our final case of the morning is all against daniel year law student at the university of notre dame last fall i'm here today under the supervision of mr because those claims are properly brought under twenty two forty one we respectfully request that this court reversed the dismissal of mr post a b s test and a twenty two could you explain to me what is the defect in twenty to fifty five and we we had the previous peel back the decade ago now said that there was no problem with twenty two fifty five the problem was with polk whiling the wrong motion in the wrong place right here on  his original motion as a twenty two forty one rather than a twenty two fifty five but the district court then waited fourteen months right so what in what what sense can it make to say that twenty to fifty five is ineffective just b which is like only a new thing that has happened since our decision in two thousand and six is a lame which is irrelevant because it's not retroactive on collateral review so we've got the identical state of the world that we had in since he had five other counts of distribution that the jury found him guilty out however a link does clarify with respect to these claims that each and every fact that increases the mandatory minimum sentence that the prisoner convicted of must be found by the jury beyond a reasonable doubt and this court has recently and its decision in webster as well as its decision and creighton has stressed the importance of twenty two fit forty one are i'm sorry whether the petitioner has been given a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence and here mr poe has never had that just didn't use her i had the opportunity to make an argument and he did try to make an argument that this court noted in that decision that the district courts neglect and failing to promptly rule on post petition in conformance with  or of the rules governing twenty two fifty four and all twenty two fifty five case as deprived her of the opportunity to correct his mistake so for it twenty two forty one petition that is substantial enough to constitute inadequacy or ineffectiveness of twenty two fifty five the court has has said and that in brown v caraway this court said that the purpose of the adequacy escape hatch in twenty t narrowly so in this case your honour's poa as we know filed head mistakenly label twenty two forty one petition less than two months after richardson was decided however even if that petition could have gone through he could not have a even more belatedly than it was brought your honor under my understanding elaine is very important to this claim because it negates the harmless error document error argument that the government raised in it our contention is that the reasoning elaine applies to mr post claim so in his in order to satisfy the elements of a continuing criminal enterprise the jury had to find with respect to at least two of the convict of the underlying violations that that he undertook the violation in series with five or more other persons that the offender occupied a position of organizer supervisor or manager and that he derive substantial income from it so the reasoning of the lane that each and every fact must be found actually in the richardson era has to do with the predicates for the c c events and reset in the earlier iteration of this case th because he was convicted beyond a reasonable doubt of multiple predicative senses richardson just wasn't violated here the rule of richardson even if we were to get to the merits because the jury found that he convicted she committed these violations anyway but the jury did not find with respect to those violations not only that she did not unanimously agree on which to constitute a series but they al distribution statute had twenty one u s c eight forty one i believe just not require it just seem the same requirements of being in concert with five or more other people so the jury could right if you did there would be double jeopardy issues and the c c statute is a different statute and we're talking with the richardson err is an attack on the jury instruction having to do with the predicates not the supervisor  manager or any of that kind of stuff right so we know that you're unanimously agreed on that right so any claim about a lane here that's focused on that is not a good claim your honor the elaine claim is that the jury may have one jury member may have thought violations one and two were committed in concert with five or more other persons etc and a juror number two may have thought the violations number three and four were committed and elaine elaine clarifies that the jury must have found beyond a reasonable doubt that the two unanimously agreed on the two violations which were committed in concert with five or more other persons and the other walker your honor may please the court bob word on behalf of the government your honor it is right thing that i regret it when i went back to her was that i didn't mention structural problems over and over this this case does not have the sort of structural problem with this co precedents require and i'd like to address really quickly your honour's point about richardson harmless error and how it translates into a lady i think maybe as i thought about this what's going on is in webster there was this constitutional is ation of a statutory rule and that was seen by the richardson majority as an intervening event and we have a lanie even though it doesn't match up perfectly we have this constitutional rule but really what was harmless error under richardson means no error or a laney as at least as this court put it in poll one because the factual findings were made by the jury right and see the extent that elaine is  retroactive it's not literature exactly and as this court said recently went when it said that it was not retroactive it made clear that there is no way for a supreme court case at least conceivably the way the retroactivity works right now for it to be retroactive to some subset even if that subset has a logical connection and i'm not sure the logical connection is even present here if even if we were to entertain that idea and i would also say that there is some discussion between the briefs as to whether and to what extent webster extended davenport's a statutory claim will look to an idea to constitutional claims more broadly than the way the webster court stated it and i think the webster majority took great pains and i don't we should require a little bit here but took great pains to say that the constitutional rule that they were extending devonport to has to be a constitutional in eligibility for the death penalty and in the court took its own limitations very very seriously and i think that this case just doesn't come anywhere near those limitations for various reasons i sense that the court is satisfied with most aspects of its inquiry that if there are no further questions i'll just rest on my brief  elaine has not been held retroactively by the supreme court however richardson was made retroactive and died and i would call your attention to judge williams concurrence in creighton where she noted that there are two types of decision that apply retroactively and the second type which is relevant here are those identifying rights itself fundamental to any system of liberty of ordered liberty as applied to include them and she suggested that perhaps the elaine rights are are included in that category