may proceed may it please the court alison guernsey on behalf of mr smith who's the petitioner in this case mr smith is moving this court to authorize a successive hippias corpus petition in light of the u s supreme court's ruling in johnson versus united states and i guess that's my problem i don't read it as a johnson argument i read it as at the camp argument can you help me out with that certainly so there were at the district court level five predicates that the government offered to sustain an armed criminal finding the district court found that three of those qualified as enumerated taylor burglaries two of which the court found were violent felonies but did not assert a basis on which for which those violent felonies qualified when the case came to the ninth circuit on appeal mr smith did not challenge two of those predicate convictions and so that's correct so the only finding that this court made to the stain an armed criminal act sentence was that he was in fact convicted of a taylor generic burglary it's our position now that mr smith is raising a johnson claim because it's the rule and johnson that vitiate his arm career criminal status in other words but for johnson he would remain an armed criminal we know that the camp and sense mathis have clarified the way in which we interpret the statute is particularly a tailor burglary so if we assume that the panel was wrong on direct appeal because he doesn't have the requisite number of predi prior offenses why didn't he need to make this argument that we're talking about right now in his first heaviest petition because all the time in the saviour's corpus petition he would still have been an armed career criminal in other words the only benefit that mr smith would have gotten by raising this in a first tavia and the reason you think he would have been i'm just trying to make sure i follow your argument is because we didn't have johnson yet exactly because in two thousand and seven the us supreme court in james held that attempted burglary qualified as a violent felony under the residual clause and of course it's the residual clause that johnson invalidated in fact as far back as one nine hundred ninety in the supreme court's decision in taylor the supreme court had said even if we don't have a generic burglary under taylor it can still qualify under the residual clause so had mr smith raised his argument in his first twenty two fifty five it would have gotten him nowhere you think it would have been futile for him to raise the argument and that's why he's excused and that's why this is now a johnson argument as opposed to  two thousand and six and at that time we have winner on the books correct so a race everybody says the washington burglary statute is overbroad at that point right correct ok but at that point when he appeals why couldn't he have appealed a misapplication of taylor i think in fact he did what he did and i thought he only appealed ineffective assistance of counsel in his hay vs his two thousand and seven on direct appeal he appealed the misapplication of taylor saying the district court mis applied taylor and found that he had generic referees and then in one of his and he let me just stop it and that was because they hadn't actually presented certified copies of the judgments of conviction it was a section essentially i'm looking at is a b s application in two thousand and seven and that's the grounds on which he's challenging the predicate that is correct in his vs petition and he alleged that there was no certified records and if so if the court looks at the order of the district court the district court cites to the p s r to sustain its findings that it was a crime of violence let me but i think that  is petition though he's alleging ineffective assistance of counsel for not doing certain things with respect to the judgment he's not arguing a misapplication correct that is correct so but he could have argued that i mean is that nothing would have precluded him in two thousand and seven and has he be as for making that argument he might have lost the i don't know but that was on the table having just done it on direct appeal saying is he procedurally defaulted that argument he could have raised it and yet he didn't and i would just like to highlight that the government hasn't raised a type of procedural default claim and i feel it's more than procedural default the problem i'm having i think is based on i guess it would be the district court's order adjudicating that first t v s application where it performed the modified categorical analysis and determined that he had actually made admissions to facts efficient to establish that these were for want of a better term common law burglaries and i'm wondering why isn't he bound in two thousand and seven by those admissions from your argument is if johnson were applied today we wouldn't get to the modified categorical approach but the problem he has is that we're past that we know as law of the case that he has admitted to sufficient facts to count those two burglaries as predicate crime and in essence what you're asking us to do is to ignore those admissions in the record and re sentence him as if that had never occurred and that is correct in essence what we're asking the court to do is to ignore or to not take as was the case those admissions that occurred back in two thousand and seven when it went and let's just stop there what's your best authority for us to ignore though when it seems like there has been a lot of ignoring those in the briefing in the district court but if we were to ignore them i'm not sure what are authorities to say well it's really not law even though it is the record of the case well i would just like to highlight that this court and united states versus garcia talked about the law of the case doctrine in the law the case doctrine is not a limitation on authority so in other words it's something that the court does not have to follow through and in fact there are three exceptions to the law of the case doctrine and the first of which i believe is a political in this case which would be that a prior decision was clearly erroneous or result manifest injustice but i guess that's what i'm wrestling with where's the where's the injustice here we know that that his prior convictions count because of the admissions that he made he now wants us to ignore those admissions and not count the predicate why is it a miscarriage of justice on this record to conclude there is no miscarriage of justice here that he is the guy that congress had in hypothetical that that argument doesn't carry the day that the admissions are binding and these are burglaries so assuming that they are burglaries then the manifest injustice stems from the fact that we're mr smith to appear before the district court of this court today there's no question that he would not be an arm's career criminal it is only because of the residual clause that he was constitutionally on the residual cause the whether his sentence could constitutionally have rested on the finding that they were enumerated burglaries when we know after the fact given the intervening precedent of decamp and mathis that to find that those were numerated burglaries by resorting to the modified categorical approach infringed upon sixth amendment rights as well as all of the in fact concerns that the supreme court raised in the camps with discussing why we do the divisibility nanda visibility analysis so the m injustice is the fact that the modified categorical approach was misapplied when he was originally sentenced by imputing upon him but getting the divisibility analysis right that's what did it fit the visibility exactly and went straight to the sep twenty fifteen and i think i said the wrong thing but because it would be a motion of two to five but it's august twenty third twenty fifteen cases fifteen seven to six and there's a court there's an order from a three judge panel it as a basically the camp argument on direct appeal and he lost and your position is that the court got it wrong that is correct and i mean to be putting words in your mouth and you're you're you're more polite than that but that's what your position is i think and then right the court held that the claim did not implicate johnson because johnson didn't call into question the enumerated defense right so just strikes me that this is not a johnson argument and you just have a new rule constitutional law he's trying to resurrect his  camp argument that he brought on successfully it's a constitutional claim in the sense that when we're looking at whether authorization to file should be granted under twenty two fifty five h two the court inquiry here is whether there's whether his claim relies on a new rule of constitutional law mr smith's claim relies on a new rule of constitutional law in that but for the residual clause he would not constitutionally be categorized as an arm criminal the camp is relevant to whether or not there was prejudice in other words if mr smith were to argue that he is has a johnson claim and that following johnson he's not an armed career criminal but applying to camp in the intervening precedent it becomes clear that his three convictions still qualify then he's not raising a johnson claim however one of the things that he is arguing and one of the things that the government doesn't contest is that it is only the eroni us finding that his conviction qualified as an enumerated offense that maintains his arm for a criminal status because it can't be sustained today under any of the other clauses so it is that position that's that mr smith position we've been down this road before in the defendant is bound by those admissions he made earlier when this is an initial review we know that these are numerated defenses for which he is been deemed to be ac at base if you poke at it a little is that our court was wrong in two thousand and six on direct appeal and the manifest injustice comes from from springs from that state because if you if we were to do this all over again winners on the books and we certainly know about matheson that would be done differently today that's her argument what is your response please my response is i gree that is her argument her argument is we were wrong at the beginning but my argument my response to that is we have been down this road with successive appeals and the court has refused to find that it's been wrong in this court we have lost the case for reason that he is this individual is that this will be the fourth twenty to fifty five these arguments have been analyzed and the court is concluded repeatedly that the defendant should not have any relief though is that a finality argument is that what you're made of the words this is sort of the what we used to refer to as the abuse of the writ it is it is we've gone down this  many times all of these arguments have been raised and the defense complaint is the cork out wrong that's the defense this is simply and politely but the court got it wrong is the argument that's we have had multiple failure to prevent present the judgments and you didn't make a direct attack on the categorical or the application of taylor i think that's right and if the court were to consider this under the guise of a twenty to fifty five i think it again this is that this would also be the wrong forum this petition would have to have been brought in the district in which he is incarcerated if you were to try a century manifest injustice argument that petition should be brought in arizona where is incarcerated not in the district court for the initial washington that's what he's left with in essence the government responses finale we've been down this road over and over again he's had multiple bites at the apple