years ago went through the whole state appellate process the federal habeas process and was to know that years later the california electorate in california legislature passed this rule saying you could reduce your twenty five years to life if you met certain criteria in fact the statute says the court if the court finds you are eligible shall do blah blah blah before and you didn't and the only way you pass into the they get to do it again is if there's a new just newly discovered fact that you would find if there's a new rule constitutional law there's some sort of claim of innocence none of those apply to my client so he's not going to be able to come back with a second or success a petition but there is no way that he could have presented this claim back when he presented the original petition judgment it's an attack on the judgment therefore it's second or successive but then the court goes on to say now mr clayton could have filed a petition and it would have been second successive if he had won and had his judgment modified well obviously if it has judgement modified he would have wanted to appeal but because he lost it's now you know has to be a second or success a petition i submit to the court that the focus here is not whether he said he is not attacking the original  judgement he is not attacking a sense he is not attacking the convictions what he is doing is equivalent to challenging the denial of a parole of a parole date or parole release date and this court said in hilo versus alaska that's not an attack on the original judgment for this is like a new proceeding independent of the judgment absolutely on i mean it here ready you could say well because if he prevails his sentence will be reduced in a sense a judgment therefore it's a judgment but that makes no sense logically and for the reasons i set forth in well i was asked whether or not it was a cunt geyserville issue and obviously if it wasn't there would be really no reason to figure out the first question wow i'm sorry so let me ask you so the question is whether or not this motion that he filed and the ruling on it the order whether and then he filed his behaviors petition that we're here on whether this new petition just forget what the claim is but it's based on that the substantive claim but it's based on that order right i'm sorry well no i'm not although the question is if there is you what you're trying to do in this new petition is to challenge the validity of the order to nine is motion to to correct the judgment correct correct yes the order ok now you have a number of theories about why that he was his constitutional rights were denied correct but when we decide whether or not that's a success a petition do we have to do should we look to see whether at the mare to look at the nature of the claim in order to decide whether it meets the test to be in success now this is just yes well i'm sorry i said i know i'm confused your honor here because the border actually asked to first issue is first is that a successive or not if it's not successive it goes back to district court and let the district court leave your freedom and that's what your treatment just exactly and then i thought well maybe the court wants to determine if it's not a if it doesn't state a federal claim why should we bother with that so my original put my original position and i still it is no you don't have to decide because no one's ability if you did want  it is if it does state a federal claim so i'm sorry if i was confusing in my answer before but that is my my position and if the court has no further questions thank you may please the court michael keller on behalf of the warden titian or is currently in custody as a result of an one thousand nine hundred seven judgment in which he was convicted of robbery and carjacking and he was sentenced to term of twenty five years to life under california three strikes law because there was a two thousand and two petition the district court denied on the merits he needs authorization to file a second petition petitioner's argument as exceptions to that  as argument that's been raised here your honor is that i'm not going after my original judgment i'm challenging the denial order that i received when i made a motion to recall the sentence but the question isn't whether or not which which order to challenge and question is under mag would has there been a new judgment and not one is of the denial order a new judgment because there's been no change in the sentence in other words we look at what other words if you if you win if the judged if the judge i'm sorry if if the judge were to grant a recent sing then the winner who got a recent sing could appeal but if the judge denies that and has no reason to but could but if the judge denies the reason saying then the loser doesn't have a right to come to an appellate court the short answer is yes the when the when a if somebody has had attained relief like in had received some sort of relief it was sent back for a new sentencing hearing and then the petition was reset and that created an intervening new judgment but seriously the key words are intervening new judgment that's correct your honor what about under the california penal code isn't it enough that a judgment or a decision that affects substantial rights of the prisoner or petition or an order that does that doesn't that trigger the right to appeal it does trigger the right to appeal in california what your friend is penal code section twelve thirty seven and the california supreme court case until did say that a denial is a three strikes reform act is a an appealable order but in twelve thirty seven it says and any order that is that affects the substantial rights of a defendant that is after judgment other words it distinguishes and 'm sorry if congress was was set up the rules in terms of when a second successive petition can be filed and under twenty two forty four b two they set that out and i would point out that  if if it really comes down to what is it that the petitioner seeks to challenge is at some later order but what about the denial of a state habeas petition petition i can say why i'm not challenging my original judgment i the provisions that modified the three strikes law prisoners who believe that they qualified for relief could seek relief from the superior court correct that's correct right and that provided cream court has recognized a set of substantial rights for these prisoners who might benefit from the change in the law correct sure which is you know it is linked if they prevail they will be able to get a change in their judgment but if they don't prevail then the california the california courts look at that as a sky is a uniquely different animal and the prisoners are allowed to seek appellate relief correct there indeed right so i don't see why it's a new proceeding it's not an attack on the original judgment it's independent and apart from that why that qualifies as a successive petition in my view it's more qualified you know the cases where we have recognized an independent judgment notion the idea of an independent judgment this fit into that scheme so it's not barred you know what is it that that is that he doesn't have to obtain an order from the ninth circuit saying ok you know go ahead and file your petition it's just not a success to show your i believe that again that there has to be some with if there hasn't been any change in a sentence there hasn't been a change in the judgement and i think the notion of the judgment is much broader than what you're giving you're saying well there has to be a specific change in the sentence yes and i think that's what mag would recognise as well as the sixth circuit in stand celt that there has to be without some sort of change in the sentence there is no change there is no intervening new judgment a denial order doesn't create something it doesn't create a new judge and the question a judgment is why is that person in custody today it's as a result of the judgment that judgment for this defendant isn't the one nine hundred ninety seven judges in custody today for that period of time because of the denial of his motion to have his sentence reduced because of the intervening change in the law which was intended to benefit so if he was entitled to be released in january of twenty seventeen if he was entitled be released in january of two thousand and twenty but had the motion been granted he would have been entitled to be released january twenty seventh in after january first less than a month from now he would be in custody because of the intervening event of the denial if his request for rescind sing under the revised california law that was intended to benefit people just like could file a state claim based on new evidence that he didn't have before and then that gets to night that doesn't create a new judgment now if there if that factual predicate can a broader meaning and maybe what i should have said is that i think what we lead with says is you can look to the state court to see how the state court treats that were they treated as a judge and they allow a separate appeal from and now you know i know realize that california has different rules with respect to what's appealed and what's not appealable and what not but they sure looked at this and said it was appealable they treated something different but that saying some things appealable is not the same as saying it's a new judgment and in fact penal code section twelve thirty seven specifically talks about orders made after judgment that affect substantial rights this is one such order it's an order after the judgment but maggots focus isn't on has there been a new order that affects substantial rights i can't imagine what talks about judgements what's so unique about the word judgement that's what the u supreme court looked at when it talks about what creates a new opportunity to go outside of the ordinary time because he's filed the first petition the question is is there some sort of way of escaping opposed to in your view this kind of the yes that we have a right to be here that is the hill case your honor and that case is very distinguishable in that case what happened was he received he got a sense of seventy years and given his good time credits he was actually released and out of custody but then he violated the terms of his release and he was brought back in and then there was a mandatory parole law in that state that said you now have to go serve those days and hill although he had challenges original judgment and sentence of seven years he then wanted to challenge this parole scheme and the only reason he was in custody because he had already served seven years was because of the parole scheme and this court said that he didn't need to go through the s requirements this is totally different because he's not it's not where he's challenging in this case he's saying my sentence of twenty five years needs to be reduced held in say his sentence of seven years needed to be reduced so essentially what the defendant in hill is totally unlike our defendant here without reason what your position on on the second issue that we raised in the that he needs to go through and get authorization to file a petition then yes this court considers whether or not a constitutional claim has been raise and i would point out that none is been raised in this case because his liberty interest argument liberty under some sort of the cook there has to be some allegation that they have there's been a denial of procedural due process in that case we're dealing with california's discretionary parole system the court said that's means an opportunity to be heard and  giving of reasons there's been no allegation in this that in this application in front of this court we don't want to get it in this situation where we're looking at the merits well this is i'm not talking about the merits i'm not getting to the fact that ultimately he doesn't qualify under state law i'm just saying that nothing he presented either in the twenty four he had a twenty fourteenth titian which was denied by the district court in the c e o it was denied by this court he's now come forward with this application for authorization and there's nothing in this application for authorization to file a second or successive petition which is what started this court asking for response that says anything really doesn't say that that he was denying any way an opportunity to be heard that he wasn't provided a statement the reasons state a claim or whatever well whether qualifies to meet the standard for second of successive is a clearly different from whether or not he has to get authorization and on that point i get that it's not the the order that he's aiming at the one that he disagrees with or the one he challenges that's not the question the question when it comes to second or successive is whether or not there's been an intervening new judgment and under mag would there has been no intervening new judgment ri meritorious petition or whatever i mean yeah if this court were to find that he doesn't have to get authorization then there's nothing for this court to do to to do it i agree with that but thank you thank it had to do with something the facts of the case and the holies of the case were not exactly on point and so it wasn't cited before it was a question reopening and not ineffective assistance of counsel claim on a rule sixty and  twenty two fifty five motion but the court noted and i'm going to quote this prisoners may file second in time to titian's based on offense that do not occur until a first petition is concluded a petition