may please the court mr kember as ineffective assistance claim fails because the last state court to consider the claim rejected it on state law grounds and the supreme court has long held that state court answers to state law questions cannot be nd guessed by federal habeas indeed in miller vs the tekkie a case in all material respects identical to this one this court applied this rule to reject precisely the same ineffective assistance claim the chamber raises here so i think what mr kim is arguing although i happy to be corrected if i'm wrong is that if we roll the clock all the way back to the direct appeal at that point had the rule seven b argument been properly presented to the indiana appellate court we know from the two to one vote that actually occurred when it really wasn't it was kind of off on the sidelines the dissenting judges talking about it and it's unclear i'm hesitant placed too much weight on the fact that somebody used the word appropriate because it seems like that's a pretty general word but the idea is you know maybe somebody would have thought that at the time and mr kimbrough was deprived of the opportunity to make that argument through the ineffectiveness of his appellate counsel now i understand the state at this point is all the way at the other end of the telescope and you're saying well fine all that happened there was the st appeal there was the grant of transfer there was a lot of water under the bridge and now we know what the indiana court of appeal thinks about this seven the argument of the direct appeal court it makes all the difference in distinguishing this from well gives you a window right into what could have happened if the argument then when you look at the indiana supreme court's decision the st time around  came across to me very much as a procedural default decision you know this argument hadn't been properly presented we don't reach this argument when nobody is making it you know so go away that's right i think i think the the fairest thing to say is that the union a supreme court doesn't approach post conviction review court justice in miller says your sentence was not inappropriate under rule seven b that's a state court answer to a state law question that binds federal a v s courts and the reporting to the terms of the case that would be kimbrel three is that correct that's exactly right and that's what you're indicating in the last reasoned opinion is that correct that's correct that's right so the the direct appeal decision so badly but let me ask you this you're right mr kember oh after round one so to speak after the indiana supreme court speaks brings his state post conviction proceeding but unless indiana different from every other jurisdiction i know about and to my knowledge it is not people real burden on post conviction to show much more fundamental error than they would on direct appeal  of the states in the federal government have interest in finality and so is the indiana st the trial court and then the kimberly three chord addressing in a sense the same question as they would have addressed had this properly come however it's important to see that the state is not contested the deficient performance of the principal question before the postcondition review court is whether mr ken broken show prejudice in order to determine the answer to that question the post conviction review courts need decide is your sentence inappropriate for the purposes of rule seven b as a matter of indiana law and it's worth noting that in terms of the remedy that the any in a court of appeals could issue in a post conviction review proceeding it's almost certainly would not have been a new direct appeal to raise the rule seven b argument for a rd time it would have just spent to grant the rules and be relieved ready yes a word about remedy there's something weird about the briefing in this case which is that mr kimbrough seems to be saying that the indiana i'm going now just focusing very directly on what the u s district judge what judge lawrence did and i understand mr kimbrough to be saying judge lawrence somehow was ordering an impossible remedy when he said have a new direct appeal and i understood state to be responding oh no we do that from time to time when appropriate so is it your position that this is within the tool box of indiana courts absolutely r review if the indiana public court concludes that the claim would have succeeded the appropriate course is not to issue a new direct appeal there's no need to do that the appellate court should just go ahead and issue the relief that the original direct appeal court would have issued its have had the argument been raised ok and so it's important to see that here because we can see that the any in a court of appeals on post conviction review if it if it had concluded the mr sentence really is inappropriate in light of the nature of the offense and the character of the offender then it could've gone ahead and granted mr camber a rule seventy relief and apparently like taking it back down to forty years or something or whatever thought  asserting is and the constitutional right is that if the state provides you as indiana and and all other states do an appeal as of right then that appeal is is deprived of its legitimacy if the appellate court can't doesn't have the opportunity to consider the strongest arguments that you have and here perhaps the direct appeal court didn't have that opportunity but there is absolutely no question that  note in closing that under mr kember theory every failure to raise a rule seven b argument and the direct appeal would give rise to a valid strickland claim in a federal habeas proceeding even if the seventy argument would fail as a matter of state law and that means under his theory is that right or if i mean it i can certainly see in particular facts in this case with effective let's be real you know whether a seven b effort should be made surely the excessiveness of the sentence and the ability to pursue in other words the facts make a difference since i'm not sure that this is like opening the door to every you know extra month appropriately what they're supposed to do on if you've got a reasonable argument on direct appeal they raise the rule seven b argument and if it's rejected that's game over you can't go back and try to get if they don't raise the rule seventy argument then you can raise the rule seventy argument as a strickland claim ineffective assistance of a pal accounts a claim on post conviction review in state court and if the indiana court of appeals rejects that argument that doesn't stop you from raising in a federal a b s so you've got two shots instead of one and a this court noted in miller two thousand two hundred and fifty four does not make defendants with poor lawyers better off than defendants with good ones and that's exactly what mr cumbrous theory does and so for those reasons the district court's decision should be reversed and there are no further questions judge would your honors may please the court i'm cody vaughn arguing for john can broner this if you like lost will or central holding is that this court should not review state court decisions of over state law when it would have been people however it let me ask you this is what really bothers me about your position c we all know how we got here you know all the all the stages but it's hard for me to ne indiana court of appeals going to say we already spent like twenty pages telling you what we think of the rule seventy argument we don't find is inappropriate and so if you want to say it again we will but you know we don't ask the states  pointless things i think as a matter of procedure what mr hudson just said is that is the case the state cited a number of things there is power within the indiana courts to have that more tailored relief jump in and get a new directive he'll know that this case just has developed further and we know what the indiana courts are i don't know about cross you know the law of the case in indiana when one panel of an indiana appellate court decides something that i'd be very surprised if other panels didn't respect that st decision so aren't you a little too late to be making this argument st off i'd like to note that it's not actually clear that state courts actually have the power to order new appeals they thought mr hudson says they do it now why isn't that a question of state law that it's really up to indiana it's up to us to monitor whether they're complying with the indiana constitution and civil procedure codes it's it's a consequence of the a p a in which what if you actually find that the merits that we went on the merits then what that actually means is that there was an unreasonable application of federal law and what would have happened is we would have had relief in the end of post conviction court they would recently applied strictly and under montgomery as an evidence by practic israel's case by the indiana supreme court they order new noori sentencing hearings and effective appellate since it counsels under the post conviction rules they do not have the power to order new appeals sometimes they do do it but that's because they understand this court you know that is part of what i'm sorry to hear oh i'm sorry excuse me they don't order new appeals and effective assistance counsel cases but mr hudson says quite to the contrary and all i'm trying to say is if that's what an indiana court does and a new appeal takes place there is no federal problem with that maybe somebody at the state level will say you haven't applied state law but that's really not our business and i'll take it even a step further if a federal district court judge in a twenty to fifty four case orders alternative relief as this judge did you can either have a new direct appeal or you can release the man i mean there is always there's always a an opportunity to just say we're done you know we're finished she's going to be released the writs granted unconditionally will there's no question the indiana courts can do that and if a federal judge blunders and offers the state an option that it can't use under state law then presumably the state won't use it but i don't see any federal interest in that the federal interest is in a to fifty four dollars and here if the theory of ineffective assistance of appellate counsel and direct appeal is the failure to raise in a timely fashion the rule seven b claim we now know what the indiana favorites but it's it's a federal matter not our job to police internal allocations of power in any state but ex ante this court needs to or order equitable relief that it has the says and so what we the question is what is the ethical solution to this case and that's what would have happened under the d p a under what would have happened if the if kimbra would have won in state post conviction or further but how do we even get that far since we know what happened at the prejudice part of the inquiry in kimber three because what the camera three did was actually decide the case on the merits rather than ask what is a reasonable probability that they would have asked what a reasonable probability is then they would have came to the conclusion because of kimbra one that there was at least a reasonable probability that kimber would have received relief but here's here's where we get into it creates a standard it's not you know beyond x number of years you can't do it or or whatever you can't impose a sentence on somebody was a minor there we have we have strict rules but this is a standard inappropriateness but there are boundaries and it's reviewable for abuse of discretion and it looks to me as though the indiana supreme court and the indiana court of appeals quite comfortable taking a look at a decision in fact the indiana supreme court maybe on procedural grounds reverses the indiana court of appeals the st time through there are three issues one this is not an abuse of discretion essentially what happens when a when the supreme court reviews the sentences they or or when right that there are bounds of this description but just because there there is a there are balance that doesn't mean that if you let me back up yes there are bounds and that's how we're going to exclude cases that would be totally futile and so yes there are cases miller's right there are cases where there is actually no possibility of seventy relief however within that larger ambit the very wide discretion which any extreme court says that there's it's unlike reviewing for legal error sufficiency of the evidence and there's actually no right answer in these cases that is broader than abuse of discretion it's like i said it's a pellet recency they're going to take a nd look at the sentence and substitute their own judgment from court said that is too narrow of a view of seven b really and so yes it's it is there are balance and the fact there are bound doesn't keep it from being incredibly discretionary young a question with regard to the project component t judge lawrence talked about his decision on page one thousand and ten of the short appendix he has a line this determination cannot be considered in a vacuum he's referring there to the reduction of the doing what it needed to do was look at the strickland analysis and look at prejudice that prejudiced analysis says we have to look back at the proceeding in cambridge one and so camera one is where the constitutional violation occurred and that's where the  constantly refer to the briefing they don't go through and look at seventy cases and weigh it what they do is they say well we have the full benefit of briefing and so therefore we're we can say that there we're not in a reasonable probability but there are and that's the argument that this court can valuate because that's just a strictly prejudice analysis and so when we look at the briefing argument we have to remember that there was judge mathias is dissent that raised all of the different seventy arguments that panel decided  that decision over the camera one panel decided the decision over that dissent and the state has never raised and neither has three ever raised an argument that was not in that dissent about why this should not have seven b so that's increases  our understanding that can be a one but it is a very representative of what would have happened and it's a reasonable probability standard we essentially here's the problem i have i think because of course the looming question for you that you haven't directly addressed yet but maybe will is whether we could rule for you without overruling miller against a techie so i mean this can happen that but it's a it's a step of great significance and i guess what i keep coming back to is the judge seems to think well because one panel of the indiana court of appeals came out one way in the nd panel of the indian accord deals came out the other way that tells you it was fairly debatable in indiana and so that's enough to show prejudice but bumping up against that observation for me at least is the concept of finality number one you could say that in any sentencing proceeding if you had a sentencing proceeding in an ordinary robbery case in indiana and then you gave it to a nd judge in the rd judge and a th judge my come out with different answers that we have to take an answer is the final one and this last recent decision rules priem court has given us seems to tell us it's kimber three that we need to look at no one first off this court can decide this without overly because miller  specifically says that when it would have been futile so what we have here is we don't have it so in miller the post conviction court said that the defendant in that case just in that case cannot cannot receive seventy relief that's the word that the u s cannot that is different that's saying that it's futile under law or if you look at harper they simply say look this person harper is ineligible that he didn't raise any arguments on why seventy relief would be appropriate in this those are the type of cases that miller for close what miller doesn't for closes the case like this in which we actually have a panel saying this is a this is a pretty good seventy clay split screen it sue a spontaneous not from are we sure that's what they did they never seventy in the majority opinion no but every single court has recognized this is a seven b including the dissent there and they say focusing on the opinion appropriateness of the since and is the only authority that they could use to reduce the  wouldn't make sense going to the finality issue the finality issue is less important here because what we're doing is we're sitting in and then we look at the reasonable panel could find a seventy really ready that had been futile and that would have been the end of it and miller would control and that would be fine but what happened here is we went through the direct appeal all the way through to the post conviction and we did all of the procedural things that are required if the the finality can kick in once you shall write to effect of sense of counsel is is upheld opinion full difference between what the kimbrough three courts said and what you just said would have been enough to put this to rest so because every every time that they offered a reason here they said well now we have briefing now we have briefing four times the mission briefing and they're just i mean they're they're saying we've thought about it more and we don't find any merit in this well the merits does not actually dispose of the case because the inquiry here is a strickland inquiry about prejudice and and so the question is whether there's a reason the probability that panel would have ensured one would have or not shirking one excuse me camera one would have granted relief and we have all the evidence here that they would have even with briefing because and again there are two points to make one is this went from a forty year above advisory sentence which the advisory guideline for the ranges thirty this went from forty to twenty years on each count and so they found this to be even a below advisory type sentence and nd it any relief that would have been granted would have been enough so if they would have even with briefing went down to thirty years instead of forty that would still be evidence at the written press ok all right thank you very much anything further mr  exactly the sort of language that the indiana court of appeals and post conviction review used in miller and in and in harper versus brown to rule seven be another rule seven b case applying miller so there's there's no and secondly on the discretionary the discretionary issue the as as you pointed out chief judge would there's no question that the indiana supreme court has said that there are boundaries in the rule seventy analysis and although there may be situations where reasonable judges could disagree there's nothing unusual about there are occasionally wrong answers and in camera three d n a in a court of appeals said this would have been a wrong answer and strickland itself says that the th amendment does not entitle defendants to the luck of a lawless decision maker and that's precisely why it's kimber of even beyond what twenty to fifty four d requires in terms of the law school we appreciate your participation in the argument and the case of the taking under advisement