case number fifteen fifty three fifty six william allen versus bruce westbrook oral argument not to exceed fifteen minutes per side mr mytton for the can see that the a d p a second or successive provisions don't apply to mr allen's grand jury discrimination cla to rest the state's argument that the pre d p a abuse of the writ doctrine applies to this e p a twenty to fifty four percent that leaves the state's perfunctory request for email and i intend to spend my time talking about why this court to resolve mr allen's claim on the merits as well as addressing any concerns the court may have on other issues state does not ask for a man in order to present additional evidence the state had that opportunity at the summary judgment proceedings and chose not to produce any evidence therefore the record today is as complete now as it will ever be there is no need for additional factual development and the record establishes that the same grand jury that indicted william allen also indicted james thomas jefferson in jefferson versus morgan this court held that that grand jury was assembled in violation of the fourteenth amendment equal protection the concerns that i have in this case by suggesting what they are and then you can address them is as you as you choose i don't think there's probably a doubt here about whether there is no doubt about whether this is a second of success of this a new judgment so you have to worry about that but we still have this the the the situation of the last recent state decision design or stand it is this tennessee court of appeals decision in one nine hundred seventy three it's current basically we're looking to see whether that decision was i think contrary or unreasonably application applies to that but i'm not even sure about that because it's a pretty it was a pretty i put decision so ignoring for a second what the standard is that we applied to measure the one nine hundred seventy three decision of the tennessee court we're talking about for example jefferson in one nine hundred ninety two decision so it just seems to me this is still more complicated than frankly i'm comfortable having sorted out yet as to are we saying then the jefferson is is is retroactive and how does it deal with the tea down retroactivity doctrine we have all these questions at least in my mind circulating around here none of which were presented none of which were addressed by the court below because they thought incorrectly that this was a second or successive so there are a lot of these questions that i think we would have to address here that i'm not even convinced ribbon bre so how do i  how i get over that concern for let me help you conceptualize this there are two pieces to mr allen getting relief on his granger discrimination claim the first is showing that the state court opinion in one nine hundred seventy two or three was unreasonable or contrary to clearly established federal law and that's the twenty to fifty four d analysis you talk so we agree that that that that's the test that applies we agree on that we agree  into the merits we're looking then at whether it was contrary to an under reasonable application of supreme court cases at the time of that decision that's correct so there are a series of i think it's three cases that  cite saying it was contrary to and there's another decision that he cites that says it was not and then you throw in jefferson so how do we even use jefferson here one uses jefferson when one gets to the merits i agree that find enough evidence there to establish a problem a fish a case of discrimination that would then shift the burden to the state to provide a nondiscriminatory reason that's contrary to an unreasonable selection system that is susceptible to abuse and two under representation of african americans in the grand jury as grand jury members over a substantial period of time as to that first piece in the puzzle tennessee had at the time a key man system which allowed judges to select on their own handpick grand jury members and the supreme court recognized in hernandez versus texas in one nine hundred fifty four that such a key such a came in system allows for an opportunity for discriminatory views so there's a first piece in the puzzle understander that applied at the time of the previous state court opinion the second piece in the puzzle is under representation over substantial period of time mr allen presented to that state court in that state court proceeding to independent bases from for finding under representation of african americans an actual disparity rate of between seventeen and eighteen percent one is the givens order and the other is the judge's testimony both of those evidentiary bases showed again seventeen to eighteen percent actual disparities at that time jones versus georgia established that a petitioner shows makes the prime official showing of under representation with an actual disparity showing a fourteen point seven per mr allen's actual disparity showing is greater than that and those two pieces establish that at that state court proceeding mr alameda promise fish a case of discrimination and the state court's decision that he didn't is contrary to or an unreasonable application for an indy jones since and wanted to use but interestingly enough he raises this same argument not only before the tennessee courts but then have a new judgment and you get to start over but we still have this sort of inexplicable situation it seems to me where this very claim has already been presented to this core and to the supreme court and nobody bought this argument that the one thousand nine hundred three decision was contrary to or an unreasonable application of now given that we're still going to go we still look backwards to see if that was if if we're now going to say it was unreasonable what cha the previous six circuit opinion the six circuit got it wrong and what's changed maybe we do that all the time right but what's changed is jefferson versus morgan is come out because at this point we are past the twenty to fifty four d n a analysis which we just discussed and we are now considering the claims merits but the sixth circuit found correctly or incorrectly that it wasn't contrary to those four supreme court decisions hundred three correct no that's not correct the supreme court did not perform six or i'm sorry the six circuit the sixth circuit did not perform twenty two fifty four d analysis on the during the previous proceeding because twenty two fifty forty didn't exist at that now the so you don't find anything in there talking about whether the state court's decision was contrary to or an unreasonable application of clearly established state or federal law what you find in the this court's previous decision is the disc is a discussion about whether the trial judges testimony was sufficient to rebut the pr case showing that the court recognized and what this court ruled in jefferson versus morgan was that that testimony wasn't sufficient and jefferson is a reported decision of this court in the previous decision was an unreported decision the jefferson reported decision controls and what we've got from the judges according to jefferson our good faith affirmations that we tried it was difficult but we couldn't do it and clearly established law in twenty to fifty four days says that doesn't count as an adequate rebuttal to a prime efficient showing and that while applies in twenty to fifty four to the twenty four fifty two d analysis as well as to the merits analysis that we get to once we get past twenty to fifty four days so you're saying that contrary to your an unreasonable application is a standard we have to apply today because we're after one thousand nine hundred six but what standard do we then apply to the one nine hundred seventy three decision looking back the six circuit decision or the state court decision to the state court or once you do the twenty two fifty four d analysis and you use the cases that were available at the time the state court rendered its opinion and under those cases hernandez jones what it is in sims the decision that the record did not reflect the prime officials showing is unreasonable and contrary to clearly established federal law and once we get past that showing once we've made that shown at that point it's a question on the merits twenty two fifty four d no longer precludes the court from granting mr allen relief if you get by them that question that i've seen we're probably bound by jefferson under the panel exactly and that's exactly right so i think what we're coming to agree on you think it's  fair to say that this all of these issues has to one thousand nine hundred three are now fairly brief in the material that both of you have some of the twenty two fifty four d issues yes all the questions attendant right whether nine hundred seventy three was an unreasonable or contrary to application of clearly established supreme court and and and then the then the subsequent question of do we apply jefferson under either the panel rule or under some exception to not retroactively as to the twenty to fifty four d question mr allen presented that in his brief limited to what he saw in the court of criminal appeals opinion explaining why that was unreasonable contrary to the state didn't take issue with any of that if this court i understand that this court has under her rector sees itself as having authority and i disagree but the court sees itself as having authority to create additional reasons that might make the court of criminal appeals opinion reasonable in its eyes and reasonable decision in light of the federal law then the answer to your honest question is no but what we did when we filed our brief was look at the court of criminal appeals decision made arguments about about what was reasonable and contrary to and then got nothing back from the  make her are really two and first is that this grand jury claim has been rejected by the state courts no fewer than four times if you count both the trial level proceedings and appellate proceedings and it's been rejected by the federal courts twice once by the district court in the second round  federal habeas proceedings and then once by this this court as a result of the appeal those proceedings and it's with these facts in mind how we present our legal arguments is the abuse of the writ and it's a fairly straightforward argument we agree with the petitioner that we making a concession about mag wood and as it's extended by king that the vehicle issue that is the petition success of this that the petition as a fourth in time petition is an appropriate vehicle let's say to bring this claim because it's been determined under kang as not being a success a petition interestingly enough this court previously held that the claim the petition as that claim was excessive and therefore yanked consideration of that claim from the district court in the latest iteration of district court proceedings in this case which sort of goes to argument that the actual merits of this claim are not properly before this court would submit that it would be completely unprecedented for the state of the respondent to appear before the court on both the successive ness of a petition slosh claim and the merits of the claim without the district court ever being given an opportunity to consider that claim so we'd submit basically for all the reasons discussed in the previous argument underlying decisions it's a matter that we submit that if fact wise as far as the record goes and the concessions made by the state in the post conviction proceedings that there is this concession yes the facts that were found in mr place do apply and so factually the record is complete in order for the court to consider the merits of the claim but that the issue of briefing we submit that it's not been fairly brief you know the state appeared there was an order put down i think granting rehearing after the sentencing claim that had been remanded was denied and then there was a rehearing petition filed in the rehearing was granted as to the grand jury claim but the state didn't know whether it was expected to brief the issue as to the success of this of that claim as to the merits of the claim and there were some briefing of the merits by the petitioner in the case but still we'd submit that it's just appropriate for the district court to consider that issue in the first instance or at least give us the opportunity if the court's inclined to consider the merits of the claim to do so supplemental briefing on that issue because it does raise an important question we have a nine hundred seventy s decision by the state courts a new judgment after two thousand and nine from the state courts we degree the twenty to fifty four d of deference applies it's explicit but presumably that's a dyno standard review that this court previously to determine that the claim was meritless i just don't know how we reach a different terminations as to the merits of that claim in two thousand and sixteen when there's a concession by the petitioner that twenty to fifty four the deference applies mr minister saying is that's an unreported decision it's basically vacated made that may not be the correct word but it's overturned essentially by jeffers and that's what we submit that's where o abuse of the writ argument comes in and we have this concession that it's a vehicle the petition is no longer a problem but as to the specific claim we'd submit that abuse of the rip principles provide both a logical and effective means of dealing with claims of th wake of king king doesn't address how to resolve specific claims that are allowed to pass through the holding of mag wouldn't do the holding of king but it makes some references which i think are informative it says claims previously dispos the merits would quote not be difficult to sort out or take long to dispose of and that's not an explicit reference to abuse of the river application of abuse of the writ but it's certainly a suggestion that we're claim was previously disposed of it doesn't enable the court to go back  dive in reconsider the merits it's sort of suggest that there should be a deference to that earlier determination on the merits or it suggests that it will take it will be very onerous because it's already been done certainly and it also makes  references i think mag would does as well to the two other procedural defenses that might apply to summarily resolve claims that are allowed to pass through these quote successive petitions that are no longer successive and it mentions specifically i think both king and mag would mention exhaustion in procedural default that is and this is an idea that hadn't occurred to earlier this week and that is that procedural default is not an adept a statutory defense that's that's a procedural defense that applies the individual claims that predated adept  applies to this claim i'm simply drawing a parallel between the idea of procedural default as is a procedural defense that applies to claims that existed and posted up a similar to the abuse of the rip principles that we say should preclude reconsideration the merits of the claims in this case not the procedural default applies to this claim just that that's another example of a judicially created procedural defense to getting to to preclude reconsideration the merits of the claim that preexisted up and continue mind it's sort of covered a lot of them but didn't cover all of them and that's why we bring up the idea of procedural default because procedural default is an example of a type of judicially created similar to abuse of the written judicially created procedural bar to the idea is that is that ed put got rid of abuse of the writ then became the new standard on it didn't purport to get rid of procedural default and there are cases that say that yeah i mean it was intended to make the opening more narrow but we recognize that because of the way it's written there are circumstances where it opens the door wider than that i mean that's exactly what this line of cases say in which you know that it is what it isn't that's the way we're going to proceed and as it turns out i mean it looks like this is one of those cases that are sort of unusual in the sense that it was wasn't procedurally defaulted you do have another judgment and if you walk through the statute it looks like he's if you walk through the statute you get to the point of concluding that it's not a success a petition the petition can proceed again our focus is not on the vehicle but on the  that that's what it had to granted a certificate of appeal ability as to the the grand jury claim exclusively now whether or not that we haven't argued that that's improper but it's certainly an anomaly given that previously there was a determination that the was successive that that went all the way to the supreme court and the only thing actually before the court was the sentencing claim until the reasons are dated two ways you can read it to say that it was limited to the question of whether the decision on second successive was correct or whether you can or you can read it more broadly to say that if you go by that and then you also get to the merits if you're willing to concede that that's your right on behalf of the state in terms of i mean what also is there was unclear to certainly it was unclear as to whether the court was what we're conceding is that that that king we've not made any sort of law of the case or humans about king and the impact of king in terms of the fifty four if it decides to reconsider the merits but it had to the language in it's either king or one of the other successor cases that you both you and judge white were referring to it basically says the door's open again but it shouldn't really be very hard to decide these matters if they've been previously decided you just can't do it under the law the case or restate account of principles that doesn't address the question of what happens if the claim then is premised on an intervening decision that came along after that first determination that they say should be easy to resolve the issue so i'm still wrestling with what import does jefferson have on  them for the jefferson and has is i think that you have a merits determination in this case by this court america's determination on the same grand jury in another case and if we're stuck with twenty four twenty two fifty four day review about an unreasonable but that argument concedes that that's the question us it can see that you don't say we're not looking at this because it's already been decided that you say ok let's go back and see whether it's whether it was contrary to clearly established federal law and that's and that's not the primary argument we're making that's that's the answer that i'm giving because that's the questions i'm receiving about how if you decide to go to the merits of the claim it should be resolved that's our position but our primary position is that the marriage should not be reconsidered at all and we cite some cases in our brief as far as the abuse of the writ goes and its survival after a death of that goes to the idea that as your question earlier that it deputed not sort of abolish these previous rules and really looking at the purpose underlying abuse of the reprehensible in the purpose of a depo it all goes to comedy it all goes to deference to state court decisions it all goes to the interest of phonology and if there's a choice to be made between whether or not you say that principles that might preclude reconsideration of the merits of this claim versus versus taking a different path and saying should we reconsider the merits when both of those ideas both abuse of the writ and the depth of go toward the idea finale comedy you should go the route that says we should not reconsider this claim that we've already lost all the just a minute maybe i misunderstood your position earlier i thought you were saying that this court should address the merits and generally speaking our role is to be our role at this stage of these proceedings is simply whether to grant a certificate to allow the district court to address whatever the underlying claim is and he said it was second it's excessive we say it isn't that means that this petitioner has the right to is what now will will call his second initial a b s petition before the district court now i understand you to be saying that the district court shouldn't be able to address the merits either is that did you mean that i'll say what i believe we will be arguing if this does go back to the district court which is that the court the district court as we're arguing this court should not dive into reconsideration the claim and should simply defer to the federal courts previous determination that claimed under abuse of the writ principles now as an alternative that if the court rejects that if this court or the district court rejects that then the argument that if you are going to reconsider the merits then we have this idea of two different merits adjudications as to the same grand jury twenty two fifty four d deference applies and that standard simply not matter as as evident by the two different merits determinations on that exact same claim but our primary argument is that no claims like this that sneak sort of i will use the term sneak but after king and mag would claims that sort of are able to travel through on a successive in time petition but that are not successful by virtue of a new judgment that had previously been adjudicated on the merits that it does not make sense to reconsider the merits that those claims if there's a prior federal as to abuse of the writ first the state didn't raise it the district court in the was clear their abuse of the writ is an affirmative defense that the state has to raise in the district court in order to preserve it for this court that didn't happen to talk about this that the proceedings the second set of proceedings in the district court to let that let in as receipts are having right now where they're raising right now why would it be duty bound to raise that when the whole question below was second  question below wasn't second or successive and that's another point i wanted to make when we fought mistrial and filed this petition the state did file a motion to transfer saying mr jones petition a second or successive we responded explaining that of the maghreb new judgment rule it wasn't the stated that point withdrew its motion to transfer and basically conceded at that point the mistrial had not filed second or successive petition at that point mr his summary judgment papers on the grand jury discrimination claim in its response the state resurrected its second or successive argument but recognizing the strength of mag would mr allen's maggot argument it also made an argument on the merits so the merits have already been briefed by the state in the summary judgment proceedings boyo but you would you would concede would you not that even if something is fully briefed below if it's not addressed by the district judge at all generally speaking we would remand it back until the just your judge to address those issues generally speaking that's correct why is this the different sure under this court's pinney dock doctrine where an issue is of is presented with sufficient clarity in completeness and consideration of it for the first time on appeal will materially advance litigation the court will go ahead court will go ahead and consider the merits of the claim that asking you if we can we surely can there's no very well the retribution i'm just asking you why in your judgment we should in this particular case given what seems to me to be the complexity of this the records for developed states conceded that there is no additional evidence that has to be present in the district court what we have then is an issue of law whether the evidence in the record supports mr round's grand jury discrimination claim you said first you said that they didn't raise abuse of the writ below and then you started laying out what happened procedurally so i'd like to just to go back to that it was remanded on the sentencing right that's a couple steps ahead of where i was in the story ok yeah we filed the petition they fought a motion to transfer we responded saying mag would they would through their motion to transfer we file for summary judgment on the grand jury discrimination claim they responded resurrecting their s o s argument but then also responded on the merits the court the district court told us if we did not take the grand jury discrimination claim out of the petition is going to ship it  an s o s we declined to do that it got shipped up here as an s o s and that's where the authorization proceedings appear occurred and i forget which proceeding you were talking about the w authorization proceedings occurred up here the court initially said the district court got it right we moved for rehearing and the court said you don't get to do that under twenty two forty four b three d we made an argument that because it's an initial decision of whether the petition is second or successive and not whether it's subject to twenty two forty four b one or b two standards that decision is independent of the twenty to forty four b three  restrictions and can go on to rehearing and this court agreed now granted it we got denied in rehearing and not on certain we would back to the district court on a claim that did get authorized under the s l s watched on that claim following orders to the field came back up here argued again that the grand jury discrimination going for properly before this court and then this court decided king which concluded that we were right and that the grand jury discrimination claim was properly before this court as a state now concedes it is ok and then that's when they first raised right in this brief this is the first time indeed they ever raise abuse of the  he didn't establish a private face a case and he had no right to go any further in the federal court there was in the valuation of the actual claim is that correct the the way the claim is presented is first i mean a in both courts you got consideration of a claim but hundred different analyses in the state court the state court looked at the record and said we don't see evidence here of a prime official case which would require the state to rebut with a nondiscriminatory reason in this court's previous opinion in the first a b s this course said we find in the judge's testimony a sufficient nondiscriminatory reason rebutting the prime facie case and that's the piece in the jefferson puzzle that when jefferson came out that same judge testified in the jefferson proceedings and jefferson said no that's just a good faith a general good faith act at a statement that doesn't count as far as