we'll hear argument next the case eighteen levon nine mckinney versus arizona mr cox thank you mr chief justice and may please the court the state seeks to put james mckinney to death even though he's never once had a sentencing proceeding that complies with current law there are two separate paths for mckinney to win the path in question one argues that the arizona supreme court reopened mckenney sentencing proceeding the th circuit earlier granted a conditional writ of habeas corpus and gave the state the option of either imposing a life sentence or seeking the death penalty again the state chose the latter which required brand new state action in the form of new sentencing the arizona supreme court then did everything itself just  mckinney is not seeking to use ring retroactively as a sword to challenge his earlier proceedings rather he is saying that when the state conducts a new proceeding that sentencing must comply with current law otherwise the implications w be frightening for example the state could run a rescinded saying today in two thousand and nineteen with a priebatsch injury with race based jury strikes that can't be right and the nd path set out in question two is for this court to simply say that the weddings decision ordered re sentencing for eddings violations both paths get mckenney to the same destination but they are separate question two is limited to the small universe of eddings violations and how to fix them and question one by so that's still good law so we're on question two and clamorous and with respect to question two clemens is not an add in this case at all heading clemens is a case about whether or not an aggravating circumstance can be subtract from in a reason in a pre sentencing proceeding that's a much easier case than right you say in your brief erroneous lee including an invalid aggravating circumstances fundamentally different from a road to erroneous we excluding a relevant mitigating circumstance why i don't understand because what the arizona supreme court task we had to deal with here was a full blown really weighing of everything mitigating aggravating circumstances whereas subtracting one element is very that's different and what case do they cite there they cite this court's decision in caldwell and in caldwell there's language after language saying appellate courts are ill suited to making these or terminations about a defendant and whether mercy should be given they want to see the defendant it's undercut by ringing her sput just it may be existing law but it's only existing law and with respect to the subtraction of one aggravating circumstance and clemens itself as i say brackets this and then the nd thing is is this court i think has really changed the we just reach the st question and leave the nd open and let it be completely aired i mean there is at least one arizona case styles where the court following clemens basically said it's only the appellate process that was at issue in the decision of the flow we can redo the appellate process without result would be a jury trial because there is well that's your argument i'm just saying should we let the appellate court make that decision well i think the appellate court here has pronounced on question one and said of no if we pronouncement i take your argument to cited in your brief that analogy is not up to the state court or reopening for now it is not up to the state court that it's up to federal law we have to define it for everybody and if we told it to go through a new procedure i don't know how that can't be a reopening we told it the only thing they say we said and i'd say your argument is broader than that but assuming i accept their position what new law they apply it and if you want to rule over us one question one we're obviously not going to be opposed to that i don't think you have to rule on question one and not reach question two because the arizona supreme court here did make a decision on question two indeed there was a whole dispute between us about what should the euro zone a supreme court do and priests were filed there's joint appendix pages three hundred and eighty five to eighty nine you have the states brief on this saying do this in the euro zone a supreme court and what we said is no adding this requires under caldwell clemens all of those cases i recently decided to question on a narrow grounds that this was not a new procedure if we disavow them that this was not a reopening if we disavow their belief of conducted a novo review correct was it not so wasn't the error identified by the th circuit an error committed by the arizona supreme court and more so there's four answers here just soluto st i know my friend has made this argument  read brief at page thirty eight that this is the arizona supreme court's error only that's not the argument in the brief in opposition and i'm not sure fifteen two allows them to make the argument when it wasn't in the brief in opposition and that's particularly true here because they told you  this two thousand and sixteen when they filed a certain attention from the th circuit that page thirty they said that the in her was actually in the right well i mean that it put aside these preservation issues which we can sort out for for ourselves at the arizona supreme court and the decision on direct appeal had made it clear if it did not already but when something that the th circuit majority was right if they if they had made it clear that they were taking into account the mitigation evidence irrespective of whether there was a causal connection with the commission of the offense with there had been an error if there were no trial court eddings we wouldn't be here our position was no right whatsoever was a trial court error but the th circuit said we're conducting de novo review and we're going to do with the right way and we take the mitigation evidence into cow in the way that requires us to do and i don't think this court's precedents allow the appellate court to fix the trial court decisions like caldwell say that that's a decision for the sentence or at the trial court where they can see the defendant confront the witnesses and in cases like arizona there's a double circuit breaker function served by the scheme because as they have to win both no death sentence they have to win a death sentence both of the trial court and of the arizona supreme court and what they're seeking to do here maybe i must have the facts wrong but maybe but look there are the trial court says a long time ago there are two aggravating factors a and b and then it looks at arizona supreme court and they say the same thing they say one in two aggravating and now we independently say this causal thing you're wrong about the causal says the th circuit back to the supreme court supreme court says we will redo our reweigh ing we will now would not use causal here why does it have to go back to the if there are law really is if you really is the supreme court can do this way why does it have to go back to the drug because and in this case is in a particular caldwell this court has said the trial determination and not to the appellate court invite the way i got that in justice breyer in arizona state versus bible says an appellate courts can't take evidence we can't assess that kind of stuff they're not institutionally w don't have to send it back because of rape is that true i mean reading if it's not current law that applies can they do this can they say yes it applies correct issue on question one is that they've conducted a brand new sentencing proceeding therefore current law applies that means ring applies and ring and they haven't really got into except for just saying oh there's no ring violation what th possible violations are our brief to pages thirty to thirty four does outline them i and says you know the waiting and the mitigating circumstance and the taking of an aggravating circumstance without a jury determination and the of those are separate ring problem question one why would win apply i mean i guess that he issue is the defendant getting a kind of windfall if ring applies the error here has nothing to do with rain and rain only comes into the picture because the supreme court is trying to create is trying to correct a different error why is it that you know a non retroactive rule should all of a sudden pop up and the defendant get the benefit of that role we don't think that there's a windfall here and explain why but if you do that would just push you in the direction of question two in which you don't have that feature but with respect to windfall i don't think that exists here all our argument is is that the state is conducting a brand new proceeding and that new proceeding has to comply with current law so we're not trying to trying to use the flaw the eddings flaw to reopen old grievances and say oh there was this problem in the trial or that problem in the trial it's  just the fact after the th circuit granted the conditional writ that state affirmatively needed brand new state action in order to sentence mckinney to death and our problem is with that brand new action not with something that happened back before not required by clemens i take your point on that but the whole point of clemens and i understand your argument was the appellate court can do this and there was a passionate dissent you've read it i just spoke with saying this was really quite wrong to allow the court to do this the sort of supreme court resume week where that law that itself and y y go back to a jury recently twenty eight years later justice kavanagh i think in many of the eddings cases you've done exactly that in cases which there's a doubt as case that is the result of this court's precedents and i think it's right because we're not talking about some technical violate and here is something we're talking about the heart of what capital punishment sentencing is all about the winning of mitigating aggravating  evidence and do that way and that seems quite somewhere and i'd still take your point but quite right i think it's still different because it's just a much more limited question on appeal in that circumstance here you are asking in this  vote brand new you know a full re weighing procedure you're asking them and that circumstance to decide something that a jury has never seen or trial courts never seen and you know cases like caldwell say  mid for mitigating evidence mercy is really important and you know to have the appellate court decide this really fundamental question without even having the defendant before it without having the witnesses you know that's that's something i think that's new at least and call it least in clemens i should of this just coming off at least in clemens there was a trial court determination at some point of the way to get mitigating in the debate really why are you not asking for a windfall indeed maybe a double windfall you are effectively getting retroactive application of a ring which is not retroactively applicable to anybody else and not only that which you really want i gather is a jury is not the correction of a ring error it is it is another shot at convincing a jury to hold that somebody who is going to be found death eligible in all likelihood should nevertheless knock at the death penalty so it's a limited correction too because the th circuit's invalidated this the sentence so it requires a new sentencing if they want the death penalty it doesn't allow us to  winfall for example reopen guilt or innocence or anything like that that was not touched by it so it's limited to that in that sense just as just so you know it's kind of like when the court decides an ineffective assistance of counsel claim in a capital case yes in one sense i guess it's a windfall because lots of issues are reopened there not just one but that is i think the result of a precedent that says hey you need a full recently that i mean there are the ineffective assistance of counsel can have all kinds of effects i mean you have a very you have an entirely f finding on on on eligibility it's with the actual sentence that the jury has decided so i couldn't disagree more profoundly without that is the what we're seeing here is not formalistic what we're saying is that there is a new state action as a result of the th circuit's decision we're not saying ring allows you to reopen for example the jury trial rights on guilt or innocence or anything like that it's simply that they needed to come in and have affirmative question normally states are the definers of their own procedures their own state law and i would have thought that normally at least the state gets to define when its proceedings are final  for state law purposes at least what federal law and what standard of review would apply to determine whether that state law violates the federal constitution so just of course it's too big and says here one is and forty six that it is it is a federal question not a state question in cases like in salis you said you don't want to have state by state definitions i accept and there could be a federal rule of decision for vindicating some federal constitutional principle but what would be that federal constitutional principle and wouldn't whatever it is going to say due process or whatever i do i'm looking forward to that but whatever it is i would have thought that it would have been a pretty deferential standard of review by this court it to maybe assess whether there are efforts to abate a federal interest i think this court has said that the that that it is purely a federal question law it is that if you allow state by state definitions of finality allow them to define around the problem then you have for example about some problems and a return to the linkletter world with justice harlan was so worried about the idea that you could just pick and choose court's decision in griffith and federal law entirely through and through there is no cite to anything in arizona but michigan versus always i disagree with you on that for a moment you still want to win it right so what standard of review would you have this court appl circumstances well even stronger than rational basis for you we say that it doesn't is that there is no reason for expert be deferential because you are talking about federal constitutional commands so you would just apply you know it denote a standard but even if you deferential rational basis whatever it is here this is met here they are having a brand new sentencing proceeding the heart of what capital sentencing is all about they're caught way over a lot of you're argument you've talking about it talked about  ineffective assistance examples babson exam examples but not every violation of federal law cuts across the entire proceeding is ineffective assistance or babson you have a line drawn between those that do and those that don't are line mr chief justice  is if the new proceeding violates current law and that circumstance and in that circumstance only to is there a constitution arguments limited to that so you know there's no difference between sort of a surgical mistake many other courts like the florida supreme court of said if it's just a technical correction if it's ministerial then you're not reopening the final judgment we absolutely agree with that this is the poll about somewhere between ministerial and entirely comprehensive there things that are discrete and focused that suggest that the new new proceeding to give you the benefit of that is not one that can't be is one that can be cured relatively easily right in our point the line is and this is what we're all in other cases say if that new proceeding requires an exercise of discretion then current law applies to that new proceeding and yes you know i agree with you know that there can be difficult occurred not on direct review but on state abs in the state supreme court so that a possibility in your view so we don't think anything turns on the label state hey be a surge a wrecker of you or anything it's fundamentally a substantive question what's they couldn't do that it's ultimately substantive why it why not why can't a state do it in that fashion because then you'd give the state the power to relabel something collateral and evade batson and things like that and that's a return to linkletter and allowing different indicia form  if there is a retroactive application of ring and hurst and all current law applies arizona does not contend that we have ring compliant aggravators here and this would be a case that we would take back to the trial court to the extent that there is no retroactive all of them do and there is no difference to pick up on something that just as have i mentioned we don't believe that where the record is built which is critical here where the record is built credibility determinations have been made the expert for the defendant has been credited in the trial court over the state expert that there would be any problem with the trial with the appeals court conducting its own independent review caldwell in these cases discuss some sort of new evidence that was never heard and counsel keeps mentioning things as if it's never seen the evidence was never seen the evidence is never been heard but the p t s d expert testimony was credited the existence of p t s d has been credited these are determinations have been made in the only allegation coming out of the th circuit is that there was an error of law in how those facts and evidence were treated turning to question was one of the language of the writ that was issued is critical here it is a conditional writ that does not require vacating the sentence the parade of horribles that comes forward out  miki really turns on the idea that somehow a state could could all of them are answered by the idea that we admit if the sentence is vacated that undoes the final judgment in a criminal case that is the has done this proceeding so this is not a reopening of the judge but if it had done this proceeding and changed its mind and said you know wasn't causally connected and we were following  they can they can modify the judgment in the same manner that a twenty to fifty five court can modify a judgment which you know even in how you have to open it to modify it don't you have to undo it to change it i've never heard of changing the judgment but not on doing it st there are positions like for example the parole case out of the nd circuit and that's an example where this court has recognized that even in the context of a direct appeal where you are making a change and it's the only change ministerial is b since i wrote it i know what i said and defined ministerial as being with no discretion you know you enter the wrong or you accidently enter the wrong amount if you had twenty to fifty five court is tasked with correcting a sentence and may well correct a sentence in connection with the collateral put that supersedes the old one right we agree that it would supersede i don't know so let's go to the ultimate question we can't if something can be modified for judgment can be modified it seems like more than semantics to say i didn't reopen it for reconsideration can't reconsider what i want change  proceeding doesn't include application of current law it isn't retroactive rules are political so this is a this is a an aspect that requires balancing the technical and the reality but it is pretty clear that in char the extent that this is a reopening of the direct appeal of the direct appeal then we would be back on direct appeal and the court would be overturning the state's conclusion about the nature of the proceedings but that would place us into the realm of  t this court discussed potentially and humanise so but that would require looking past what the state has said about its own proceedings and even as this court has said in cases like wall the entire definition of what is called lateral is a judicial  examples that come to mind justice ginsburg of where a collateral proceeding can resolve a constitutional violation here for example to the extent that the th circuit in bank engaged in harmless error analysis as to the e recognize that they did not hold it to be harmless but it except that they did that if they had reached the opposite conclusion that is a resolution is identification of a constitutional violation and a resolution of that violation in an entirely collateral proceeding similarly when there is appellate ineffective assistance of counsel product in a collateral proceeding the nd you don't understand harmless error analysis is itself attempting to resolve a constitutional violation in a colossal proceeding the th circuit is sitting in haiti it's not a direct proceeding they've identified an error in the direct proceedings but they are demonstrating that in certain circumstances this court and other courts will just on the same line general and i mean yes that's a federal hate b s proceed and but federal courts only have authority over states direct proceedings they don't have a starting over state collateral proceedings they were reviewing the state direct appeal and they said the sentencing was not done right you have to do the sentencing again so which sentence you know we talking about we're talking about the sentencing in the state direct appeal so whatever you call it you know people have talked about formalism whatever you call it you're redoing aren't you the state direct appeal sentencing so  that the st one i would point out is to the extent that the th circuit believed that he knew direct proceeding had to be engaged in and the state instead engaged in a more narrow trial get to and collateral proceeding the answer wouldn't be that that proceeding has now become direct for purposes of retroactivity the answer would be just as occurred in the stiers case for petitioner to return to the hideous court and say the conditional havey is for it was not complied with you asked them to do x and they only did  y which is in adequate it doesn't change the nature of the proceeding in the th circuit oh well the th circuit allowed that exactly and stars petitioner in stiers return to the district of arizona the th circuit both said this is about correction this is not something that we believe contravenes the conditional writ and that was in two thousand and eleven in arizona follow the exact procedure will your you've mentioned the language of the route several times under your approach i suppose that would be a focus of litigation exactly what the language of the  going to be indeed it was in stiers position to return to the district of arizona and said you said these words in your commissioner at the exact words here i might add and that was inadequate to satisfy the writ and so i need to have an unconditional rate granted and that is exactly if there is a concern that the th circuit demanded just sort of the up to be clear and then the night that went to the th circuit right correct and it was the th circuit that it was not a violation of the conditional writ correct correct but that is that again just goes to the if there is a concern about correcting a direct an error that occurred in the direct appeals process through the collateral process st the existence of harmless error analysis for questions like holding by the arizona courts that the proceedings here were collateral to the extent that there is a concern that a collateral proceeding is insufficient that is not a question that is properly before the court the court can't use that to nd guess the arizona state courts when when you say that the proceedings were collateral and put in the side the question of whether that gets you out of the geisha and to apply new rules of constitutional law is the labeling collateral does that make a difference in terms of what the state supreme court actually does it does your honor the there are two chief categories of differences st as to the aggravation and mitigation analysis itself the collateral nd independent review is very different in  the st independent review the years in a supreme court and gauges in a searching analysis as to the basis of the aggravators and indicators that leads for example in the stiers case and in the consolidated opinion here for the headline that may be and i think you answered a question i didn't ask assume that this had gone back to the state appeals court on direct review in other words it had gone up the th circuit said that there was a mistake the appeals court says ok we have to correct our mistake w any different if you labeled it direct as opposed to collateral i think i think trying to get that which is on direct the court would look through and has in multiple cases in the stiers case in the consolidate opinion here will reject an aggravat and will go through and and make differences in terms of what is the aggravation of mitigation coming out of the trial court but on the nd time around it's been very clear in stiers and in the headland opinion in here there's no revisiting of the aggravation of mitigation and i'll point out  but i guess i'm asking you to do it the nd time around both ways in other words it's gone up the th circuit has said it's an error one way the th circuit has said you have to reopen the direct proceedings on that reopening the direct proceedings after the finding of error would you go through the entire analysis all over again or would you just make the correction in the exact same way that you made it in the collateral proceedings we don't have an example of that all i can tell you  independent review is done in the context of direct there is a searching analysis aggravators will be rejected and in the three cases in which the collateral independent review has been used the court has been clear that they will not revisit aggravators and mitigators even when they are challenge here petition  challenge to the existing aggravators in the court said we're not going there i guess the intent of my question is to suggest that the direction the analysis by which you say ok we have to correct the error and dow error we have to decide whether that does or does not mean that we need to change the sentence that you would you just have to do that either way in the label is not what makes a difference that you redoing what the director what the state supreme court did on direct with the error corrected so i'm trying to get at the idea that  direct independent review there is much more done i know but i think it's not the st one the question is what happens after the th circuit says go correct the error ok and if all you're doing in this supposedly collateral view is correct in the air as any other state supreme court would do when they're told to go correct their mistake in in the direct appeal then the fact that you label it collateral does not seem to make all that much of a difference if the court had if the court were to engage in the type of specific correction that occurred here and they said that it was really in direct it's possible he would do that i do think that based on past practice if the arizona supreme court believes that they are engaging in the fold direct independent review as they would the st time around then they will do they will go in a far more searching analysis they will address arguments that weren't even raised in the headland companion case here in consolidate opinion an aggravator was struck for not even the reason that the petition that that defendant had identified it's possible that they could just go back and say we're going to do a narrow correction but we're going to do it the direct context we've never seen that and i don't know that that's n ecessarily how they would approach it they would view it as redoing from start to finish the independent review with all of the steps including going to the aggregate can i ask i think maybe the same question what if this had come up on to the the score on direct we've said what the th circuit settings are and send it back to the arizona supreme court would that and proceeding at the arizona supreme court have looked different i think from the collateral proceeding that occurred here i think that's getting out yeah and this this is a mansur it's a hard one i think is a matter of i believe we believe the state's position would be that that would require a full blown independent review of all the steps but why would that i mean usually when we say bill correct your error we just go correct that error we don't mean you have to do everything else i think it partly stems from the idea that there would have never been a it's possible that they would have done a more narrow analysis but just because of how many steps arizona has put in place as safeguards in the death penalty context independent review the st time around will address issues not even raised if a defendant stand counsel stands up and says there are no sentencing issues there will still be an analysis i just suspect that's what they will would do because there would have been no finality if it comes up on direct and this court finds an error and it goes back down and they would have felt very much like there is no finality that needed to be deferred to there was no aspect of the case that would have required would have scale pans or an over here in the a pan are all whole bunch aggravators and over here in the b banner a whole bunch of mitigators and now it is the law in arizona imagine that this weighing can take place in the supreme court of arizona period ok i suppose that's the law it's all fun but they make a mistake about the b pan there's some mistake which is found out later so it's sent back to them and you say well they can do the weighing anyway under under arizona law that's it they just have to redo it but wait in the meantime a new constitutional principle has been annou and the new and it has to do when you see what's in the a plan that has to be found with a lawyer present you see what's in the b pan a lawyer has to be present and lo and behold this person had no lawyer at sentencing wouldn't it be obvious in that case that you can't do the waiting in the supreme court of arizona without sending it back for a hearing where there's a lawyer that you see where i'm going i see it begins with the question of whether the new rule that's announced applies if we have not disputed is there a new rule that is unknown sed is that the a pan factors and the b pan factors have to be found with a lawyer present all right i mean a lawyer has to understand what i'm saying gideon v we are a right wing right step two or something if you bring in hearst applied in this case we do not  we don't know i mean same i mean in heaven's name wouldn't they i mean of course that's going to be the next thing i'd ask but if i take your view that they don't apply it sounds as if well i try to make it as basic as i can hey you have to have a lawyer and by the way when you do that re weighing you're going to reweigh factors that were found without a lawyer and i think it's obvious you couldn't do that and it's obvious you couldn't do that ring says about the same thing in her state doesn't say you have to have a lawyer present but it says a the jury has to find those bits that are there in the a pan  and you see that's that and i want you to you don't want me to reason that way and so i want you to tell me why not a critical component here is the idea of what the th circuit identified what the th circuit asked arizona to do arizona followed from a conditional habeas writ that did not require vacating the sentence that allowed the sentence to stand in gauged in new proceedings exactly as were done in stiers and were were found to be acceptable by the rules that may be so essential and setting that aside there may be consequences from the state of arizona at the arizona supreme court labeling the procedures collateral it may be that that is insufficient to satisfy the court that granted the heaviest right but i think i'm getting this much better i mean i thought the getting in the wainwright example i thought distinguishes clemens because clemens there was no intervening rule that said the things in the two pans not retroactive if we're if if we're in a collateral proceeding which we are then it doesn't apply just like it doesn't apply in a twenty to fifty five there may be proof there may be other issues that arise from this using a collateral proceeding that any of those issues whatever you want but you're correct in what happened on direct appeal and we and you're doing that now you have to do it now and now we know that rain would apply  it is not obvious to me at all that that would be an inadequate resolution of a nonstructural constitutional violation and that you couldn't engage in a collateral harmless error analysis and thereby correct the problem it is again if this goes possible but maybe the reason that you're going to the harmless error case instead of your own case is that in your own case the error had to do with the fundamental question of sentencing which is way in the aggravated th mitigating circumstances and coming up with the right sentence and that you're having to do again because the initial inquiry had a constitutional defect and whether you say that you're doing then a collateral proceeding or you say that you're doing that in a direct proceed then i mean essentially you're you're having a new proceeding to correct the constitutional error and you haven't in the year twenty nine thousand when rain would apply to any other new proceeding and the question is why does your new proceed in not also have to comply with wren it would apply to any new proceeding that is part of a direct review process to the extent that there was a rd th th state post conviction motion to the extent that there is a long pending as this whatever you want to call that it's a redo of the direct to proceed and i the any the as this court noted in the wall any collateral proceeding is going to invariably entailed a reexamination of something that occurred in a direct proceeding on the harm you keep going i'm sorry but so you can crucially here once our position is once a case is final on direct review as this was twenty three years ago the touchstone for how you would undo essence some fundamental way from harmless error analysis of the curious or is no one can you if that's true can you explain why i think it is different to the extent that we are providing additional process to the defendant in an in the causal connection still chance it doesn't mean you can't consider the evidence but it gets very little because there's causal connection is still playing factor yes and this goes to what adding the doesn't doesn't require at ngs specifically says that minimal weight or low weight can be given that the court was not saying how much we needed to be given but that something must be process then harmless error review but that as a type this is very similar to harmless error and to the extent that harmless error isn't available corrections so what's more the more process the what what your definition of more instead allow briefing and say we're going to now look at the evidence and make our determination that's what happened so it was a whole how that would have differed from the original appeal in an original appeal in a direct in an independent review on direct there's two significant categories of differences the st one that i didn't get to earlier is the scope of the sensing scene issues that will be addressed an independent review in the initial independent review revisited because the only analysis goes to the narrow aggravation mitigation issue the aggravators are still excepted for example for the codefendant the striking of the existing aggravator before stays and all th would the process differ a tricky issue that was identified as an error if you focused down all the way on the consideration of the mitigation there is a consideration the mitigation in the same manner as the st time around but that's past all the rest of the end of her review and acknowledging that when you get down that means we fixed it we went back and looked at the thing that was identified as a problem conducted the analysis without a causal nexus and corrected the identified problem that the th circuit had said occurred in the arizona supreme appellate court correcting in a pilot error on a bill record there's never been an allegation of something that was excluded from the record that might make this case very different and this is we think of straightforward application of climb ins and that this entire case is driven by question presented one and i would point out the petitioners offered no ground in principle for what would replace direct st collateral as the measure for retroactivity if this court were to up and modern retroactivity he is cited the phrase anytime something is again subject to modification but i don't think that's a fair statement of the court's opinion of him as but more importantly it would turn any twenty dollars to fifty five dollars proceeding in which a sentence was again at risk could again be corrected or vacated into a direct proceeding for attractive the purposes thank you counsel of five minutes mr cocktail thank you i'd like to begin with clemens which is course is only about question two it doesn't answer question one for reasons justice sotomayor said so four things about clemens number one it's a very limited decision it's a subtraction of one aggravating factors i was saying to justice kavanagh this is the opposite this is everything happened the th circuit this is that petition appendix page fifty nine a required a recent in saying and then the state came in and asked for a full blown independent review using that phrase four times that's a joint appendix pages three hundred and eighty five thousand two hundred and eighty nine and that's exactly what the arizona supreme court did my friend said oh it was a limited proceeding this and that absolutely not it was me about justice blackmun dissent which an occasion to look at again just now and justice blackmun to sentence about one thing which is the consideration of aggravating factors and he said that's something that should be done by the trial court and you know whether he was right or wrong about that that was only about our giving factors our point to you and all of the decisions or about the consideration at the trial court of mitigating circumstances so for example mills the page three hundred and seventy five dollars says quote because a sentence  failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence it's our duty to remand pre sentencing and there's case after case about that why is an aggravating circumstance different than a mitigating one because mitigating ones go to  in which this court in caldwell has said that's a thing in which you need the jury to see that leads to trial court to see up front and personal as opposed to on a cold record and that's why we don't think you know you should extend clemens particularly circuit they got a full blown re sentencing we're not challenging here's some argument about a dig we're out there wasn't in the briefs in opposition or below we're not challenging the th circuit's determination we're challenging the arizona supreme court's decision here not comply with the law of this court eddings and jiminez which reopen the conviction now if you accept their view you're going to basically license a state to slap the label of collateral review on and allow him to conduct a new sentencing proceedings that will evade batson that will undermine everything that justice harlan tried to do when he tried to overrule when he overruled linkletter and they'll be able to pick cases and say oh this time it won't be final that time it will that's a very dangerous thing i agree there are difficult cases in my friend ended with this so be some difficult cases in the middle but this is not that eddings is the heart of what capital sentencing is about and is profoundly profoundly against what this court's precedents are he's right to say hey man is doesn't directly control this case that's not an argument argument is a menace states a truism that when a case is final as it was in one thousand nine hundred and six when the court ruled it can be reopened by voluntary action by the state and sure that action happened the state reopened and set the clock back to one thousand nine hundred and six and they get you see when you look at and compare side by side the any questions thank you counseled cases submitted