is not second or successive for purposes of no maggard reserve the question presented here which is whether that rule continues to hold true if the application challenges a new judgment that follows a recent and sing proceeding but raises challenges both to the new sons and to the underlying conviction but under a state for an application of the judgment based interpretation of add that magnet adopted the correct answer that question is the answer that a majority of the court of appeals to consider it have reached which is that the first petition challenging a new judgment is not did i hear you say something like under a state based interpretation was that the word judgment based interpreted because you didn't say state  s and that's the basic principle that mag would establish is which is that when you're determining whether an application is second or successive you look at what judgement it is that the application is challenging not the claims that the application is raising and mag would reach that conclusion for two reasons one because twenty to fifty thousand to forty four talks about a second or successive application not a second or successive claim and then also because twenty two forty four and twenty two fifty four talk in terms of the judgment that's being challenged when they speak of an application so the court said what we need to ask is whether the application itself is second or successive and we ask that by looking at what judgments challenging the  so in this case if you go back let's say you have prior challenges to the conviction that are made again today or you have challenge the could have been made nothing's changed but war and now are made today is the abuse of the stuff just gone or is the abuse of the writ i mean let's say we buy your argument the judgment based approach is the district court judge allowed in now assessing this initial motions not successive through a second or successive application but you have only if you have a new judgement now plenty of other rules of the unknowns lying about it then it's was this incredibly criminal friendly statute is the first time i've heard that only as the relief was to be sentenced to more time in prison right that's right and that's why this is a kind of a particularly odd case to say that that he didn't really receive relief but but i think that the point is the relief that is received is a new judgment and because you receive a new judgment you get a new hey b s that was it is there any indication whatsoever that anybody thought about that that is the the structure bed and so on the fact that in many cases it does talk about claim none of that would would lead one to believe that your position would make any any particular sens well and yet i think those are exactly the arguments that were raised in magritte and the court said we recognize that as to most questions the statute speaks in terms of claims but as to second or successive it speaks in terms of judgment and when you say it it does so let's look at that is there any place other than when it says inquiry into the detention of a person pursuant to a judgment of a court but it speaks of judgments you know i think it's  and there's many places throughout twenty to forty four and twenty two fifty four that the kind of terminology that's repeatedly used is someone who's in custody pursuant to the judgment of a state court has become well or court of the united states in twenty to fifty iraqi right and right and but he's in one sense he remains in custody continuously between the first judgment of the second judgement it's not like the second judgment brought him into custody that's right but i actually think that can it kind of underscores the point here because if you look at what's going on in these cases for instance in this particular case he wasn't in custody pursuant to the original judgment once his sentence was voided the trial court entered in order that said your original sentence in judgment is void i have pursuant to this order we're doing you to remain in custody and till such time as a new judgment is in place but he wasn't in custody pursuant to that original judgment at that time and now the judgment pursuant to which he's in custody is the judgment that was entered upon his new sentencing i think that's precisely what was going on in the burton case that the supreme court where they consider the of what is it that matters for purposes of the judgment is that the sentence or the conviction and the supreme court said you are in custody pursuant to one judgment and that judgment is your judgment of both sentence and conviction so again the phrase whether the if the illegality you can't grant it if the legality of such detention has been determined on a prior application of course here there was an application before but  would argue that it's not such detention even though he's in the same prison in the same cell that's right and that detention hasn't been determined and mag would specifically rejects the state there argue that what you should be looking at is the custody not the judgment the state said look he's in custody and he's remained in custody so if his custody has been upheld on that basis then who cares if there's a new judgment the sic the supreme court said no what we care about is the judgment we don't want to custody we don't read at focusing on cost and we read it as focusing on the judgment pursue it which they did leave that open in the sense that whether meg would was right or wrong the policy basis for that is somewhat stronger than than what we have here and i guess one of the is that the tenth circuit case where it was strictly a technical correction so that if mag would was meant to be that all encompassing you wonder why did they leave it open and i would say say two things to that i mean first off as to the question of why meg would left open i think they left it open for the simple reason that it wasn't presented there i mean there were the parties were arguing extensively about this question the petitioner actually took the position that the petitioner agreed with the state is i don't know we don't want you to do a lot of convictions and i think because they you know they recognize that that  make some justices nervous but the court was thinking about it and they ultimately decided that's not before us here so we're not going to resolve it here and but i think it's also noteworthy what they said at the conclusion of the paragraph where they resolve the question which was our conclusion here is based on the text of the statute and our conclusion doesn't change based on consequences that the state speculates might flow from giving the statue detection readings are available to the state if you're right the second time around so let's say the district court judge has addressed the exact claim it's now brought again is that a story decisis point is that a lot of the case point that even a race to the cot a point i think the right way to think about it would be as basically said about why they were particularly concerned about the consequences of their decision they didn't say because love the case would apply they said because it will be easy for courts to reject arguments that have already been rejected have been brought that was and is now brought now clearly just i should know this but you're you're quite confident that whenever the court talks about abuse of the writ they are talking about it in a jurisdictional sense as opposed to something that goes to the merits of why you lose well what i'm quite confident about is that's the approach that the supreme court said it had taken in magnet they said before this case we are not aware of cases where we've said our previous men would precedent has always treated a new judgment as allowing a new application and i appreciate all of our abuse of the writ doctrine has only kicked in when you are bringing a secular successive application challenging the same judgment or not challenging a new judgment i guess what i'm wondering is clearly is has this jurisdictional component you've got a commission without it there's no jurisdiction or authority and to the extent the busa the writ had a merits component to it why is it precluded from in other words  you could still be right about the judgment approach but that doesn't tell you the answer to what to do when you review this conviction and you address an argument that could have raised been raised before but was not wise and why isn't it within the range of possible for the district court to say i'm applying the views of the ridge doctrine here not in the sense of we have authority to look at him i'm just saying you lose i mean i guess because i don't think that there's kind of it a free standing abuse of the writ doctrine that applies even if your petition is not second or successive the second or successive restriction and part is what kicks in before the makes something jurisdictional doesn't even use the word abusive or it has a new do appropriate circumstances in which to apply i've used the reso and in some respects the court has read as in clear parading backdrop principles of abuse the rape but generally what the court has always said is we don't kind of get to do a completely judge made version of this anymore because congress put in place a statute and that statute tells us when abuse of the great principles kick in now once they kick in and they make again in a way where we look to what courts have done under abus it's worth noting that i mean mad would clearly does allow claims that are claims that are based on the same factual predicate that could have existed before the pre sentencing that was the question before the court there so clearly there is something they're allowing beyond just things that are new to the president say anything about a piece of the writ that's true i mean they said that's that's not abuse of the writ because they said it's not second or successive so what or the i think you've already answered this but it was in what order the claims base defenses that can be raised in this situation in a case like this certainly procedural the fog continues to apply exhaustion but the same exhaustion rules that are in add continue to apply if you don't have procedural default or exhaustion problem and you know if you bring a claim that's already been brought before and rejected before then you're going claims that could have been brought but weren't so is that something that would be or do you just say no we don't apply that because it's inconsistent with the notion that it's a and to the extent that basically creates principles that are like rest you do kata and when you don't have a second or successive petition you don't half rest are caught under it you could have collateral estoppel if the issue has been point i was making but that's you can answer that question i'm really curious what you think the marks analysis of what's going on here in other words the three are not engaging in that i was effect things that were trying to figure out what the court's going to  something here inconsistent with penalty and of course justice thomas dissented from so you know i take the the three to be concerned that if you applied a pure textual approach to every aspect event it's hard to understand how petty comes out the way it does justice thomas of course in the majority opinion says we're not overruling pernetti we're taking that as a given and i think what the three are saying what justice priors concurrence is is saying as to what we mean in ma would is abuse of the writ and second or successive doesn't kick in unless you are not the first judgement but abuse of the writ in successive and second or successive doesn't necessarily kick in just because you aren't the so there's the first application they're saying you know this is the threshold before you ever get to abuse of the writ but it doesn't mean that you're always going to be an abuse of the bridge just because you're not the first application challenging in your judgement arrived a perfectly acceptable solution given the space that the supreme court left it is rather than close the door i think king would rather that the door not exist at all that's what they're trying to read mag what to say but if again as i really don't go into this as to sentences right that the mag would start we really we can do this as to a new sentence you can bring a claim that you could have brought before you could even bring a claim you did bring before if there's a new judgment with a new sentence so were that's mag would i go do you do if the theory of invalidity with respect to the sentence is a theory that would apply equally to the convictions so you could imagine say it turns out the judge is biased there's juror misconduct among us i really think there probably quite a few things in the criminal arena where the problem with different part of the sentence but it would apply equally to the conviction how does that work with that not to your theory even though it's established it was a biased judge and the judge was involved in overseeing the trial and in sentencing that you could only challenge the sentence cognitive dissonance about this when it's a conviction with a jury that behaved improperly the jury was paid i mean the jury was talking to one of the lawyers i'm sorry the jury jers we're talking to the lawyers  the second or successive or foreign it's just a stupid decision well that's never happened that well that's true that's true but matt would imagine itself was pretty easy decision i mean it's a pretty easy circumstance both cla were definitely related to the sentencing related to the second sentencing where the same error occurred first sentencing is really really doesn't matter and really all the court was arguing about was was whether or not you could reach back on on a claim that occurred twice but i don't think that that is a i'm going to that's not likely circumstance certainly could happen more than once but here this is the case this is the type of original conviction and include the amended judgment because in fisher it announced that if you have a reset and sing for the specific issue of post lose control you cannot reach back to appeal things that have to do with the original came out in the interim fischer had been issued yet when the second when the first the direct appeal of the recent thing occurred and in fact in the twenty six b opinion the court of state court of appeals said that the original direct appeal should never happen essentially because he was bringing claims having to do with the original conviction and so in ohio at least the crabbed definition of judgment that king would like to impose upon all judgments everywhere does not apply as cleanly as he would like because out of judgments in the federal statute don't really have to give meaning to that across all the country it's on issues such as this where the state court has said that you cannot reach back to challenge the original conviction once you're resounds on a discrete issue so i'm just i guess i'm struggling with why that binds us here in the state can do whatever it wants and post conviction i mean including eliminating it altogether but i don't know why that tells us what the meaning of judgment is in a federal statute i'm not sure how somebody could exhaust if it's it's a knockout in that particular claim happens to be the real debate and from the perspective the state has what to do about claims that could have been brought but we're not really that's the key thing and that's the way in which oddly enough ed put fred this way expands options for hideous claimants which is a little unusual at that party do you get that that's absolutely true and i think that's why this reading of of  i think i think manhood is a much easier much easier issue much easier case i mean that's that's definitely a new set it was remanded for a new set in this applies to things claims that were brought in as the sentencing and could have been brought but weren't that's the same dynamic that's the same way in which at po would provide more options for relief for haiti's claimants than right but in there as it is on the conviction side  same the same mistake was made in the recent saying so the court didn't have the occasion as it said in the in the door that are left open to to discuss whether or not it could look at a claim that should have been brought the first time maybe this maybe i jumped the gun on this i guess is the question for both of you i understood mag post mag would for things to be this way if you had challenged if you'd had a prior challenge to your sentence and erase some claims and you didn't raise others the claims you raise were addressed to you later and you lose that you later get state court relief i thought mag would said the sec in the second case it's really not treated not as a second petition address anything that happened in the recent unseeing even if it happened the first time around and they in effect when you get the first time around right because they're still there still addressing in a minute where they're still addressing a mistake that occurred at the sec at second sentencing it's not as if you had a claim that said oh and by the way there was jury but why didn't they just analyze it that way and say that this is a new claim but i mean why did they go through this whole thing about it's the judgment and it's an application and we're not talking about claims and i mean it seems like if that's all they went to say would be a  lot be a lot simpler and less support reaching ways of saying it well i think the debate between the dissent and the majority was the question of the claim the fair the fair warning claim because the same claim applied to first sentencing it just had never been raised so the so they resolve that by saying well it it's all about the judgment it's not the claim itself it's about the judgment and so that's why because the same mistake was made in the second sentencing the sentence the second judgment it was it was properly raised in a first time titian once it came back around again it didn't reach the question of you know if there was some evidentiary problem or if was some ineffective assistance of counsel claim that wasn't proper the first time could not have been brought the second time well you know that's the door that left open to for others to decide and that's why we're here today the district court decided it differently let me ask this does your theory effectively mean that any time the state for example of appeals a sentence let's say that the judge gave an illegally low sentence they're putting in play chance if it if it produces a new judgment i don't think anything in mag would turns on whether it was the petition or the request of the new judge or the state that it turns on whether there was a new judgment of another another layer of oddity and if i could just kind of i mean just to clarify i mean i'm just i think what you were describing magritte as i was holding is what mag would help which is you can bring all of your claims relating to sentencing whether or not they involve something different that happened recent thing that was the exact question before the court because everyone agreed that the one thing that happened that was new at the recent thing ineffective assistance of course you could bring that the question the court was resolving was also bring this fair warning claim a claim that he didn't know that he would be subject to the death penalty when he committed his crime but it's but we counsel says is accurate the mistake was made in the second judgment in the judgment being challenged now it may have also been made in the first one but it was a mistake being made in that second judgment i think that's true only in the sense that it's also true here which is he is being sentenced and it is his conviction and sentence are being reduced to a judgment pursuant to which he is in custody so the a fair warning claim so to the extent there was a fair warning time that was entirely new kind of to the whole proceeding so so i think there's i mean you can't really the court does say that what it really means is there was a new error but i think they mean that in the sense that say you know if you have a continuing tort you have a new claim every time it happens to you not necessarily because there's a new you know a different kind of injury a different kind of levi lation but simply because you're here you do have some of these claims that are in the actually work less that's right and the court says that mag would you know we understand that this means you also could bring claims that you actually brought but we think those will be easy to dispense with dots and one of their footnotes they say you know what by the way doesn't issue preclusion apply to claim that was raised the first time or solved against them is that because it's not the same case i mean it may and i guess i kind of need to think about it in the facts of what's going on in a particular case if it's a purely legal argument versus if it has to do with factual findings because of an issue preclusion usually is really only about certain aspects of things but it may be the issue preclusion is is a tool that kind of gets and if you were challenging a new judgment you've got to bring in new haven this application so they're saying their cases but there were a lot of lower court cases that were were playing the abuse they were just the setting it know it i think it's up for debate which way that goes before and you know and i think the court kind of looks at it as what were we doing and what we were doing was treating a new judgment as basically resetting the clock and we take congress to have acted against that because congress decided to speak of a second or successive application not of a second or successive claim and the only light lasting i would say is i mean i do think that you need a single judgment rule you can't have a turn on state law and this court already has what do you do with the technical correction cases is it up to the state how they treat that whether it's a new judgment or not i think it has to be a question of a federal law not state law or whether there's a new judgment but i don't think that you know to give the case i think it was a correction of a typo i mean i don't think everything that that produces an amended judgment produces a new judgment for purposes of federal law i think there could be an exception for something that is literally correcting typo but here this is kind of the easy case because he had to know re sentencing proceeding at which he received a much harsher sentence so you know you can you can reserve for another case questions about whether you do in fact have in your judgment seem like the kind of out of it that would admit something that seems to help you doesn't actually help you my question the other side was what about a case where the error infected sense and conviction that that seems to be a hurtful question for them am i right that that's that would be odd about ruling for them yeah i think you know i mean it's probably a little bit of a counterfactual hypothetical because if you had an error that you you realize there was a judge biased you'd probably raise that as to your sentence and your sentence yes range to say if you stuck on with wood and didn't extend it you would be stuck on which sentence yeah no i think i think that's that's right i mean it would be acquitted usual and i think really part of the way to think about this is if you do it you know the real question here is the rare habeas applicant who not only receives relief but then realizes after he receives relief in a new judgment that you know he overlooked a viable he is claim the first time around this congress want to for close relief in that circumstance because it's not going to be hard to get rid of the petitions where someone just kind of raising stuff that you know never would have worked the first time and doesn't work this time why is your guy and any in that situation any more