retroactive to cases on collateral review by the supreme court and fourth that was previously unavailable and in this case the government does not dispute that mr ponce garcia has satisfied the first in the fourth prong so i plan to focus on the second and third that is whether the new rule indian was constitutional and whether it's been made retroactive i think at the outset it's worth noting what mr ponce can see as burden is at this point and that is to make a prima facia showing that you can satisfy the requirements of section twenty two fifty five th to and this court has emphasized that that simply a sufficient showing to a possible merit to warrant a district court's further investigation so mr punch i guess  that's right you know even get to your issue unless the timeliness issue is resolved right that's correct your honor end there the government does not dispute that assuming deen announced a new rule which the government seems to agree that it did that the that the petition is timely he filed his initial district court petition i think within a month after dean was decided so timeliness is not an issue so much as whether dean announced the kind of rule that ken and i think has as darted out and well said we were to find out whether it's constitutional right and then we have to deal with the retroactivity aspect of it exactly and i suppose as part of that whether you fit into the two narrow exceptions and t so why don't you start with the constitutional aspect of it ok indeed in the united the supreme court held that a district court judge is not precluded from considering a mandatory minimum hundred and twenty four c when deciding upon the just sentence that complies with the parsimony principle and the supreme court did not state that this is a rule of constitutional law  but nothing in the statute requires that the supreme court state that and this court is empowered to find that the rule is constitutional let's assume i just assume that you're right for a moment that there is no requirement to express statement i think well this court can't find that the basis for the decision and the basis for mr poncy garcia's claim is constitutional and major and that's because when the supreme court empower district judges to consider everything and making a sentence it gave the district judges a discretion that then due process mandates that they exercise and that's true under higgs field lahoma under the due process and so that's the basis of this or consequences claim which is constitutional is that he had a due process right not to be deprived of his liberty without having a district judge exercise the discretion that's been granted to it and why isn't why isn't what supreme court did a little bit like what happened in booker which was advisory wires that have to be constitutional i'm not following that well i think in booker and and  also i think those are two examples where the court really narrowly said you know this is what the statutory language means we grant the district judges you know this is what the statute allows them to do and certainly there is a way that the court could conclude that the dean is the same and other circuit courts have done so i think you know adamantly at this point but mr parts poncy garcia's argument is that the court does not need to read it that way many circuits of dealt with this so far above third the fourth the fifth the sixth the eleventh and all of the district courts the cases we've looked at not a single one agrees with you they also it's not retroactive what your response to that i think in terms of retroactivity it's not an obvious this is not a case where i think we obviously have the better side of the argument i think it's a close question and the fact that all of those courts have concluded to the contrary doesn't preclude this court from from reaching a different decision in the ninth circuit those things differently maybe i think in many cases the mind does do things differently  been told that right i remember an employment discrimination case that are calling judge mccune wrote several years ago about whether circumstantial evidence  prove employment discrimination there were nine other circuits that said no we said yes it went to the supreme court and unanimously they said we were right so don't be afraid to try to convince us right well and i think in terms of the retroactivity i think this case is very much like miller and what miller did which the supreme court laid and even though in miller the supreme court said we are would characterize it whether it's procedural or substantive they said it was retroactive here they say no such thing and you agree that reasonable people could conclude that what they did here was strictly standard for whether you can file a second or successive petition with whether or not you have a timely right to do so that's what was that i'm wrestling with here is i think you may meet the standard if you get past the timeli said we have to hold that it's retroactive even in that case the majority said that can be through a combination of holdings and justice o'connor's concurrence concept you know said it's relatively easy to satisfy that when you have a substantive role and  gate keeping standards under twenty two fifty five age two are not met by the d in case you're not satisfied by the dean case it has to be a new rule of constitutional law and it has to be made retroactive by the supreme court and  fails on both counts it is not it while that it creates a new rule it does not create a new constitutional role and because it's purely a statutory construction and it deals with the plain reading of one twenty two c and how it in a relates with thirty five fifty three so it is not a new constitutional law similar and also it was not made retroactive there is nothing in the decision that speaks to it being a constitutional rule or that it is made retroactive and only the supreme court can make a rule read it and make a rule retroactive this court cannot reach that decision or that make that ruling  there are two narrow exceptions that we can look at your opponent argues that both of those are satisfied to take care of the retroactive what's your response to her argument my response is that this court cannot make that decision make the retroactivity finding but on a second or so successive pictures showing tyler mandates that only the supreme court can make a retroactive offer is it is the government's position that the ninth circuit in this case has no authority to construe dean and case law or rather the in this case to determine whether the four factors required here have been met you're saying reading of twenty to fifty five h two alleged i think you heard me say that with a third fourth fifth sixth and eleventh circuit have already ruled that it isn't retroactive where they violating their duty by even considering it instead of letting i would go back to the to have you know you have a case of a supreme court case that says that i believe tyler speaks to that that's kind of strange isn't it with respect i mean as as we've both pointed out here you've got these other courts of appeal who consider the issue and they made a determination that you should buy it it's not retroactive and yet they considered it and you're telling us if i understand your position correctly that our court has no authority to even consider the issue we have to wait for the supreme court to do it and if we take that position how does supreme court even get it doesn't have to come through us th case law for that i do not your honor i'd be happy to file is supplemental briefing on that should the court desire i've never heard that i mean i'd like to learn things so maybe if you have such a case you can send it to us i would be happy i believe think almost without exception has to be authorized by the solicitor general's office and the question is what what what what position where you authorize to take i think that's what my colleague asking and that you're advocating a position that at least to me is novel he and i are and just as i mentioned judge len is well interested in knowing whether the solicitor general of the united states is taking the position that you are advocating or whether this is something that you personally are advocating and not necessarily on behalf and with the authorization of the solicitor general i understand and i will provide that information yea or nay and if i am mistaken i will happily send that to the court very well on the government's position is that we should even be thinking about this you agree with that i do not i don't want to waste a lot of time thinking about that talking about that because the statute calls for the court of appeal to make that decision and the courts do it all the time u nless you want me to address that i'd pay for it with the point you wanted to make ok i just wanted to come back to the issue of whether the new law is substantive and just point out the ways in which dean is similar to miller and to johnson because i think both of those cases are instructive and those are substantive and fell within the exception so in miller the court took off you know at least in montgomery the court construed mellor as as ruling that juvenile defendants could not be sensitive to l wop absent a finding that they fell within this small category of being in court all going to deal with with respect though  e was the one that said it was retroactive but it was the supreme court in that case that was saying by the way we thought about this and we think miller ought to be retroactive but it was the supreme court's in and to make it retroactive but it can do that through several decisions and so our position is that in dean the court established a substantive right and that teague says that substantive rights are on track and those two