paired with the fact that he's had no meaningful opportunity to raise that claim on collateral review is sufficient to allow this court exercised fiction over his twenty dollars to forty one dollars edition and the answer to that question is yes for three reasons st in range jones test interpreting two thousand two hundred and fifty five is saving clause is not a procedural default gateway and it has never been treated as such by this court accordingly the standard that the government invokes has no place in this context nd no potentially clickable standard that this court would apply would permit it to do what the government asks which is to ignore the charges as they appear in the indictment and ask for the hypothetical jury might have done on a different charge carry rd even if this court were willing to imagine different charges the facts in this case simply don't support to petition our possessions within the meaning of one hundred and twenty four dollars c e and that's because mr hahn only engaged in one from an affirmative act of possession involving guns in the drug trade and that's what congress was seeking to and twenty four c mr han is entitled to bring a twenty to forty one petition if you can one of those points is correct and that's no surprise because mr hahn is exactly the type of petitioner that this court was thinking of enraged when it held that the savings clause of two thousand two hundred and fifty five dollars b is meant to preserve one meaningful opportunity for petitioner to have his claim heard on collateral review we know now that mr hunt has a meritorious argument that his conviction on count four is invalid under the statu the rule in rents that would have had to have been based on a separate possession and the one that was at issue three and we know from looking at the indictment at page twenty nine dollars of the jna that the government listed the possession of the same gun collection on the same day as the basis for announced in rennes to mr hunt's actual conviction on count for the way that that was achieved and obtained in the district court and to determine whether it still remains valid under the law in rennes we know that it doesn't because like i mentioned it's based on the exact same possession as the one that was issued what support is there for applying writs retroactively well your honor this court in applying in ray jones has never required the holding of retroactivity and what it required is that the rule amounts to a substantive change in the law and we know that rent is a substantive change in the law because it narrows the conduct that is criminalized by the statute says only independent acts of use carry or possession are covered with a further predicate offense not simply additional predicate offenses based on the same carrier possession so that amounts to a substantive change of law in the within the meaning of the seventy one and it's similar to the type of rule that was in the davis of united states case which in which the supreme court determined that this type of statutory change should apply retroactively on collateral review and is cognizable in collateral review as a fundamental fact i just like to emphasize the prone to the appropriate course is to simply apply rounds to mr hunt's conviction instead of the reasonable jury standard that the government in folks and that's because in range is meant to provide that one meaningful chance of review that this petitioner didn't get because of the incorrect statutory holding that was a political and binding at the time of his initial appeal and his initial collateral view there is no basis in the text of the statute for imposing an and we know that the legality of mr hunt's detention on count four is based on whether or not that conviction is valid or not based on anything about his underlying conduct we also know based on this court's decision and wheeler that the position that only claims of actual innocence really at issue is what could have potentially happened when it said it doesn't matter that the individual sentence could have been the same under proper proceedings the fact that the judge sentenced him under improper proceedings that we now know are invalid and that the statute we need to send it back and vacate that sentence and the same is true here the fact that well we can test that under the test mr han would even be able to receive the same conviction but the whether he could or not is irrelevant when you're trying to test the legality of the detention which of course depends on as i mentioned the actual validity of his conviction i'd also like to emphasize that even if this court were to apply the shlep loosely standard it wouldn't be applying the test that the government acts asks it to apply the government asks the court to completely ignore that in the indictment the same possession was listed for both counts but in fact in bruce lee itself the court made the supreme court made clear that that's not the way you applied the actual innocence test you have to look at what was actually in the indictment in that case the government made a similar argument it said that although in  initial indictment it had charged mr bruce lee with use of a firearm and his conduct no longer amounted to use after the supreme court's clarification of that term the government argued that mr bruce lee should also have to prove that he couldn't have been convicted of carrying a firearm under a different and twenty four c and the supreme court said that's not the appropriate and craig you procreate in korea is if we apply the correct role to his actual indictment could a reasonable jury have come to the same conclusion and here we simply know that's not the case the indictment true that other circuits some of the other circuits have applied that test context but as far as i'm aware they've not provided a basis for why that would be included as has any other circuit supported your view that you've just articulated  shore well i know that the th circuit takes a similar approach where it looks at the indictment and the jury instructions to determine what the jury necessarily actually came to a finding of in the initial proceedings to determine whether that would meet the new the new we announced rule and of course this court as i mentioned and wheeler rejected the notion that only things within the actual innocence test up are actually cognizable on in the savings context and in fact miller was entitle to believe so it clearly rejected the notion that an individual has to be able to fit through the procedural default standard but even if this court were to apply the standard as i mentioned it would be bound by the indictment  if that weren't the case mr hunt's conduct here simply does not amount to two possessions but the meaning of one hundred and twenty four dollars c and that's because he only engaged in one affirmative choice to involve guns in the drug trade and we know that that's what was at issue when congress was criminalizing other behaviors in it may please the court john pelan terry from the department of justice on behalf of the respondent who need to mostly the question in this case the dispute between the parties is whether mr hahn has demonstrated actual innocence in light president to do that and this circus president requires a showing of actual innocence under johnson i can explain yes derivation of the jones case in the jones standard is the supreme court's decision in davis and that case the defendant had was convicted under a statute and then there was an intervening decision of statutory interpretation and the supreme court had to address whether the defendant could raise a claim on collateral review that that the conduct for wh he was convicted was no longer criminal in light of the intervening decision of statutory interpretation and this record had to determine whether that type of statutory claim was cognizable on collateral review in the next court said that statutory claims are cognizable if they represent a fundamental defect which inherently result in a complete miscarriage of justice or presents exceptional circumstances with a need for the remedy afforded by the writ of habeas corpus is apparent now that that type of claim and it said in the context in which someone claims that their conduct no longer criminal the act for which they were convicted is no longer criminal in light of an intervening decision of statutory interpretation no doubt presents those circumstances now in the jones case this court applied their raised davis claim he said that in light of bailey the conduct for which the acts for which he was convicted were no longer criminal and that's a davis claim and so yes to show that his conduct acts for which he was convicted are no longer criminal and this case this court and every other case that is addressed it david has concluded that this what this means is actual innocence in the foot decision your honour's said that in davis the supreme court concluded that davis is claim amounted to a complete miscarriage of justice because he claimed that his underlying conviction was abrogated i eat he became actually innocent of the crime another decision of the court has characterized davis claim as actual innocence he has to show that the defect in wheeler this court concluded that there are other types of fundamental defects that can be raised in a saving clause case including fundamental sentencing errors and then the court concluded in leicester that was in fact convicted twice he was convicted of two counts of the same well it says this story was not asked to determine how many possessions you're on the it was not an issue that came up in the light of in light of because rents had not been decided under under finding the th circuit law the jury did not have to make that finding and to just simply claim that because the jury did not make that a saving close case the issue in this case is whether his conduct is in light of the record as a whole is now no longer criminal in light of intervening statutory in light of a decision of intervening the indictment said that he did knowingly possess firearms and then it said namely and then it listed them further and of a drug trafficking crime and the same with the other one now as same with the other this indictment were operative today in light of rense all we would have to do is elect which firearms were proceeding on in count three which firearms were proceeding on in count four and then the jury would have to be instructed that would have to find separate possessions for the firearms in count three and the firearms in count four so that's why the convictions even after rounds are fully within the scope of the charges in the indictment but the jury just did not make the finding of his separate possessions and to conclude that somehow a defendant on collateral review is in actual innocence merely because the jury was not instructed to make a particular finding would put this defendant who is head harmless because it didn't affect the outcome of the trial because materiality was established now and obviously if if that was a preserved argument but then if it wasn't preserved it would have been on plain air and then on collateral view there's even a higher standard and now mr hines asking this court to recognize a similar claim in a twenty dollars to fifty five dollars where the pathways even narrower so he would be putting himself in a better position than defendants on director view because we wouldn't if the court were to evaluate it against the jury instructions what the court needs to do is evaluated against the record as a whole all the evidence in the record and and apply the standard that applies in other contexts of actual innocence which was has mr hahn established i or preponderance test they're just they're separate offenses each predicate and then number two that for each of those predicates there's a separate possession so if if there is only one so for example if there's if there's one cache of guns that are stored all together and there's nothing distinguishing them they're not stored separately they're not possessed at different times if they were if there were ten guns for example they were all stored together in one possession and that would support only one hundred and twenty four  rents but here you have different professions under governing law when courts look to to determine whether there is more than one possession of multiple firearms course look to whether they are possessed or acquired it different times or stored in different locations and in fact the th circuit itself found three separate possessions in circumstances very extremely similar to this case there was a gun in someone's bedroom there was a gun in the defendant's garage in a car in the garage and there was a gun in a car outside the home and the court said in those circumstances although the guns were all found by the police during a search on the same day they were possessed separately those are separate possessions and it's all the case if this were to proceed today there would have to be a jury finding of separate possessions we would have to ask the jury to find different locations separate locations so that there's sufficient separation between the firearms to support multiple possessions and then the government have to  individual possession is connected to a separate predicate underlying drug offense or a crime of violence and that the evidence in this case and soon in the proper light looking at the record as a whole establishes that a reasonable you can do forty two counts no you know we would have to show because i don't know if they were if the guns were in there you want to fly in different places if they're whether he's actually innocent under that standard the court has looked at the whole record and figure out whether any reasonable jury could conclude and even if this court thinks that there's some there's a question about whether  the defendant's conduct is is is is no longer criminal in light of ransom that in itself indicates that there is no fundamental defect we flag this for the court in a footnote because predicates the multiple nine hundred and twenty four dollars c convictions are permissible so if this court were to think that maybe there's a question about actual innocence under rance it would have to grapple with the fact that this court's cases reach the exact opposite conclusion and in our view in the government's view there's no fundamental defect that would support saving clause relief when the when there is a different when the different results would there would be different results based on the circuit law that applies in the circuit of conviction versus the circuit where the defendants detained and where the petition has to be filed and that would that would be it would be kind of remarkable for this court to conclude that there's a fundamental defect a miscarriage of justice when it's when the in the davenport case itself which this court relied on in jones the court said that when there is a circuit split there is no presumption that the law in the circuit that favors the prisoner is correct and hence there is no basis for supposing him unjustly convey it where were the three locations of the guns so there were twenty one guns were found on the same day there were three separate locations yes there were several i don't know the exact number maybe ten on the nd floor of the home in the bedroom and in that and they were all out and loaded and they were with a flak jacket with a kevlar helmet ok where was the nd floor and then where else ok and then there was on the ground floor there were which is where they manufacture the manufacture and growing manufacturing operation located it was on the ground floor ok so if we don't need to know the rd line then if there was only one predicate here let's the government wouldn't argue the storage of the guns on the nd floor was a in furtherance of the manufacture and oh well if they don't have to be they don't have to be mutually exclusive your hon i mean the fact that he had possesses a gun in furtherance of two different crimes as long as we link up one gun with one crime and another separate possession not just a different on the same for the same predicate you know there's two so if this were today we would have i'm not talking about today i'm talking about what happened in this case yes at the time the jury wasn't asked so we were able to prove that he possessed any of the guns in connection innocence to determine whether the conduct from which he was convicted is no longer criminal the court has to look to the whole record and figure out whether a reason a correctly instructed jury could reasonably find that he convicted he committed two separate nine but there's the parties are in agreement that the fundamental defect that type of fundamental defect alleged in this case is the founder effect fundamental defect in jones which is actual innocence they are not claiming that the court should construct a new type of fundamental defect and the fundamental defect to the extent they suggest there is something other than jones that would consider constitute a fundamental defect they're really just trying to constitutional multiplicity of multiplicity arguments or erroneous collateral in the st place unless they result in it and constitutional error he's attempting to why in the fundamental defect beyond anything that jones or wheeler or lester has recognized to bootstrap and allow constitutional claims that otherwise cannot be a race or well use the formulation in davis that says the acts of which he was convicted are no longer criminal but every court as that has confronted davis that is can shoot applied davis as has characterized it as actual innocence they come from they grow from the same soil the notion that and loosely the notion was that a constitutional claim that's otherwise evolved it should be allowed to proceed because if someone's actually innocent because it's not let it proceed would result in a miscarriage of honor so for example in this case we couldn't say that well we've charged him with possessing firearms but he actually carried them so he's not actually innocent has to be within the scope and it is in this case as i as i've explained each each charge him with possession of a firearm all twenty one dollars now granted under under rance there is a multiplicity problem we'd have to have to if going today we have to elect which possession we're proceeding on but that's still within the bounds within the scope of the decision that the court held that there's materiality is an essential required element of wire fraud and a offense and the jury was not instructed didn't have to find it and it applied harmless  to a conviction and part and again this is a concept that that type of failure to instruct an essential element is a constitutional error and the saving clause is not a vehicle to raise that type of constitutional error saving  is a vehicle to raise statutory claim and then to do that we look to the statute we look to narrow down version of the statute and we look to all the evidence in the record to determine whether any reasonable jury could find that the defendant committed an offense under that narrow interpretation and then again if this court is somehow think it finds it questionable whether the defendant is actually innocent under rents we suggest that there can be no finding a fundamental defect because this court cases establish that he did commit to offenses regardless of separate possessions and uses this court only looks to the underlying predicate so that two courts to this court defined a fundamental right when itself it would have affirmed this based on an other circuits precedent when there's no authoritative supreme court precedent would break new ground to be the st time that i'm aware that any court found a fundamental defect in those circumstances i see my time's up unless the court has any other questions  your honor i would begin just by noting that of course it's true that some courts have heard to the analysis and davis as looking for actual innocence but that phrase does not necessarily import a standard from an entirely different lee and we know that because for the past eighteen years that this court has been applying in regents it's never gone back to look through the transcripts from trial and to think about different things that the government might have argued or could have charged simply applied the rule from the new that rule the requirement of use possession or carry that independently supports each count of one hundred and twenty four see whether the challenge to conviction in this case can meet that rule and here we know it can't because we know as a matter of certainty that the indictment based count four on the exact same possession and we know that nothing in the injury in the jury instructions could possibly cure it that or did possibly care that and we would submit that nothing in the jury instructions could cure it because here the government specifically told the grand jury we're charging possession in furtherance of the manufacturing crime for count three and the possession in furtherance of the maintaining a place count in count for these are separate theories for the same pos and the government made that point to the grand jury we don't know if they thought they might have been unable to get an indictment on both counts if they hadn't referred to all of the guns for both of them we have no idea what the grand jury would have done or what the jury would have done here and the government comes up with a new theory of how it could have charged the case different guns in different areas but it didn't do that and that there is reason to believe that the jury would not have convicted on that basis mr han had reasons for having guns in his home he had reasons for having them in a locked safe he was a sportsman there's no basis to believe that the jury would have necessarily accepted that brand new theory that we've post hoc in the briefs in this case and so that's that's the reason why did and we don't have a basis here in the record to determine that the jury would accept the government's new theory but of course there is no basis in write downs to look to whether or not there is this loosely strap reasonable juror test that's met in characterizing the davis type of claim a statutory innocence claim as an actual innocence claim that does not require importing this other standard from the procedural default gateway context into the   the valentine case in the th circuit specifically says that you need to have a finding when separate possessions are required for separate counts and there was no such finding here so the court really they put him in a better position  court very well could find the court's opinion in rense persuasive so there is no there's no clear rule in this court that he would have absolutely been able to be convicted as far as we're aware but we would also just want to respond to the argument that mr huhne is trying to bootstrap a constitutional argument of course when ever an individual is convicted in violation of a statute there is a constitutional implications about a multiplicity of course has constitutional implications double jeopardy has constitutional implications but that doesn't mean this isn't a statutory claim every davis argument about statutory innocence is going to have constitutional implications because when an individual hasn't been there's no authorization from congress for his detention that's going to be a constitutional violation i would finally just say that the fact that the th circuit has held that multiple can possessions can be found for purposes of a felon in possession statute based on different storage in the same home is not really on point here because the court and rents specifically noted that what possession means in the context of nine hundred and twenty four dollars c is a is a specific question to that statute it's part of the unit of prosecution inquiry and as we mentioned the statutory analysis at one thousand one hundred and eleven goes through why a nd conviction under nine hundred and twenty four c is supposed to be a big it has a huge jump in punishment because it's supposed to be something really different from the st conviction it supposed to be a nd choice to make the drug trade more dangerous to involve guns in the drug trade and here are the two there's no question that the predicate offenses were simultaneous and that he possessed the guns in one way which was to protect the home to protect the marijuana that has to be the theory of how it was furthering the drug offens and there's no basis to believe he somehow did that in separate ways at the same time through different affirmative choices and you know there's been numerous opinions interpreted whether or not these type of simultaneous possessions or simultaneous  or possessions in the one hundred and twenty four c context can support multiple charges and courts have consistently said what congress was focusing on with nine hundred and twenty four see is the separate affirmative choice to involve guns in the drug trade and for example the six circuits decision and johnson here today in the th circuit correct that's your position in the th nd or in the th circuit no here was in the th circuit i don't believe that you could you could get i certainly don't believe you could get two convictions on that basis with the nd and subsequent the twenty five year increase whether or not to force or it would treat the requirement that you have both a predicate offense that separate and a possession that separate i don't think that that's been specifically addressed i think the four circuit precedent is different than the th circuits but i think that there's a reason that the th circuit substantive law on one hundred and twenty four dollars c applies here and that's because in range owns the court said that prong one was the petitioner foreclosed from bringing this claim by binding precedent at the time and of course no matter what the th circuit's precedent was in twenty million twelve thousand and six when mr han's case was on direct appeal and st collateral review that would not have possibly bound him in the th circuit about what he could argue and what he could get reviewed and so it's clearly referring to was there a change in the substantive law of the th circuit or the supreme court that would reverse the binding precedent that had previously foreclosed him from bringing his claims so this court need not to address what its own precedent is and that in the twenty four c context you're in for a little differently than that of course in this case we believe that the it wouldn't amount to two possessions as a matter of statutory interpretation and i think that the circuits that have considered one hundred and twenty four c on the possession question have come to that same conclusion that it requires require separate affirmative choices most recently in the six circuits opinion tsonga interpret grounds if there are no further questions thank you or thank you so much