is st petition and it was filed within one year of the supreme court denying cert in his own case in the petition he attacked all four prior convictions that the district court has had used to enhance his sentence and escape conviction under texas law and three burglary convictions also under texas law in the original petition to support that claim wallace cited to the then recent supreme court case and johnson within six months the supreme court then decided matheson and within one within two dollars to three dollars weeks of that mathis decision wallace amended his petition to add the legal authority of math us to support the same claim that none of the four prior convictions qualified as aca and handsome and at that time the government had already conceded that under the new johnson case the one escaped conviction did not qualify any more as a basis for an act and handsome and so the district then approximately five months later issued an opinion in which it did not it mr wallace's petition on the burglary convictions and it did so in conformance with what the circuits president was at the time which was under rebate and conduct custom data that texas burglary was not divisible and so that the court could look at the underlying conviction documents and find that mr wallis was convicted under an a one of the texas burglary statute which this court had said was generic burglary so at that point several months later at the court on bank issues harold since that point going for this it clearly has always been that harold was the law and that under harold texas burglary was not generic burglaries and divisible statute and that brings up exactly the issue that this court asked for supplemental briefing on what is the effect of the recent supreme court decision and whirls and what is the effect of the recent supreme court decision to vacate the herald  opinion in ri man for further consideration to this court st it's important to set aside what was not at issue in quarrels and what was not at issue really even in the herald on the monkees and the dissent at least and that is the visibility whirls didn't address the visibility and it couldn't have addressed the visibility under a texas statute because we know under math us the divisibility as determined by the law of the particular state whirls dealt with my michigan not with texas and as i said even in harold the argument wasn't so much about visibility as it was about what is the generic definition of burglary so in this case orals reserved on exactly the issue that harold had presented to the supreme court and that is that texas burglary statute is still overly broad and that's because texas burglary under a three of the statute which punishes intrigue a structure and then committing a crime or attempting to commit a crime that particular subsection has no mens rea with regard to the underlying crime or it is a lesser mens rea than the formation of an intent to commit a crime at any time while remaining in the structure that formulation is important because by my count at least five or up to seven times the supreme court in whorls said it clearly generic burglary includes remaining in a structure when the defendant forms an intent to commit a crime at any time while remaining in that structure that was the formulation that the supreme court now has just given us and as harold pointed out in his supreme court briefing texas goes much further than a three section as i mentioned requires no intent to commit the underlying crime which the statute defines as assault theft or that assault or a felony other than theft it doesn't require that that be done with intent and it includes assault which we know under texas law includes reckless mens rea of that length looting other felonies it also includes felonies such as injury to a child or injury to an older the individual which goes all the way down to the commission of an office with criminal negligence there are cases under texas law where the courts have a client a three form of burglary in circumstances raising either recklessness with regard to assault or criminal injury to an elderly individual and those cases are intermediate appellate court cases there are unpublished keep but there are still cases issued by courts in this argument that at thirty point zero two eight three allows for felonies that don't require intent right yes even have to wait on that or otherwise quarrels control correct yes if you require an intent to commit a crime sometime during that time period then i would agree whirls controls here but the texas case that i'm referring to there's a case out of corpus christi from two thousand and five trade two thousand and eighteen out of amarillo daniel and fourteen out of dallas need an injury to an elderly case carlock out of waco in one thousand nine hundred and ninety nine the assault cases all involved the commission of a burglary in the breaking of a dwelling breaking of a structure but the underlying crime of assault was committed recklessly because in those cases the person had busted his way through the door essentially hurting somebody on the other side when the door came apart when a door opened and someone was on the other side so it shows that this can actually happen under texas law it's not simply theoretical at least until last week the only argument that the government raised against mr wallace's petition was under this court's recent decision in we said that case has no application to this upon a new rule of law made retroactive by the supreme court on collateral review but as i mentioned to very beginning this was wallace's st and so far only petition not a nd or successive petition so the special jurisdictional rules of twenty to fifty five age the special rules dealt with and we have no application mathes on the other hand outside of that context with the special rules apply is retroactive it's retroactive because under the team the framework of analysis it's an old rule it's an old rule in the sense that it was dictated by precedent and we know that because the supreme court itself said it in mathis that the opinion in math this was determined by the twenty five years of decisions going all the way back to burglary no longer would be an adequate acca enhancement support exactly because of the application on a retroactive basis that they can't which is essentially the same as mathis that is mays from the th circuit now that gets us to two new arguments for the st time on appeal on the government in supplemental briefing raised to new arguments timeliness and procedural bar neither of those arguments has ever been raised until the supplemental everything last week in this court and one of those arguments timeliness was never raised in the district court at all there are two reasons why this court should reject those arguments one related to the manner in which they've been asserted and two based on the substance with regard to the manner in which they are in two thousand and five this court said in an e m t and that the court would reject government arguments raised for the st time in supplemental briefing and particularly stated we will not consider new arguments st raised by an apple e in supplemental briefing on unrelated issues that's exactly what happened here this court asked us to address the impact of worlds and herald and instead the government raised two completely new arguments timeliness and procedural bar and it did so only in the supplemental briefings but even more important especially with regard to the timeliness argument in attempting to respond to that over the past week i came across the supreme court's decision and wood vs miliard which is five hundred and sixty six us or sixty three from tw twelve and the court there held that it is an abuse of the pellet court's discretion to consider or to address a timeliness argument that the government has waived in the district court and that's what happened here the in the district court the government stated affirmatively that the petition was timely and it's true that wallace thereafter within a month or two after the government's response asserted the mathis claim after the supreme court decision came out so he amended his claim but from that point until december there were five months in those five months the government never retracted its affirmative assertion of timeliness it never raised the timeliness issue it never asserted that this amendment was not an amendment that related back to the original petition so the district court addressed the issues that had been raised under mathis in its opinion this was an argument that the government had waived and it never brought back up but even if the court were to consider this argument not waive perhaps because of the amendment at least two other circuits have said underwood versus miliard that the exceptional circumstances required to address a forfeited timeliness argument should not be addressed absent extraordinary circumstances and when the guy when the district court has spent time and effort invested resources in actually deciding the issue and these two circuits have done it in exactly this context of johnson claims where there were subsequent claims based on the math this or another wallace did pro se was an amendment to his claim that did relate back we agree that male vs felix is the proper supreme court framework under that framework the an amendment relates back if it arises from the same conduct transaction  or another way the supreme court stated it is if the claims arise out of a common core of fact in this case while this added a matheson legal argument but he attacked the same act as sentence he did it on the basis of the same cited burglary convictions that he had brought up in his original petition he was going back to the same sentencing hearing that the district court had held in which it exists had examined the same conviction documents that were issued in the original petition so there were no distinctions of fact it was simply another added legal authority to support the argument that he had already made this is very different from male vs felix which involved on the one hand original petition addressing statements of rd parties in an effort to attack statements made by the defendant himself so in other words statements involving different times in different places so getting back to the merits for a nd or so we we either need to determine or harold needs to determine someone needs to determine whether there's an intent requirement in the statute right and but to someone also need to determine whether a is whether the divisibility determination in that case still stand i mean it's it was abrogated in harold but if harold is not there anymore does it stand in what is the do you have to win on both issues divisibility divisibility ruling in harold should stand one because whirls didn't actually do anything about divisibility in other words harold was reversed precisely because of morals holding about generic burglary but it said nothing about  should reaffirm what it said and harold on that point i admit that if the court comes out in a different place in terms of what is generic burglary that mr wallace loses but on divisibility the majority had it right and the dissent didn't really take the court to task on that point as much as on the generic burglary definition it had it right because texas law is crystal clear that for jury unanimity purposes that the three different formats under the statute for commission of burglary can be submitted to the jury the jury doesn't have to be unanimous on which way it is done and the carlat decision that i brought up to you i think is a good example of that as well where they state a charge many different forms of burglary in the way it could be committed including many different subsequent felonies that were committed under  only a couple of months after the thing was filed right yes sure it was right after math came out exactly was in two to three weeks after mathes came out on the procedural bar issue if the court were inclined to address that we i did address that in my original reason the main point there being that mathis is an intervening decision as this court has already held in numerous other contexts so a procedural bar does not apply it's lifted when there has been an intervening decision but more importantly the dallas county burglary conviction was not actually raised and rejected in the this court's prior wallace opinion it was raised by well this but this court never reached it so even the asserted procedural bar doesn't cover the burglary conviction that's exactly what the district court dealt with in its opinion below counsel when you come back up can you address what your situation is with your client is imprisonment it seems that if you just keep waiting in this case that he i thought in the blue brief he's range would have been sixty three to seventy eight months if you win and that would have been in two thousand and seventeen or eighteen so and if you could either address that when you get back about what what weighting does what it doesn't do where we are on your client's incarceration and senates based on your positions thank you one and are still of a constant rebate these all qualify as qualify as violent felonies which support the a c c and hansen everything was correct when he was sentenced everything was correct when the district court denied the twenty to fifty five and as we stand here today is the state of the law the effect of xix supreme court's orders and quarrels and harold had notified this court's on bond opinion in herald and until we have an opinion of the current state of the law is that these are qualifying predicates so if i understand procedure correctly harold does julliard and it will go back to the on backcourt and i believe i assume that the among court will decide harold at some point because they need to in terms of this case it doesn't need to be decided by them a  court decides to decide it now before the herald cision is just then again i would point out that the mr wallace has prior predicates for burglary under age a one that qualify for the a c c enhancement that there's no of the one that the court didn't use or something that would help you get over the hurdle you have to use the texas burglary right correct correct times there's one in the file in the p s that you can to go back conviction also would count that this case doesn't have that no we've started off with i believe was four burglaries and escape conviction the st we're going to the district court found cannot support this because we did not have the charging documents escape as we all agree it cannot qualify now under johnson so we are left with the three burglaries but again they do qualify but i think it's also important to look at this case within the procedural posture that we're here this is the denial of a two thousand two hundred and fifty five dollars so we are looking at a final conviction mr wallace appealed his conviction he applied cert it was denied and so his conviction is final this is different than the case on a direct appeal where the defender gets the benefit of any laws that any cases that come down while he is appealing his conviction here this is a limited case and we look for constitutional error what is the the standard for the cia and whether or not there is that the defendant can show the denial of a constitutional right and here he can do that again broadly speaking and he has three qualifying convictions so there are no constitutional right here in terms of the timeliness of all of these cases i think this court needs to look at their jurisdiction to do the c e o way to figure out if they have jurisdiction here to decide this case his s and terms of his johnson claim in the court denied to his petition for search and march of two thousand and fifteen johnson came out shortly thereafter and we agreed that they need to find and did file a timely twenty to fifty five based on johnson actually happened procedurally as the defendant had one appeal and that was reversed and it came back down because there was a rule that an issue the nd appeal and the then he was resentenced again at that point that this report looked at all of the prior convictions and as i mentioned before there were four burglaries and there was one escape conviction the district court looked at all five of them and he decided that the three burglaries qualified and one of the escape in the state conviction qualified is well it as well when he filed his twenty to fifty five he alleged that the burglaries did not count in the escape conviction did not count so the district court looked at it again and this report said well the th circuit has decided that two of these burglary convictions count and so does the escape conviction the escape conviction is out because of johnson but we have those two burglary convictions then it looked again at what it had decided before and set up the rd conviction also counts as well challenged under the enumerated clause these are two distinct claims it doesn't relate back it doesn't amend it it wasn't properly before the court it wasn't timely under f one and it was untimely under us three the distributor however looked mathis and said this doesn't apply you still have the three convictions for the for the burglary and under that point we had matheson by the time the district court decided to the th right we had a rebate as well so i think that further shows that even if math is applied quorums no and i will say that this this case has been around for a long time and it will also know though that at the time when twenty five dollars was filed the defendant only raised johnson none of these other claims were raised it was a letter that came a few months afterwards that raised mathis and at that point the district court decided this case without a hearing without he looked at the papers and said i've already decided this you have three prior predicates the s c c a enhancement was proper  or that happened you didn't say oh you need to strike this this is on time only you didn't rush in and file something whenever he filed his the minute the guy do anything correct so there was and there was there was a letter sent by the defendant to the district court that cited my posts and i believe there was a response from the government at that point so the government did nothing and the district court allowed the district court to rule on the merits never argue time it's true the united so i kept the ruling and so was not going to say anything well i think there's a thing there's two points there one i believe timeliness is always an issue that we can raise because it goes to jurisdiction the having said that because it goes to timeliness which ultimately leads to jurisdiction i think it's an argument that can be raised at any point but again even if circuits ruled in your favor on  five and what happens and then any subsequent amendment letter or anything else that is filed having said that even if this court looks and and finds that the math is claim was timely raised it still makes no difference at this point for the prior qualifying predicates the only way he can get around that is by asking his court to wait for the decision in harolds but even then i believe there's a procedural bars that would keep the result from coming out in his favor having said that if the score chooses to do that we would of course appreciate the opportunity to brief it fully at that point where else would you say what you'll need to brief anymore the issue is whether it's divisible and whether there's intent and that will come out in the case when i mean there something new wants to this case well i think there is because it is a twenty to fifty five and as i said to myself a mental letter there's a number of procedural bars that go through in terms of the timeliness of what claims this court can consider made by the defendant and when he made them as to the underlying issue of whether or not texas burglary is divisible and if a three qualifies i agree that i would assume that the decision in harold will address all of that so i guess it's more of a procedural issue in terms of how it tastes i'm sorry the government is aware of other cases with this problem with this carol lingering whether we should go back to silver whether we should nor whether we should wait what's happening in the other cases where this is a problem so i will say that i think this is unique in that it's in the context of an appeal from a twenty to fifty five so you have a number of of statutory  you're dealing with a final conviction and you have a number of statutory and timeliness issues here that are unique to this case speaking more broadly in terms of harold i believe that briefing has resumed in a number of cases i don't know if anything has been filed to believe the government's position is currently the cases of a constant or a bale of those are still good law are you saying wait if the court orders briefing where joint motion to wait here so is the st thing wait but if you don't but if the court orders briefing you argue constance silva or e bay yes that happened in other cases and we're not talking theoretically i didn't know i'm not talking theoretically i believe in some of the cases there has been motions to wait in cases for harold i believe the assumption is that harold will come out and decide these issues so why brief it in a number of panel cases those been granted what's as far as i know i think on the procedural posture and where they are i believe that in herald there is a push to resume briefing to get this aside and we all understand that this is important for a number of cases and a decision would be  helpful for us all unless there are any other questions all about everything thank you  reached the statutory maximum of one hundred and twenty months yet he's still a year or two away from that which is why i didn't ask to expedite this case and i realize there are other considerations of district court can take until he could end up serving his full sentence where this actually is moo this case yes on the timeliness issue i do want to say that the government isn't even applying the case that it cites male versus felix the government says that a math is legal claim is different from a johnson legal claim but male versus  all about facts it was is there a common core of fact not is there a different legal theory involved and that's why i cited to this court the trent case out of the th circuit because they made that exact point that the issue is not what legal theory is being used but rather is there a common core of facts so you can supplement with a new case that you can't change the facts and start talking about factually distinct issues so that the government's denying even its own cases that it cites but more importantly tim is not a jurisdictional issue it can't be raised any time that's the importance of that supreme court case and would versus miliard from two thousand and twelve that's exactly what the supreme court said it said that it is an issue that can be forfeited or waived by the government it said that the court should not an appellate court should not address a wave timeliness argument and it can has the discretion to address a forfeited timeliness argument but only in exceptional circumstances and when the court among those circumstances  also asked about a constitutional right of the government and what constitutional right we're proceeding on here and that constitutional right comes directly out of two thousand two hundred and fifty five a which says that this type of particular petition can be brought if the person has been sentenced in cont vention of law to a maximum to a sentence in excess of the statutory maximum in essence and the th circuit in other circuits as we laid out in the opening brief have all held that a sentence in excess of that that permitted by the statute is a violation of due process that's the constitutional right that we are asserting not any constitutional right coming out necessarily of johnson finally with regard to other cases there are other cases that have harold issues pending i'm dealing with one in the district court now actually court with exactly this type of two thousand two hundred and fifty five petition pending and it's dependent on the outcome of harold we did file a motion asking the court to hold this decision for the on bond court to make its decision in harold and i do believe that is important because those parties addressed the substance of the issue and harold many times before and will be addressing it again in much more extensive briefing than what we've done here in the week which followed just very rapidly on the issuance of quarrels and on the rebound from the supreme