had to find that least satisfied those requirements neither occurred here mr lee didn't even attempt to meet their requirements st they couldn't likelihood of success on the merits and the district or didn't make a finding that he satisfied those requirement sixty the motion had to shuttle in seeking to reopen his class or proceedings under rule sixty b he had to show that there were extraordinary circumstances that would warrant reopening the judge with that's a requirement for relief under sixty be assuming he could jump through that loop then he would have to show and as he characterized it if you were able to jump through that hoop what he would be in is in the similar circumstance as he was when he st filed his rule fifty nine emotion if you were but no matter how it no matter how it's framed mr lee has not shown that he can meet the two prong standard of strickland at the trial his lawyers objected to the to the introduction of evidence about psychopath they objected it to it on cross examination of the defense expert dr cunningham and they objected to any testimony about psychopath or dangerousness in general through the government's extrovert to psychopath the so at that point in time there was no evidence expert evidence and opinion by an expert saying that a diagnosis of the psychopath is linked to dangerousness in prison but the government did argue that there was that linking dangerousness in the community or excuse me that psychopathic linking psychopath had diagnosed as a psychopath there's no scientifically valid connection between that and dangerousness in prison in effect what he's saying is that a x testimony is me evidence about dangerousness in the community way in proving the the aggravating factor of future dangerousness we must go down when you say nobody testified that there was a link which link are you referring to between a diagnosis a psychopath and that and no one no expert testified at trial that that meant that mr lee would be dangerous in prison and in fact all the  are come out through the adversary process and the jury is entitled to hear all the evidence that the parties are allowed to present opposing evidence and then they just require get whatever weight it wants and that's what happened here there but there is some gatekeeping from the court you're not suggesting that the district court would be without the authority to limit testimony we only look at the way of the weighing test that's under the federal death penalty action or that is that's the limit that the court had further evidence in about dangerousness in prison you know but it's all out there right now at that point he's already performed some kind of a gate keeping function the question i've got is if you look at all low threshold for admission of testimony and evidence and so that the the the jury heroes entitle to hear the evidence about psychopath the mr lee was able to prevent present his own evidence about psychopathic which he which is what his is expert dr cunningham in fact did and dr cunningham provided the testimony that he believes is accurate and the jury had all the information and it could come to the conclusion that it wanted to and in fact the jury as you mentioned judge erickson didn't hear additional evidence because the district court cut off in fact the government did intend to introduce evidence from dr ryan opinion evidence about psychopath  it didn't because of the district court ruling and what mr lee's claim is right now is that basically his lawyer should've taken a different tack at sentencing a different strategy to keep out the evidence but there's no basis to conclude that a different strategy would have been changed any of the evidence that the jury heard what you want to say about the les i notice you put it at the end of your briefs but often it's the st thing we look at when someone files a motion for stay one business day before an execution when they when the condition that prompts the motion that existed for five months i know you make this argument when does the fact that there's been a state now acquittal equitable factor would weigh less against because at this point there is no execution i believe we will i know that there's no execution scheduled so the stay application would have to be evaluated i as i und erstand it differently in that context maybe i mean the only reason there's not a date is because there's a court correct your honor so i mean there very well could be it i guess it's context dependent is what my and then that would have to be evaluated altogether i mean we don't you to find also that there is no likelihood of success on the merits because both of the these factors independently required the district court to deny mr leask stay application you want to s anything else about extraordinary circumstances yes i mean that's the rd hurdle yet you have to sort of overcome ok well it's the st three are right it is it is the st and generally a changing decision a law is not a basis for the defense lawyer himself introduced testimony that the defend it would be likely be more dangerous because of his race and they did it and the supreme court made clear that that really casts a shadow over the whole justice system and in that sense and in that case there were short could be a factor in determining whether it provides extraordinary circumstances and so for all those reasons mr leak also cannot overcome the rule sixty b requirement of schroedinger's circumstances i see them getting into my please the court george chorus on behalf of mr daniel levy epperly in this case with me to counsel table is mr morris moon one point to pick up where we left off with the government's argument is that the execution date in this case is coming on no new execution date has been set the underlying order is moot because there is no execution to stay and the difference between this case and the court case in d c which is the execution date to stay which there is not will but doesn't the order say the government may not carry out the sentence until further order of the cart so it stayed for all time yet i would respectfully disagree because i think read in context it's not an indefinite state it's a stay in order to allow the bannister decision to be issued so that the court can decide whether or not anything the court says and bannister results in a change in law that affects the outcome of the sixty b now when we file the sixty b court order granting a stay of execution as moot because there is no execution date today and the sixty remains in the district court because the court held that in advance which it's probably within its discretion to do that's the routine practice in the circuit and in the district court if there is a pending supreme court case that dispositive you can hold the case of the bands this court has done it with davis cases and johnson cases that have come off the supreme court the district courts to the same thing so the court would just hold on to the sixty motion hold in the bands until bannister comes down we'd be back well you'd be back in the court asking st day again watching you know there be three conditions that would have to rise before that this would become right again there would have to be a new execution date set the injunction in d c would have to be vacated and bannister would have to be not yet decided and none of those three conditions have arisen and in the absence of that this court would be issuing an advisory opinion because we're dealing with hypothetical facts that have not a reason yet why didn't you just  that's why the court entered the stay because bannister by definition would not be decided before mr lee was scheduled to be executed but to turn to some of the merits issues that the government brought up i think there are st of all i think there's a funnel mischaracterization of the claim this was not a doubt issue that was raised the claim is that trial counsel should have objected to the reliability the p c l are because it was unscientific there is no scientific argument that the government made to the jury and i'm quoting now from transcript page seven thousand three hundred and eighty one where the government said the evidence that we will be presented in this trial is going to help you understand that mr lee this man who sits right here in this courtroom is a violent and dangerous man he thrives on this stuff this is part of his profile even if you sent to him to prison for the rest of his life he will be a threat for a long long time and that's what the jury understood the government was saying that he's going to be a future danger even in prison would have sentenced mr lee to death so when you take that factor combined with the other factor which is if dr lyon had been challenge prior to trial that he would have withdrawn his opinion there's no scenario where the jury would have heard anything not word one  are just would not have been injected into this case so what do you make then of this court's ruling on the on the issue of the testimony thank you for asking that question or because that ruling in two thousand and one wasn't about this issue this claim it was a purely evidentiary issue having to do with whether or not the piece you are was admissible to show future dangerousness whether in prison or not because nobody at that point in time had raised a challenge about the unscientific nature of using the p c l are for the purpose of demonstrating future dangers of prison that challenges hadn't been raised so that was the context in which this court was looking at it this court didn't have all the facts it was just looking at a purely evidentiary issue so your position is that the evidence that this court said was fine to introduce at the sentencing phase was just simply future dangerousness full stop it was without without distinguishing between community and prison well there talking about that evidence across the board not and and i'm trying to make sure i understand when the distinction between in prison and in community matters and when you make that statement about him  being the only person for whom that evidence was introduced are you just talking about it generally at all are you carving out that evidence as to dangerousness your life say that there is no federal capital trial of the p c r has been presented  psychopathy has not presented i mean at all in the last twenty years for any reason that the governor's tried after mr leask case they tried to do it in the case of this trip to maryland and that was the case where dr ryan st withdrew his opinion did ryan testify in this trial he did testify in this trial and in fact i think the government's been a little misleading about the record because he did actually testified to his use of the p c l r and why the p c l r's are reliable instrument he was queried about that on rebuttal and the fact of the matter is his argument the penalty phase and then the bulk of its future dangerousness through the cross examination where it listeth elicited from dr cunningham all sorts of information about what the p c r is how would score what are the factors how mr lee did on that test all of that came out correct when it said that chambers is controlling here because chambers operates in the context of when a capital does and it might be deprived process to which he's otherwise intitled and if banister comes out the way that we think it will based on the with the argument when it seems as if the ruling will be that gonzalez does not apply to all fifty nine motions will be back in that same position other government says that they're still going to be other hurdles that have to be overcome and so i can address those in turn so i think you should i think our quarter in the district court both already said that said is i can't reach this claim because it's excessive now he then went on to do a sort of quasi alternative medicine else which obviously you can't do what you want you hold that a claim is excessive you deprive the jurisdiction original whether he could have done it or not challenge had been raised at the time of that trial in one thousand nine hundred and eighty four year before mr leask trial i would have withdrawn my opinion that and that's just a fundamental mistake that was made because this was done on a truncated process a truncated review and the thing that i think the problematic here is the government knows that that was just a mistake the judge as a good it's of them jacked of mistake and yet they keep repeating that in proceeding after proceeding after proceeding even then even though they know it's not true of course  on certain facts and why we have to have a more fulsome review but i'm i was referring to the fact that even before you get and got into what you just discussed you said lee hasn't explained why the information now includes was included in the original titian argument about whether or not in light of the recantation of dr ryan the th amendment claim should be reconsidered and he says it should be reconsidered because it's successive and i would make one other point your honor about what could the government says we should think about what the best case scenario might be under banister the best case scenario is not just that the court says gonzales does not apply the will fifty nine's the best case scenario in this kind of came up during the argument benatar is to talk about the contours of what's available within the scope of rule fifty nine because when the government says that that there's a bright line that you cannot introduce evidence as part of your fifty nine motion that's not actually the law in fact a district court has substantial discretion about what they can consider in the context of rule fifty nine motion and one of the factors they look at is unfair prejudice to the opposing party and the so the best case scenario would be that the supreme court investor talks a little bit about that and talks about what exactly is within the scope of rule fifty nine and the reason why that factor unfair prejudiced the opposing party is so important this case is because there's no way the government can demonstrate that here the evidence that we're talking about is all from litigation that the government was a party to united states versus haynes united states versus just that they had all this information before we did they can't claim they're surprised that doctor said it recanted his opinion they can't claim they're surprised that there were a number of psychologies who came forward and said it is on scientifically sound and unprofessional and opinion in the absence of knowing exactly what banister says in the absence of knowing if there's going to be an execution dates in the absence of even knowing whether or not the preliminary injunction will stay or be vacated you know and for all those reasons i think the most credential course here there's also prevent this doctrine delays not a reason to deny this motion because of what the judge said in indiana well the course or judge in indiana was reversed on that and then the judge said delay of five months is not on reasonable given the overall timeline of the ca that is the reasonable well delay is a factual finding your honor and all there was five months of delay that's undisputed the question is whether it was isn't reasonable to the point where it makes you an eligible f tactic and why should we discourage that by saying this is an impermissible you can file this any time for five months because what distinguishes this is if you look at the underlying test if you had brought the motion sooner would that have allowed the district court to resolve the merits of the issue in time without having to resort to say but because the sixty b is predicated on bannister which is not yet decided the court would have had to hold in abeyance regardless it was not the timing of our sixty stabilization that prevented the court from resolving or sixty b it's natural factor it's the when the court will resolve bencher and so the court was properly held the sixty motion so it did not preclude the court from resolving the here at there are a few points that i would like to make about the ineffective assistance claim here and i think that my friends analysis kind of avoids the actual strickland standard which is you have to show deficient performance and then prejudice and the question here is what should his lawyers have done differently at the time of trial and why was what they did do somehow beyond professional reasonable here the defense lawyers tried to keep  limiting their there to mitigation and eventually succeeded in the district court and then oh mr lee says well they should have done something different but it doesn't really show exactly what they should have done that was different or why that would have changed the outcome of the trial you know mr lee says what they should have said not they should have said that the an opinion was not a sign taps opinion linking psychopath the and dangerous as in prison was not scientifically valid but they don't say why that kind of argument nine emotion a similar to a daubert sign literally argument about a psychopath the test was raised and it wasn't successful it came in there was actual opinion testimony by a government expert linking psychopath  vacating and on the concession of lee if he on the concession that if he if he's into if you want to vacate the the day i think that we would be amenable to that i mean it would depend on what speculate but yeah i think we might be amenable to that your honor maybe the two of you could work it out in the hallway save what time if that's all it takes i'm reluctant because some of the same suggested that there might be some leeway if but the parties presumably could somehow stipulate or yeah that would be something that we would have to explore year on and i'm not sure about the contours of what would take place if that were true if we were to explore that i'm just asking for myself