has denied mr higgs but this court termed in davenport and the opportunity for judicial rectification of a fundamental defect in his conviction i will address today both the structural problem and the fundamental defect in the convictions since devonport this court has recognized that there is a structural problem with two thousand two hundred and fifty five when quote an intervening this is what davis had to say about whether it was a constitutional or statutory interpretation case quote while the consequences in this case may be of constitutional dimension the real question before turns out to be one of pure statutory interpretation that's a twenty page two thousand three hundred and twenty seven and this makes perfect sense given what came before davis in johnson think about this obviously you can't get to twenty to forty one unless you can find a way into the savings clause and i take it right now you're you're really drilling in on the argument which is which is in your briefs maybe you're being a little more clear that the language you just read from davis shows that the court felt perhaps that it already had established the constitutional issues about residual clauses and so now it had to decide whether this is a categorical matter or whether it's the government had switched over to arguing davis one looked at the individual facts of the case so that's a statutory interpretation so that's one possibility the other thing that i was picking up from your brief speech you can correct me if i'm wrong is that in some cases and i would like to know which ones particularly the bar on any further review of a court of appeals decision whether to permit a nd or successive petition might create the same kind of statutory barrier that statutory claims for seem to have in gavin court you know because you know let's suppose hypothetically some court of appeals refuses to allow a nd or successive petition because the judges have all been bought off you know well if the bar and appellate review exists and that would certainly be a miscarriage of justice if something like that were to happen or there was a racially discriminatory reason or other horrors that you so i want to know you know what exactly you think your best argument or arguments are what we're trying to argue or what we are arguing is st that they have this is a statutory interpretation case and then beyond that this is a case where  there are several additional factors that that make clear that the remedy is inadequate in this case one of those is that we have the arbitrary disparate treatment of two any of the decisions either with respect to mr haynes or mr higgs there's no mechanism for review of the decision on top of that we have the stakes in this in this capital case and so when when there's really when we're when we're left groping to decide what really was going on in the th circuit and you can you can you can think about it as long as you want you can speculate as much as you want but we have no information and so to say in that case that in this kind of case that there is an adequate remedy under two thousand two hundred and fifty five it just doesn't add up i mean the idea of having he has review is to give a prisoner a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence and that just hasn't happened here mr langley care i ask you to react to what's a bit of a hypothetical but it sentences ok especially in light of the convictions for st degree murder and what it may have seen is the evidence supporting those convictions would your argument change against the backdrop of that hypothetical opinion yes it would i think it would be given we talked in the briefs about what the four circuit is about what it what what kind of merits review it dollars successor application that would be unusual but but if the if the circuit got to the merits and said oh we're not going to look at this because any error is harmless then that would have been a a judicial determination and that's sort of what happened from our understanding in the hall that the th circuit the th circuit reviewed mr hall's orlando hall's application they denied it whether that was right or wrong he had a shop and so if that's where a twenty dollars to fifty four dollars situation and we had an opinion it came to the opinion the fo circuit drafted from a state supreme court couldn't we look at that opinion and try to identify reasoning on any front that may have supported th denial albeit one that was reported in a summary fashion well you yes you and if we could do that in twenty dollars to fifty four dollars what makes this difficult for me is the for the  circuit of course is a court in its circuit in the judiciary and so we you know i mean i don't mean in any way to make light of it but we certainly can't sit in review over their opinion writing practices no i understand that but the situation is a little different because under under harrington in a two thousand two hundred and fifty four case you would say well we will we will we'll sort of give the state the benefit of the doubt and we'll and we'll think about what possible reasons the state court could have had for ruling as it did even when it was silent the problem here is if you think about the possible reasons the state court could have had it could have are the  circuit could have had it could have relied on harmless error it could have done something else it could also have said it was a statutory interpretation case in one of those sets of circumstances there would be twenty to forty one review and some of them it would not and i think what i'm suggesting is when we're in a situation where we simply don't know the answer to the most important questions and in that situation i  think the tie ought to go to the runner in a way that that there are there are sort of two competing interests we don't want to have too many cases going to twenty dollars to forty one dollars but on the other side we don't want to close off judicial review altogether and i would suggest that where where it's this opaque that in a fact we have foreclosed judicial review will go so can i ask you and i'm not sure if this is a follow up question but it seems to me that a critical point in your argument a critical move that you make is once if we can get over the savings close business and once for looking at all of the details of these nine  convictions you still need to get to the place in your argument where there is some kind of sentencing package that needs to be rethought because looking at the sentencing transcript itself  in the original proceeding i was left with the impression that the district court the original justice eady original district court judge really was treating those nine death sentences recommended by the jury as one package if you will and then he actually goes and enters a different judgment on the other three thousand nine hundred and twenty four c things i want to know how how these spillover back into the death sentences  well there's there's two things that we're arguing well one is that in itself if you have invalid convictions invalid and twenty four dollars c convictions that's a miscarriage of justice in itself and it should be corrected but the argument that we're making about assuming that that  on the sentence the death sentences need to needs to be shown what we had here was that one of the statutory aggravating factors was that mr higgs had a prior  convictions and the jury was going to a weighing process they did find mitigating factors as well as aggravating and so the aspect of recidivism that you have with six of her opinion she says it boils down to arguments the th circuit got it wrong when it denied higgs leave to file this is a success of motion but lack of success is not enough here isn't there a distinction that can be drawn and needs to be drawn between a court failing to fulfill its constitutional responsibility to handle a motion versus doing so in a manner that necessarily re reasoning and if there is such a distinction like that here we may have the former of the court fulfilling its function but not necessarily in a manner that as it plays out for this particular the collateral  request for collateral relief it comes to fruition that there is reasoning that's off we narrow line that you're asking us to draw for purposes of finding that the twenty to fifty five motion meets gets you into the because the claim is based on a new rule of statutory interpretation then that is a claim that you can bring in a twenty to forty one petition and and what davis says is is very clear that you know all the work that is done in davis is about statutory interpretation and that's because the argument that the government made in davis and the argument that the government made one of the arguments they made with respect to mr hicks is st successive application was look that that categorical approach it may have applied to others that use it supreme court the wound up doing in davis is certainly entertain the statutory argument i take your point there when they say what they did about your statutory interpret but they wind up in davis at hearing the same categor approach that been around for a very long time that have been around since taylor and shepherd on and on you know all these cases where we were dancing on the head of a pin about you know what did this cover what did this other thing not cover so i'm wondering about the new news of the rule and davis well it was actually new in the sense that yes if you if you actually if you look at the footnotes in davis you can see that that befor and it wasn't resolved it is your position that when courts of appeals are are valuating requests for nd or successive petitions that there is no room for harmless error analysis and merits type well we're not saying that there's there's no room for merits analysis but what we are saying is that certainly under four circuit precedent if you assume that they're following or circuit precedent and it's very similar in the th circuit to it's that we just look at take a prime of they should kind of look at the a possible merit don't go delving into every every possible merits related issue and i think if you group he says he still is faced unfortunately with multiple capital sentences and the reason that he's bringing are requesting permission to bring the nd twenty to fifty five is and twenty four cs don't effect it has no effect on them well again that was you know that would be that would be a possible reasoning they certainly didn't apply that kind kind of reasoning to mr haynes who has life sentences who aren't obviously going to be affected by vacating is nine hundred and twenty four c convictions so so it's  really again we can we can speculate and have hypotheticals about about why the th circuit acted in a particular way but we have no real idea and and again in a capital case where where there's there is perfectly logical reasons for the th circuit to have acted particularly the statutory interpretation aspect  there's obviously a lot of variables that go into defendant's ultimate sentence yes the offense conduct is important part of that there's also prior criminal history there's also all the offender characteristics that need to protect the community there might be other variables that got haynes to a different and then higgs other than just the offense conduct is that correct well i no i don't think so because they were they were both tried capitally and they were both convicted of murder of st degree murder and so and we all agree that hangs with the person who actually fired the shots right that's correct not requested a stay our our appeal was filed you know well before the execution date was set and obviously the court was mindful of that execution date and in setting this argument we as i understand it at this precise moment the government is not believes that it cannot proceed with an execution based on a ruling made by judge miss city from the district of maryland obviously you know that's that's on appeal that could change if a decision from this court is still outstanding and we are running up to the execution date then then we might need to ask for a stay we've also asked for a stay in the southern district of indiana so we are hoping that this will be resolved on the merits without needing to burden the court it so mr laurie i can't resist i'm not sure whether it's relevant to anything but the elephant in the room is obviously the fact that there is going to be a change of presidential  yes and and and there are there would be there would be good reasons in our view just a just a this execution but i as as i explained we haven't we haven't made that request of th so can you go back to the idea i think i missed the point in the briefing but i want to make sure that i understand it you had do you have a stay up with cation right now on file in indianapolis that's correct your honor ok and have you received any indication from the district court as to what it plans to do with that motion and then when well let me let me just check so i'm right the government has responded to the motion and our reply is due on the th so i'm assuming that the district court will rule soon after that  crime of violence so how important is that argument well it's important because i think that's that's the clearest reason the convictions are invalid because it is nothing is not a crime of violence under or circuit precedent and also under runyan which which we submitted a supplemental if there's ambiguous verdicts and ambiguous verdict like this one then both of the predicate offenses need to be actually crimes of violence and so so because kidnapping is not a crime of know we're approaching a rebuttal time one of them is that this floor seems to have been apparent for a long time so i wonder about that and i also wonder in the government mentions this in its brief the st finding of the jury for each of the victims was not felony murder was st degree premeditated murder how does that factor in well i think under the same ambiguous verdict course well aware there is no ability to appeal to seek a petition for rehearing to go to the supreme court on search or ari doesn't happen to mention mandamus but it is essentially there's a pretty strong that itself in extraordinary circumstances is the kind of structural flaw that turns us about this you found out the th circuit was just flipping coins are you found out they were brib found out that you know there was some other utterly arbitrary reason behind the decision so and the other thing i want to throw in there is in an analogous area in granting certificates of appeal ability the supreme court has said in cases such as back against david thanks this is not a merits moment this is just is there something fairly debatable by  surely something like that is going on the nd or six so i wonder it's not really that we're reviewing the th circuit but we all need to follow the rule of law and if a court hasn't done that why shouldn't you give somebody another shot in the district or thought will try to take those questions and turn st i know your honor and the opening portion of the argument mentioned the decision based on racial prejudice or something like that i think it's fair to say in such egregious circumstances it might be wise for the court to look at whether there is another exception so we are not ruling out that possibility in  circumstances but again it is mr higgs his burden to make a compelling showing better happened here and all we have is speculation mr higgs in the opening portion the argument said we don't know and the tie should go to the runner well that's quite the opposite mr higgs is the petitioner and under this court's precedents he has to make a compelling showing that's his burden and he can't do that by speculating that another circuit improperly applied the law so whil mr wright is his i think his point is i think he would say but you're begging the question a little bit there is there is when the when the four circuit writes a summary order like it writes he's not going to be able to develop evidence facts information from the court's decision making process to make the kind of showing that you're making there that you're talking about so what is it that someone situated like mr higgs can really do other than what he's doing and you can call it speculation but like what what's he supposed to do judge wood did mention the possibility of mandamus i suppose i know that is something of a hail mary but that's possible this is somewhat ancillary cheer question but i would say what he could do here he filed the twenty eight dollars j letter including runyan which is a helpful case from the four circuit he has that davis so it seems like that all offers another opportunity to file a motion for a nd or successive petition twenty to fifty five petition in his district of conviction which is where congress wanted these cases to proceed so that is one option but he can't get relief under the savings clause based on speculation not understanding that it is something somewhat up in the air or why the four circuit did what they did but of course i don't think this court or any clause can you explain the differential treatment between haines and pigs for this purpose i mean i totally take judge brennan's point me everybody's got their own background everybody's got things but h actually murdered these three victims hicks had a lot to do with it i'm not you know i understand sitting there in the car you know gives him the gun and so on but what really is the difference and fight well i think it the best guess here is the particular type of claims they raised as we said in our brief there is a pretty big distinction i think arguing that murder is not a crime of violence under the elements cla defend that is the particular he claimed he raised your honor he raised the claim that he was aiding and abetting the nine hundred and twenty four dollars c i mean of course the government doesn't believe that it's like you like  but anyway i want to step back from that because we can speculate about what the four circuit did until we're blue in the face and the question comes down to is two thousand two hundred and thirty five dollars structurally an adequate properly use to raise a davis claim and the answer to that question is no why is the answer no if there's no way to understand what the st guy i'll just call maybe would have granted even the petition and almost certainly would have issued some written marriage discussion about it but twenty dollars to fifty five dollars in collateral view in general doesn't entitle and defendant to a written marriage decision and this court savings clause jurisprudence doesn't require or doesn't inquiry or either whether there is a written merits decision in another circuit it's just a question of whether structurally petitions they're all they're all gatekeeping and they're not supposed to be for the merits and it makes me wonder about the role of harmless error in all of this makes me wonder about whether there needs to be some way of making sure that the court of appeals was as a legal matter interpretating the scope of this statute correctly the start and i i hate you he myself over and over but and i do and i hope it gets in your honour's question as well but and the very bottom we don't think that this court or another court can stand in our view of the sister circuit but it the very least challenging a term of years on his gun conviction when he has nine sentences i don't think it takes a deep dive into his sentence or the record to indicate the collateral review is  main is a constitutional holding on they can as grounds but along the way davis has meaningful conclusions that are reached on the basis of statutory construction and snuff and ron odd the sort of bilateral case doesn't make sense so david the best way to look at these cases this to look at their holdings and the supreme court's holding in davis was constitutional  predicate to reaching the substantial issue of constitutional law you're familiar i'm sure would stop slack against mcdaniel where the supreme court said you know the procedural issue itself isn't what twenty statute and this strikes me as very similar there was a purse there was a well to see general predicate before the court could reach the constitutional issue in davis which was to make sure that everybody was on the same page about what this statute meant and that's what justice course search says having settled that then you're right you know you get finally to the point now that we know what it means we are going to extend nine hundred and twenty four c to the signal leo cow situation and to the johnson situation all the rest why isn't a chain of reasoning similar to slack appropriate here let me answer this the way that i was intending to get my  that in this context cases are can be bilateral we think it's a binary decision cases are either constitutional or not the reason being the text of the statute the intent of the statute and th precedents surrounding that so congress enacted two thousand two hundred and fifty five and it specified constitutional we think that indicated that the cases were either constitutional or not i mean that's how this court took it when it don't many a did it savings cases into their district of conviction but if cases can be duly constitutional and statutory then that savings clause and that limitation really has no meaning because defendants prisoners could inform shoppin of cases or both susceptible to being both constitutional and statutory they can raise them in their preferred circuit which i think essentially this rates this distinction and would violate congressional intent moreover this court's precedents here i don't think this court has and i'm certain this court has never found a case to be both constitutional statutory in this context and nor do i think this court has even constitutional problem and you certainly have to show constitutional problem if you're going to do seconders excessive motion but that's where i go back to slack which also is dealing with present in the same language you know it's a constitutional with that let me just step back and say if if mr here it's irrelevant if mr higgs is correct that cases are susceptible to being both constitutional and statutory and davis is one of those  dollars to fifty five dollars still would not be structurally an adequate in that situation so i i don't think i think this argument is something of a snake eating its own tail because if leads back to the same place m to whether this court should stand in review of before circuits opinion writing practices and we don't think it should it's not really i really want to push back on the stand and review any time you are moving and forty one you're doing so it at least in the twenty to fifty five contest because there was some structural flaw and whether you're engage in some form of collateral review of colleagues of your own corps or court or from another circuit or whatever it's it's just a different kind of mechanism so i don't think there's anything necessarily disrespectful about it or standing in review of it it's a different setting if you're on i think that is maybe generally true but i don't i don't think that can be squared with the argument that mr hicks is pushing here mr higgs is saying that he doesn't know stressed a little bit more mr hicks even by his own argument can't show that he was actually innocent over nine hundred and twenty four c again if we accept his argument is true and kidnapping and felony murder don't qualify as nine  federal st degree premeditated murder is a crime of violence so the best he can do is show a potential charging information instructional over brett but he can't show that he's actually innocent at nine  action so the fact that he's charged challenging subsidiary sentences and he's not actually innocent of the crime he's challenging shows that he means that he cannot show in this hearing by actually innocent you are you talking about like just in a as a matter of fact with what happened in connection with the offense conduct the gun was used it was his gun it cetera so forget the categorical modified categorical as a matter of fact they use guns to kill these three no no i mean it deeper can show miscarriage of justice is when in this particular circumstance when they are clearly guilty of a crime that you are charged with and it is beyond a factual argument it's actually it was it was actually short and try to the jury and so that that is taken as true and there's no miscarriage of justice in that circumstance so as a matter of methodology it sounds to me as though the government's arguing that we ought to do something similar to what happens in the forty eight cases where you're it again i think there's a lot of reasons the government wins including more than one of the miscarriage of justice but i think i think that's a fair way as far as i can tell to look at the argument that we just  mr rights do you do you agree with mr lowery summary of just where everything stands as we're having this argument here this afternoon with mr higgs and the execution date that is presently in place in the like i believe so i'll try to refuse quickly as possible just just in case i think that i think i think i agree but just in case there's something that was missed he is mr hicks has filed another two thousand two hundred and forty one petition in the southern district of indiana raising brady claim responses to soon mr higgs or perhaps a better way to put it is a government lost but a geisha in the district maryland about amending the judgment handling that once on a little distant about but yes i believe there's a mistake happening like here mr rights is argument that mr higgs is not innocent going back to the one thousand nine hundred and seventy four davis decision from the supreme court it's clear that a conviction for an act that the law does not make criminal is a miscarriage of justice and we know that the residual clause is void for vagueness so it's that acts are not criminal under the residual clause and as we have shown  the conviction is also invalid under the under the elements clause as as shown you know very recently by runyan so so the argument that he's not innocent is is just really turning his back on the whole categorical approach i would like to point out that the th circuit has never said up til now that you can actually bring a success petition under davis we're not saying that the th circuit did anything that it that it took some him made some improper application of the law what we're saying is that if you if you look at davis all the work that's done there is statutory interpretation the government did not make any constitutional argument and davis it was case about statutory interpretation with a constitutional ruling tacked on the idea that a case cannot have both statutory and constitutional implications or that that can't be a vehicle for saving the savings cause there's not really i know really see how that possibly works if the fact that  you cannot bring a successive twenty to fifty five based on a new rule of statutory law that's what the whole davenport line of cases is about and so if it is the rule of thought mr hicks would say of course they made an error the error was that davis was a constitutional decision at least in part maybe in large part and i should have had permission granted to and fifty five and i had understood this proceeding to be well when that plan a didn't work he quite understandably and quite a plea represented by you and your team then  dollars you're relying on a statutory interpretation case there would be nothing improper about the court's saying that then we could come and say here's our twenty to forty one because that's more list of webster's situation where th exactly and and on the point about meeting in a betting i do want to mention that it's in our reply brief but that was an argument that was not raised below was raised in like a paragraph here which didn't explain or offer any support for the argument but i also i find that is the most speculated speculative in the least likely reason for any of