and twenty of our brief and marl not dispute that so here we had a finding of proximate cause by the jury applying martinez to the set of facts it's clear that because the jury therefore found proximate cause under martnez define blood for a station but even beyond that we believe a plain text or argument and analysis of the jury instructions shows that the jury was required to fine but for causation it referenced the jury instructions referenced the natural and proximate result of marlowe's actions by using the term results that led the jury and required the jury to apply the ordinary common sense meaning of the word result w under a barrage incorporates a finding a blood or causation so therefore even looking at the text of the jury instructions the jury was acquired to find both proximate cause and blood for causation and we know that they did and we can three the jury found that marlowe's failure to provide medical care resulted in both bodily injury and death so what we have here is a considered judgment by the jury in which they differentiated between different consequences of different sets of action by marlowe and what they found was the straw that broke the camel's back the conduct that cost walter kuntz his li was the failure to provide medical care and so previous reasons there was no there's no jurisdiction over marla's petition because he could have brought this challenge earlier and the jury instructions sufficed under burrage meaning that marla's challenge fail on its merits but even if there was an error in the jury instructions the there was uncontested evidence a trial that there was uncontested evidence in trial that the failure to had was a treatable medically can do to a condition however the attending neurosurgeon that attempted to provide medical care for walter testified that by the time walter kinds of arrived in his hospital he was quote well beyond the point of saving marlowe did not provide any evidence at trial that walter kuntz would have died even if medical care had been provided earlier the only evidence was that medical care could have saved walter kuntz and it was not provided earlier indeed it was five and a half hours after walter cunts started exhibiting symptoms that e m t has arrived on the scene but even then indeed one of the e m t has testified that had they known about the head injury they would have airlifted walter cunts to a trauma center instead of taking him to a local medical center and so what's clear from the evidence for the jury is that at the very least marlo's failure to provide medical care was at least one but for cause of conses death and that is all there jury was required to find applying a blood for cause analysis so for those three reasons we believe that the district courts you'll be affirmed here there is no jurisdiction because marla could have raised this challenge earlier on his direct appeal or his st gave his petition even if there was fails on its merits including underbrush and even if there was error in the jury instructions based on the uncontested evidence of causation for the jury any error would have been harmless i'm happy to answer any questions from the panel was a straight forward briefing you have to come under the savings cost that's the whole basis for your being in court because this is your nd petition and you want to with normally would come down and greet you like are you in texas mr gordon yes yes i am that's a going to be a little hard for us to get down and shake your hand but that's our normal custom and since we're acting virtually here will greet you both and thank you for your arguments and will proceed on to the next case thank you very much thank your hono