i'd like to say three minutes for a bottle if i may this court should reverse the denial of mr aguilar's habeas petition the district court correctly reviewed his miller claimed in no vote under at but incorrectly ruled that his sentencing proceeding is complied with miller and i ask you a preliminary question the just a if i can call it a just up argument is made in two of these three cases but apparently not in your briefs that appeal in this case you've made that argument to the district court did why didn't you make an appeal because i think that there's a qualitative difference between th capital sentencing proceedings that were here where there were three sentencing options one of which was a death sentence and the sentencing options you know neither of which carry the possibility because it wasn't the same i mean you can make whatever argument you want but doesn't the same argument obtain once the judge once the judge in list one of these cases says i'm not going to give you the death penalty he then has to choose between l wop and life with the possibility and he is then back in that same statute once again and there's no parole because arizona has done away with it so it seemed to me the argument did apply to this one but for some reason he didn't make it i was trying to figure out why it would be because i saw some qualitative difference between capital and non capital sentencing proceedings but i agree your honor once the judge decides for reasons that are not miller lated that are that are capital sentencing related once the judge decides that he's not going to pose a death sentence then he's back to precisely what the judge did the judge said i no longer have the option of death if the jury chose right i must do the life l wop versus possibility of parole so you see as to that conviction that's definitely a music actually is that situation exactly in that situation yes you suppose the supreme court invision a juvenile offender or sentencing in which the offender had killed three people  s i can't and i can't say that there was a particular case and in front of it in i mean miller and the companion hobbs i think is the name now is jackson neither of those cases involve more than one victim but the supreme court since miller has seen plenty of cases that i have to imagine at least one of them involves more than one victim there are two cases here the ninety seven case in the two thousand and two case to have the right that's right ok in the  ninety seven case there was expert testimony on the capacity of youthful offenders to change correct that's correct and in two thousand and two there was also see some test million about that there was killings and now a third isn't that enough that one isn't enough for a sentencing judge to say that you've killed three people and and to me that's add adequate proof in corage ability if this court were to say that there was a miller violation in one case but not the other the effect would be that mr aguilar's total sentencing packet stands its  violated in a situation a little different than a direct appeal what what what specific supreme court case would you cite that says that the sentencing in the two thousand two sentencing violated well if i may your honor that the reason that the limitation on relief and at has satisfied in this case is because the last reason state court decision  sentence and then it said it assumed without deciding that miller was a significant change in the law are you looking at paragraph three of the court of appeals opinion yes that i understand the court of appeals by the way i thought there was only one case in front of it rather two but the reasoning would apply to both the reason would apply to both but isn't it didn't this court of appeals go on alternatively to to to address the merits i guess i didn't read paragraph three that way your honor i read paragraph three as well this is a because all these asking for is an evidentiary hearing he didn't make that request of the spirit court there's nothing left for us to review so assume that we are reviewing under a deferential clearly established law standard we still have this of marriage then you have to decide was that adjudication contrary to miller and that is the problem we've been talking about all morning it was contrary to miller because these capital sentencing proceedings were not an adequate vehicle for determining whether he was permanently in court well that's the question because i mean i know you've feel differently but bottom line is if if in the hypothetical i gave you before if all of the evidence that would have been required in the miller flash montgomery hearing were there and the judge considered it and if you had the new law applied there would have been no different evidence if the judge sensed that the same way when they didn't say anything the question is is that enough and if you say it's not but if if under ed we looked at what the supreme court has said is there anything that you would point to in miller or montgomery that you think absolutely nails this question and says no you can't do that then i would point to the fact that this the miller miller relies on the principle that the sentencing of juveniles cannot proceed as if they were not juveniles there would be no just difference in the procedures that were this evidence but and this case i believe there was substantial evidence about his youth his early problem with drugs and discipline and sexual abuse and all kinds of things that were brought in that pertained to his  youth the very kinds of things that at least i think miller focuses on so let's assume for a moment that that was adequate under current situation why under ed or it's a very deferential review why isn't isn't that enough to satisfy miller and my family here's a real here's another reason state law in a capital sense in proceeding did not allow the judge to impose a sentence other than death either life with or without possibility of parole based solely on the fact that the child that that the death defendant was sixteen up the problem with that that we have a separate proceeding here and you've got to win both to get your client any relief obviously and in two thousand and five he's just in a non death penalty proceeding that is taken off the table because of roper and now we're now the judge conducts a non death penalty proceeding so put aside what the constraints on the judge in two thousand nine hundred ninety seven for a second and go back to judge smith's question here is all the evidence he would have heard today to make a montgomery miller determination we can look at this record and say boy any reasonable judge making a miller montgomery determination on this record could have easily arrived the determination of incorrigibility just assume those as part of my question is or is if if they in other words do we have to really have to know that the judge was actually thinking about that or can we look at this record and say boy three of us are judges and if we were thinking about it that's the conclusion we would have reached is that under at but is that a reversible yes because it's contrary to miller miller requires the judge to press the sentencing judge to be focused on that issue yes to make a a substance of classification which which two categories defendant and even though we could say that he made that classification at the time he would have been perfectly reasonable with this particular defendant who who murdered more than once we understood record we can't tell whether he did is that your position that's my position yes or wrong and you're asking us to create this requirement or you're saying that miller expressly requires that the judge say that's what he or she has done and internet connection with the evaluation and saying that miller requires the judge to make the record and what does that mean i mean that what we what we're all searching you know trying to find the right answer in this and it seems like certainly in a ended  thirty five fifty three a context where we have all kinds of people saying oh the judge didn't go through this list of things and how do we know the judge consider that our case law says you don't have to do that so in this case is like colleagues play that rubber and come in by two thousand five death it was off the table if everything was there that it would would have been under miller on my camry but the judge did not express fully state how he arrived at his determination why doesn't that comply with miller if i may borrow from the thirty five fifty three a case law for a moment your honor in that kind of a context when the defendant presents a non frivolous argument for a particular sentence and here that would be judge you should impose a sentence of less than out is what miller i'm going to require so they clearly have a procedural component you have to have the ability to present to the judge this kind of evidence and make arguments about it and let's assume that in your cases that procedural component was met what is the substantive component it doesn't mean the judge has to make a finding of your immediate billet so what do you for a purpose is what do we have to be what do we have to focus on was he thinking about it was it required to be know that he had to do it that's that's the difficulty in the substance of side can you help us on that side here there is evidence that the judge didn't consider it because he said at the two thousand well you know the statute didn't require him to write i'm asking on this record but he said at the two thousand and five hearing the reason i'm imposing life without parole is the aggravating factors the fact that you've killed before and that may not be sufficient to show that he's arizona state court's decisions the state courts reasonably rejected aguillard safe amendment claim premised on miller because a sentencing judges considered both mitigating and aggravating factors under a sentencing scheme that afforded discretion and leniency to the jessup discussion i think this court should hold off on talking about whether the the arizona statute is mandatory or not because that has not been raised here so let's get back to the your first point which i guess because the other side's not pressing it we know that he had no idea that miller and montgomery were about are going to come down the road twenty years later so on the substantive part of the case can we read just reconstruct his reasoning and say well had he known about it this is what he would have is only the rarest of juvenile offenders who should be given what l wop and that before doing so a court must effect make a determination that this this particular defendant is your remediable court then went on to say we're not required a particular form of words but that's the substantive process we want sentencing judges to go through so miller did more than prohibit mandatory l wop schemes it required even under schemes with discretion that the judge used this evidence we've reiterated throughout these proceedings any reliance on mongery is for the state courts to all concerned with us can you cite any federal case that's found that montgomery isn't simply an explanation explanation of miller but is rather a new law said come to us and we'll send you back for a new hearing and yours so if i respected our state court colleagues i would say to them take these cases you want these cases back from the sentencing will send them back for reasons well i agree with that the burden of demonstrating that he is entitled to a recent thing under the rules of procedure and rule thirty two so that that is not again all of this is just premature because this is all for the state court so you think he has to go back to state court and exhaust the montgomery exhausted separately from the miller clan it's your particular as to the situation but it does it's a general original washington general exhaustion requirement about a decision that's not retroactive so i'm asking you there's tons of these cases they're all over the country  i've tried to read them all this week my eyes are glazing over the one thing i couldn't find was a single case that said that in montgomery claim had to be exhausted separately from the miller claim so in but and i'm may not be the world's best researcher so i'm asking you the question again have you found any single case that says that mine can reclaim must be exhausted separately from the millikan again not on miller meant country but i would direct this court to look at the car versus  the capital regime was in place a second when it was not so for purposes of ed does whatever we decide with respect to what i'll call the nine hundred ninety seven sentencing correspond to the two thousand  and not sensing but that but the trial and so on are they different we treat them differently i don't see any meaningful read and to treat these proceedings in this particular case differently as you pointed out in a previous question i think many times there might be constitutional error in a variety of context sentencing contexts where the judge fully considered all of the things that a later decision talks about and even though that's not specifically outlined in arizona law this record if of any record is going to be sufficient to establish what these later cases how do i get it from my response then that you you would feel differently than your opposing counsel to in response to the question i raised before which is that if all of the evidence that would be required for a full some mellor mark armories hearing were presented but in a different time context the let's say the two thousand and two when when the death penalty was off the table even though the judge didn't say what was the basis of the evaluation would that be enough to satisfy had put in this case yes absolutely tell from this record that the judge presented about aguilar's brain damage which was contested to some degree and i think i know he considered it i was in the question yes how do we know that that's the determination he was making or irremediable what he has a second time the judge the jury found three aggravators that's good enough for me i'm going to give you know up that may not have been his entire mental state but that's certainly what the judge said on the record so i'm trying in these cases to find some indication  and i started the premise that he well could've in these cases found incorrigibility or determined that that was his job can you help me with the record and show me where you think the judge said well i think it goes back to my colleagues initial point which was that even case correct i believe in both cases yes and even you know i don't i think my reading is in the ninety seven case there was no capacity to change evidence but there was in the two thousand  and is substantive in nature it's not procedural that is a merits analysis and then with respect to the two thousand and two case that would be the arizona court of appeal so you wouldn't treat a two thousand two decision although it's reasoning covers both cases as death was off the table let's assume all the evidence that was required was there got three different murders it's certainly objective lee clear is that a judge with that evidence could have determined that this was an incorrigible individual if the evidence is so overwhelming do we have the right in that context such as this to say well he may have done something slightly different but the result would have been the same therefore it is harmless there is any such thing as that in this context i think so yes i think this can be reviewed for harmless error but again i would encourage this court to only look at miller and we continue to assume you don't win on that we haven't and montgomery then comes out and says to us well however you were reading you know let me tell you how to read miller and so to the extent that will is inconsistent with montgomery as a as an inferior court i don't think we can follow it can we oh i think you absolutely can follow bell's chief of supreme court tell us we were wrong we can say tough luck again i think we have to ignore montgomery in these proceedings because any reliance on that case judges recommend report recommendation in this case was issued two months before the lynsey healer came out from the arizona supreme court and so that's important because i think there was maybe this is something that says that this claim would be precluded in state court that we we look at the law that was in effect at that time now there is a retro activity issue here but i guess my question is there to some degree it's not expressed over ruled by some i was not i know what i know what made miller interactive the question i'm asking you is montgomery make clear that miller had a substantive component not only that you had to have the ability to present such evidence but that the judge judge hawkins used the words before so i would try to do them again needed to look at that evidence and make a determination whether or not this was one of those rare it remediable defendants you agree that's what miller has read but my memory requires it can be read that way whether my colleagues have additional questions i don't thank you thank you so you have them rebuttal time should this court wait for prion as if judge joe scanlan's view and briones should prevail it it lends a lot of support to my arguments about how this court should review and maybe that's what i should rephrase the question to your colleague judge scanlan's dissent says there is this substantive requirement we have to be able on the record put aside the at the issue for a second we have to be able on the record to determine that the judge really did what the supreme court said he was supposed to do and if this court agrees with me that there given that you haven't at least for purposes of my question in mind governor in miller walk backwards in time doesn't isn't that the clearly established law that the that the that the state courts should have been applying that's also my argument your honor and that's why i think was consistent with miller when it was decided and munk emory certainly explains why the discussion involve her sister e bay isn't consistent with what montgomery said miller can you know dress judge smith's question which is the really troublesome one in this case i think this is a record on which any sentencing judge could have reasonably made a conclusion consistent with miller in montgomery that your client was among that small group of defendants who ought to be sent if the court reads the record to say that the judge considered and made that determination under whatever standard miller you know that's not what i'm asking i think the question judge smith was asking is well maybe he didn't know about miller obviously so he didn't make that determination under the miller standard that's state law didn't require him to and he didn't know about it but if we look at this record and say boy that's a perfectly reasonable conclusion from this record ken what do we do if if this court reaches that conclusion i suppose that would be a way as i did suggest in my brief my reply brief that this court could find any miller to be that's the question he was asking can there be a harmless miller i did i did concede in my reply i believe that there is a way to find this kind of eighth amendment error to be harmless but the state didn't argue that it was harmless in that way  and do that if the state could give me and other clients of mine in this posture any assurance that no state court on suicide bonds a review of the record without notice an opportunity to comment or she's got t separate problem to look if if you went back to state court and got a remedy and you thought that remedy violated the constitution we're open for business but you know so i mean i don't i'm not  this is not a mediation this is not let's make a deal my question is in the state seems to agree with you no matter how we rule she say you have a state you have available state court remedy your honor we respectfully i don't think it's a different problem because i'm not sure that there is an available state court remedy for this exists for this very reason my clients have all gone to state court asked for resentencing under miller and before valencia was decided right whether the processing is going to be to you liking is a separate issue and so one of one of my problems with this is that if we sent it back to state court you would get receive some sort of hearing and maybe a remedy if you didn't receive the remedy you could come back to us and say i've now in a state now agrees i've exhausted everything and let me tell you why i didn't get appropriate treatment so while i while i don't think montgomery is new law it's a little strange because there we have a state court that said to us we have a process for dealing with these things and she concedes that your claim is colorable enough to invoke that process so your honor maybe maybe i can phrase this in a to the state want you to exhaust this money come record and the state court says please come to us because we think you have a wonderful claim like why should why shouldn't it in the spirit of comedy and why should we be doing  because i'm not sure that that's an available remedy you're saying it she says it is she she is she can oppose it she's got a record we take to go back to state court you assert you have that remedy the state of arizona cannot say you do not but your honor the the attorney general or the county attorney can tell a state court that they're not opposing the relief but under arizona law the state courts can say i don't care what struggling with here is that this is the ad to question judge smith poses two different way we have a strange comedy situation here in the sense that the state court has said to us relatively recently in valencia we're open for business and eager to remedy any miller violations that occurred in the past and may not be eager to remedy them in the way you would like and and the state is n d it's already general are saying and we'd like you to bring those claims to them clients was this remedy is also open to people who have already tried under the pre montgomery regime and if this court were to send me back with some assurance that i could show the state courts and say look if you don't do this the federal courts are looking over your shoulder in the same way that the arizona supreme court had been told because of tatum that the u s supreme court was looking over their shoulder that might be different but i haven't i haven't i haven't seen that kind of assurance from state court in a way that would encourage me to try to try to get the remedy from the state courts where i agreed i should try that first if i can i'm just not sure that it's available and thank you and if i if i may i will ask the court to reverse  thank you very much thank you both for your argument as you know these are very complex cases in the court appreciate so your argument and your briefs so the case just argued as submitted