supreme court cases that involve federal statute that's correctly applied to the state courts that's correct ronnie authority where this has been done yet no i'm not aware of a case that has already done that but that's not a problem the fourteenth amendment that the standard is it the fourteenth amendment actually has its own due process clause that they have been interpreted the same way the fifth amendment and the fourteenth amendment  of state statutes to reach its conclusion i'm not aware of any authority that has ever made this distinction and again based on the parry of interpretation between the fifth amendment and the fourth amendment no such distinction correct your honor because of the stage of the standard is the prime officials showing that you're on a swing cannot have binding effect even on the d c court that would have to address that claim assuming down after the original the first petition i'm not sure that i understand your question so what you're trying to raise in this petition it relates to a law that was not in existence when you filed the the morning gregory for responding to him please the court we don't disagree with the standard that's been stated here but there's still a prima facia case that has to be made it's not a merits decision but there's still some substance issue well i don't know about the other other cases in this court if they are on felony second degree murder there there is one pending in the state court and that is before the fourth district court of appeal and i checked on the status of that yesterday it's still pending it's been brief but i don't know whether the argument or and if so when that will happen but before we even get to johnson mr henry can't show it as you can't make an as applied challenge just just looking at the case law he he committed an offense that was clearly identified by the cal supreme court in a published decision as one that constituted an inherently dangerous felony for purposes of the felony murder second degree felony murder rule the court the supreme court and hanson had said that the year before mr henry committed the instant offense that in and of itself defeats his vagueness applied challenge it also defeats his ability to raise the vagueness challenge as to anyone else on the subject of johnson the the only similarity between these is you have a qualitative description instead of a let's say a list of offenses that's where it ends but even johnson says look there's plenty of language out there qualitative language that's constitutional that we don't quibble with the issue here isn't so much the language but the approach that's used by the by the federal courts which is a form of the categorical approach and that as the court johnson said is not tied to real world facts or statutory elements they say that a page twenty to fifty seven on the same page they say the inquiry is detached from the statutory elements the california courts approach is tied completely to the statutory elements that breeds consistency they don't look at the facts of every particular case because well they won't always be the same but those elements are spelled out in the statutes and that's what they focus on in california which is completely different from the form of categorical approach that is used by the federal courts and that categorical approach also as the court johnson said the fact that that's layered into the second fatal flaw which is the uncertainty about how much risk it takes what the court said it's hard to tell again because we're looking at an idealized idealized instance of this offense not to the actions of the defendant in this case never goes back to what you said for want that he didn't then the question is whether he can know whether he's not able to challenge bigness because his clear is to him in holder and supreme court said that it was immaterial in that case  whether the law was unconstitutional even against the defendants kind or clearly prescribed that kind and that changed a lot of where you can now raise a vagueness claim even though the statute is not vegas your that a one who engages in conduct clearly proscribed cannot complain of vagueness as applied to that had been the law and are you saying that that distil the law that was my understanding and it doesn't either as i please also clearly been the law up sufficiently presented case to warrant sending issue to the district court well your honor it's the the line is not that clear where we're doing sort of at this stage it's a prima facia case it's sort of a light merits briefing i think there has to be some substance and i believe that we can see looking at just johnson looking at the fact that he committed an offense that on on paper on the law at the time was clearly an inherently dangerous felony that you're arguing that we should look at the merits and i don't know that there's any i don't know that we have any case that says that in the language i thought of the statute says that he has to make a prime if a she's showing that his claim quote relies on a new rule of constitutional law i made retroactive and that this seems to fit that formula your honor read literally i thought that's right that's right  surely there is something more than simply citing a case but if if that's all you need to do is cite a case and say that's what i rely on then and he certainly done that but we say just even to even say raises the question the case may be completely hanson saying that that clearly was proscribed and so ok you have johnson we have hanson that says that was inherently dangerous but i appreciate i depth obviously if this were to go back but i'm asking that it need not go back because i believe even at a superficial level that you can't meet a prima facia case holder but it was johnson that i think cast in doubt those statements of holder so you know you correctly cited holder for the rule that we've all been vegas to everybody or even as to this particular defendant so my only question to you is whether the holder opinion in that that you cited is still good long in the face of johnson it's pretty major issue if there's uncertainty about that isn't that a pretty compelling issue that our court ought to address let me take the first part of it first i don't i think that there are two different issues i do know what you're talking about the court johnson said you do not have to show that it is vague in every single application and when even further and said not and even perhaps perhaps as to you big change that affects lots and lots of cases and as long as it is ambiguous isn't that a pretty compelling argument if nothing else to have this case resolved i don't think it's sufficient evidence all but i i'm not sure i agree with the interpretation of it if they're saying that you can bring vagueness challenge and as applied vagueness challenge even though as applied it's not they i don't agree that they have stated that is as the law doesn't i believe that been plenty made as to his facial challenge and judge the ballots questions about whether johnson actually change the law on wagner's challenges i think that's actually very very accurate are you in effect conceding that the hanssen case precludes the holding in the california supreme court hansen effectively precludes and as applied challenge here i do not your honor and let me explain enforcement or by courts has done itself is the result of a process that has been arbitrary so even if it has some can provide not these it does not take care of the arbitrary concern but reserve judgment to express no view on any of these intriguing merits issues except to say he's made a private facia quite obviously i cannot tell your child your honour's how to how to approach