good morning may i please the court robert urbanski for the state i'd like to reserve five minutes of my time for rebuttal of the eighth amendment claim at issue before this court involves the very same rule fashioned by the very same judge in the same district court as the rule  issue in jones versus davis it is the same rule that this court found to be barred by teague's anti retroactivity doctrine in jones this case presents nothing new for this court's consideration and it should reach the same conclusion that it did in jones the court could resolve this case on any number of the grounds that the state has set forth so i don't believe the fort is obligated to necessarily address for which to advocate that this court do resolve the case should resolve this case on to grounds it would the supreme court's decided well versus us and montgomery versus louisiana among others and given the reasoning of the court there isn't a point made by judge watford in his concurrence and jones be davis now accurate meaning that that the claim is substantive not procedural by substantive and procedural i mean in procedural rules there on the accuracy of the conviction and sentencing or as substantive rules make certain that state conduct is illegitimate is illegitimate regardless of its accuracy so if if the finding is you cannot execute someone in california because of the systemic failure or the fact that you're not going to execute somebody is dead wofford says it can't be more substantive when i read jones straight out without these intervening cases we are clearly bound by that but as you know under miller versus gammy if the reasoning of that case has been superceded then we have a different situation would you comment on whether welch and montgomery should play a role in our analysis of whether jones versus davis has been overturned effectively because of the change in an honor your honor correctly identified the definition of a substantive rule in this case and the jones court jones panel correctly determined that the rule is not a substantive one as your honor noted substantive rule is one that prohibits certain punishment for certain conduct or for a certain class of defendants because of their status here the district courts rule did not place any conduct beyond california's ability to punish by death nor did it perhaps it punishment for any class of defendants because of their status the decisions of the supreme court that have issued since this court decided tone do not alter the jones majority's analysis turning first to monk armory versus louisiana in that case the supreme court applied the very same definition of duty and the very same definition of substantive rule that the jones panel majority did albeit to reach a different conclusion in that case the court addressed the miller versus alabama rule that  mandatory l wop sentences for juveniles violate the eighth amendment the court found that to be a substantive rule and its reasoning was that miller vs alabama rendered l wop and unconstitutional penalty be for a class of defendants because of their status the class being juvenile offenders whose crimes reflect the transient immaturity of the youth there is just stop you just for side i want to ruin your train of thought but in this case you've got to claim that the system is so arbitrary that it's like lottery is isn't that somewhat akin to the miller situation no not all young people but everybody that's in the system correct your honor and i think that that is a significant distinction right there the fact that the class is defined as all defendants sitting on california's death row additionally however the district court in this case had actually at no time suggested that its rule was a substantive one its decision reveals quite the contrary at x or to record page ten the court noted that the state's process violates the eighth amendment which goes to hear the answer to your honor's question the district court complaint here was with the process it did not render death an inappropriate punishment it took issue with the process that follows a jury's lawful imposition are we bound by the district co failure to engage in the substantive procedural analysis there is or is it now the words if if he says he can treat it as being procedural but we now have new supreme court law if we decide it's going to be substantive are we bound by the fact that the district court didn't have the benefit of that my gummer and well you know it certainly if those cases change the analysis in this court is bound by those decisions and not going to district court  held but here the district court did not apply any rule to any class of defendants because of their status as the court did in the miller has alabama case there is also the welsh versus united states decision and in that one the supreme court addressed its previous johnson decision in which it struck down the residual clause of the a c c a as a boy for vagueness in welsh the supreme court also held that that was a substantive rule and the reason being that by striking down the residual clause the johnson decision changed the reach the substantive reach of the ac ca the residual clause could no longer punish any conduct that's not a procedural rule it affects the underlying reach of the statute and the conduct that it can punish it does not alter the procedures by which the statute can be applied what what i respect your argument but you read of course judge watford's concurring opinion in jones adding welsh and like emery to the mix in what way was his about procedural versus substantive rules inaccurate is in an accurate in the sense that it misinterprets the what the supreme court has found to be a substantive rule which its core it has to perhaps conduct or punishment or punishment for certain conduct or punishment for a certain class of defendants because of their status we do not have a class of defendants here in this case well unless you consider all of the people who've been condemned to death in california as being such a class because they are all subject to what the district judge i guess consider a basically a random arbitrary lottery type there's a greater chance of dying in prison of old age as there is a being executed why is that different i didn't understand anything in jones to be peculiar to jones understood that jones was simply part of a larger class and that and that judge carney in that case had decided that that the entire class was subject to these the entire class it was was suffering under the same the same problem that's correct your honor so there are really two problems that are are at issue there the first being that if we define a class if it is a court defines a class in that matter it would be the first time that any court has identified a class really in that manner but that it's but it's not what was done in jones in the district court correct your honor absolutely but we take issue with the way that the district court identified are or how the missile pharo characterizes what we have been but our court has not has not reached that question on the merits correct your honor correct or an absolute so why isn't that taliban judge smith question why isn't this a class this is it's a class your honor because it does not fall within the parameters of what has traditionally been recognized as a class under supreme court jurisprudence the the the groups of people who have been identified as a class are the intellectually disabled they are the insane they are you give me a class for her because we certainly have recognised classes of prisoners on death row or classes of inmates or hearing an answer to why it couldn't what's wrong the date and identifying the class this way if the court were to identify the class that way we have to go back to what the district court ruled to begin with what its role was and its rule was that california's process takes such a long time and so few people are ultimately executed that it is an arbitrary one so if we identify the class of defendants as all of those subject to an improper procedure then we have really transformed a and that's so for purposes of our analysis the fact that judge carney focused on the fact that it was the long procedure that created the problem even though the facts always people doesn't don't we i respect the fact that he spoke in terms of procedure but as judge wofford suggested you know when you're talking about death or no death you can't get more substantive than bad and what do you think  you're very articulate and i talked about this a little bit but if you if i said to you please give me your very best argument as to why welch and montgomery don't change our analysis says under jones as to whether what judge carney came up with is a substantive or a procedural rule what's your best argument slightly different responses with each case that with respect to montgomery versus louisiana the reason is that we do not have a class of defendants here like juvenile offenders with respect to wild versus louisiana we do not have judge carney's rule prohibiting punishment for any particular conduct california's death penalty still reaches the same conduct it still reaches the same defendants the problem that judge carney identified as with the process that follows a lawful conviction and a lawful imposition of sentence and that's not to say that if california didn't do something and alter its process to judge carney satisfaction that he wouldn't reach a contrary decision and that that california could continue with its with the fact that the if the state change the rule for example we have i think  is that the kind of thing you have in mind absolutely your honor and judge cardin does not seem to be too far doesn't but doesn't that suggest so that's a just that in the future california may be able to to execute because they would not be subject to the same eighth amendment infirmity judge carney found in jones that there's nothing that california can do to alter the status of those people who have been on death row for the last twenty five years or so and i think your honor it's question illustrates the problem with the rule at issue here and it's novelty the rules would apply across the board to somebody who had been on death row for one day or for twenty five years and the eighth amendment has simply never been extended in that kind of fashion but to read judge carney's opinion on its face it does not at any point suggest that were some new system to replace the old one and one that satisfied these problems if we were give we were to get to the merits merits of jones that might be a limiting principle might be a way of cabin ing judge carney's decision that they wouldn't but you can't but the state there's nothing that they can do to alter the fact that these people have been on death row for twenty five years or more which illustrates the problem and the reason why exists and the reason why we can't force california to have a crystal ball to have interpreted the eighth amendment in the manner that the district court suggested here at the time  you time for rebuttal thank your honor so clearly myself r o did not present this claim to the state court and she does not satisfy either the exceptions to the exhausting requirement with regard to the first exception under b one b one she still has state correct process available she can file a success of petition in the state court and the california supreme court has noted in people versus say in manu that its courts stores are open to hearing this claim with respect to b one b to all far has not demonstrated that the state process is ineffective to protect her rights neither the petitioner nor the district court has provided this court with any reason to conclude that the california supreme court has done anything other than entertain and could carefully consider each one of the claims that she has presented to it the petitioner has cited the cohen o cut and phillips line of cases in support of her argument that those cases do not support her argument because in each of those cases the petitioner had a pending claim in the state court and through no fault of the petitioners own the state court would not resolve the claim such that there was inordinate delay in the petitioners case we don't have that here off are also claims futility however as we've argued in our brief that is a doctrine that cannot survive the angle decision from the supreme court and the idea being that petitioners cannot bypass the state system simply because they think a state court will be unsympathetic to their claim that deprives the state court of the opportunity to consider whether considering the particular case before it the claim is is one that is m s if you allow it a petition or to proceed directly to federal court on a claim that is never presented to the state court simply because the petitioner predicts or speculates that that the state court will reject the claim then  e deferential standard because there would be no state court decision on the merits for this court to defer to you and those are significant problems  challenge to empirical evidence and concluded that there is a constitutional crisis in california the district court specifically found two different cost to tional violations first in violation of furman the debt ceiling system is not being administered in an even handed manner and second in violation of greg death sentences in executions do not measurably advance either deterrence or retribution now in an effort to block federal marriage or view of these very important federal questions the state has asserted three different procedural defenses none of which is valid and i'd like to take each up in turn beginning with take since it took up so much time during my friend's argument the state's position is that jones is still good law we disagree and jones this court held that if a rule has a procedural requirement or a pitch the troll component then it is therefore procedural but montgomery rejects that just myth as you were saying montgomery says that even if a rule has a procedural requirement to it it is nonetheless substantive if it limits the state's ability to impose a certain punishment and that is exactly what the district court's decision did in this case before the dish of course decision the state of california could sentence people to death and execute them your understanding of judge carney's decision in jones we have to distinguish between the two jones cases that the death penalty is and the death penalty no no no no not at all for those who have previously been in the system but not for people who might be sentenced in the future it i viewed judge carney's ruling as applying to everybody who has been sense to death under the current statutory scheme because the current statutory scheme has two different constitutional defects one it doesn't have in place those constitutional safeguards that are necessary terms for the death penalty is being administered in an even handed manner and second because of delay that is a tribute attributable to the state the death sentence in executions will not measurably advance deterrence retribution now if the state wanted to go back and rewrite the statute and put in place those constitutional safeguards and for instance better from the system to cut down on delays in the appointment of counsel cut down on the backlog of cases in the california supreme court then we would have we'd be in a different position but that's not the statute that we're dealing with we're dealing with a very different statute right now here and that's the one anybody anybody sentenced to death under the current statute is entitled to jones relief yes and let me explain why even if they've only been in the system for a year exactly because one of the constitutional defects that judge carney identified is a lack of constitutional safeguards and we know that there aren't the safeguards in place because you have a very trivial number of people whose cases are moving through the system much faster than others for instance right now in california there's about seven hundred fifty people on death row only twenty of them have completed the post conviction process that's something like three percent and these people their death sentences range from one thousand nine hundred one to one hundred eighty nine and there's no discernible reason why their cases move through the system faster than anybody so there a substantial risk right now for being the only people in california that realistically face the possibility of an execution and everyone who sent to death in california regardless of whether you got there a day ago or twenty five years ago is still  unlucky few who realistically face the possibility of an execution i gather that that's what judge walker his mind is concurrence when he said that it can't be more substantive when it would block death for a class of people exactly because u nder montgomery and whilst if a rule limits the state's ability to impose a punishment then it substantive it's really that straightforward and judge wapner had no problem recognizing that the class of defendants in this case was a class for teeth purposes and that actually brings me to the next part of the jones decision from this court because there's a second aspect of it that's been invalidated so and jones this court held that for a class of persons to be a class under t and to be affected by substantive rule that class of persons have to share an intern's equality and we know after wells that that's no longer true because the class of defendants affected by welch are actually affected by johnson which was held to be retroactive that class of defendants wasn't united by some characteristic they were united solely by virtue of the fact that they had been convicted and sentenced under the same statutory scheme and that's exactly what is united unites the people in california that aren't death row right now so our view is that under montgomery and welch jones is no longer good law and under those decisions the rule applied by the district court is a substantive rule that can be applied retroactively on hippias in your view then miller vs gammy would permit  three judge panel to in effect rule josie yes given that this court decision jones is now clearly irreconcilable with two intervening supreme court decisions under millibars is gamma that's permitted now unless there are any further questions i would like to turn to under at the one year statue limitations for a claim based on newly discovered evidence which is what we're arguing here it begins to run on the date that the factual predicate for the claim was discovered or could have been discovered through deal guilt through due diligence and under this court's precedents due diligence means reasonable diligence not maximum feasible diligence and i'd like to explain why we would have to exercise far more than reasonable diligence to discover this claim before june two thousand and fourteen so june two thousand and let me ask you that though the those those data peer to have come from public sources did they not they did so you kind of have a rolling situation it's not like the information was secret or difficult to find michael lawrence's declaration he used to be the executive director of habeas corpus research center what he ended up doing is he n h the r c surveyed over nine hundred capital cases that spent about forty years of california jurisprudence they had to check but the n korea is how much diligence would have required to discover all that information and put it together and what he actually had to do was actually engage in the circulating effort to compile all this information gathered colette's and then synthesize it into data and then  doesn't sound to me like the like the due diligence required to discover new evidence when we're talking about you know what do we find a nice to get some d n a evidence something else but that's what it's always been that's what it's always been been been in the past you have you have any case where somebody has taken something new like this them and said gosh this i couldn't do it because i didn't have the resources that they had no no i don't but two things about the two things about this argument the gist was that and this is a very novel argument that you're making this is i'd appreciate the candor but it is not a lark yes but i think that if you were to look at some of the cases cited by the state for and what in another case some somebody said oh gee i found i had a really good paralegal or i had a really good  in turn from law school came and discovered a whole bunch of cases that nobody's ever seen before that give me this novel eighth amendment argument and they prevailed and then somebody the next day says gee if i had a good in turn maybe i could have done it information and i think something that's really important about each the r c is the fact that they had a statutory duty to gather this information under get under california law they have to report on the functioning of the death penalty system why does that help this the question is is not whether they had a duty to discover it the question is why your client didn't write right but it's because for a ordinary petitioner or interning representing a single person to gather this information they would have had to exercise far more than reasonable reasonable diligence to do it because they wouldn't be able to vote to devote the resources they wouldn't be able to devote the time that matter what the it is that's being discovered it can't be any part of the problem is that the what's being discovered is this really long delay and that wasn't right it's the arbitrariness that's your argument it's more than that you have to sift out the the reasons for the delay or what exactly is it that was discovered that that allows you to win your argument in your view so what happened in two thousand and fourteen is that's when the specific effects of california's death penalty system became known on a widespread i mean certainly everyone knew what they were really what specific effect are you looking at that the california system had been worsening in the six years since the commission had issued its report and submitted its recommendations the worsening meaning more people on death row greater delay and then we also what we also see between two thousand and two thousand and fourteen is that we see that there is a continuance of these people whose cases are proceeding through the system faster than others and for no discernible reason so it actually goes to both it's both the firm in theory and the critics there i think i think you're delay argument is a very heavy lift can you talk to me about the arbitrariness argument seems to me that is something that sits out maybe from the numbers but i i this is a really tough argument for you right want to just give you a bill chance to address it please but what exactly about our choice are the ones that you have to show what was discovered what's  new and the notion that it's the delay seems to be just inherently problematic because that's that's so readily available to you so so there's something else that sifted out right that people had to dig deeper to get to the to the arbitrariness that some people's cases for a bad thing more rapidly than others and what not so when you talk about that well exactly i mean that's that's one of things that a c r c was able to identify to help this record reach the conclusion which is that you have the select number of people i can remember what it was in two thousand and fourteen i think it was seventeen and a c r c looked at their cases to see well is there some discernible reason why these cases move faster than others and they couldn't find that and that's the admission that he did you know you have to go forgive me for interrupting but to get there you you have to look at the case number that has you write the onset which seems to me very readily apparent and then you have to look at the at least the most recent docket entry maybe not go through the files at all but look at the most recent docket that we can figure out what the status quo is if that case right correct if they go ahead i'm sorry but then you have to compare it to everybody else's cases to see ok was there something that distinguished this case from everybody else because of everybody's cases are being delayed in the same manner and we don't have this arbitrariness problem right and so the number of people on death row is seven hundred fifty about right now right so that's the number that i've been using when i click anyway about seven hundred fifty is it just those two data points that tease out that you're stronger argument about the arbitrariness with which some folks project or whatever it might be it's a question of resources but that doesn't make it new does it for purposes of our analysis well no i do think it makes it new and for two different reasons first i think maybe a helpful analog is in the environmental law cases because the statue of limitations in those cases too so let's say that you live in a community and you know that there's pollution your community you can smell it you can see if you go swimming in the lake and you can actually feel it but you don't know the full extent of the effects of that pollution and killed the government issued some kind of report and h the r c as a state agency this gets back to the duty component that i was talking about earlier had a duty to report the effects in the functioning of the death penalty system and i view the declarations and the exhibits and the data that they called to be essentially an unofficial government report it's not the duty because everybody represented on on death row has a lawyer with a duty and so if i'm walking around in a polluted environment i'm sort of on notice but i don't really have the resources right i don't have the science i can't have the pocketbook to go hire the scientists correct right it seems to me that's your argument i've heard you say both things of course but but if we if we if it's right that there's this limited pool seven hundred fifty people and what had to be gleaned from the files is just two data points that's not really akin to the science it takes to figure out why the rivers brown right right so can you get to that part which is the it's not the duty and i think it's the diligence whether it was whether it was learnable without an inordinate effort right and that's what i was trying to make the points i make earlier is that it's not just that you see that there's twenty people and seven hundred fifty people you still have to compare those twenty people's cases with the other seven hundred fifty people right says ok because if there is a pin a logical reason you can discern from all the dockets in the briefs for why those twenty people moved the system faster than others then we wouldn't have this arbitrariness i did not the it that's why i asked about that and what it has to be discerned if you had to go through seven hundred fifty death penalty cases and read the file read the record that's one thing is it but isn't it t problem if you've got really really good research people who can use the data presented in interesting ways you want us to treat his newly discovered evidence i mean that would open up a can of worms like you would believe in not just in capital cases but almost any kind of case where it could apply because you know that then you get just hire some really smart people who can present things in a particular way and what it's newly discovered but is but as my colleague points out really you're talking about two data points when i came to california long long long long time ago people were still talking at the very early point about what a long row a long delay there was or a california decade got longer there are more people but the issue has been there forever and ever it's not a new thing you're presenting it in an interesting and compelling way but it's not newly discovered bill evidence at least as i understand it within the statutory guns what am i missing i think you just have to engage in an objective inquiry to see if somebody could have found this information with reasonable diligence and i think the cases cited by the state in the reply public defenders office was not surprised that people on death row were taking a long time to have the cases resolved right this didn't come as a surprise to did it no it did not it didn't come as a surprise to me and i don't see and i don't see these cases nearly as much as your office would we we also didn't know the full effects of the dysfunction in california though until  presented this information to us in the jones case and present the information to the public i see that it would like to get to the question of exhaustion ok thank you very much so expressly provides that a petitioner does not have to return to state court if the stake or process will be in the fact that to protect the rights and there are two circumstances in particular here that render that sacred process in effect of the first is that i will almost certainly face more than delay if you are t state court because the average time to result in exhaust titian is three point two years or at least it wasn't two thousand and fifteen it's probably increased since then there were about one hundred seventy six pending his cases in state court in two thousand fifteen i think it's grown and there's about  one depending capital appeals that's in addition to the eight thousand cases that the current supreme court has to sift through on a yearly basis all of that's true but the fact is that the the california are not going to permit the person to be executed during the interim period and that's ultimately what you're trying to stop secondly you've got a situation sumanda decision particular the newly constituted california supreme court is very different with respect to capital cases like the whole lot more mizzle borrow petition is not dead on arrival you don't know what's going to happen with it and so far as i can tell  very clear that your fear that the court may not agree with you is not enough to say that if you tile that correct no i disagree and and your question actually raises two different points i'd like to take them up and parts so the first is there's a difference between the relief that i follow is seeking and the injury that she suffered and that gets confusing the brief sometimes so by her to go back and spend let's say three years in state court what it's going to do is going to exacerbate the constitutional injury she's already suffered and that injury is twofold first we know from documented studies that every day spent on death row toll on a person's mental emotional and physical well being and as some of the excerpts of record show the suicide rates for people on death row are astronomical compared to the general population twenty five to thirty times higher i believe so she's already suffered twenty five years or she's already been on death row for twenty five years if she is serving an unconstitutional sentence which we believe she is under california's current dysfunctional system and that's another three years that she's going to have to spend on death row and that's going to  the death sentence hanging over somebody is head is what causes it's mental anguish the second component to about the injury that she's suffering gives me i thought your argument was that it's the end certain in addition at this that it's both of those t uncertainty of the fact that she's one of thirty six people that were sent to death in one thousand nine hundred two and at the time of the discourse decision her case had moved moved through the system faster than anybody else and so she felt there wondering what makes my case different than everybody else why am i not being treated similarly to similarly situated people so that's part of the component that's the mental emotional that's actually mental emotional anguish that's caused by death living on death row the second component is that she's already spent twenty five years now waiting for a day in federal court to prove their claims her guilt based claims for instance and if we send her back to state court that's another three four five years that a federal court will not hear her guilt based claims and that's important because with each passing day more w back to the merits but then that would be forcing her to choose between two different costumes no rights which i don't think the constitution allows right but if that if she wants to bring a new claim then there's going to be additional delay and then she can't complain that she that that she's th system has delayed her her sentence and this is i mean the the irony here is it's pretty striking and i understand there's irony on both sides but but the irony is pretty is pretty heavy so it seems to me there's one component of this is very very  multi year delay to get a lawyer to correct start it right especially if you have guilt phase argument and that is qualitatively different than the kind of crime you're talking about now which goes to judge by these points you know complaining about delay but you're court i think we understand your argument we certainly all read your brief very very carefully but it does seem fair to give you an op everything onto the kind of obvious if you take it up to the thirty thousand foot level which is that you're fighting fighting fighting the imposition of the death penalty and then and then arguing that the delay you're going to on behalf of your client including adding this claim that inevitably that increases the delay that's correct but it's important to see what is the cause of the delay because of delays that's broken system the system that's not appointed counsel a timely fashion the system that's not timely moving through through these cases the system that's one people their right to access the court that's what makes this case i mean i understand why facially amazing sort of ironic but since the state system is the source of the constitutional enter in the center of the constitutional can't claim i don't see any irony at all judge smith there was another question that you know i don't think i fully answered your question so i'd like to have the opportunity now by i forgot it allow you to answer th thank you i think i have just four hopefully brief points on rebuttal first on the t v issue this panel is bound by the jones majority's decision to find the issue t barred on that issue in the intervening supreme court cases apply the same framework that we have always had there is nothing new for this court consideration antti secondly briefly on the timeliness issue i just wanted to point out that the due diligence argument is is miss jones alternative theory on the timeliness argument and the her other theory really shows the untenable nature of this claim which is she also argued that the  her eighth amendment issue is tied to the same common core of operative facts as was raised in her timely filed petition of course she cites the procedural history for that notion but wild certainly one can have alternative theories and seem to be diametrically opposed where you have old facts that are the common core with your original petition and then brand new ones that you couldn't have discovered until until jones and that case essentially put them together  third interwoven through opposing counsel's argument were aspects of the merits of the eighth amendment issue here and i would simply note that this court can only deny relief on the merits because the been exhausted in the state court it could not grant relief on the merits and then turning finally to the issue of exhaustion this is not a delay or delay sake too to require myself r o to return to the state board there are exhaustion rules and they exist for a good reason they exist to give state courts the chance to resolve issues impacting their final judgments in the first instance and any a future delay that missile would incur from doing that and the consequences she would personally suffer that starts to sound more like a lackey claim which this court has already found to be barred by and all of the discussion on exhaustion