district court re characterize that complaint later on as a section one thousand nine hundred three hippias corpus petition it failed to comply with the mandates of castro versus united states it did not do the three things required by castro in that it did not notify ation it did not warn mr ponton that any subsequent twenty to fifty four would be treated as a second or successive petition it did not provide mr ponting with the opportunity to withdraw or amend his of pleading so that he might include all claims in the petition and because a district court failed to do these three things that are required by castro that mandates that that filing cannot be considered mr first corpus petition such that any subsequent petition cannot be treated as a second or successive petition and that's true in this case and in two thousand and sixteen mr ponton filed section twenty two fifty four petition order dismissing the twenty two fifty four petition as second or successive and then also vacate the prior district court's orders dismissing mr parton's prior twenty two fifty four petitions that were subsequent to this hundred eight case a second or successive and then also afford mr ponton to file a new twenty two fifty four petition as a first petition that's the remedy that this court provided in the unpublished decision in  courts and then well there were ten or twelve in this case about in the federal court yes your honor i understand i'm that really legally is irrelevant to your argument i'm just observing it in passing because i don't have many other questions for you to we have to examine the question of retroactivity here well you know your honor i think the only one well your honor because what we're not what mr plante is you might be right anyway even if we do but i i'm trying to get the proper invalidating the previous week characterization in the one thousand nine hundred eight case the court is simply considering the effect of that reach characterization in the two thousand and sixteen proceeding and so what what mr patten is asking the court to do is to consider the effect of castro which was the supreme court decided in two thousand and three the effect of that decision in the two thousand and sixteen case and what the what castro says is that in the two thousand and sixteen case you look to see how the court the court in the first place castro would self appears to me to have conceived of what it was doing as a retro act of modification of the preclude of effect rather than what we retroactivity well what i'm not but as opposed to doing what you suggest we ought to do and what you properly point out we did do in an unpublished opinion i understood your question or i'm not sure that the court needs to reach the retroactivity quo however and i think that in other cities we do it's a very hard core it is a very hard question ron and i think the court may have answered that in other statute of limitations cases that  not before the court in the briefing here where it is considered the retroactivity of castro problematic and probably would not support say a new statute of limitations i knew it would not trigger a new one year period for that for statute of limitations purposes i mean i think that's based on other aspects of castro that may not be relevant here but i think the retroactivity of castro is a very complicated question that the court need not consider there are there are other circuits as well that agree with  that they know what you're considering is not you're not applying castro retroactive retroactively to the one nine hundred eighty eight case you're considering the effect of castro in the two thousand and sixteen case and what that means with respect to what the eighty eight was characterized as a mix petition yes your honor and then your client the petitioner elected to dismiss the non exhaustive claims and proceed with the exhaust of the complaint from a civil rights claimant to a two a he b is petition in the first place there really was no district court order saying i'm rick characterizing you and it didn't so even if he had adequate notice i mean custer requires other things this report never warned him that that meant that any subsequent petition would it would be treated as a second or successive petition and it also it provided him with an opportunity to withdraw or amend his motion but didn't tell him that that would preclude him from ever raising those claims again and i think he did so some warning the warning the warning was inadequate because it didn't tell him that he would never have an opportunity to raise those claims again and it was there some thirty something claims i think your honor that he ask what fact or what analogy can be drawn from the johnson line of aca cases in terms of retroactivity i mean what you're talking about there is can past decisions be considered in present and ongoing sentencing and less cases that are now before the court i mean suppose somebody had a non johnson compliant or non johnson violent crime conviction and they now came into court and were sentenced for a post johnson crime and the district court southern district of alabama you couldn't use the previous nonviolent crime non categorically non modified categorical approach violent crime non compliant say pure residual laws you couldn't use that is that giving johnson retroactive application is it just simply saying that's the present treatment compliant with johnson we don't have to consider retroactivity all those for in court my johnson retroactive to cases on direct appeal i'm speaking off the cuff here and i don't want to bind my office in any future litigation around johnson since it's not before the court my thoughts on that would be that it would be the court applying johnson to a sen proceeding in two thousand and eighteen and the court would have to look a new at all of the prior convictions and consider whether or not they comply with the law at that that just kind of seems to me like an argument he didn't make but could have made and in this case not to criticize i'm just wondering if there's some weakness to that argument of overworked and no your honor i think that's what i said maybe not as a to kill a plea as your honor did but that what the court looks at is the state of the law at present in the state of the law at present says that in  the district court failed to comply with with castro and so therefore it it doesn't preclude the filing of a later petition at this time and the state had in the state hadn't responded hadn't been given opt in to respond and  look at the supreme court's decision on courts raising the statute limitations on their own not not encouraged us what would happen if we agree with you is we vacate remand send it back and say order a response from the state and proceed accordingly i agree your honor i think the statue of limitations question in this case could be very complicated given all of the many filings in and out of the state and federal courts in terms of constructing a timeline it will be quite keep me quite busy for the next judicial decisions are generally and i've always been understood to be retroactive in nature but we haven't applied that principle across the board i can hate circumstances we look at things slightly differently and we back off what had been a common law rule in homes words for a thousand years it always been understood that a judicial opinion differs from the mentally from a legislative and ackman and it applies retroactive but we've said we're not going to quite do that in hey b s where one of the concerns we have is the powerful values in finality and certainty to what extent does that play into this issue court do not and the interplay between the state and has backed off the fundamental principle that you dish ill decision making is necessarily retroactive in nature as opposed to the  say a legislative pronouncement but in haiti is we've looked at it differently and we've reached out for the values in finality and certainty and comedy and federalism etc to what extent is that a problem limiting the types of situations in which you can bring a second or successive application will be the rules existed before then but it was much much easier wasn't easy but it was easier than an to file a second or successive application to get the court to hear any petitioner post ninety nine one thousand nine hundred six would was well aware that they had their one shot in federal court had to bring all of their claims in one petition or they would basically be out of luck unless they could prove their innocence or or you know the other situation others that he would never have an opportunity to proceed again on those claims in castro the supreme court adopted castro to many rate the effects of the a p a well recognizing you know the history of hate b s and the implications for state and federal relations but also recognizing the power of habeas and the need to remedy constitutional violations and allow the courts the ability to do that so i think the supreme court weighed those considerations and applied it in that case and applied it yes your honor and applied it in that case thank you morning may please the court marlon weiss on behalf of the florida department of corrections this appeal boils down to whether the eighty eight spelman petition was repaired arised as a first petition as the ordinary understanding of term first means in our view first in time rather than first on the merits as counsel posits in our view that ends this case and there's three reasons for that that i would like to discuss this morning number one i mean even if the first and time petition was dismissed for procedural and merits reasons that counts for a lighter quote second and success even don't know but that's not the question the question we're not we never did conten petition that ultimately resulted in the merits determination that that was the predicate for the success of this bar the relevance of the first whether it's first it doesn't pertain to whether it's first for success his purposes and that's the critical point it pertains to whether it's first for receiving castro warnings those are two distinct questions given that in this case and i know it's ok so that doesn't count for second six i'm not saying it does i'm saying it counts for the purpose of whether the petitioner was entitle to get castro warnings so once you file a petition that's dismissed  procedural grounds you don't get castro warnings in a second petition that you fall later i'm sorry a complaint you file later and he gets re characterize you don't get castro warnings well there's two things there's two reasons that in our view that's that's a correct statement do you have any precedent for that now this is an issue of first impression judge that's because nobody's ever had the audacity to argue that before i mean come on that's not what castro says castro says that before you can wreak aerator eyes a petition as a first petition as a first twenty to fifty four petition that's when you're entitled to get those in but there in that context they're talking about first for purposes of ruling out a later first one and therefore of kicking in the second successive limitations i think that the purpose of castro will shed some light on this discussion because the purpose of castro is to protect innocent filers and when you have a first filed twenty two fifty four irrespective of whether it was resolved on the merits or not that petitioner is actually or constructively aware of all of his entire universe of claims as he must be and he knows further that he was bringing them all at the same time and he knows further that he must bring them all and bring them all the time time based o court is wrong with castro dancer castro as they know all that you know just you know if you'll indulge me for a couple seconds i'd like to answer that question what we're talking about is when somebody files those first they first filed first in time filed twenty two fifty four they are aware of their entire universe of claims and therefore this is what i was going to say that means any subsequent mislabel petition takes this individual out of the category of an innocent filer because he's aware of his claims he knows he should be bringing them at the same time and they are then why give the castro warning why won't supreme court just overlook the fact that he knows he should be bringing them all of the same time  that no supreme court didn't overlook that that's the plain language of castro says a first it was something this reach characterized as a first twenty to fifty four petition and it contemplated the scenario of an unwary petitioner an accidental filer who doesn't know the rules he didn't accidentally draft his pro se petition and accidentally mailed that he purposely did so under a mis label under a mis mislabelled is this is this kind of a one can attempt to persuade your honor is and i'm going to come back to this because castro implicit in cash flow is understanding that you are trying to protect an innocent filer that made a mistake and therefore is shut out of legitimate legal rights because he's unaware that he's initiating his first full round of collateral review but when someone files a first file in this case a second filed first and second file twenty two fifty four petition they know their claims they know they need to bring them all at the same time and therefore how did they know then why did they know they need to bring them all at the same time how because the file was twenty two fifty four petition and then and they are just as casual warnings if you do file a twenty two fifty four petition it was dismissed on procedural grounds imagine that it was resolved on the merits and we don't say that you would need caster warnings for the second petition so obviously there's a presumption in court says in castro that the very point of the warning is to help the pro se litigant understand not only one whether he should withdraw or amend his motion but also to whether he should contest the re weak characterized and that if he had been so notified he would have objected or otherwise responded but without getting that warning he had no knowledge and didn't respond why isn't the theoretical foundation and rationale of castro squarely at issue with respect to this petition or what am i missing because i think that implicit in your question is an overly broad reading of castro i quoted castro castro says and i quote the very point of the warning i'm not interpret ing i'm quoting from the supreme court opinion the very point of the warning is to help the pro se litigant understand one not only whether he should withdraw or amend the motion but to whether he should contest the or that the district court that adjudicated his first habeas petition should have warned him should have told him one that it was being weak characterize to warn him about the consequence and if he had been so notified he says he would have responded or objected to it isn't the very warning that they were concerned about in castro at play in this case and if it isn't tell me why not ok i think what's being overlooked is that mr ponton is not your garden variety pro se prisoner who mistakenly mis labels a petition when somebody files a first in time twenty two fifty four petition as i keep saying and did he have the opportunity to object to the recurrent result no but i'm stuck on whether he was entitled to those warnings ok whether he could have the opportunity to object to the reek aerators ation because when somebody who had already filed a twenty to fifty four petition proceeds and files a subsequent mislabelled petition there's only a couple consequences to that either number one he's proceeding deliberately proceeding on certain claims and abandoning the other ones in which case he would have received his full round of collateral review doesn't fairness interest of cash flow or the second possibility is that he's was withheld some claims in his back pocket for a rainy day to attend to the last ability is he doesn't know he has to bring them all together and he hasn't thought of some of them yet and if you slapped him with warnings he would sit down and think about them and that's why our whole premise of castra and that's why our contention is when somebody files as a first time file twenty to fifty four that makes it different let me ask you about your restaurant you also argue in your brief retroactivity there's not retroactive decision doesn't castro itself refute that or castro just applies it to that case under consideration it doesn't make a sweeping statement it it's  so you cannot use it to make this one second or successive so it apply the rule retroactively to castro's first twenty two fifty five so that's a quote if that's retroactive that's quote retroactively sanctioned by the supreme court well here's my response to that and i think that is also sort of part of the committee whole argument where you're you have a decision and you have a two thousand sixteen dismissal and so there's no problem because it's current law and it's a current dismissal but here's what's being overlooked there's twenty five years of procedural history here in one nine hundred ninety two that is the first time that that eighty eight spelman count that on the current one but the one thousand nine hundred four petition and castro it was not it was not deemed to be successive here and i'm sorry why then were we arguing about the previous following and that's sure i understand your honor i'm not sure i understand your position i thought that what we had it was a nine hundred ninety four later he filed the one that was under review in castro the supreme court correct and what the supreme court said is you can't count the early nine hundred ninety four one because you the years for the last twenty five years so that effect rony slightly under castro well that's the thing that that effect of the eighty eight spelman petition is what we're considering here the effect of that was to give it a success of this bar and so on appeal what we have is essentially a collateral attack on a success of this determination it's twenty five years old just like in caster you had an attack on the own the successive did terminations and that was pending before the court at that time we're not talking about what was done twenty years before we're talking about whether this one can be in this case whether this one now before the court can be considered success if we don't read castro's setting forth a general retroactivity principle it just limited the retroactive application to that to that kid nevertheless it applied the principle retroactively to that case did it not direct that's the point that i think is being made it may have limited it there but it did that very thing in that very case right right ok got your argument is you're going to tell me i'm being unfair to the counsel for the state and i've got it all wrong no your honor i just really want to make one quick point in the not to queue up any more time of the of the court's time the rule that the state appears to be urging with respect to the pleadings that were filed prior to the eighty eight case is the harmless error rule that they argued in their brief and i would just point the court to its prior published decision in figaro's sanchez which i cite in the reply brief which basically states that castro was mandatory not then it cannot stand as a first he had been given the warnings what if he what would he have done differently excuse me your honor if he had been given castro warnings what if anything would he have done then i think your honor he wouldn't have agreed to dismiss the i think there was some thirty something other claims and go forward on only the one exhausted claim he would have gone back to exhaust i mean this was so long ago your honor that that dismissal of a mix petition in place so he wouldn't have abandon those other issues i think that's correct your honor you're but isn't there some significance to attach to the fact that unlike more rand that which is rooted in a very different foundation this rule  it than simply the supervisory control that the supreme court might otherwise have i have to over the rules of procedure and i have to say that for the moment claims aren't usually governed in cases so my knowledge of the fourth amendment is not all about you but you understand the point that i'm raising with you yes i do your honor this is grounded in the supervisory power of the supreme court it's not grounded in the fourth amendment it's not grounded in the fifth and then when it's not grounded in map it's not grounded in the exclusionary rule it's a very different specie significance are we to draw from that if any i'm not i'm not exactly sure your honor i mean i think that with respect to the question about whether this was actually his first motion and whether those prior procedural dismissals i would note that the three prior cases prior to the one thousand nine hundred case they were all dismissed without prejudice  and i think even if we weren't in hades land that no court would consider those to have any kind of precludes effect because as i said they were all expressly dismissed without without prejudice but but notwithstanding that i think that the fact that the first and second motions are petitions in the biggest land have always meant something very specific the court has always been very clear that just because something was private filed previously that doesn't mean it's a first motion or petition and because something was filed subsequently that also doesn't count there very there's a series of supreme court decisions that define when a case is a first petition or a second petition and i think there's no reason to assume that the supreme court constitutional when you which emphasize the point that they do supervise us and the supervisor rules are as applicable says anything else they don't think your honor for answering the question for me are thank you