binding case law and rewrite not just one but two statutes the case law of course but i have in mind as its goal for sure men and which this court held that petition that is the first to challenge first to challenge that new judgment as for the statutes first of course there's and on that i'll just quote the supreme court and mag would quote both section twenty two fifty four b s text and the relief provides indicate that the phrase second or successive must be interpreted with respect to the judgment challenged unquote so to evade that textual and structural focus on state court judgments the world would need you to to rewrite twenty two fifty four b and then you'd also have to rewrite california penal code section twelve hundred thirty seven point one that would be necessary to accommodate this idea warden floats that scott had no interest in correcting his custody credits because is that i think as i read the record your client was late filing a habeas petition it's i think it has a half a dozen arguments and half a dozen claims i should say then you got this correction and apparently a something that is called a new judgment because of the account looks like someone counting error and he filed the very same petition that was already deemed tarty it's really hard for me to see how we can progeny it's also really hard for me to imagine that this is what the supreme court intended i hear you relying very heavily on the on the the authorities that we've got that you that you said i think very forthrightly are binding but i have to believe gonzalez nor once will talk about the contents of the first book in time petitions so we're sort of in the dark i mean it may have been the same thing once a for instance which involved a late first put it right the first petition was tonight as and from here was discussed that so i don't think that's a grounds for principle distinction from those cases but this case this rule comes out of his area where there was the death penalty a very serious case the death penalty an error discovered in the state court about balancing the  days credit for time served he was entitled to is that right that's right ok and i shouldn't be concerned about that different type of error when i mean i think it's decided by gonzales but i mean in mag would you have i mean there's some there's some follows from edward in mag would you don't have any practical effect in the new judgment than if you got a new judgment he received the same sentence and he the claim he raised in mag would was that was a claim that he could have raised as to the first sentence so here that these are claims that he has raised and he did raise so if anything he's been he was magnitude is the situation going to be that state by state depending on rules about what does or does not trigger the entry of a new judgment for whatever reason for an accounting want not state by state then undermanned with their people would would or would not be entitled to file a new i second to be specific so i think there would be a narrow state by state looking at whether there is a new judgment right but what i think the court needs to avoid is a situation where the courts can constantly revisiting judgment judgments about whether there's a you know all the different variables that come into hundreds of variables that could pan right so so there's this narrow focus on whether there's a new judgment but as far as the rest of it you avoid distinguishes between the clerical errors or are covered by gonzales what's not covered are scriveners there so as long as the as long as there's if so if there's a correction if there's an announcement of a sentence but then the you know jet the written record of that judgment doesn't correctly reflect that's now  go farther than went and your view is i think we're bound by it because by three touchdowns competent but to just be clear it does go farther than went and it does allow this question i just need to understand what is the practical effect of this correction of a clerical error lets a practical effect climb so i'm going to answer that directly if i can just make two points ahead of that first  practical of grafting a practical effects test on this would not be consistent with my good because in my would there was no practical effect of a judgement there was a new judgment that had the same sentence and it had no practical effect on that titian or so and you no board back and we support of that would be made up a couple so it's a contingent of fact but it's not nothing and in california i think there's that it's there's a really a non trivial chance that that would come to fruition because there's been a raft of legislation about your parole hearings and so on so so there is a real possibility alive possibility and so the correction of his judgment in that respect is a practical effect of contingent well i'm trying to see the practical effect on his sentence at all but i know it wasn't a i know it wasn't a change in issues and i was just kristen said mitigating in aggravating factors and all of the things that go in no statement of reasons was differently that's right so that there was not life without parole that sixty five to life there isn't a large practical difference between those two cases whoever this situation with the custody credits is not what still pending and that's now been resolved and westbrook was pending before the supreme court that's now been denied on cert in january what's the status of the circuit had a case that came up that was they did distinguish and the other circuits that followed magritte but the other circuit case law doesn't involve a fact pattern like this one i have yet to find a case other than  circuit court has addressed this kind of fact pattern thank you for the answer to that question so so then getting back to the one i didn't let you answer the first time what do you what are you asking us to do you of knowledge that at this point gonzales is finding i appreciate it wasn't when you maybe  we are are you asking us to recommend that we take it on bank are you asking what what are you asking for your honor and america would my office still believe this could be a live issue that the united states supreme court should one day address possibly in this case and we  would hope that possibly the ninth circuit as a whole would look at this issue again on because consult was not an isolated situation it seems to have come up again and i have another case pending in district court where the same issue has come up so it is it is an issue that is being repeated ins in the cases this is probably one of the more extreme examples where the petitioner has a life without parole sentence and the only change is to s petition if you calculate the time from the date of the california court of appeals opinion would still be untimely by two weeks and so that would probably also phone down timely this granted that was yes i thank you so did you argue to the california court of appeal that petitioner section twelve thirty seven point one motion which is for correction of sentencing credits w moot in light of his life without parole sentence no you are arm it's a could you not have made that argument that we did not make that argument it's a simple custody credit calculation if it's wrong we ask that it be corrected on there being cases where we've even done that on our own motion in this particular case obviously it makes very little difference it's not there's usually no further discussion on it and particularly a case like this with such a serious sentence where the custody credits will make very little no difference at all well in any state there are multiple opportunities for corrections of custody credits for many reasons so california seems to be in an almost unique position in allowing this kind of elevated correctional system which the state sometimes participates in on its own petition but is it do you think that you have preserved this particular argument in your briefing because gonzales did come down after the judge made the decision here did it not and i don't know that the judge ever had the opportunity to address it in light of gonzales or any of the progeny or if you did i'm not certain that i find that in the briefing earlier  obviously come out after the state court decisions will suggest records if that well i'm asking if you had the opportunity to present these arguments in your briefing because you also say in footnote eight of your answering brief on page fifteen that you you state that the correction to petitioners pre commitment credits realistically will never have any impact whatsoever on petitioners life without the possibility of a proles sentence does that figure in anywhere and does that materially change these facts as they were presented in the gonzales case which i agree it's hard for me to agree to this bug where the we're just not going to be able to change gonzales so if there is a material change in facts if this case can be distinguished on its facts can that be done considered in or out for a sentence state of california if it's wrong because that way the court gets to correct it any time it's not considered a judicial discretion thing it is a mathematical calculation and it's not a read hearing of the entire sentence and certainly in this case it wasn't and for those reasons are i would hope that the ninth circuit as a whole would take this off as well as the u s supreme court i just want to briefly address your concerns about the first petition being right being so it's twenty two forty four is that the one dealing with the deadline addresses applications not claims you can't distinguish there's no way to distinguish gonzales based on because it says that it doesn't matter whether there's a substantive or i think effect of what you can read so there's doesn't matter whether it's a practical effect of a judge without  and go into the next case on the counter