maybe good morning your honors and may it please the court my name is todd borden and i represent the petitioner in this matter anthony mcgee i'm going to try to save two minutes for a bottle and i'll make sure to keep an eye on the clock as we move along so mr is here today before the court because he's applied for permission to file a nd or successive section two thousand two hundred and fifty five motion in which he seeks to raise a claim based off the supreme court's decision from last year in mccoy  versus louisiana and i'd like to emphasize at the outset sort of the nature of this court's inquiry at this pollution ery gate keeping stage this court has emphasized most recently in its case of henry vs spear s petition and part of the reason for this is that this panel's decision today is entirely unreviewable i'm statutorily barred from petitioning for rehearing as is my opposing counsel and we can't petition for cert so because of that this court noted in henry the court of appeal should really for on the side of authorizing these motions in large part because all that means is i would get the opportunity to raise mr mcgee's claim in front of judge chen in the district court judge can't chen sorry sorry that is perhaps perhaps too much time that i think is important here but let's then get to the merits and so to satisfy the standard mr magee needs to make a prima facia showing that he his claim under mccoy relies on a new rule of constitutional law that's been made retroactive on collateral review by the supreme court that wasn't previously available now the parties agree that we meet three of the those four standards and the question here only is whether or not the rule announced in mccoy at the prima facia level is a watershed rule of criminal procedure now under this court's precedent in hughes in particular essentially the inquiry becomes whether or not he satisfies that teague watershed rule exception and under under that exception a particular articulated in boxing by the supreme court there is really a it's a two part inquiry st the question is whether or not the rule in mccoy is necessary to permit and in permissibly large risk of an inaccurate conviction and then the  nd component is whether or not the rule alters our understanding of bedrock procedural principles so as to the st point the reason why i think the rule in mccoy here which obviously concerns you know which bars counsel from conceding a client's guilt against the client's wishes the reason it it prevents it such a risk of an accurate conviction is it because it guarantees that there's at least one lawyer for the defendant in the room it guarantees that we have the critical adversarial testing process which the supreme court has repeatedly emphasized is a critical component of any criminal trial process particularly in chronic and penson and herring and cases like that and so i think we've at least made a prima facia showing that it improves that standard because certainly when you know you have a lawyer conceding guilt that really pretty much categorically means you're not going to have any sort of testing as to whether or not you but that's not the ground that's true your honor so so it is true that in in mccoy you know that the court said we're not applying ineffectiveness test we're we're instead rooting this in the th amendment right to a client having autonomy  but even though the particular constitutional guarantee in the th amendment is rooted in client autonomy i think you know that they weren't expressly addressing the watershed procedure question in mco itself because it was a direct appeal and they had no occasion to and i do think when you look to you know i think i think a comparison to get in may also be helpful because we know from the supreme court's watershed rule cases that sort of the exemplar the paradigm of the watershed rule is gideon and i think much in the same way that you know making sure you have a lawyer for indigent felony defendants bolsters that adversarial testing process i think the same sort of line of reasoning would apply just as much because in a way when you have counsel expressly conceding guilt you're not having two lawyers doing the testing it's almost like we're in a precarious situation in a certain sense or at least where the situation where the lawyer substituting his or her own judgment for the client's judgment in mccoy is a structural error rule now we know from tyler versus cain that the category of structural error and a category of watershed rules they're not coextensive but we do know from this court's decision and  which held a print it was not a watershed rule in that in that case this court said that only structural errors can be watershed rules even if all d structural errors are necessarily or rules that create structural errors or watershed rule so i think that that at least is pointing in the direction that this could meet be a watershed ruled at least meets that standard and again under a prima facia showing that we need to make here i think that's a pretty strong a strong indicator that it may meet the nd standard or the other reason why suggest that it meets that would be that it's being rooted in the th amendment i'm getting itself also is obviously very much a th amendment critical six in the mid decision and how this rule here is also rooted in that not the mr mcgee's claim meets the standard i think that's the easier of the two showings i need to make for you today under henry i only need to show a non frivolous extension of the rule and i think here we have a situation where trial counsel pretty clearly said you know look my client had in his hands fourteen baggies of methamphetamine and it's not like mccoy where there is an express prohibition by the client on what the attorney wanted to do that is true your honor so why is this a fair extension the reason i would suggest it's a fair extension is that counsel here did not ask mr mcgee one way or the other  did not alert him that he was considering a guilt concession strategy and so our position would be that you can't meaningfully exercise the mccoy right if counsel is even just springs that spring it on the client without engaging in that consultation and i would point out that i think this is look at the henry case because the extension there is the rule from johnson invalidating the a c c is residual clause and it was extended to substantive liability under california nd degree felony murder rule so those are pretty pretty different sorts of applications for the rules so i think like i said i think the question about whether or not mccoy substantiates my client's claims is the easier of the two showings i have today and i'd like to reserve the remainder of my time thank you coun morning your honour's may please the court daniel kane for the united states mr meanies application should be denied for two independent reasons st the supreme court hasn't made the rule of mccoy retroactive on collateral review either expressly or through a combination of holding and nd the rule of mccoy does not substantiate mr mcgee's claim i'd like to address each in order briefly st everyone here agrees that the supreme court did not expressly make the rule of mccoy retroactive and it's true that the court can make a rule retroactive to a combination of holdings but has held in as the supreme court has held that's a high bar it's met only if the supreme court's holdings quote logically permit no other conclusion than that the rule is retroactive so the question here isn't just whether the exception is satisfied it's whether mccoy admits of no other conceivable holding that it up but it satisfies the nd exception and nd the bar is even higher with a rule that issue is a procedural rule rather than a substantive rule that's because as this court knows procedural rules unlike substantive rules ordinarily don't apply retroactively only watershed procedural rules do and that's an extremely narrow class that the supreme court has repeatedly emphasized it's not likely that there will be any further entrants to that class so that's why the criteria to qualify as a watershed rule are very stringent as defense counsel admits st infringement the rule must seriously diminish the likelihood of obtaining an accurate conviction and nd the rule must alter our understanding of the bedrock procedural elements essential to a fair proceeding as far as the government is aware has held that the rule of mccoy satisfies those criteria the th circuit held that it doesn't and that's because it doesn't as to the st the supreme court was unusually clear that the rule of mccoy is not a rule quote designed to protect the defendant from iranian's conviction rather it's a rule designed to promote autonomy and mccoy itself was a good example in that case there was no question that mr mccoy was guilty of the murders that's just not what the issue in the supreme court was it was whether the defendant's autonomy interests had been violated by defense counsel conceding his guilt over his objection likewise here there's just no question that mr mcgee was guilty that mr mcgee possessed the fourteen bags of methamphetamine in his pocket was just not controvert and as justice alito explained i think persuasively in his dissent in mccoy whether or not the rule in mccoy is designed to promote accuracy of convictions in practice it's exceedingly unlikely that defense counsel particularly in non capital cases will concede to defendant's guilt absent overwhelming evidence that's because defense attorneys are bound to zealously represent their client's interests and there's just no incentive for a defense attorney to concede guilt to a charge defense particularly not in an in a non capital case and nd through of mccoy doesn't alter our understanding of the bedrock procedural elements now the rule that issue in mccoy that an attorney can't concede her client's guilt of a charged offense over the defendant's objection that's a new rule but it's based on it's an application of a well established principle that a defendant is the master of his own defense that's a very important rule and that's why the court cited multiple sources for that rule including weaver versus massachusetts so for good reason mr mcgee in his briefs repeatedly refers to mccoy as a rule that quote derives from or quote clarifies or implicates a bedrock procedural rule and that may well be but that's fatal to his claim because as the supreme court made quite clear in working vs boxing a rule that is based on a bedrock right is not itself a watershed rule of criminal procedure instead quote a new rule must itself constitute a previously unrecognized bedrock procedural element again i think it's worth remembering the standard here the question isn't whether the t v exception is satisfied it's whether the supreme court's holding in the quite logically permits no other conclusion but that it's a watershed rule and fifty five age two gatekeeping proceedings that's because he's not pressing him a quite claim unlike mr mccoy he didn't express his opposition to a guilt concession strategy now the difference as he points out is as allege by the government would reserve the right to dispute this allegation he alleges that his defense counsel never before trial consulted with him on that isn't that even worse you're not even given the opportunity to jack to your coun it's still not a mccoy claim it's a strickland claim as the court in florida versus nixon made clear the defendant has the defense counsel has the obligation to consult with his client on fundamental matters of defense strategy and that's true the government doesn't gain say that so in response to the government's argument about whether or not this rule has been made retroactive i'd like to point out that justice o'connor's concurrence in tyler does clarify that can be made retroactive through a combination of holdings and hughes this court has essentially said that the comp one of those holdings would be teague itself so i don't think there is necessarily a huge distinction between satisfying the teague watershed exception challenging though that may be satisfying it on the nd or successive standard for that particular exception i don't think it makes a huge difference the government alluded to the fact that this would be the st watershed rule since get in a couple of responses that again this is only a prima facia showing so it's not a conclusive  examples at least that i could find work circuit courts have recognized watershed rules including one by this court i want to say a word about the strickland claim i think the government falsely suggest it can either be a strickland claim or a mccoy claim because you could both be  violating the client's ahana mean rights and i think as judge wardlaw alluded to you know not even asking about it i think is arguably worse and in any event i think it's a non frivolous extension so for these reasons i would ask the court to authorize my client's petition thank