unique i've tried about forty five murder trials in our state and i've done that since one thousand nine hundred and one the difference in what this state now has to prove the state of nevada in a st degree murder trial is a vastly different than it was prior to by for it and what i mean by that is this deliberation element that is now listed in the by for an instruction is very clear to the jury and the portion that is so important to us litigators in the trenches is the following that st degree murder can never never be a unconsidered rash impulse and what that did for us as litigators is it helps the jury understand that if it's a bar fight a problem of domestic violence where a man kills his wife in the midst of an argument that is never st degree murder st fact that is that it's important doesn't mean that it's a change in the elements versus a change in the definition i mean one is just words it one can say the elements haven't changed and we can say the elements haven't changed but did they change absolutely they change the difference between the cows of an instruction and the by for instruction the elements is quite vast there is nothing what i was just discussing with the deliberation element there is nothing in council and that suggests that absolutely nothing so we can say the elements are there but when you read cows when no reasonable person no reasonable juror could look at that and say that element that we now have to prove that the state now has to prove beyond a reasonable doubt that the liberation element is somehow included in the castle instruction would that was basically the  elements have now which they changed in by for i and did the nevada supreme court say that they almost has now changed it's different no they did not but they have they have been so inconsistent their decisions they have been so inconsistent in what they are doing look at how now the decisions of this court just quoted they do this in unpublished decisions levon unpublished richard allen canape unpublished nothing for us to hold onto because it doesn't make sense and they consistently give inconsistent missions and i think one i heard today that they once said it was a change of the law clarification interpretation of the law when they said their last formal position of the of the change in a law yes that's right that's right that's what they were and we finally accepted that but if if you look at the decisions of gummer in welsh and see how i would argue that it now requires that the state statute that any state statute that it is interpret ing and narrowing and narrowing which is exactly what happened here it should be applied retroactively and that's exactly what they did they narrowed the conduct of people that could be convicted of st degree murder as i was just giving us an example in my case mr powell of age was driving down the street in an erratic fashion his car whipped up onto the to the grass the door opened he fell out according to eyewitnesses struggling with his wife stabbing his wife he ran over a wall got caught and asked if a condition of his wife the deliberation element that is now there would have greatly benefited him and actually makes him innocent of st degree murder i don't mean innocent of the charge i mean innocent of st degree murder if the jury sees that element they recognize mr power which cannot be convicted of murder of the st degree it has murder of the nd degree so how is that not a different element i don't see that distinction we can play with words all day long and the nevada supreme court can claim that this is what's really happening they made a mistake vie for it because they opened up pandora's box realizing that they were changing they were changing elements the elements were changing and so i would suggest that under the rationale that we've heard in  both welsh and gomery that this should be applied to all all of the defendants who petition the court and it should be applied retroactively and so that is i believe an accurate or at least in this case have a low burden we're not arguing the issue and i think we're not are we're not here on the merits of whether or not this argument is correct or not or sort of get keepers yes and i recognize that but i also see that there are significant issues that are being argued here today and some of these issues are very important and i i would suggest that it is a good idea that these this eleven what would help is there going to be judicial system if some different panel of the th circuit decides that three years from now rather than this panel deciding it now why is it better well because st of all i think it gives an opportunity for this issue to be fully developed and so i would ask again for not if you don't think you fully developed this and your briefing or not or even by mr barry i do however i would argue to the court that since our burden is lower that we did not have to come up here today and win this issue just simply we need to meet our burden and we have done that and i would say my question is still my question is what benefit to the judicial why is it a benefit to go that way for the judicial system if this court makes a decision i think that's excellent i think you should rule in our favor so i hope that you know we don't you know we we we don't know if we would if we rule in your favor if we granted your motion  s and said issued a certificate that to her in order that he could file a successive petition in the district court we would we're just letting the case go forward in the merits would then be fully addressed  occurs is a question of state law that's one of the j j was a change in the elements versus a change in the definition of the same elements i don't think that's a material distinction to me your honor what whether you know before before by for the state had to prove that the murder was willful premeditated and deliberate after by for it they had to prove that but what those terms of are met before and after said look at her and we said there's three elements but then when we addressed what what those elements mean we didn't treat premeditated and deliberate as condoning different concepts and so it only becomes after by for that  being court gives this think meaning to the to the elements so they were always elements of the offense just what those elements mean is different now but the jury wasn't instructed with the three elements la down that's correct your honor but that that that is that's exactly the point of the niek a decision and explaining what by for did is saying that at the time that the cause of an instruction was given and it was a correct statement of nevada  bunkley versus florida that is the controlling question if at the time mr pal of itches conviction became final cause a land constituted a correct statement of nevada law there is not a due process problem that's the bunk that's buckley there is there is not a question that needs to go to the district court to be decided here if they think that montgomery and wel combined do what they think it does with respect to the cause and instruction they need to get certain rana direct from the nevada supreme court and have the u s supreme court decide that issue and establish the rule that they think applies here supreme court makes a substantive change in state criminal law that case has to be applied to only to cases that are then pending on direct review under bunkley versus florida so i think when we st looked at all of this did we say it was there was a clarification in the i don't i don't think that in polk this court addressed the change versus clarification as he said it had to be applied retroactive by for him to be applied but record didn't we i don't know that polk addressed the retroactivity issue or not it just said that under under by for that by for under by for the struction was wrong and didn't didn't adequately instruct the jury on the elements and so it just found a problem understand sansom versus montana because of the way that the instruction was written by it's not it was not a constitutional and i would to analogize the welsh blows lee cases to the bunkley context what they're talking about there would actually fit what is a clarification of law because under bruce lee what the court recognized there is that when the supreme u s supreme court narrowly construes a federal criminal statute it is saying this is what congress said when they passed the statute that's not the case with the change vs clarification distinction under buckley versus florida as a that's a different question ok and it comes down to the origins of state law and the fact what i've heard in these arguments is was that a change was a clarification was an interpretation the reason i said as you can hear reasonable minds we can't even wrap our minds around what the nevada supreme court did and would only have to accept no i am not accepting that to me the the different decisions of the devout of supreme court make it very difficult to decipher exactly what they did but don't we as a panel have to accept if the  a change in law aren't we bound by the highest state courts interpretation of its own law no i not i would argue that the court can just look at what that about a supreme court has done and recognize that that is not what is occurred and what i would like to say is that if we if you look at what we're trying to put forth in welsh and just look at that the standard and what we're arguing welsh establishes that a substantive rule exception is a test of function and therefore applies whenever a court court alters the range of conduct or class of person that the law punishes this includes decision that narrow the scope of a criminal statute by interpreting its terms as well as constitutional determinations that place particular conduct or persons beyond the state's power to punish and i would contend that that is exactly they feel this decision then would use suggest would you i what this the