united states versus murphy number seventeen dash eight zero one zero cassel if you're ready to go please enter your parents thank you good morning may  residual clause would have meant that his burglaries would have been a qualifiers no matter what so there was really no incentive at that time for the council's your object and there's really no issue because the court what difference does it make if if there were situ a clause was ultimately held unconstitutional when we've gotten on appeal of three convictions for burglary generic burglary  what does the residual judge have to even do with anything because under today's law we now know that his burglary convictions are not and you merida no one i don't know that we have a final judgment of the board of competent jurisdiction you i completely understand your theory your argument you present it well hell then you get around snyder well it's not a marriage not not in terms of twenty to fifty four or twenty to fifty  he was sentenced under the residual clause and the whole analysis in snyder was focused on was this person sentenced under under the residual cause it's a silent record we don't know we need to figure out if this person was and under the residual cause and therefore whether this is a johnson claim here or the claim is different is the street due process challenge to my sentence is no longer legal my sentence is no longer valid and i deserve to be released because i'm serving a sentence that's above the statutory maximum so it's a slightly different claim it is a different plane you know maybe but even if you put aside what judge kelly's posing to you i wonder how you get around what the panel in snyder three convictions i think are going to wyoming specifically and against this is really referring to taylor saying that these constitute a generic burglary and then we have defense counsel saying you know well we understand and specifically knowledge ing that because one of the you know the reference to a shed it shouldn't matter but it you know or maybe there was no reason to challenge there because at the time they would have constituted burglaries under the age of the residual cause the number started out doesn't matter you look at the actual record and you look at the relevant legal background that existed at the time which was exactly the same legal background that was prevalent at the time snyder was decided and so under snyder it doesn't matter if you had an incentive to challenge the  general burglary right and i mean we never argued in this case that the rock with silent i mean i think it's pretty clear that it wasn't and i think the only response that i have to that is that  this to profit challenge that mr murphy is raising and i think it's a it's a different claim it's conceptualized in a different way the analysis in snyder was how do we determine whether the mr snyder was sentence detail it which was decided long before his convictions of the determinations remain i just i'm not following your due process or the due process argument is just that his sentence is everybody in your exchange with judge bacharach at the very end i think exact same question i'm not sure i understood your answer which is how does health mrs johnson claim in the first instance given it sounds like your you're not void for vagueness but what does that have to do with the sentence that's based on the numeration clause i mean for example if he had raised this challenge after de camp the residual cause would have ensured that his think this is a bit they can't claim then no i'm just i'm because they camp and johnson different different cases i guess this is a hypothetical so hypothetically if you had raised predicate there's enumerated defenses and they don't fall under the residual i'm just that the thing i'm still not understanding is where the residual clause comes into play at all here if everyone is conceding as i think they are that he was he wasn't sentenced under the residual clause the original cause comes into play because you know because if he had challenged the claim before johnson there would have been no relief the johnsons gives him the right to come in does it doesn't give him anything of the schneider to get him in the door with then you have to look at the facts i think john i mean i think this just goes back to you know that that johnson before johnson he would have remained an encore a criminal after johnson he's no longer an arm for a criminal only he wouldn't be an oil group criminal under johnson if he had been perhaps so there's this case that the government has cited in its brief called stanley and in that case and i believe the seventh circuit case which was also part of this johnson universe but it said perhaps a prisoner  argue that he decided not to press an argument about the element because at sentencing on appeal when the only consequence would have been to move the conviction from the elements caused a residual cause then it would be possible to see some relationship between johnson and the contention that the conviction has been misclassified so that's basically what his claim is that there was no point to raise this issue before johnson because it's simply simply if you'd read the claim before based on the application of the saying and maybe i'm reading between the lines you're acknowledging this matter would foreclose this challenge on its face except you're saying that the petitioner in snyder didn't raise this particular argument that you're raising and so that theoretically was left open snyder is that is that your argument yes i mean i think it was theoretically left open and not i'm not sure that i would go so far as to say that snyder  closes the claim otherwise but i think the question was left open in snyder and in terms of stanley's not what i just read from families it wasn't raised or ruled upon and family but i think it's just a nice way of sort of conceptualizing what i'm trying to argue could i ask you i'd like to ask you about a technical question that this whole proceeding has has presented and it has to do with the fact that this court authorized the filing of the the twenty apply a second date reviewed to the authorization of the proceeding my question is about language in that second kate statute which is section twenty two forty four of the four  that the applicant must show that the claim satisfies the requirements of the section are you with me so far i am good so under that language my question is what is the standard the district court uses for that second gate review and i'm going to give you two candidates i think that's all there are tell me if there's any more one would be the language in twenty to forty four  the other would be in twenty to fifty five age two i'm sorry to unload all of that all at once but this is something i think we ought to get straight and so i'd like to hear your answer to that so the question is whether the language is relies on or contains yes ok i think the position that i took in the supplemental brief is that the district court would have to  analyze this claim under the language of twenty to fifty five each because they get to each two because it really makes no sense for just your court to look at twenty to fifty five to petition under the language of twenty to forty four and i think in my briefing i explained that the plain language of twenty to fifty five says that the success of motion must be certified as provided in section twenty before by a panel of appropriate court of appeals so that ref references twenty two forty four three and all the requirements in b c three but does not incorporate  before i honestly i think it's sort of unclear and the cases aren't particularly clear on which which language should apply but our position is that it's a language and twenty two we don't follow twenty two forty four the four and then thus be two which makes the defendant show that he is relying on the new rule of constitutional law we have no standard that that is well i mean when you say both gates were talking about gate one being the circuit court authorisations correct and gate to being the district courts next look at things and and so the question hatch this court said the procedures for a subsequent or second atheist position are both gates in twenty two forty four so although a twenty two fifty four and twenty two fifty five are different than one that is a state prisoner once a federal prison r and there are different rules of it so you think it's ok for our court to use h two and for the district court has a different standard why why why would that make sense think it would make well i think it may make sense because if it's a prime a face showing that this court has to make in thirty days with generally no no argument the defendant just filed nine out of ten times of pro se filing this court under real time crunch has to decide whether a new rule of constitutional law has been triggered and that's what the defendant is something we're going to have to sort this out but i'm just as one one last question and if if the authorization were not based on a new rule constitutional law but on newly discovered evidence the h h one standard for newly discovered  is is is different it's it's it's even more significantly different than the twenty to forty four standard so that then we're really talking about the  courts second gate review being done under under materially different standards under your under your approach i think that that would create some problems possibly and i think that would that would be confusing on right i had not thought about that i would know that when this case disgusted and had such an in case and the eighth circuit seventh circuit ninth and fourth when they apply retroactively and the same thing was shipped in robin from this court expressly rejected a defendant's attempt to use ship and saying well my i have a due process claim i'm being held longer than i should of and then act in line with this court's distinction here from snyder is the record is not unclear as the defense counsel indicated that it's unambiguous from start to finish in the fiesta are all the way through the first twenty to fifty five everybody was talking about a tailor burglary now whether that was wrong or right that the judge tell the state of we don't know we would have to go through that entire process but if that process was to be done it should have been done in two thousand and eight two thousand and nine or two thousand and eleven when judge bremmer issued the first denial of the way your honor in johnson to the supreme court the only right that the supreme court asserted or was issued down was the defendant's right not to be sentenced under the residual clause here it's clear to wouldn't matter because the residual clause was never late and it couldn't have been in play and even if they were rule it was never repealed correct your honor and the time to do that would have been then and not now and as this court stated in westover that westover buck and stafford pretty much resolve this case just a few points i would make and i won't waste any more time i would note that in the i believe it was stanley out of the seventh circuit in this in that case i think it was judge posner maybe easterbrook did mention the argument raised by counsel but the court rejected and basically said the same thing th it without that i guess with there's no further questions i would just rely on the government's brief and note that the record in this case judge bremer unambiguously relied on a tailor burglary in the numerator clause and therefore the residual clause and johnson are not triggered because it was never even