preclude breyer subject brady claims to the standard this court in the supreme court of repeatedly said that the threshold question whether a claim a second or successive is not a question that is answered by the statute that is very clear that to determine whether a claim a second  success if you look to three factors you look to consistency with the abuse of the writ standard because that at present tended to be an evolution not a radical departure from that standard you look to you look to those purposes the kinds of claims that it is meant to subject to severe restrictions and you look to the practical implications of your best practice if a given claim or to be treated as second or successive and so you fly these factors and brady claims it's very clear that it is not meant to foreclose brady it is close violation that does not mean that they are all intended that already claims are secondary successive there are many claims based on newly discovered evidence that are nevertheless not secondary successive because for example the first petition was dismissed for failure to state remedies so the fact that a claim is based on newly discovered evidence does not answer the threshold question whether the claim is intended to be treated as second or successive and well you want us to just pull brady claims out of twenty to forty four state does and does not contest that a material brady claim that his was not disclosed at the time a verse petition would have would not have been treated as an abuse of the red and so the question then becomes will this as their reason that would foreclose that claim that would have survived under the abuse of the right doctrine and the answer in the case of brady is clearly no you looked at his purposes counsel earlier mentioned finality but and granting that he's court's jurisdiction congress had no intent to acco finality to convictions that were obtained while the state was withholding evidence lopez addresses the senate says that certainly the language all of us is that is certainly not an ad a goal that we cannot have intended to foreclose those claims and number other rationale was based on the idea that a claim is not sikander successive only if the first petition is in some sense still pending so talking first the secretary is really the only other case that is that would be that is in tension with our position and the eleventh circuit and talk and there were several several claims were censored including a brady claim and the court's russian i was simply well these are claims that could be an routinely are raised in first petitions therefore they were right at the time of the first petition and should be treated as second or s e the court did not stop to ask whether a brady claim can in fact be brought at the time of the first petition and certainly when the fact of the violation has not been disclosed until after a violation there is no way for a claim to have been brought o any earlier time let me ask you to pass your posture seems to be a little bit different than the other two in the sense that if but i'm i'm not saying we have a conference on this case so we don't have  i'm just giving you a hypothetical at this point but if we were to reject your argument that prince's habeas petition is not second or successive i don't see anywhere in your brief or your seeking not be trusted and so you're not that you didn't you're not seeking that as a fallback position not as an alternative and this briefing if this court were to disagree with us that that our claim is not second or successive we would consult with her to you next time and you our client may wish for us to file an application for permission ok i just want to make sure that i understood the posture that you were putting it just what is the precedential value what presidential value does our open and lopez is still an open question so that court did not view gauge as per clue said and i wanted to highlight a couple of points about gage that had been touched on earlier gage did say it was there was a suggestion that cage did not say that a brady claim became ripe when the trial judge commented on the contents of the disclosed evidence at a adipose trial hearing that is exactly what gage said that said that it became ripe at the latest at that time but it didn't say it becomes ripe when you discover it it said so it drew a very clear distinction between in effect of this instance of counsel claim raised engage and the brady claim raged raised engage in both instances the the so ineffective assistance of counsel claim the petitioner knew about it after trial he was on notice after a trial but the gauge for that set the gauge court said that claim became right at trial so it became right even before there was a reason to know of the specific evidence that's an ineffective assistance of counsel claim the present factual predicate occurred at trial and therefore it became ripe at that time with respect to the brady claim on the other hand the court said that that claim became ripe when the pitch when the contents were discussed in other words when the petitioner had reason to know of it as to the at the latest language i think the best reading of that language is what the court was saying is it's possible that the petitioner engaged had notice of it earlier so it could have become ripe earlier because the big issue and i case knew that there were records that were being withheld he just didn't know all of the details of it until after so it could have been the i was on notice of it earlier but i think the clear implication of gauges that claim does not become ripe until the twenty two forty four b so one felt the claim there was clearly an abuse of the read the court even said that the sure had not shown cause and prejudice so there's no there's no suspension clause concerned the petitioner had not lost his only opportunity to present that claim he forty four superfluous and here twenty two forty four b to be makes it clear that there's a mechanism in place for dealing with newly discovered claims and as the court held i don't understand your superfoods argument there is things that twenty t forty four b apply to other than brady so what's the super for its right to be rendering superfluid well twenty two forty four b to be applies to newly discovered claims in general and this court held in one last show that the difference between newly discovered claims and ninety type claims claims in which a factual predicate does not exist is that for newly discovered claims claims that apply under twenty to forty four would be to be the factual predicate was already in existence at the time of the trial release at the time of the first petition and on the other hand the factual predicate did not exist and this causes a twofold problem first petitioners in with write for the claims or write claims in general would never have their claims heard because those claims become right after the first fission and your honor mentioned safety valve earlier in plenty a person with a ford claim would not be able to take advantage of u right but where there's an active suppression of the evidence by the government in the brady claim how can you charge the petitioner with the  without be able to discover it but i think this is something that congress specifically contemplated so you agree that well there's conscious suppression of brady evidence then difference between private counsel being ineffectual and the government suppressing you know there may be a difference as a policy matter i think would not under twenty to forty is not your honor but from the from the perspective twenty two forty four there is no difference between government action or councils action or actions by an unscrupulous trial judge i think there's other mechanisms in place for dealing with unscrupulous actions by prosecutors put in twenty to forty four is not the mechanism to do that and with regard to gauge gauge says specifically that it  just undiscoverable in any other way those claims fall under twenty two forty four b two b telling because twenty two forty four b is a broad rule that applies to newly discovered claims and if congress intended to exclude brady claims from that rule i think it would have specifically mentioned it and it's also important to note that prejudice issues that they found the claims are the elements matched up the suspension that the so is that imposing of suspended that sentence so these are all new factual predicates that arise out of this triggering event brady is not one of those events brady violation occurred at the time of trial the question is when else is covered and that's a question for twenty two forty four b to be it's not simply that his comedy goals wouldn't be served by by a foreclosing a claim that the state could have prevented from being litigated later how to just minutes to constitutional disclosure obligations it's also true that it wouldn't conserve judicial resources point you mentioned due diligence and whether or not this is the kind of claim that a petitioner could have discovered on his own that's precisely right and the supreme court made that point in strickler versus green one and it noted that in the case of the evidence is in the hands of the state supreme court made a distinction between brady evidence evidence and other out of evidence in another case united states versus augers that was a case where it applied a lower standard for a motion for a new trial based on evidence that was disclosed withheld by the state rather than had been discovered from a neutral third party third party and what the court said there was quote evidence that was available to the prosecutor but not submitted to the defense places and a different category than if it had simply been discovered from a neutral source after a trial if the standards were the same there'd be no special significance to the prosecutor's obligation to serve the cause of justice and if the state's role were adopted here it would similarly accord no special significance and would undermine fundamental duty of the state to disclose material and exculpatory evidence for their questions and thank you both for your argument this matter will stand submitted the court's going to take a brief recess for five to ten minutes and then we'll re constitute on the last case