cole may please the court my name is rockne cole and i represent the appellate mr warman you know this is a really unusual case before this court course normally i'm over in st louis and st paul and here i am in the th circuit asking you to grant a writ on a case out of the northern district of iowa but the facts of this case are truly i think remarkable in the sense that judge mark that it was such subsequently retired granted a one hundred and sixty seven months variance off of the sentence of a man with his age was  difference essential between a term of years in prison and most likely a life sentence it was appealed up to the eight circuit the th circuit said you're wrong you don't get to have this because it's improper consideration of the underlying mandatory minimum he appeals that to the united states supreme court and they say they don't like search which of course they can do for any number of reasons he does not utilize the twenty to fifty five he has no reason to and if he were to have done that during that time period he would have probably had an ethical concern because he had just been rejected what good faith basis during that year did he have the opportunity to check that none so he did not seek that initial remedy so i think that really squarely presents this case what does inadequate and ineffective mean for purposes of twenty to fifty five eat is it so narrow that it is something that can hardly ever be used and one of your clause as something that is a safety valve a true safety valve when everything else has been done do you get relief and are we really same that someone who lost and everyone in this courtroom and even today  hundred percent certain that this was a mistake we're one hundred percent certain that judge bennett would have given the reduction had he had that discretion because he did the government cited a number of cases that have failed raising dean type arguments but most of those are cases where the court didn't very downward right or the argument just wasn't advanced this is one where the argument was clearly presented he could not have done anything different the sort of the st times i've actually been here towards the end i feel like the last speaker in a sea only i don't know anyone in this particular court room could advance one thing that mr warman could have done differently other than the and i increase your have sympathetic facts and if dean had been issued at the time of sentencing he would have gotten a lower sentence but this is hey b s review our it's limited what we can do and for a two thousand two hundred and forty one the new rule has davenport is that if you're dealing with statutory constructions to do shock stature reconstructions that it is obviously retroactive as to the st instance this does not involve a situation where the supreme court is reversing itself or reversing prior apply in the desert are different they're different in the sense that they're different in that when you're talking about that whole line of what conduct fits within one hundred and twenty four c and what doesn't but you know you know that you know it here we have something that i think every i think everybody's a green one it's statutory into it's procedural as opposed to substantive right i mean just stand your honor this is one of these things that it deals with it deals with you know what what amount of discretion can be exercised at sentencing and i think you know i think you're absolutely right to start where you did with mr warman in the situation he found himself in here on the you know with the timing of b but i mean the dean dean is procedural i think i mean i don't know how to read it otherwise that is the predominance of the opinion with all of the district courts that have filed that it is procedural but i think if you look at it you compare it to the fundamental miscarriage of justice cases from the supreme court i haven't seen the supreme court analyzed procedural use that sort of procedural analysis in the statutory context almost all the retroactively case law that i've observed is always in the constitutional context we get a new rule of constitutional law but in terms of securely procedural context you don't really have that and so i would always say is that they were interpreted as if it were the blush interpretation and what you really had was is the th circuit unintentionally in a good faith blocking the access to the courthouse door with an incorrect interpretation i don't want your argument that the procedural limit doesn't apply or that this is not procedural or i don't think that whether it's procedural or not i think it's a question of that it's a statutory interpretation and that's really the primary focus here and again that is not supported by all the district courts that  analyzed this question i fully concede that but i don't think it's consistent with lyme supreme court case law that i cite terms of the miscarriage of justice terms of how the supreme court actually analyzes that i briefly want to address dollars to forty one dollars so i filed both i was not trying to do it in bad faith i think that there is a good faith argument whether he was improperly clad i do withdraw reason why withdraw it your honor is that i think ultimately it's banging our head up against the out and if you had counsel he would have done that so it sort of like he lost that st bite and i wish the court would have said hey you know do you realize what you're doing here be careful what you wish for so that was st blush and by that time we were sensually stock but i think once you look at the judge's ruling on that we were essentially out of walk because if you look at those exceptions to the statue of limitations under two thousand and fifty five they're just not there and the norm out of linguistic contortion could say that except our safety valve that's what it's for and are we going to construe it in such a way that it basically you can never use it it's like having a you know a fire alarm or something like the glass with a never be able to use it what's right here and for m mr warman it's literally a lake i mean it is at the rest of his life given his age and so that's pretty much where we are as far as like those thank you would call thank you mr walters is not a miscarriage of justice within the meaning of the supreme court's definition of miscarriage of justice or this court's application of that that he is not actually innocent of his crime of conviction nor of those of the two those are the two primary primary bases mr walters the legal error here is pretty significant and it probably is the difference between him dying in prison and and getting out  at it's amended earnestly in our brief it's certainly he is sympathetic in the sense there's no doubt that judge bennett would have in a lower sentence if it's not but it's not distinguishable from the district court since the guidelines are mandatory through two thousand and six who said i wish i could impose a lower sentence but i cannot and yet bowker isn't retroactive to cases  on and so it's not judge bennett's view of what he would have done that makes this compelling from a legal perspective it's compelling from a heart perspective but there are countless cases where judges said i wish i could have done  i'm sorry i think that's it mr warman head counsel who was monitoring scotus blog understood the dean was out there had been briefed so any type of tolling arrangement or agreement that could have been struck to allow him to have been monitoring the fact that this opinion may come down with an issue that might impact the sentencing and the fact that you know i can't speak for that office i know that we have done tolling agreements difficult conversations perhaps to have with mr warman mr warren sitting in prison for at least one hundred and sixty eight months or one hundred and sixty seven months longer than he otherwise would have and he's not guessing it that the district court told him that you know i'm caught  probably what seems like a staggering and unfair amount of legal complexity in trying to pursue post it is except in this instance if i mean again i think the facts are what make it compelling but legally i retroactive you know indeed whether the individuals committed offense conduct right it's the whole right that's the issue they committed nine hundred and twenty four dollars see a violation right and then versus someone later clarified that really the nd t v exception is just someone now brings that johnson claimed saying i was convicted under the residual clause but the government says oh no yours wasn't elements own that elements only you had the crime of violence because it had the use of force etc this court examining whether the elements of the if underline offense meet the elements definition of crime file and would use that decision in mathis for the categorical approach because mathis is retroactive it's substance because it's substance  we may respectfully disagree whether it's new that but that's an example of taking what i would call an old substitute rule clarifying rule mathes applying context two thousand two hundred and fifty five dollars where the primary claim is based on them the miscarriage of justice and i'd also say that the plane air for united states st curtain and direct appeal they found that even if it's not raised to low that that's plane that is very close to the security of justice standard