ample evidence in the record to support mr long's claim that he is actually innocent and in the interests of judicial efficiency one course the court could take is to remain and to grant the let me talk about the legal issue first that the district court identified which is whether intervening case law can provide the basis of an actual innocence claim that question was answered implicitly by the supreme court and boughs of the verses united states where the supreme court told the titian earth that he lost on on the merits but that still remained of the case so you could make out a case of actual innocence the only new piece of evidence new piece of law was  inverses perkins says that actual innocence excuses procedural defaults specifically on the statute of limitations grounds but that was a new evidence newly discovered evidence  also be distinguished from a change in law no i don't think so the when the supreme court talks about actual innocence they talk about whether a person is guilty or innocent under the law and it's the law has been interpreted and so the hypothetical that this court gave i think in krieger was if there was a law saying you cannot drive while you're intoxicated while you if you've had alcohol and the supreme court says that's not a good laws too vague it's overbroad and the new law says it has to be above point a wait of b s e somebody could come back and say i was convicted under this law you know facts  changed but my b c was point zero two so i'm no longer guilty of that i'm actually innocent yes i was driving after i had had alcohol but i'm not actually guilty of the crime that i was convicted of because of this new case which is interpreted the statute so actual innocence refers to whether you are guilty of the crime that you were convicted of as that law has been interpreted now if there were a decision that interpreted the law and did not make it retroactive now other words they say from now on we're going to apply it this way but you know whatever's come before those convictions are fine then maybe it does make a and those that can agree album sounds the actual innocence claim under actual active change your interpretation of the law as in very have a window to do so yes that's right so why should that why should they maintain the ability to bring that claim after that the main point which was made in davis and reiterated and in perkins is that we don't want innocent people sitting in prison we don't want people sitting in prison for crimes they haven't committed that's that's the miscarriage of justice that allows us to excuse procedural defaults including the procedural default of not not making the statute of limitations the statute of limitations is not jurisdictional and we've unbalancing you know twenty to fifty five is an equitable sort of statu and i'm balancing the need for finality versus the need to make sure innocent people aren't sitting in prison and the supreme court has has balanced it so that a showing of actual innocence meets can excuse a procedural default i have threshold difficulty with this argument because of course the actual innocence argument is just a gateway argument to excuse or procedural defaults or a blown statute of limitations it's not a free standing constitutional claim and your client didn't didn't make a constitutional claim well in his twenty five fifty five his late twenty two fifty five ration there isn't strickland claim for ineffective assistance of counsel for failure to preserve the birch argument if he had made an argument like that and then we'd have something to talk about but he didn't well i disagree with you on the facts and and the requirement that there be a constitutional claim but so let me start with the facts mr long was a high school dropout who prefer this petition process i think we ought to give him leeway and he presented fax he said there's this case i heard about called  i think it affects my case i think that i was sentenced in violation of the law burrage is a cognizable provides a cognizable claim under twenty two fifty five that's why we have cases like creatures it's a retroactive decision and somebody that says that what mr one sql aim if you were an articulate lawyer would have been in the district court and how it should be construed is that i was sentenced in violation of section eight forty one because the district court did not apply the right standard to evaluate whether my actions caused the death of these people that's i was therefore sentenced in violation of the laws of united states and as davis makes clear that is it doesn't matter whether it's a and the law is changed so i don't agree with that the constitutional claim is required this is a the first twenty to fifty five and to add code requirements for constitutional claims generally refer to state  when the case was pending on direct appeal elaine comes out and of course elaine has been pending for a long time so the lawyer should have known about this anyway but elaine was decided before the direct appeal was decided and it's a common practice in this court when a new authority comes out that a lawyer will ask either to alert the court to the authority via the twenty eight jail letter or to file a supplemental brief and that's exactly what the lawyer should have done and innocence certainly our our brief is premised on actual innocence because that's the threshold question that's where mr long lost in the district court we have to get through that gateway and that's why our first suggestion is that the court re man's for further proceedings we have to get past that threshold question but mr law and i think if you had counsel would have clearly demarcated and he did he said my claim is based on burrage and verges a  statutory claim that's cognize a bill under twenty to fifty five so this is not a freestanding claim of actual innocence let me talk a little bit about the facts of the case and why we believe he has shown actual innocence the i'll start first with that the government mentioned that he admitted to it in the plea agreement that's just not true youth explicitly reserved these twenty eight people with the number of crimes the indictment itself does not establish an admission the other thing that has come up since this petition was decided was the case of weldon versus the petitioner there davis his conviction was affirmed by the ninth circuit and after that conviction was affirmed another man named fox had his conviction reversed on almost the same facts and davis said well you need to reconsider this the supreme court to nicer sure and davis filed a twenty two fifty five petition relying in large part on this new fox case that it come from the ninth circuit and the government successfully convince the ninth circuit no you've already litigated this you can't you can't litigate this against the supreme court reversed so no you can rely on new intervening case law to support a twenty to fifty five petition the facts in this case are or are almost identical to those and well what was the binding court did was it defined distribution in a new way if the court had not decided that distribution means a certain thing then it could not have reached the conclusion that the lawyers performance was deficient  and that's the conclusion that that it reached what it said was that when you have a group of people who are all trying to buy drugs together and one one person buys it from the main dealer and then gives it out to the others that's not distribution you know we're standing at thirty dollars that's right i mean you know that i think what you would add to the hypothetical and wild and of going to mcdonald's if somebody says here i've got twenty bucks go buy all the things and there's there's no change expected i mean but the other thing you know the thirty dollars was also in the case of the man who died that the government conceded in the district court died of multiple things and was admitted lee problematic that scenario was not the case and the other person's death simply put there's not reasonable there is reasonable doubt opiates that are not metabolites of heroin it contained coding and so and there is not testimony but from police reports there is evidence that in fact this person and not only consumed alcohol marijuana but also had ingested oxy code on so which is also an opiate and so it actually is a mixed bag opiate of course includes heroin but is not operated this revolution the pons asking for actually how right now if a petitioner who's clam has expired because the congressionally is that statutory limitations is wrong or he's mostly defaulted discovers evidence showing definitively that he is not twenty years down the line they might have to apply that new law to facts that may or may not exist or be determinable or intelligible it's an unworkable suggestion and there's a reason that it's an unpopular opinion the american courts now  does not hold otherwise involves lee the supreme court considers a single question and that question was can a person who pled guilty get access to the actual innocence gave way it did not reach a question of whether a change in the law can run around the time limit set by congress and we know congress can deal with the changes in the law because in subsection f three of twenty fifty five congress sets out precisely how to handle a situation where rights dissidents in this case then alas if the opponent gets what he wants we're looking at a situation where say for example in a johnson case so johnson and johnson the supreme court found that the residual cause of the vagueness that triggered a one year extension of the time limit to bring a change in law can trigger actual innocence these claims are income for the next twenty years and how we're going to figure out whether convictions are appropriate fifteen years down the line is beyond the government in this case  you does bring it below his claim will fail because the right has not yet been recognized by the supreme court and it must be in order to trigger twenty thirty five three so well then it's not available here  just like you pointed out that there's no underlying constitutional claim here i think that's exactly right supreme just record in this case went to the trouble of emphasizing the word not in the sentence that the petitioner did not bring an in says factual innocence and the ninth circuit and i guess the six have said it can be you and eleventh and the fourth have said it can't be so we've got kind of satisfy the actual innocence came requirements and for the reasons i articulated earlier in the government's view that's a mistake doesn't respect question contrary the ninth circuit's impression has articulated its case  of the actual innocence gateway supreme court of this court of sat back a ways extremely narrow is available only very rare circumstances and that's right if only a factual revelation that shows someone's innocent can open that gateway that's an unusual circumstance how much time you have two minutes let me briefly address this specter of johnson claims going on and on our clients do not like being in prison if a new case comes out they almost immediately petition any twenty to fifty five there's there's no risk that people twenty years from now are going to say oh gosh i was looking at cases and i'm now going to file after i've been in prison for twenty years that's that's a total red herring there is no circuit split the the circuits that have purportedly come out on the other side at this site to bow sleep and what about these talking about is the difference between whether you are actually innocent or whether something occurred in your conviction that was legally improper for example if you were convicted and the new case comes out and says they shouldn't have given you that jury instruction that doesn't mean you're innocent that just means that you were improperly convicted that's legal insufficiency it's not legal innocence it's legal insufficiency actual innocence means a new case comes out and says this statute does not cover the conduct that form the factual basis of your conviction that's not the kind of claim we have here thought this is of the gulf insufficiency claim no it's not you're saying that the evidence that the government proffered at the police station is legally insufficient to show but for causation as required by marriage no the claim is that mr lund has proven that his conduct did not was not you but for cause that that's that's the claim now maybe that fails on the merits that might be your skeptical look but that that's the claim the the law is not that you can't get this threshold if your claim fails well but but to answer this this threshold question about the actual innocence kate when we do have to properly characterize the claim and if you're saying there's no strickland claim although unless we really extensively construe the petition and the reply but you're claiming that in addition there's a freestanding burrage claim that we have to properly characterize that and you know calling it a claim of legal insufficiency because the evidence in the government's possession that it proffered at the plea stage doesn't show but for causation you know is one way to describe the claim you're describing it as a claim that this conduct is taken wholly outside of the criminal law i'm having difficulty with that characterization of this free standing birch claim let me try to if i may yes sort of thank you because this is this is very complicated the procedural history here is that we have a petition that's pro se i'm considering it the way that i would have presented it because i think that that's that's what mr owens entitle to what he claimed was that he was sentenced in violation of burrage on a regular trying to fifty five that's timely that's perfectly cognize well that's fine the government responds as this is untimely and he offers excuses for that he says you can excuse the end timeliness either because of equitable tollin or actual innocence then the district court says all right i've evaluated both of those it doesn't excuse the n timeliness i'm not even going to get to the merits of the birds claim or what we consider an ineffective assistance claim because  i find that i cannot do so that actual innocence cannot be the result of a new law now the actual innocence claim is different from the bird's claim it's a harder it's a harder hurdle you have to jump a lot higher because mr lott has to prove that his actions under the statute as interpreted by first word not a but for cause of the to deceive and status he has to prove that and the standard for proving that is that no reasonable juror would be able to return a guilty verdict would be able to find guilt beyond a reasonable doubt so i've contributed to that confusion because i talk about the insufficiency of the evidence but what that's in relation to an actual innocence is to say it's not just it's that no reasonable jury could find guilt beyond a reasonable doubt that's the actual innocence standard and then when if you got past the actual innocence to the merits brief is that necessarily they're going to make out a birch claim because actual innocence in compas is the breach claim and is actually a higher hurdle so i hope that answers the question thank you thank you