judge higginson granted a c e o and on a single narrow issue in this case whether mr gallagher says it will sixty be motion was improperly construed as a success of habeas petition by the district court now with the court's permission i'd like to briefly substance of that motion was actually really was a success of habeas if you look at the cases there cited in that motion everything relates to twenty to fifty four motions and cases governing successive habeas and his argument was basically because that was a new state court judgment that entitles him to a second pay vs a petition that wasn't successive so basically he framed it as a rule sixty b but it wasn't in substance an actual sixty motion let me just ask you th control risk so in energy and trust that was a twenty two foot fifty four petition and if you read that decision they actually relied on the petitioner said that court errol provided a newly discovered factual basis leave from the hideous judgment so that that proceeding to be reopened and so that he can pursue habeas relieved now that they've been cleaned of the defects and the defective state court proceedings have been addressed and remedied  relief from the federal hate b s judgment now the no state is in from israel that's referred to in an area and region trusts that rule is based on the idea that you can't claim the constitutional errors in your state proceedings provide a basis for just provides because in the state post conviction proceedings that's collateral to the actual detention itself wanted not a privacy to be offered so sixty beat you know the idea is that ultimately yes he would be reopening if he was granted sixty relief he'd be relieved from his heaviest judgement and he'd be reopening his habeas proceedings but the state deficiencies and the defective procedure underlying the federal habeas proceeding that's the basis for exit asking for the habeas judgement to be thrown out it's not the basis for asking for relief from his conviction or his custody no one why did the summary  information that was before it so the looked a presumption as you talk not from wilson the sellers talks about how when the high state court hasn't given your reasons for their judgment you can look through that to the last reason state court decision and presume that the higher state court based their judgment on the same reasoning and i think the big issue in the distinction here is that the look there approach is a presumption it's not a detour around the higher states decision it's a way to make a presumption about what the highest state courts reasoning was and so it kind of highlights part of the defect of that proceeding because in that case the district court based on the information probably presumed that a three judge panel for the louisiana fifth circuit looked at the state court's decision and adopted the reasoning for its own sent in wilson the sellers it says it's a presumption and the supreme court repeatedly says that the purpose of it is to discern the identity or to replicate the reasoning for the higher state court and so here it was applied properly because all of the information for the court of the time there was no reason for them to think that this was not an optional reasoned opinion by the louisiana for a circuit or there hadn't been any review at the time they reasonably believed ok they've affirmed so if there's no other reasons th must just be adopting the lower decision now now that the is in effect circuit has reconsidered and provided its own reasoned judgment that further shows that that presumption was flawed because when given the opportunity at the losing of the circuit actually provided its about the question on which the c e o it was granted and if i understand it correctly is whether this sixty b motion is a genuine sixty motion or a success of twenty two twenty to fifty five or fifty four success will sixty be motion you have to be challenging a defect in the taggerty of the heaviest proceedings you can be challenging i'm certain that are all yes maybe it is that the problem with your argument is that the the federal court didn't this decide to just let some staff attorney decide every case or whatever whatever which is what the allegation is about louisiana the federal court didn't have any defect the deepak was a mistake or prosy right well i think the source of the defect in the federal proceeding is really the fact that i provide significant deference to state court determinations and it requires state court claim exhaustion for federal habeas claims to be granted or believed to be granted under federal habeas there and so the problem is that if you look at the report recommendation and the district court's decision here they did look to the state courts terminations they deferred to the reasoning and they were looking through to the state district court's decision when it based on the when it relies on a state court process that was itself messed up i was a that there i have not seen any cases that are directly on point with the exception of the unpublished czech snyder case here and i think that in read preparing to this argument i did look to where the court arrow issue has been raised in district court proceedings and and even when it rose sixty b really just denied it it's always treated as a rule sixty b motion  have not seen analogous cases where there is a some kind of flaw in the state court proceeding like this where it's not that a movement has failed to request or leave or make a claim or make an argument but it's actually the court itself that has engaged in some kind of improper conduct and i mean i got to tell you i'm not surprised because it's very and it's got to be very unusual i mean essentially the fifth louisiana fifth circuit's first judgment would use the term void i mean what was it i would say that  in court arrow it was ultimately vacated and i realized that the language used in court errol says that they're transferring back for reconsideration but i knew judgment was issued by the louisiana to circuit and then the louisiana support supreme court issued its own new denial of his claims after all of the federal federal habeas proceeding or providing reasons right exactly first time around it just said whatever denied exactly second time around actually provided reasons right so your point is if we're doing the look through it's conceivable i don't know i'd have to look through this torture procedural history to make sure but that could be the last reasoned decision on a given issue exactly wrecked who is in it i would say though is in a fist circuit decision from two thousand and ten is the last reaso of the original federal habeas not a defect in the federal hey views i mean i'm having trouble with the notion that it becomes defective for a federal court to do something because a state court screwed up in some way in the hay vs process and this is a rather large screw up and it's more than just a screw up i mean it's very bad but we get a lot of cases where they say the mistake or didn't hold a hearing or the state court just let the state  write the findings of fact and signed off on it there's a lot of things where they not is headline grabbing but they make allegations about the state court and so i don't know why that creates a defect in the federal proceeding even if that's discovered after the fact so you didn't know about that then later on you found out that the state court judge didn't even read anything or didn't do what they were supposed to do with if they are deferring to their law clerk or whatever so i don't understand why that creates a defect in the federal proceeding as opposed to a defect in the state proceeding when i think the answer that is that it prevented proper consideration of behaviorists petition under the rules provided by a because like i said at the provides for in deference to state court determinations and it has this specific scheme in structure where you go up to state court and then you go over to the federal court and the federal court is looking down at the state courts adjudication of the claims and so here did the revelation of what happened in the louisiana to circuit it shows that the that's what i was going to i was going to i mean or a but i just want to get you for is there distinction between us answering the c o a question which is is this a legitimate sixty b motion and the merits of the sixty motion whether you qualify for relief under be five or b six is there a distinction it can this court reach the second question because i just want to make sure that when we're talking about all this interesting stuff we're focusing on the real issue can really answer the c o a question i guess i'm trying out the merits of the federal pay vs decision we're not talking about the merits of the sixty so to me when you are saying that the state court screwed up and therefore the federal court was wrong a defect in the federal hate is proceeding we pretty much have done away with the successive argument we just need to rely on sixty b i c sixty is a very narrow thing maybe you see it much more broadly no i mean i believe that is a very narrow avenue for belief and i think the idea behind it is that there are certain circumstances where there might be a variety of factors that are considered but on a case by case basis there's maybe something so extraordinary and extreme where for some reason it's warranted to relieve some of the judgment now going to the merits of the federal habeas petition itself and those decisions that would be the next phase so if mr gilder's did win on his role sixty motion and get relief from his judgment it's not like he automatically gets to this relief in the they say ok you win now it goes back to the court and says ok like i get that right and so i think that's the big the whole notion of that is trying to shut off all this back and forth and back and forth in qana have one process and not keep revisiting it so we are it is not a true sixty be moved before you get to that let me ask one more kind of along those lines you were talking about an timeliness can we look at the fact that he already he's already raised the chord nero issue albeit a different slant on it but the core darrow issue has already been presented to the federal district court ruled a pawn see a way to nod whatever whatever happened and why doesn't that end the matter is that judge panel in this court looked at his petition to item authorization the pilot during that where the time he was alleging to be an intervening state court judgment involved only an affirmation of the now if they post conviction that if we think that or are we limited to saying well forget all that we have to just look at whether this motion is really a sixty v well i think that we can do all those things going to do it whether the motion is sixty p because you know that the a motion can also be said to bring a claim if it attacks the federal courts previous resolution of a claim on the merits so my question is i'm assuming that's at least a standard so is his sixty  versus sellers on a look back through this particular decision in the state system and i'm really not and and i'm reading that and that's it didn't reasonably apply controlling supreme court law go away and then it's discovered that there's another decision in the state chain that is fake they were letting bailiffs decide that there were letting you know they were letting go i don't know anybody else decide except the judges who are supposed to decide it and so that the state system redoes it and that decision comes up with some reasons for denying his hey b s and now the second time around he says look the one that you look to for reasons is no longer the last reasoned decision now it's a different one no it's the no it's this new one that would be grounds for reopening the habeas the reason the us under a new wilson which now is applying to look through approach and recognizing that applies to not the intermediate court of appeals it's the louisiana supreme court we we rowed and what the federal court properly did in this case is decided to presume that the louisiana supreme court's decision was based on the same procedural bar on the same merits grounds for the same reasons as in the state court trial court decision so in the context of this case that intermediate  defect in the federal proceeding and there wasn't because the federal prison for correctly applied the law correctly usually looked to approve approach to find the reasons the grounds and looked at the louisiana supreme court looking down to the trial court which avoids the issue of the court of appeals not doing its job his actual argument with martin now you know when the when the case comes back again that says nothing about whether there was a defect in the original proceeding for a couple of reasons first based upon something that happened later i don't see how you can say that there was a defect in a federal court judgment that properly applied the supreme court you know precedent and having reaffirmed the denial oppose the bichon all that does at this point is it addresses in the state courts for the state litigants the perception you know based just because the state court issue something new doesn't necessarily allow you to file what would then be a new haiti so for example if the state court on in court as a core dare remain and had read on the sentence or something of this misspelling or they do whatever because this does happen that's what mag woods about it's not about doing it wrong doing by the judges but it's about changing something that doesn't ultimately make it a new judgment it says you don't get a successive on that you don't get a new b s on that it seems to me the question isn't whether he has a remedy for a perceived wrong it's whether this is that remedy because he's already tried others i mean he's taken his shots but now is this particular shot accurate articulate because it to the looked it doesn't make any sense but i cannot just i think the question is we're trying to see hypothetically could there be another basis for a true or proper sixty b and i think the question is do we even need to engage in this hypothesizing because the argument they're making is that there's a defect and the defect is because the federal district judge supposedly relied on the state court of appeals which is itself defective in your so is there any other argument that you perceive him to be making that that there is a defect in the federal proceeding because of perceived reliance on an allegedly defective stick or prosy that's what i see them making the trying to get care what he's trying to get here a reconsideration of the previous disposition of his federal constitutional claims on federal habeas review three of  some timing issue that affected it or something of that nature or a true de fact that it goes to a fraud on the court the state and provided fraudulent records or something like that that altered that that isn't what we have here clearly no one says it is so jimmy that the state court employed a proceeding that is in violation of state law i e having you know as a staff attorney decided or as was alleged having one judge decide something to reject it should decide that is a defect in the state proceeding it is not at effect in the federal proceeding i don't really are aware of where his sixty has the instant sixty the motion that we're considering here where is it in the record you have a record so i'm just i'm looking for an apology that i just can't find it i'd like to see what he says is it just seems seems to me the premise of going to alice is we look to see what is said in the sixty's emotion and if it's attacking the previous judgment on the merits then it's a success of hey b s but if it's bringing up something else maybe an integrity of defeat a defect in the integrity the federal proceedings but in this case the fact that we can't move on to the merits of the sixty nine s now but so i'm i don't know the answer to that that's why i asked questions but in the gonzales case the supreme court  found that they the six to be motion was a genuine sixty motion and so it reversed the eleventh circuit or whatever the circuit was and then it proceeded to the merits to deny the sixty motion so does that be change your about a couple of brief points i know that judge john king was asking about our way for real sixty b the current one is that our owing six thirteen to twenty two of them and then with respect to look i mean i think if you compare the entirety of that motion to the previous rule sixty b motion that he filed it's clear from that the cases that are cited he talks about he discusses extraordinary circumstances in the case law that governs how to determine whether something satisfies rule sixty b and where isn't that previous rule sixty b motion it's all it takes on matter what it talks about all of these twenty to fifty four cases and he basically says this is a new judgment and so i get a new behaviors petition you know we consider good apple binding question here can we consider that he's already raised core nero based arguments whatever they say work repeatedly before and now we're what ten years hence from court darrow and here we are still is there some kind of point at which this am's and can we look at that i don't think there's any legal basis to speculate about his motives based on the previous filings i know it's not motives what i'm saying is i mean i'm just tribute ing him to the most benign motives he's just somebody who thinks he's wrongfully imprisoned and that's every havey is petitioner fine but how many times does he get to attack the louisiana court of appeals on the court darrow argument i that when the court arrow issue came up and when his judgment came back down and had reconsideration in this whole series of events happened it's clear that he recognized that this was a problem that his judgment was based on a structure that was clearly extraordinary and problematic and so he went to pursue relief on it now just because he pursued relief based on the wrong arguments the first time around and said at first i want to second see the success of his views on this doesn't mean that you can't look at the current rule sixty b motion and look at whether he actually is alleging a defect in the integrity of the proceedings and i think that's a point here is that gonzales to file a rule sixty b motion you just need to be alleging a defect in the integrity the proceeding he doesn't have to prove it overseas right exactly we're getting a really important word federal right if they prove that the federal judge was not reviewing anything and was having you know his judicial assistant just  growing i mean the grounds that he's filed under as well sixty five and six five based on the fact that court arrow vacated the original us history decision from the from louisiana and proceedings that's basically the test for determining whether it's an improper successive or if it's an actual sixty you're right that's kind of the overriding it's not the basis it's the standard for deciding let me just ask rule specifically know i understand your argument about you can follow as many rules sixty's as you want but can we look at that are we allowed to look at that and say this isn't really a proper rule sixty cause you've already raised the core darrow issue rightly or wrongly before can we look at that now i don't think so because i think the circumstances that you have to look to are whether what the procedures were underlying the federal hate this proceeding and whether he's alleging a defect that i don't think that looking to other filings that aren't related to the actual trajectory of postcondition related because it raises core dare i mean i understand it he said we found out the judge took a bribe and he wanted to raise that but that's a new rule sixty or new successive or new something i'm talking about this is the same chord issue different formulation of it i think ultimately that goes to the merits of a rule sixty b i think that's something that because this court has held that rule sixty b motions are necessarily case by case fact specific questions and so i think in considering the merits of all sixteen b in theory the district court could look to all of the surrounding circumstances consider different factors in deciding whether he's entitled to relief under all sixty but that doesn't go