thank you judge your honors and may please the court my name is thomas birch director of the appellate clinic at university of georgia today one of our third year students mr jake edwards for the case on our behalf and i'll be sitting counsel table thank you very much honors thank you mr chief judge your honors may please the court my name is jacob edwards and i represent mr william gray in this case this case is about whether mr gray after being resign tensed and obtaining a new judgment can attack his undisturbed underlying conviction this court should allow a petitioner to attack their undisturbed conviction after obtaining a new judgment for two reasons first because that because the text of sections twenty two forty four and twenty two fifty four only bar second or successive applications against the same state court judgment and second because this court screen mag would precedent does not preclude this court from allowing a petitioner to attack the entirety of their new judgment i don't mean to short circuit your plain yes your honor more specifically to the second point i noted before this court has never addressed this exact issue and it would not have to retool fourth circuit precedent to find that a petitioner in mr grey's position can attack the entirety of his new judgment the case in williams say cited by the state in this case is not a new judgment case similar to the right case that you just noted previously and the supreme court mag would stated specifically that a case not involving a new judgment casts no light in determining the effect that a new judgment would have on the second notice or successive notice of a petitioners application and in the state in mag would try to rely on pre ed put cases such as right and williams and taylor that this court has penned and in interpret ing the second or successive bar of twenty to forty four and the court stated that it misplaced reliance and a misunderstanding of the issue by relying on those pre ed those post cream ag would cases and this court in williams stated that a petition cannot be allowed to resurrect claims previously denied on the merits but the facts of that case did not require this court to determine the effect that a new judgment would have on an applicant's ability to attack their own district convictions so it wouldn't control the effect that the new judgment mr gray has obtained in this case would have on the second s or successive ness of his current application and similarly this court in taylor didn't decide the issue before us today instead the taylor case was much more factually similar to what the supreme court faced in mag would where the petitioner had been recent tense therefore obtaining a new judgment and he was attacking the not his undisturbed section his conviction but his recent tensing procedure itself and the state in the response brief points to a single footnote in kate in taylor where this court discussed the issue that is before us today whether taylor could have raised could have raised a point that he had the opportunity to raise in a prior application but discussion beyond what the this court faced in taylor would be merely dicta and to the extent that the footnote in taylor does address this issue it appears to be irreconcilable with what th court decided in mag would the taylor footnote cited by the state noted that the government had a concern over applicants raising claims that could have been raised in a prior application however that was a very popular argument by states in this situation that twenty two forty four twenty two fifty four was a claims based statute and instead of looking at whether someone obtained a new judgment court should consider the newness of claims however the court in mag would reverse to the seventh the eleventh circuit in that holding and found that mr mag would could attack his attack his new judgment because that is what he had obtained before that application the take this court in taylor noted that a petitioner may solely attack claims that arose after obtaining a new judgment in that footnote and that's directly contrary to what the supreme court judgment the case may have ended a different way in fact because mag would did not apply this court applied the pre ed principles the post at the president looking at abuse of right principles but in this case since a new judgment applies we can apply the textual based are textually based argument that the supreme court followed in mag would and more specifically that textual based argument the court in mag would look to the text of twenty two forty four and twenty two fifty four and found that a first petition challenging a new judgment is not second or successive at all more specifically the court looked at the term second or successive and found that  modified an application not the claims that a petitioner could bring in that application but the application itself and that application challenged in twenty to fifty for a particular state court judgment this led the court to conclude that the phrase second or successive must be interpreted risp with respect to the judgment challenged and when there is a new judgment the appellant is no longer attacking the same state court judgment as a prior application following that logic the second or successive rule only bars multiple applications against the stain state court judgement and in this case in two thousand and fifteen mr gray obtained a new judgment and this would reset the number of applications against that judgment to zero and his first application as in this case cannot be second or successive at all  neven the court noted that there are procedures bars that are more apt to handle issues like this in mag with justice thomas noted that it would be rather easy for a district court to dismiss a claim that has already been a would halt this idea of frivolous abuse of writ claims and the state in this case are argues that this court instead of following the straightforward new judgment approach outlined in mag would should revert back to the component approach to a petitioners judgment more specifically this the state in this case asks this court to separate mr gray's judgment into its component parts considering what had been amended in his sentence and what had not in his conviction however the supreme court and this circuit have clearly stated that a new judgment includes both the sentence and its conviction in deal versus united states the supreme court said that a judgment of conviction include sentence applying that to sections twenty two fifty four the language of twenty two fifty four only states that a successive application should be denied if attacking the judgment without meeting an exception so the state argument in this case requires this court to read in the word an amended in front of judgment in twenty two fifty four saying that the application should be denied if attacking the an amended  judgment the court addressed this concern and mag would when it stated that we cannot replace the actual text with speculation as to congress's intent in the state's response they noted several times that the intent behind was contrary to what this the five circuit courts of appeals that have addressed this issue have found but to read in that that word based on the speculation of congress's intent with ed would be directly contrary to the text that congress passed in section twenty two fifty four and in addition to that the magnet opinion outlined the fact that the states claims based approach would read out some of the exceptions of twenty two fifty four especially in twenty two forty four b one because it would render twenty two forty four in a pleasurable to those claims entirely this line of reasoning that second or successive modifies an application and an application challenges a particular state court judgment is the only logical reasoning is the only logical reading of what this of what the supreme court has down in magna that's why the court used very specific language to describe the effect of a new judgment the court stated that a new judgment is dispositive in determining whether an application is second or successive this court so that if the supreme court said that if a new judgment exists then the first application is not second or successive at all contrary to the supreme court's choice of language dispositive and at all the state in this case says that mr gray's new judgment is not determinative instead the state that what is determinative would be the timing of the errors that he's challenging in his new but titian but that's directly contrary to the idea of the new judgment being dispositive following the state's claims based approach to it and the new judgment would merely be a threshold question and after someone obtains a new judgment the dispositive determinative question would be when and how those claims arose and that's exactly what the supreme court reversed when they decided the mag would opinion the eleventh circuit in mag would held that the first step in determining whether a twenty to forty four b applies is to separate the new claims challenging the recent unsing from the old claims that would or should have been presented in a prior application basically the eleventh circuit focused on when claims arose just as the state is trying to argue this court should do in this case but the supreme court  mag would overruled the eleventh circuit and said that it was not the timing of errors that is dispositive it is the existence of a new judgment since the court rejected that times based or opportunity based is truly dispositive and allows a petitioner to attack that new judgment with their new application to combat the five separate circuits circuit courts that have found that the new judgment approach in mag would controls in a case just like this a petitioner attacking their undisturbed conviction after obtaining a new judgment the state points to a single paragraph in the mag would decision that does address the newness of the errors however that paragraph on the last page of the mag would decision was dicta after the supreme court had already outlined its new judgment approach after it had used terms like dispositive saying that mr magwitch claim was not second or successive at all and in mag would the claims of the petitioner was found able to raise included a fair warning claim along with his ineffective assistance of counsel claim and that existed before the new judgment had been entered the supreme court mag would stated that the state's concern that a petitioner can bring old claims after obtaining a new judgment was in fact greatly exaggerated noting the procedural bars we discussed earlier it went further to say that the lower court's decision in the state's argument relying on pre ed put principles the abuse of right principles over the text of the statute was a misplaced reliance said and if establish the rule that the movement urges you to adopt that any new judgment raises a successive bar it could have said that he could have very simply said we hold that any new judgment raises  erases the success of this bar but they didn't do that instead the mad with court went out of their way to emphasize that it did not decide the question that's presently before this court what happens when a defendant who receives sentencing relief comes back and now tries to attack the undisturbed conviction specifically indicated that it's not the side that question this matter of fact it went out of its way to say in addressing some of the concerns raised by the defense and raised by the state of alabama that any concerns that had these it be that question were speculative and ought not to be of any concern at that particular point in time the magnet decision went on and talk not only about the newness of the judgement and there's no question that the newness of the judgement is a line of demarcation because the newness of the judgment creates the finality for purposes of habeas law but importantly the mat with quote went out of its way to emphasise not only was the judgment new but the petitioner in that case sought to attack was also new and it was new because that error was made in his original sentencing and it was new because it was made the second time and the court was very clear that it was not just the newness of the judgement that controlled the outcome of that case it was the newness of the error that the petitioner sought to raise but it was the same error in the regional recent that is closing approach that the eleventh circuit had adopted yes and focus on the judge yes that's correct and why why are you saying that there's not cabin harnesses here i think because the met with court was concerned with some aspects of the abuse of the writ precedent which did take the claim by claim approach and what the court was trying to emphasize that the error was new because the error occurred the second time he was reset and and they go out of their way again toward the end of the decision to talk about what happens if you have trial lawyer and you have a petitioner who receives relief based on one of the trial errors but the court doesn't address the other i believe the example is ten trial errors but doesn't address the other here and then he goes back for retrial and now again the court commits the same ten errors the court was making the point that again of their writ excuse me the abuse of the rep principles could still control and they make very clear that that once a determination has been made that a claim is excessive then then the consideration has to be whether or not the underlying conviction is subservient in the new judgment there's no question but that's true but the question then becomes whether or not the error occurred within the new proceeding and so that that's why we we bas on you have to look at when the error occurred in relation to the last hippias application because that determines whether or not the error is new so if you go back for recent and saying then on your new hey vs you're limited to challenging sentencing here if you receive a new trial then of course all the error is new because you're starting over from scratch and again i think that was one of the points that the court was trying to make particularly toward the end of its decision when it was drawing out the distinction of what to number one kevin its decision by saying we're only talking about recent and sing here talking about in the newness of a are but then take a look at footnote sixteen again when it's addressing some of the concerns of the dissent indorse is the can the the decisions of several courts based abuse of the writ principles which cabin consideration on a second  errors only and would preclude though it would preclude those petitioners from going back and trying to attack the underlying conviction and specifically that would be walker esposito and lang and more importantly those decisions in par there was recent sing relief and there was new air that was being raised because it was the first opportunity for that petitioner to address that error he was allowed to proceed with a reset using challenge but this court noted that if there was a circumstance where he was also looking to attack underlying conviction which was not new and he would be precluded from doing so so i think it's very clear that this court's precedent ought to this ought to guide this decision and as an example i would cites you the suggs case so this is a case that emanates from the seventh circuit and saugus said that they had already considered the issue that the mag would court had specifically precluded from consideration because it said it wasn't considering it and that their press in it had dealt with that issue that being the dollar case which adopted the dicta in taylor and said just as as we have here where you have  and that makes very perfectly good sense because the whole purpose of was to streamline the process was to require that inmates bring their challenges at the first opportune moment to avoid piecemeal litigation and i would ask the court rhetorical what's new here this particular error was already raised before the district court the district court gave it to due consideration the district court determined that the that the matter should be considered but the point of the matter remains this issue was raised it was considered by the district court it was considered by this court and in both instances it was up held as time barred he's had his opportunity there is nothing new here so again i would urge that this court follow the lead of the suggs case and subset that where it had existing precedent that dictated the decision in the case that they would they would claim that attacks the underlying conviction and as a matter of fact it's even a little worse than in that circumstance because i believe in suggs there was also at least one claim that was directed toward the recent unsing here none of the claims are directed toward the recent  if appears situation where a defendant is trying to go back and bootstrap a prior error prior error that has already been raised and considered so i would urge this court to follow the lead of the sec's court and to determine that this  should not be allowed to proceed and it should be found use excessive barring any further questions thank you for your time and consideration your honor thank you your honors in a mag would the supreme court did address the fact that mr mack would was challenging new errors however the supreme court did not go in any way to say that a petitioner could not challenge his undisturbed conviction what about what counsel's argument about her bar well your honor mag would address this issue more simply saying that in this in that case all the court had to determine was if the petitioners application was second or successive tell me earlier would not apply to this to preclude would not excuse other adjudicated on the merits the district court would be in a position to take easily to easily go through that decision at the district court level however it it's our understanding that mr gray in this case u sing intervening supreme court precedent will argue that his decision his time barred adjudication on the merits of this case would be affected by the quickens vs perkins case and in fact  no your honor no your honor not at all and he'd be able to make that argument in the district court that his previous application being denied on the merits because of the statue of limitations is contrary to intervening supreme court precedent but again that's an easy decision for the district court to make because all circuit courts of appeals need to do is address the second s or successive ness of his claim and that further illustrates the the state in this case argues and this court in the right decision stated that one of those principles was to streamline and make more efficient the process of making these types of claims and in fact mag woods new judgment rule purpose on that type of analysis what mag would say that the text prompts yes yes your honor absolutely all i was saying was to the extent that this court believes that that  the principle is at issue the court in the ninth circuit and went to a versus neven noted that there were a fish and sea reasons in order to follow a mag woods new judgment rule because district courts wouldn't have to separate these claims and send claims that are challenging an undisturbed conviction up to the court of appeals to determine if they can be brought and instead can address these issues unilaterally after a petition or obtains in your judgment and also the state in this case points to the seventh circuit as a model for this court to to follow because the seventh circuit is the only circuit court of appeal since mag would to hold that petitioners application challenging their undisturbed conviction after a new judgment was second or successive however the seventh circuit had a very particular precedent before they made their decision in the sox case more specifically the dollar case in the seventh circuit had addressed this issue on point it had addressed the fact that a petitioner could not bring an application against their undisturbed conviction after obtaining a new judgment and because magwitch holding did not directly overrule that the seventh circuit almost reluctantly followed that pre mag would precedent to the contrary the fourth circuit does not have such on point precedent the state points to only three cases that address the issue here but simply do not address whether mr grey would be able to attack his undisturbed conviction after obtaining a new judgment first because the right case in the williams case do not involve a new judgment and the taylor case is not a case in which the petitioner was attacking his undisturbed conviction in fact this court's circuit precedent is much more similar to the second circuit and the sixth circuit in the johnson and king case respectively in  second circuit in the sixth circuit had precedent very similar to taylor issues that did not address if a petitioner could attack there undisturbed conviction where the court made commentary on either a footnote near the end of opinions saying that someone wouldn't be allowed to bring a petition that they either had the opportunity to bring before however since mag would courts have changed their position in that issue the state address is footnote sixteen where three circuit courts of appeals were quoted saying that they had addressed this issue those are the seventh the sixth and the second but since agood sense footnote sixteen both the second circuit in johnson and the sixth circuit and king have the cases that are cited in footnote sixteen and to the extent that the state believes that the taylor case is particularly on point and besides this issue it wasn't quoted by the supreme court in its footnote describing circuit courts that had addressed this issue instead it only quoted those three courts two of which have now been overruled this court should follow the supreme court's ruling in magnitude and the five circuit courts of appeals that have interpreted it and allow mr gray to file his