that for reasons we're not quite sure of d a public defender in the government have a lot of full time slots but since you're more or less on the same page for this d appeal we would d encourage please the court starting in wheeler this court outlined a clear four part test for when a petition are made use the savings to challenge and erroneous sentence none of this court's cases  required a petitioner to rely on a new for teeth purposes rule to challenge a sentence in this way instead the task from wheeler requires and relevant part but a petitioner rely on a rule that change the settled substance of law and also that the rule have been deemed retroactive the three other circuits that provide that permit similar challenges to a sentence that the savings policy all agree that mathis change burglary as this court held us back as two thousand and six in the andersen game and all the way to the mcleod decision in two thousand and fifteen it was also true for ginia burglary which was a similar multi location retroactive in the way that wheeler does is it will or slightly different your honor it's true that wheeler is the only court the only decision that has put the word substantive in was settled law but i don't think it's a distinction that causes a difference in this case because matt this is clearly a substantive decision and this court has applied it you have changed the settled substance of law and this court isn't the only one to have done so several other circuit courts have found that mathis changed settled substantive law as well we see in the mccormick decision i'm sorry your honor particularly with the number of times the supreme court's basically said you know the characterizing colloquial terms we've been telling you lawyers and judges this for years is a categor mathis was procedural that cases come after that and take the procedural d provisions and apply it to make a substantive law change with we look at our this case would be somewhat like mass the substantive changes came later in this case in the hall decision d even though it's unreported that was it would appear to me to be a substantive change that took the terms of took the mathis procedural frame more and made a substantive change to a south carolina burglary d is no longer a crime of violence and by doing so arguably this meets the t the laying requirement because if there is a substantive change and it is altered the range of conduct people like mr d d ham who would have faced the a c c a crime of violence restrictions at the time of his conviction would no longer after all fall into that grouping so sorry for the long monologue but d it struck me going through here that perhaps the parties were looking at the wrong case to determine what was substantive well thank your honor i would start by agreeing that i don't think that the wheeler test requires the decision but i recall the intervening decision to have itself been a substantive decision i think  i agree with the theory of a spouse as i understand it that a procedural decision could still change settled substantive law but i don't think the court needs to find that in this case because mathis i have i would argue is a substantive obtain the conviction not the relevant test here from the supreme court's decision and welch and i think it's clear that mathis narrowed the predicates that qualified as a violent felonies for the on career criminal act narrowed the definition of burglary in this instance as it pertains to mr hand but i do think that mathis is a substantive role and because of the substantive role it alternately doesn't necessarily matter whether it be a new rule on a case that expressly says for what where the specific area we're looking at has been deemed retroactive or whether the preexisting law that are you suggesting that's not the case if this falls in the category of cases that as a general rule are automatically retroactive well your honor i think that the retroactively or put up a lot of other circuit courts that uphold the same but ultimately to the extent the courts concerned about this issue i would suggest the approach your honor took in drafting the opinion and the young versus dense not only case that apply equally here and that this court could now deem mathis to apply retroactively and reverse and remand with that instruction to the district court and i don't think that the circumstances are distinguishable that would be an option the court would have if it finds that this court must be the one to deem that retroactive the same time i'm sensitive to this court's prior decision in bradwell versus net that suggests that there is a distinction between a new decision being issued and when it seems rather active so i suppose i don't have a strong answer for the court as to which the satisfaction of the wheel or to us the pendant own us having that type of situation choir case that says something and then the  that says some things you know directly opposed to in other words where you know we're changing specifically our process of that it isn't it doesn't we will require that if we're talking about the change of the law of this circuit well your honor i don't think that this court would need to reach the full contours of what a change in settled some things of law look like in every case to clearly find in this case as on your honor i suggest that there's a very clear change we have one decision saying that math the reasoning from a prior decision and we see that not just of respect to south carolina burglary but also virginia burglary which is the similar multi location all burglary offense so i think that we don't have to answer the broad question to resolve it for mr  dressed your question about the substantive law change i think what you explained is exactly correct that this situation is like miller and powell i think that our position would be that map this is both procedural and substantive actually if i can back up a little bit did means forces our mince analysis and there is clearly a subset of analysis about how to apply the law that in and of itself does not make any substitute changes in the law but mathes is also a substantive case to the extent that it i think argued that mathis was it changes settled substantive law for the government the government is saying matt this was not a change in settled substantive law but the way math is has been applied afforded to a defendant unless he can show that the sum court this court or the court in which the conviction came from has determined that the effect of mathis is to change has to be shown to get through the savings on to door that what happened in the whole case yes need to do that nd analysis of whether exceptional applies so once it's an old rule then it has by definition been deemed retroactive for purposes of collateral review because and were struck that all the rules apply on direct collateral review and so i don't think that when you're talking about an old rule that you need an intervening decision like you do under two thousand and fifty five and three that says this decision is retroactive that's slightly different from a new rule which sentenced but the existing precedent regarding his predicate offenses foreclosed his arguments and so he could argue he could have argued the means hearses omit distinction but he could not have succeeded because the binding precedent at that time was that south carolina under i mean the sentences were lawful at the time and that is not retroactive change in the laws so it's still lawful sentence whereas in harems case his sentence was understood to be unlawful but the supreme court has made it clear it is not lawful now and it wasn't lawful at the time and that is settled circuit law that was applied to him was counsel it sounds  which specifically says that seems to me no one would question why you would have a different and you know it even broader approach to trains of sentences than you do for convictions and and you know i think i'm not sure what's right but i think it's not a unreasonable position and why have jones and why there was deign to say that implicitly jones nor wheeler were dealing with the old rules they were dealing with new rules so i would submit that they don't actually reach the question of what happens to those that wasn't before then the question was not before the court to determine whether because they were dealing with a new rule and something to the law they were dealing with things to exception and how to apply them and i don't know of another case that deals with what is clearly the application of an old rule i guess i can even name another situation where an old rule is clarified by the supreme court that leads to widespread reversal of settled substantive law it just hasn't i don't think that it's come up before i don't know where it's come up before and i didn't find any instances and so i don't think that come off and that and i would also imply that i think that this rule would apply equally to junk just not that sentencing would be treated differently than issues of the moment if you have the conviction i think that if the validity of the conviction was  reversed based upon a clarification of an old rule that the test would be the same that it is deemed retroactive at the moment but i will reiterate what miss laura step i think that if the court is concerned about it the solution also could the district court correctly dismissed mr hand and hessian for lack of jurisdiction and this court should affirm this case as about the limited last resort the congress provides to certain prisoners who have already been convicted and failed to obtain other post conviction really a savings clause provides one final narrow highly restricted avenue for a prisoner to challenge her sentence for yet another restricted to the most exceptional circumstances and rightfully so because a prisoner who is invoking the saving clause has already had multiple opportunities to challenge her sentence and so to get through the saving clause door court requires that prisoner to point to a dramatic change in the law and specifically it requires that prisoner to identify a new substantive rule of statutory crime of by that would appear to be settled law at the time of his sentencing and all change there is are you relying on the fact that none of those were published opinions well i think there is something you know some significance to that your honor but i think the more important point is that the settled law at the time that we're talking about was the supreme court settled law so i think part of the problem with the discussion we're having is kind of completing this court precedents with the supreme court precedents and again i think this is where different than what happened in cement so simmons and the way that it interpreted supreme court precedent and territory territory was a procedural rule on a different issue it was about what an act how to determine what qualifies as an aggravated felony this court in simmons in on bach opinion and took the reasoning the rationale of carcieri to create a new substantive rule and overrule this court prior precedents on what qualified  new substantive rule and it was a new substantive rule that changed this court practice i think that's very different than what happened with snafus and with hall hall as mathis is about the supreme court precedent on a procedural matter how courts just determine culpability rather than who is culpable in the st instance under a statue and then in applying that that directly th court came out differently and how it was viewing a rd degree burglary but i think that's a different situation the court didn't in hall then interpret the terms of the statute such that that matter of how courts a look at criminal statutes as a general matter rather than how one particular term in a specific criminal statute is defined so i think that those are different situations and ringback a new substantive rule can redefine the terms of the statute narrow its pope and only a new substantive rules will separately be held to apply retroactively on appeal the separate determination of the law being held to apply retroactively on a heap on collateral rubio and i think that that also goes to a point that my calling for making about that suggesting that this court could just do what the court did in young the ants nellie and i think that young is also a different situation then and this case because young was about ok we have a new substantive rule but it's only been applied so  it be extended to the sentencing guidelines and the district court for them to be that on its own but this court could do it and i think that's a very different proposition than what we're talking about here i also think that young really reflects that wheeler is only satisfied by any new substantive rule because again burrage which was it issue in young was similar to sentence similar to bailey or to chambers for these statue and i because i think it's its sale i thought i heard you suggest that perhaps because paul was on publish and if so i mean i just want understand that st of all i mean if if we had a decision in contrast here we're not talking about an area where the supreme court haven't spoken on an issue where this court had its own kind of body of prophet and on a question we're talking about acts of profit and which is something that the supreme balancing you know the need on the one hand for the jeff if this gentleman to have finality you know for a conviction to terminate at some point balanced against the need to provide in the truly exceptional cases that  day and i think that the court struck that reasonable balance by instituting this new substantive rule requirement under which not every change in the law or not every slight adjustment or or tweaking of precedent  qualifies under wheeler it has to be something really dramatic and foundational and we've seen what those cases are like again in bailey and simmons chambers burrage these cases are all very different than what math is dead because math is all about procedure math as was dictated by existing longstanding precedents that the court had repeated for decades and it did not narrow the scope of any one statute or interpret it precedent that foreclose a party's argument but again i think wheeler that the higher standard says it has to be the same code the same law that made the sentence legal has now changed it's not nearly enough that within this circuit mr ham couldn't make this argument it has to be something more significant than that and so i just think that you know this court's past needs to be looked at on its own terms and those terms clearly require a new substantive rule and that this is not that rule so unless there are further questions from the panel and i will see the rest of my time the wheeler test does not require that an intervening decision change supreme court while it's a sip it really requires a change in the subtle ball of this circuit and mathis did precisely that mathis and hall substantive change that applies directly to mr ham and i want to push back on the amakosa suggestion that this is the door is wide open situation it clearly is not it's a very small number of instances where this court has said intervening supreme court decision has required us to change how we previously interpreted a word in a statute here the city the court did that and hall it did it for the same virginia multi location a burglary offense in required changing prior precedent of this circuit and and for that reason it is a restrictive test it doesn't happen that often and i would also note that the th problem of the wheeler test always exists to prevent the floodgates problem that the  suggest could occur it at the era we're talking about these cases have to be sufficiently grave to be a fundamental defect so the number of times where this court says an intervening supreme court decision has changed our president and also a fundamental defect it's a very small number of times so that the suggestion that this is going to be a wide reaching situation it is that unfounded as mr ms bob forrest noted it's a very small number of cases that fall into the the language about deeming indicates and in the the wheeler prong that suggests that and does that the fact that a decision have to have been deemed retroactive somehow suggests that it must be new and i don't think that's what what  the phrase deemed requires there i think a better and better definition would just be recognized and i think that we know that because as you brought up judge follow bomb the lester vs lorna decision was but i get your point i mean they didn't stop it they are as if the court could have perhaps two factions so i understand your point that i may be given a slightly broader again but i understand where you're safe thank you and and the court knowledge as much in the hall decision thank you very much advisement because barbara do you know that your court appointed and the court wants to express its special appreciation to you for taking on the task in this case so with that the court's going to take a very short recess and then we'll be back for our next case on the dock