mr dodge may please the court mr randolph's second section twenty two fifty five motion fit squarely within subsection h to be relied upon a new rule johnson was made retroactive through welch and was previously unavailable to mr randolph even though it raised it previously yes your honor mr randolph raised it previously but the district court made that claim unavailable and there were two reasons for that first the court ignored retroactivity well you're saying that it was unavailable even though it was a by will to him because a district court ruled in correctly that he wasn't entitled to it no your honor it was not available in march of two thousand and sixteen because welch had not yet arrived in the district court did not apply the johnson rule retroactively and then use that passing it through the filter of procedure so the retroactivity nothing is available under the supreme court  cases like mr reynolds how do you address the fact that he raised it in his motion for reconsideration after welch came out that's right trying to mr grand off did remind the court that well gee if i could make one correction the motion for reconsideration came before welsh but after a while tube and argued in the supreme court mister randolph was denied on march twenty ninth two thousand and sixteen and within a within a few weeks filed his motion for reconsideration welch it in his motion for reconsideration i'm looking at right here on page four he says on april eighteenth twenty sixteen the united states supreme court ruled in welsh or united states that the holding in johnson should be applied retroactively yes you and i got the dates wrong so that's right so he brought it to the court's attention in the motion for reconsideration how is that not available to them it wasn't available because the district court did not make it available to him mr randolph tried so again your argument is that if the district court's ruling is wrong the restrictions on second successive application don't apply there's an exception unstated exception for ronnie's decision i don't go that far you and i simply say that welch and johnson create a narrow exception to the general rule that procedural default is permanent in this particular case it's not procedural default he didn't default climb he presented and lost on it and doesn't twenty two forty four do you speak to that i'm sorry not to twenty two forty four three he has i'm sorry three b one say a claim presented in a second or successive a b s corpus application which is made up of one twenty five that was presented in a prior application shall be dismissed he presented this claim in a previous application and doesn't the statute pacifically command that it shall be dismissed yes your honor you've got the statute correct of course but subsection twenty two fifty five age two provides the rare exceptions that get mr read out from under that general prohibition this was a new rule that was previously unavailable as i say at the time that the district court rejected the first twenty two fifty five motion except the motion for reconsideration as we've just discussed he specifically raised welsh and i think what you're arguing is that in spite of this m f r this report continued to say procedural default i'm assuming we're here today because he did not appeal that first petition that would have solved the problem if the district court got it wrong which is what you're arguing today the solution would have been to appeal the second and successive m that was one option to mr randolph had you didn't choose that option and like to tell you why i'm like oh it's not the only option it's right subsection x to provide a second alternative path for rare cases like this mr randolph's motion that only fits within the letter of the two but this is the spirit of that is well he didn't abuse the writ here he didn't seek a second bite at the apple he saw he saw only the first meaningful bite through this second or success about location to court in his s o s application on page four of his memorandum that he didn't believe you had the right to do a direct appeal because he had lost the notice of appeal issue in the first twenty five and the district court had denied him a c yes or that was one of the two issues other than the issue other than johnson that mr randolph raised he accused his attorney of the type of sensitive not filing a direct appeal back in two thousand and eleven two thousand and twelve but mr randolph in substance did everything that he would have done had he labeled his application a c e o a application instead of an s o s application that's the only difference and that's why we're here today that this is not in all a typical abuse of the a defendant who keeps coming back over and over again simply regurgitating the same arguments and we now know that it's very likely after all this time the mr randolph is no longer worthy of an a c c and handsome and one of his predicate offenses the third degree tennessee burglary has now been held by the sixth circuit to no longer fit within the a c c as violent felony definition now this court hasn't ruled on that particular state statute of course but we've got a man that decision came after it did you want to proceed so so now you're arguing if there's a decision years after the twenty two first twenty two fifty five that sank sept no i don't ask the court for that exception either i simply offer that to fit in with what the supreme court cult told us in t eight which is that finality interests are at their weakest when a defendant's sentence is not authorized by law and we have that very likely here now for mr randolph can you say definitively that the petitioner would have would definitively have relief even under johnson welch because in the briefing it was pointed out that there were other offenses that could have been more a c c a predicate there's a tennessee conviction for attempted murder and attempted robbery that counts as one conviction there's a tennessee conviction for aggravated assault which is number two and then the third is this third degree burglary so if mr randolph were able to get a fresh review in the district court in the court were to strike this third degree burglary conviction he would no longer fit but the government points other convictions that would qualify him as well that's not what the government doesn't make that explicit in it and i did it the government has not said in its brief that it believes there are four prior predicates so that if we lose the burglary and that's out mr randolph is still no better the government hasn't made that point in his brief and i do think the government we can see that without the burglary mr randolph would no longer fit within the a c c in our time let me ask you this right for us the punch line rule of law you would have us adopt and make part of the l not presented in a prior application shall be dismissed unless a the applicant shows the claim relies on the role of constitutional law except and b and we also realize that one presented in a second or success application that was previously presented in a previous twenty two fifty five shall be dismissed period however comma we hold when a defendant loses his first twenty five motion before the new rule is made retroactive in the district court realized simply on the generic procedural default bar then the defendant fits within the narrow exceptions of subsection x to serve so you would have the whole that the new rule of constitutional law is not available until the supreme court has made it retroactively applicable yes in this particular issue because it was not under this court by any president before wel it was not retroactive to cases on collateral review cases like mr random sure a chair on that until it is held to be retroactively applicable by the supreme court of the united states yes or no and i you would have us read into the requirement of availability a requirement of retroactive supreme court are binding precedent decision as well unavailable or if available had not yet been made retroactively applicable i don't ask the court to go that far i simply asked the court when there's a welsh or johnson issue that was previously unavailable here in this circuit because of him but then we got to make a rule for all cases we can't just say to help out mr randolph and we can't just say johnson and welch issues we've got to redo and remodel th statutory techs so you would have a say previously on available art if available had not yet been made retroactively applicable that would do it would it not no your honor because you've added the word the court doesn't need to go so far here to tell me what short of that how do you define or riding the definitions section for this provision how do you define availability or if you will unavailable and availability here is a binding case from the circuit saying that the issue is not retroactive and combined with the district courts generic procedural default and bar against that initial claim ok so to because again speaking of welch and i'm not trying to limit the court well don't don't speak of books tell me what we write into the statute to accommodate your position well i don't want the court had to feel like it needs to rewrite the statute but to well the rule that i'm asking the court to propose or to write is that a claim is previously unavailable in fits within x to if the court this court has previously held in binding authority that the rule is not retroactive and the district court simply apply the generic procedural default bar in due course without considering that retro shall we read into availability and on availability the retroactivity it doesn't yes  seventh and the tenth have taken the retroactive johnson rule in fed it into the filter of the procedural default and held that it constitutes cause to excuse that default and that's exactly how it should apply here to mr rand point can possible be error about that the error in that was not noting the procedural posture of the case your read our brief it looks like your side into a panel opinion and obviously it's not that and i can understand how you would con point of his argument which is available means that you could get vindicated and that under existing law it wasn't quote barred end of quote by press eleventh circuit saying it was a retroactive  point to that first of all that nobody argued that it was not retroactively applicable the government did not argue that the judge murphy certainly did not rule that in his order and i think the other point to make here is there is a difference between retroactivity for purposes of a first twenty to fifty five and purposes of a twenty a second twenty two fifty five mr randolph didn't need welch he was at that point in his first twenty two fifty five and he didn't need the supreme court for purposes of a second or successive but in that very case in in responding to the dissent argument the the court made the point that if and i quote it ever ever owed like the petitioner and boastfully was seeking a first collateral view of the sentence the new subset of rule from johnson would apply retroactively and of course that's this court's opinion in may is that held that for the purposes of a first twenty two fifty five both desk camps and johnson are retroactive applicable that's why the government didn't argue retroactive to vot eat or didn't make a retroactivity argument in mr randolph first twenty two fifty five so you're familiar with this case united states versus exactly yes so so is this situation different than the situation in snyder the court found that this new application of constitutional law did excuse the procedure will be full or  reading it wrong i think you're reading snyder right and so you're asking are you asking judge essential a did the district court get it right in the first twenty to fit the bill but what i'm trying to put out trying to find out is is this case first of all murphy got the procedural default right in the first twenty to fifty five is no longer before the court for a number of reasons one because the defense mr randolph did not heal from that and two because it's outside the c that the time for deciding whether the procedural default opinion that judge murphy issued in the first twenty two fifty five whether that is correct has come and gone does that answer your does that answer your question so so that this procedural default held by the court was that even really brief by the parties not we did the government did not argue procedural default the defendant did not argue procedural default the court went there on its own and so the court never really got to the merits of johnson i think we can debate whether a procedural the fault ruling is a ruling on the merits we argue  our brief that it is but the more technical and or that's probably the technical answer to your question the more practical answer to your question is no judge murphy did not look at it and analyze whether tennessee third degree burglary remained  the government reminds us of mays this circuit issued a decision in mays on march twenty ninth two thousand and sixteen the very day that the district court denied mr randolph first twenty five motion and in ma during that same time period so the district court erroneous liberal i thought if anything was clear it was that there was no exception in the second successive application regime for  otherwise than the restrictions on the second successive applications or motion and would have no effect and would be utterly useless because if they only applied if the claim didn't have merit and the district court correctly decided it what is the point so let's take it as a given that the district court got it wrong that does it you wouldn't have us right into those restrictions but none of them applied to the district court decision is erroneous no i would that but this point that i'm making feeds into the larger point that the claim was not truly available in march and april of two thousand and sixteen because the district court got it wrong because the district court did not treat the issue the claim as retroactive which is what was wrong with the decision yes it is not sufficient alone for us to get those the only errors that lift the second successive application bars entirely are those where the district court in that first petition got the take retroactivity doctrine wrong we don't need to go that far and it be that broad your honor we have here a combination with on the day that the district court dropped the first order on the first motion mr mr randolph claim was not yet made retroactive by the circuit of the supreme court so the combination retroactivity well i don't ask the court to say that i say it's a circumstance to be considered with other circumstances in deciding whether or not this particular claim was in fact available so you would give us unfettered discretion to ru randolph is the only person in the district court who did raise the retroactivity he tried at every turn to argue that johnson is retroactive the government didn't write back on that issue the district court  also chose to ignore it and then mr randolph within the timeframe to file his seal application raise that issue here and presented to this court and simply put the wrong label on it he called it an s o s application and use the courts general form if he called it a