moved to the last case this morning morning may please i'm peter henderson they represent better to prosecute this case features an analysis of section twenty two fifty five and a second or successive petition and i want to separate requiring the new rule of constitutional law that's made retroactive by the supreme court and the limits in twenty to fifty five age and twenty two forty four which both say if the claim does not involve this or does not contain this new rule it should be dismissed the district court construed mr haraszti these arguments about these convictions on which is rights have been restored as a new plane that is not a claim mr to refuse to move a supplemental memorandum in support of his johnson claim which i think everybody agrees needs the gatekeeping requirements to show why on the merits once we it could be dismissed under twenty two forty four because we have to go back to the gate for any new claims the ninth circuit in addressing the sort of unique scenario where you have multiple convictions some of which rel not the case gets dismissed even if you no longer have three qualifying convictions that's that this court's holding in hold in stanley in docs where it titian or says well my burglary conviction no longer counts well that's a mathis claim that's not johnson my aggravated battery you know shouldn't count under the two thousand and ten johnson case that's that's not a johnson claim under twenty fifteen and so that gets dismissed right out at the beginning that doesn't make it past the brodsky however has gotten past the gate he has a johnson claim he was sentenced in violation of the constitution because his sentence relied in part on this residual clause the supreme court has declared unconstitutional as i understand this record the the so called blue choir restoration of rights arguments the challenges that he's raising now to two of the predicate convictions would have been timely in his direct appeal in two thousand and seven correct yes in his original twenty two fifty five claim that's right right but were not raised their own so can you direct assistance to comparable situations where harmless error analysis winds up becoming a vehicle for raising new challenges to issues that were never raised before in a case well i think the best analogy is sort of coming at it from the opposite angle is the situation and lockhart versus from well where the defendant there had he was subject ineffective assistance of counsel there is a state court opinion saying that he should have gotten relief his lawyer didn't pursue it and so he lost and he brought his petition and in the meantime the state law changed and so he was no longer entitle to re but he said well but that doesn't mean my lawyer wasn't ineffective at the time the law said yeah i'm entitled to this relief and the supreme court said no we look to the law as it exists at the time of the a b s petition we don't try to reconstruct what the law might have been at the time of you know their original sentencing or or whether these claims have been preserved in other words we're not dealing with the typical doctrines of procedural the fault of the second or s because we're on the merits we have to look at the law as it exists that's useful but let me throw a somewhat complicated hypothetical as you were going in which we're looking at a petitioner responds by saying well there's another block of evidence b that was admitted without objection but it's now clear that that was in violation of my confrontation rights or maybe in violation of it of state evidence law at the time i don't know that there's a case either way i would think in your hypothetical the petitioner there is offering a reason why the state's affirmative defense of harmless error is not persuasive in other words the state has the burden to show that the error is harmless and they say well look there's all this other evidence i think the petitioners entitle to say you have but that other evidence shouldn't have been admitted either and and in the johnson context i think i understand why you might prefer that answer but i've never heard of such an approach i suppose i haven't heard of the opposite either though i mean this is a unique situation i think it wasn't in either dawkins or stanley where this court talked about there are some convictions you might not of challenge to before johnson because it would have made no no impact on the ultimate decision you've got you know four violent felonies if you challenge one for restoration rights you've still got three it doesn't make a difference and that's why i think it makes sense to evaluate the record in the present under the current law under the current facts that we know because those earlier disputes there may not have been a motivation to bring up  look to current law to see is the error harmless and this is all done on the merits this is not subject to the to the gatekeeping function because we're past the gate so let me save a couple minutes for a unaffected by the supreme court's decision and johnson and this court has held numerous times that there is no johnson era when that is the fact when that is the case the defendant here problem here as a johnson mistake again mistake whatever that is is not a legal error that leads to a harmlessness analysis but in any of that what the fundamental basis of that argument is that he wants to distinguish himself from cases like holt and stanley on the basis that he had a surplus of violent felonies so that the loss of hundred johnson became completely irrelevant to the analysis and that that really is something that makes not a lot of sense so in other words he by arguing that he gets in door in the gate because he has one claim that that did fall after johnson and that somehow that creates an opportunity for him to make every argument possible under the law as it stands today and for the record as just hamilton put it as already mentioned this the buck wire decision was not a new decision it was available to him before so this is really not akin to taking into account cases like math cases that occur both cases from the supreme court rather than the score number one and also cases that occurred subsequent to his prior to his conviction his sentencing and his prior twenty two fifty five made applicable and collateral review by the supreme court this is not it does not meet the the requirements of the statute and therefore it really is not tell me again why does the the statute allows very limited claims to be made and and also if you set a time limit for those this is not a claim that can be made a second successive and even if it were it's  untimely because the buck meyer decision was issued in two thousand and nine so it's just it's not properly made here regardless and as in the hold the government's argument is that in this contest yes if there is to be really had here it is not available through twenty two fifty five if if anything at all could be raised it would be an argument under twenty two forty one brought in the jurisdiction where the defendant is now detained that is the analysis and halt and we say that analysis applies here as well on disk cannot be distinguished from hold on the grounds that there is that there is there was one surplus conviction that it did fall under johnson that's your argument so the question here becomes really a procedural one and it's not an insignificant one i rea and the twenty to fifty five was it was a stat was for the purpose of limiting and and limiting collateral relief and in the context of especially the context of second successive claims there is important social interest in finale that that congress was attempting to support and it is just not in consequential the this is the situation where the procedural niceties have consequences are important telescope and i guess the only thing i struggle with is for now the so important that we have to overlook what looked like at least with hindsight here fairly clear errors in the treatment of prior convictions even into it and got sample letters this isn't a case where the defendant actually had received a letter or demonstrated that he had received any of these letters and that's not that's a distinction that that this court doesn't make and i'm not i'm not trying to raise that as a distinction as a legal distinction but it is it is a difficult issue that but what i would say to judge hamilton is that if there is a fundamental deep defect here it is properly raised in the context of the twenty two forty one  in the in the court or in the jurisdiction where the defendant is presently detained this is not something where it is necessarily true that this court overlooks what appears to be a fundamental the fact or whatever  right exactly right exactly right that would be the president i would be set here and and worse it would be said here it's based on really the song based here with you because a defendant had a surplus  you i am quite surprised to hear the department of justice say the twenty to forty one's available it's not if this claim were released excuse me under twenty to forty one the government would say this doesn't meet the t the task is from in re daven or from this court although mr brodsky is not imprisoned in this circuit but the official department of justice guidance as i understand it in this administration is twenty two forty one is almost never available so if the government suggests that we can work this out and would agree to a disposition under twenty forty one would be agreeable that but this just doesn't fit the criteria twenty two forty one requires a retroactive decision  usually from the supreme court that can't be raised under twenty fifty five buck myers not that sort of case so this is not going to forty one and there is a a johnson error here or there is an error some  have talked about this sort of error as as akin to jury instruction here where you have a wrong jury instruction and so it's can see there's an error but that doesn't necessarily mean you know the jury instruction says you can convict on this basis which is lawful or this basis which is unlawful and courts typically approach those questions and say ok well we do we know that this verdict may have been based on this faulty jury instruction and so normally you would send that back imprisoned well beyond the statutory maximum for somebody with one prior violent found it is it is the government's burden to show that the error is harmless on johnson one last thing again i think we've touched on this but you know do the equities go both ways mr rescues lawyer should have raised this at the trial lawyer should have races at the direct appeal and no lawyer for he submitted everything in the district court and the twenty to fifty five pro se including this whole restoration of rights argument so the say that he should spend an extra fourteen years or twelve years in prison  simply because no one ever caught i think this is sending the wrong message as well so we've asked the court to reverse thank you thank you thanks to both counsel on the case will be taken under advisement and the court will be in r