johnson reversed the federal circuit court decision that the state in this case has directly relied on an arguing the chance petition wasn't timely that case held that under a state court judgment that invalidates a state conviction used to enhance the it's a general principle of the law it's not a change in the factual predicate for this individual why wouldn't that be a distinction that makes johnson of no help to you because your honor in this instance for some reason your honor johnson very cold that  a state court judgment can the judgment itself can constitute a fact but beyond that in this case i think what it really comes down to is was channon able to pursue this can't claim federally for i don't see why it comes down to that he was unable to pursue it because there wasn't the violation of law at the time it seems like what you're doing would be kind of a backdoor overturning of teeth any time there's a new rule you have a new one year statute of limitations that starts up when there's a new rule here and i think that actually alaska what the supreme court said the state court so you know last go was it was announcing a new rule what it was saying what the supreme california supreme court said in that case was it is the rule that voluntary manslaughter is compatible with the absence of intent to kill and i believe that it has always been the rule and has been the rule ever since the criminal on california has existed and are inferior state courts that reach a contrary into federal court prior to the time that last go in there was not the spotting except he could have filed a petition but the fact that the federal courts would have been bound by the interpretation issued by the by the inferior court in last close to the direct state appeal and that's because when the california supreme court and i review on shannon's direct appeal and he had presented this issue squarely to the california supreme court the supreme court the nice review and under west versus c a case we cited in our reply brief the federal courts when they are in the course of the same litigation and looking at a construction of state law if there has been a denial of review as to the very issue raised in the federal litigation and the  federal court is trying to determine what is and what was state law at the time they were bound by what the california court of appeal had said in shannon's case and that was as a result of the california supreme court's having then i think you shouldn't go forward well it doesn't mean that it couldn't h no less foreclosed than was the petitioner in johnson as a result of the state court judgments so i urge the courts to look at the west first as a c n c case in the reply brief because i think it has a very full discussion of that i do accrued in fact until that what i wanted us to do was an the principle that the statute of limitations has hold when a person is prevented from going forward for some reason other than as his own doing for this claim to include where he could go forward but he would lose because the laws against them it's more than that your honor it's that  it's so it's an extremely unusual situation that we have here what happens is the state court later comes along and approves an interpreter for recognizes the action of delivery of a claim that only the time that that later decision issues but at the time that the original challenge was made in state court that's far from the usual situation this is not open the floodgates to take a view as corpus because it's it's almost unimaginable at this kind of case is going to repeat itself and this is the reason why we've made alternative arguments about of course that the removal of the state impediment i want to labor laws here i think we've breached those goals clearly but under the under and equitable tolling principles it's equally true these are not these are extraordinary making in the manslaughter instruction that's correct why it's an entirely immaterial that he was his jury was instructed in error on manslaughter so the jury convicted him of murder found all the elements of murder so whether it was first degree manslaughter second degree manslaughter it was instructed on wrongly it just doesn't matter well it doesn't matter you want to because but the reason that this is a an error an error of federal constitutional dimension is because what the instructions told the jurors was that if if you find the presence of an intent to kill fine heat of passion can then dispel now let's knock it down to voluntary manslaughter what they effectively told the jurors however was that if you find no intent to kill and that was the that was the most obvious conclusion that the jurors were going to reach given the relationship you know all the evidence of provocation maybe that she was going to leave and so forth that he in this in this circumstance they just they declined to look at heat of passion or provocation and the reason is because the instruction to chant and challenge challenges here states that if there is non if there is not intent if you the jurors if we have proven to you that we've got what is otherwise an implied malice murder that heat of passion matters only if there is the intent to kill now granted there are general statements in the law elsewhere about the incompatible compatibility of malice with  passion but the most specific situations in which that is addressed are the voluntary manslaughter instructions where the court tells the jurors look if you have an intentional killing or intentional thing even get the manslaughter though i mean it seems to me that what the argument is if i'm not misunderstanding it is the jury vite of convicted him of a lesser offense hadn't been available to them but because of the peculiar error that was made a lesser offense was unavailable so they have you know convict and we can say it's harmless is these instructions took heat of passion off the table for this defendant the vast majority of the prosecutors are going to was not that this was an intentional killing it was that it was an it was i'm looking at the instructions rather than yeah arguments and the evidence to try to decide with the jury did so if you could guide me through them yes your honor and this would be a supplemental excerpt at page fifty five every person who one lawfully kills another human being without malice aforethought forethought but with an intent to kill is guilty of voluntary manslaughter there's no malice of forethought of the killing occurred upon a sudden quarrel or heat of passion in order to  prove such a crime each of the following elements must be proven a human being was killed the killing was unlawful and the killing was done with the intent to kill as the prosecutor argue to the jury you can't go there you can't go to voluntary manslaughter we don't have to disprove heat of passion yes the killing was unintentional yes we do have to disprove your passion if the killing was an intentional killing but the circumstances of this crime indicated it hadn't been intentional at all it was it was a crime if giving it the most sinister so the judge built the jury that the distinction between murder and manslaughter is to murder requires malice well manslaughter just not the act causing the death is done in the heat of passion or as excited by a sudden quarrel the defense of voluntary manslaughter in such a case even if the intent to kill it's the laws that malice which is in the central element of murderous actions so i'm thinking the jury must have just not bought the evidence  sudden quarrel of the me through and i think anything but your honor if if what the prosecution had persuaded the jury was that this was not an intentional killing unlike the instruction the court just referred to but in an unintentional implied malice killing you're doing a risky highly risky act for instance waving a gun at somebody or struggling over going to you've got a gun out and you're fighting with that gun struggling for the gun you're not intending to kill your but you're doing arguably an action that  good afternoon your honor is julie healy appearing through the warden i want to just start by picking up on the argument regarding if we're going to look at the merits of this just briefly because i think that in understanding the merits we'll see how he came to that conclusion is that california law like the case of money versus wilbur requires if there is the presence of heat of passion if there's the presence of provocation for the prosecution to disprove that in order to sustain a murder conviction the jury was accurately instructed on that that is just what was read that you have to find it's eight point five zero so that instruction was given to the jury the jury  each of the elements of murder and that the act which caused death was not done in the heat of passion so the jury was told that now we're petitions claim comes along and where lascaux error occurs if he has a right under state law to have the jury accurately instructed on lesser offenses offenses and he and and what he's relying on is the cows eight point four zero was wrong it was determined by the cost of cream court to not and they found that he had adequate provocation and heat of passion they would not they would have still found him guilty of murder notwithstanding eight point five l and what judge jenkins reasoned was that that and daniels which told the tendence you can't challenge your state court convictions in the federal sentencing president receiving you have to go back to speak court if you're successful there aside from getting an error you can come back here and changes your sentence and and if they have construed even though it was a difficult construction to to to of trying to make it your order is a fact within the meaning of the statute they were willing to do that because otherwise they told the defendants you have this remedy and yet the defendants if they diligently pursue it as soon as they get their federal sentence go back to stick court there's no tolling provision in twenty to fifty five as there is under twenty two forty four and twenty two fifty four generally then the petitioners would do exactly as they are told and yet not have a remedy because they couldn't get through the state courts and get that they could share within a year and i think upon reading the johnson opinion it's quite clear that they are talking about a specific situation namely twenty two fifty five and it's not applicable to twenty two fifty four twenty two forty four for the reasons that have already been discussed again just talking a little bit going back to the if we if this court is to reach the merits of this and reject the first two arguments it's clearly that any error in failing to give a correct instruction on voluntary manslaughter w harmless in this case that just looking at the facts of the case this is a you know eighty nine pound woman i believe who was shot in the head pressed against her or her forehead one shot so to conclude that there was no intent to kill him the prosecutor did argue that there was intent to kill i think is ludicrous on the facts and even if there was no intent to kill because the defense argument w accident there's certainly no heat of passion because heat of passion is not about you know a girlfriend wanting to leave her boyfriend and that's adequate provocation to reduce your killing her from murder evidence that he was acting in the heat of passion so there's also what we would say there's no at evidence of adequate provocation there's nothing to indicate what did she do to spend a reasonable person into this kind of rage and there's no evidence that he was in such a rage he says it's an accident that's what he tells the police that's what he tells it's a horrible mistake that's what his defense counsel argues accidental death or negligent firing and the prosecution did did did counterpoints out saying that the jury couldn't do a voluntary manslaughter conviction because there was no if they found there was no intent to kill but he also told them that they had to find adequate provocation and there was none here so under the facts of this case this instruction never came into play and petition or anything got a windfall that that the state was told that they had to prove an extra element of voluntary manslaughter that they didn't have to prove thank you counsel thank you accuse just argued will be submitted for a decision and we will hear argument