or whatever well we will see if we can we don't want to hear i think there is pretty much the same issue states supreme court's recent decisions in montgomery and wells establish a new rule of constitutional law requiring state courts to apply narrowing interpretations of criminal statutes retroactively this court has acknowledged that petitioner seeking to file nd or s only a light burden to show possible merit sufficient to warrant further exploration in the district court this is a burden mr barry i'm certainly satisfied st mr barry can show that the supreme court's decisions in montgomery and wells establish a new rule of constitutional law but it is just that new rule applied to it as an interpretation of a state statute yes your honor we we believe that it does so in montgomery the supreme court held that the substantive rule exception of teague applies to the constitutional law when you couple that holding with a decision of welsh where the court acknowledges that the substantive rule exception encompasses both narrowing interpretations of statutes as well as constitutional holdings that render certain classes of persons or conduct beyond the power of the state to punish it is clear that the that the narrowing interpretation of state statutes must apply under these rules and that is because how is that clear your honor because the state courts don't have occasion to apply narrowing interpretations of federal statutes similarly the supreme court is not in the business of narrowing state statutes so if maybe that's by design perhaps your honor but again we know from that the substantive rule exception applies to the states as a matter of constitutional law and because we know that the substantive rule exception includes narrowing interpretations of criminal statutes the next logical conclusion then is that when a state narrows its interpretation of its own statutes that it must apply t world from t right it did change to get announced two new rules that interpret t and so again what welch holds is that the substantive rule exception is a test soley a function and we know that it is not limited to the supreme court in welsh acknowledged that the supreme court's holding in brutally was an application of the substantive rule exception of teak so from that analysis of bruce lee combined with the court's holding in welch that the substantive rule exception is purely a test of function we know that the exception is not limited to constitutional rulings so this is about go ahead don't you think that if the supreme court intended what you suggested that is the underlying  state decision need only be substantive need not be based in constitutional law don't you think if they intended to change t an advantage of they would say so exp honor we believe that they do in welsh and again when the court announced its rule in welsh the argument of am a kissin welsh was precisely what your honor is suggesting that the only time substantive rules apply is when they have a substantive constitutional basis and the and the court says neither to ignore its progeny support that approach this court has determined whether a new rule is substantive by considering the function of the rule not its underlying constitutional source and then again if we get that the court continues to explain what it means by this and if we jump forward your honour's to page two hundred and sixty seven where the court discusses bruce lee the court says although this court has put great emphasis on certain kinds of substantive decisions we know that it is not limited to decisions applying the constitution and sixty seven the court says loosely this contradicts the contention that she can choir inquiry turns only on whether the decision at issue holds that congress lacks some subset of power and again in end what the court did in bailey was subsequently basically and there are some exceptions to that so you're saying this is one of those exceptions absolutely your honor because welch makes clear that the substantive rule exception is a test of function and the question the court asks is whether a certain class of persons or longer sufficient now the state must also prove guilt going on here now the state must also prove deliberation which requires a cooling dispassionate weighing process and the court why i don't seriously question that argument that by for it was a substantive change and i think that's probably right but the but the question is drones and seems to be raising right to that that it's a concern is i don't think the supreme court has ever said the state courts when they're interpreting their own state statute and that's what this is that the state supreme court has to apply supreme court law on ritual activity and your honor our position is that that  is a logical conclusion that could be drawn from viewing welsh in montgomery together and in the procedural posture of an application to file a nd or successive petition mr barry must only show that his position is plausible but don't you think if the supreme court was making hard to it's believed that the supreme court would not have said that directly your honor in the procedural posture of an application to file a nd or successive petition this court held in henry versus spearman that even if the rule where espousing would require a non frivolous extension of the rule that the supreme court announced that is enough but the supreme court didn't announce the rule that you're asking us to apply that's i think that's the difficulty i'm having with the argument is i'm not sure that the supreme court an d the rule that you're asking us to apply and your honor our position is that at most we're asking for a non frivolous extension of the rule that the supreme court did announce and while it isn't isn't your position inconsistent with the very underpinnings grounded in the constitution montgomery holds that itself is grounded in the constitution that the substantive rule exception itself is grounded in the constitution and seems like you're just putting on blinders and not looking at the underlying  may have please the court counsel geoffrey carr from the about attorney general's office on behalf of response i think the court's questions this morning nail the legal issue that's before this court this morning is a very narrow issue about whether the petitioner can make the is inconsistent with what they actually need to show here they need to show that there is a new rule that has been established by the supreme court the united states that must be applied retroactively to cases on collateral  their suggestion that this that the rule they're wanting this court to apply is the next logical step means that rule hasn't been established yet and so even assuming their readings of these cases is correct more importantly though i think the court's questions go directly to the difficulty in this case is that the supreme court has not squarely addressed this issue because well it is a federal case and relies on versus united states and in that case that the supreme court made clear that the reason for the rationale for why you would need to apply a narrowing construction of a substantive criminal statute retroactive in the federal courts is recognized by the fact that the federal courts don't have power to change the law only congress can make conduct criminal but the supreme court has recognize both in rogers versus tennessee and in fury versus white bunkley versus florida in those cases that the supreme the state supreme court can substantively change state law and as the supreme court and eighty nine i believe and so the question was there was that although the florida supreme court had identified l b as a change it had stated when the change occurred the case goes back florida supreme court the florida supreme court says l b was the change it occurred when we decided l b and at the time that mr buckley is case was decided his conviction was based on the then correct statement of florida law that exact same scenario that we're dealing with here except that in nneka versus state the nevada supreme court has made clear that by foot was the change that the change occurred when by for it was decided and mr barry's conviction was long final more than a decade before by for it was decided that still floating around with the bye for certainly issued there are a lot of them yes right wouldn't it be i mean i recognize the difficulty with the arguments that are being advanced resolve all of these cases to this is through the system i don't think so you're i think that's exactly what twenty to forty four to assume is designed to protect against that unless it's very clear that there is an issue that the district court needs to address that's what the gatekeeping function is for is to prevent all of these cases that are not based on a new clear rule that the supreme court has said this must be applied retroactively to cases on collateral review that's the that's the very functional of that rule and not to burden the federal district courts with successive petitions unless it's very clear that there is a rule that needs to be applied retroactively and then should the district court have to look at the actual merits of the claim this court has has already held and recognized that by for was a change in the law that that issues undisputed right and then this court came back and and then said well that about from court has said that this was a change in the law under bunk lever versus florida that is a question of state law whether something would change or clarification i mean as you this is the underlying the whole underlying argument with respect to buy food was that it changed the elements but what the state had to prove and if and when you lighten the burden the state's burden it it violates you know the requirement that the constitutional court of the state prove all the elements of the crime beyond a reasonable doubt brecht in that that that point your honor is exactly what the the supreme court was concerned about and time that the mastering court had split premeditation premeditated and deliberate from each other and gave those terms distinct meaning so it changed the relationship of the elements that make up the crime of st degree murder in between a clarification and a change in the law means nothing then the supreme court's remained a bunkley was pointless the the reason the supreme court re mandated in bunkley was to allow the florida court to identify when the change recognizing b occurred if it if if conviction at the time it became final was based upon an incorrect statement of florida law that would create a due process problem that problem doesn't exist in this case because the nevada supreme court in need said that by for change the law and that change occurred in two thousand and one by for was decided a score and has any further questions very quickly or honors there can be no doubt that montgomery announced a new rule of substitution of constitutional law holds that a plot that there are substantive rule exception of teague applies to the states as a matter of constitutional law so we have established that there is a new rule of constitutional law in the context of an application for a nd or successor petition mr berry need only make a prime official showing and if at this procedural posture dismissal as to the ultimate lack of merit or other issues is not appropriate there are a lot of complicated issues involved here in the merits of this case we have at least made a plausible showing that our position is correct and under this court's holding in henry versus spearman because we have made that plausible showing we are entitled to remain for the district court to consider the issues in the st instance which this court can then review on appeal from denial of that the only other point i would make your honor says that by for it absolutely changed the elements of the st three murders statute in nevada this court acknowledged as much in bab and more  and rightly so the states argument that it didn't change the elements as how the elements change council so the court and by for it said that prior to by for the only thing the state had to prove was intent now after by for it the state has to also prove deliberation and this court acknowledged in bab moore and riley that that was a substantive interpretation a narrowing interpretation of the statute that did indeed change the elements at what those elements always bear they just were they were not this thing wished in terms of jury instructions but weren't in the elements always exist in this to the right of the state was required to prove all the elements so you know that well that's a different question as to whether the elements were changed or what the proof was required the court in by for dig knowledge is that the element of deliberation was eliminated by the nevada supreme court's decision and green green eliminates the distinction and says all you have to prove his intent and that is why by for it held that now we're no longer going to only require the state to reprove intent we are also now going to require the state to prove this separate element of deliberation thank your hon