made please the court my name is steven joseph well because i'm an attorney with the law offices of the public defender for the county of san bernardino state of california i'm not with the federal public defender  is no the answer to the court's nd question is yes this court does have jurisdiction i respectfully submit the court has what i'll refer to as constitutional jurisdiction even though there is no statutory jurisdiction so you agree that the particular procedure that set forth in twenty to forty four does not apply the pre the pre filing one i still think the rest of the procedures apply and allow me to explain from the very beginning my position has been that the controlling authority in this case vs madison teaches us that when a court is faced with a conflict between a legislative mandate and a constitutional duty to protect i understand that but the question actually in the relevant analogy to is can we assert original jurisdiction which was actually the mistake in marbury that supreme court didn't have a original jurisdiction it does not appear based on the wording of two thousand two hundred and forty four that we have original jurisdiction and that this should be in the district court and it can hear your constitutional challenge to the b one rule i don't think he can because the only way to get back to the federal district court on the heaviest petition is through tw wait a nd or success a petition is barred so that only if your claim is that the rule in be one that requires it to be dismissed is unconstitutional why can a district court hear that and say i understand the statute tells me i have to dismiss it but the constitution tells me otherwise i will follow the constitution and not dismiss it why can a district court do that because pursuant to two thousand two hundred and forty four the circuit court has to make that decision but based on the is recognized that originally it did not have jurisdiction over state k b s matters that it was conferred by statute not conferred under the heaviest clause of the of the of the constitution so now your argument is that we somehow acquired that jurisdiction under under the due process clause by virtue of the th amendment all the pre th amendment cases in which the supreme court denied that it had jurisdiction over over cases coming from state court right so unfilter the court traces sort of the history of the court's jurisdiction over federal habeas and state hey vs it acknowledges in there that for many many years until probably post civil war but the supreme court did not have jurisdiction to hear habeas appeals in state cases it could only hear hey b s in federal cases there were some very rare exceptions to the so that the supreme court suggested that it's authority to hear state a b s matters is statutory not constitutional now if that's true are you telling us that the th amendment altered that s so that any federal court district court appeals or supreme court may hear an a and original matter coming from the states and how do you get that out of the due process clause my argument is under the unique facts of this case unique facts of the case don't tell us what our constitutional authority is and that's what you've rested on now because you've told us that we have that we have a constitutional jurisdiction to hear this because we don't have statutory jurisdiction my argument is you have constitutional jurisdiction to grant the application facts and circumstances of this case it will be fundamentally unfair to not give miss charities a nd shot in the district court and the best way i could explain that is to go through the record or the procedural history of the case to show you why it is so it's not even just unfair it's fundamentally unfair to the point that it's reached constitutional magnitude but isn't that unfairness addressed if we transfer this to the district court consider the titian and to consider your argument that b one is applied is unconstitutional my understanding then read it two thousand two hundred and forty four is that it has to take place in the circuit court i mean if the court wants to transferred to the district court to make that determination i'm more than happy to argue that before the district court well we we're the only ones who have jurisdiction to decide whether i suppose you could say we're the only ones who can decide whether an application is going to be granted pursuant to this statute but that doesn't mean that we necessarily are the only court that can consider your constitutional argument or at least that you can apply to consider your constitution what my reading under twenty to forty four is just that this court does have exclusive jurisdiction in that regard if i'm mistaken in the court disagrees and wants to transfer it to the district court again i'm more than happy to make  it morning owners may it please the court christopher beazley deputy attorney general on behalf of the respondent i think that judge by b you're right concerns of what where that where the power in the authority of the jurisdiction flows from it's a statutory authority for the federal courts to consider state hey b s matters it doesn't flow from the constitution it flows from the statutes from congress and that's true of in a lot of respects with a lot of different kinds of subject matter jurisdiction questions w congress says what the federal courts can or cannot decide and so the state the state heaviest cases such as this are governed by statute and so twenty to forty four which places a bar in place hear that argument and the question is who is that somebody is it us in this procedural posture is it somebody else i mean i'm not sure that that this court can hear it and i don't necessarily agree that the district court can hear it i think it's just hard and i think that it's not read the statute as precluding the courts from considering the constitutionality of the stuff in haiti as proceedings i think it would require a different kind of proceeding and i'm not sure what but some other sort of civil challenge to the statute in the constitutionality of the statute i don't think it works in haiti is because the thing is that what hevia says all about is where does that where does the unlawful custody flow from the unlawful custody does not flow from whether the claim can be heard or not the unlawful custody flows from something else which is the underlying claim not whether the claim can be heard but the underlying ineffective assistance claim that the specific issue here is the one and b one ignores all of the circumstances other than that the claim was previously raised and it says if the claim was previously raised then it shall be dismissed right now his contention is that the constitution as applied to this case does not permit an automatic dismissal without regard to the other circumstances he thinks are relevant i would have thought that that a court could say that whether evaluate whether or not and the district court of presented with that petition could evaluate whether or not that constitutional claim was valid and i don't read be one is trying to deprive a district court of that authority well i think that it i think the one does deprive it of that authority in the context of a hey b s proceeding and it's not just be one but it's also i think before where even where the circuit court grants an application and it gets transferred to the district court and if the if the requirements of that section two thousand two hundred and forty four dollars are not met the district court again has to dismiss so it's not just in  it's twice in the in subdivision be so i don't think it's in the context of hey b s that that challenge would have to be raised i think it's in some other kind of civil suit against i don't know who but to challenge the constitutionality of that statute now i understand that there is there is kind of a visceral reaction in this case that it seems unfair that she hasn't gotten her purse her day in court but that's not entirely true if you look at this record she's had this claim adjudicated twice once in the federal courts now albeit the contention is that it wasn't raised well enough in the federal courts the st time but then she also was able to raise that most recently in the where could she argue that well if she's she's had her day in court in the federal court where she was able to raise the i see a trial counsel claim as far as being able to raise a claim of ineffectiveness of post conviction counsel st of all the supreme court has never held and has actually explicitly refrained from going that you're actually get there to make that i suppose she wants to get to the supreme court in order to have them reconsider martina's in all this this  is how do you do that this wouldn't be the case for that because she's she's procedurally barges jurisdictionally barred but in another case the way to do it would be through had the claim been raised in post conviction proceedings in the state trial court and it's an initial review type of case where that's the only venue like in martinez where the only place to raise an ineffective assistance of counsel claim would be in a hay vs collateral proceeding she raises there and then it doesn't work and then she goes to the federal courts and claims i received ineffective post conviction counsel assistance of post conviction counsel in the federal claim ok now she can now that person can adjudicate get that claim adjudicate in the federal courts and they can make its way up through the courts that kind of a posture that can make it all the way to the u s supreme court but because of the posture of this case this particular litigant can't because jurisdictionally she's barred from doing so  and like i say it's a claim ultimately the i c claim the underlying claim has been adjudicated twice so it's not late it's that unfair and furthermore there is no constitutional right to having a federal review a claim in haiti a sigh mean that's really what this boils down to is she's had her claim she's made it in the state court and it was denied and now she wants to be able to raise it in the federal court where there's no constitutional right to have the federal court adjudicate the claim sounds like an argument that and i understand your argument that her constitutional challenge to be one lacks merit but who gets to decide is she able to present her argument that be one hear you loud and clear that you think that that has given the structure of habeas of that claim is doomed to failure that b one is unconstitutional as applied to her but but did can we hear someone decide that claim going to district court decide that i don't think so not the way that the i don't think so not in the car not in the context of habeas proceedings and not given the statutory subject matter jurisdiction that's have a circuit justice i think that's a supreme court justice i think that can be done but then i think the practice is under federal rules rule twenty two dollars i think it gets transferred back to th for getting there do we is it yeah assign it to one of us as a circuit judge to transfer it under twenty two dollars that's the authority that you have under twenty two forty one dollars a is that a circuit judge a single circuit judge can transfer the matter to the district court that i don't think that a three judge panel can do the not under the reasoning of  sandel so i think a single one of you could do it but i think it would be again i think that it ultimately be a futile act because then the district court has and they're looking at this and while we have no jurisdiction under the one and they dismiss it i mean that's sort of the motion that i would file is to dismiss it but that's this is not an easy case i understand that it's not an easy case but i think that jurisdiction is just not there for any court and it's did not have her day in federal court you know when the original biggest petition was filed there was a mix petition the purpose of hideous review is determine whether to determine whether or not there was an unreasonable application in this case of strickland that obviously did not happen in the original hedy's petition because there was no state court judgment and if the court read them try to correct the record carefully it's offensive how incompetent the representation was in the st federal hevia proceeding it was a one sentence conclusion reallocation not supported by any evidence not supported by any case authority simply a one sentence statement saying trial  counsel provided effective assistance of counsel so of course the district court found it to be plainly meritless it was so she hasn't had her day in court to have the federal district court determine whether or its action has significant discretionary elements it must nonetheless act in accordance with the dictates of the constitution and in particular in accord with the due process clause a so in this had to do with the right to appeal when a state chooses to act in a particular area it can't be excused the slaying a willing newly about it if it's going to act in that area its actions and the rights in the remedies available must be provided equally and fairly and in this case they clearly were not we're at a point now we're ready to the table set we're ready to argue this case in federal court and now we can't because even if it was an unconstitutional assistance