thank you and may it please the court representing two clients here today and there are a host of issues that play so for the most part i'm going to be looking for guidance on what the court has concerns about but i'll start with the issues we have in common the first being pursued your old default although the posture is not the same in both cases and cross that issue was waived and davis there's an additional ground but the easy way to decide procedural applies to the johnson issue which i think it was the do you think circuit said it was like a bolt of lightning out of the clear blue sky so that's procedural to the next issue they both have in common is timing and again a little different posture cross has been litigated for longer than davis has so before back holes there were a lot of things being conceded across this case that were sort of on conceded after  timing it's a it's a really simple straightforward timing issue sorry timing statute provided and twenty to fifty five after the government has a new idea that that only applies where there's a new right recognized by the supreme court and a new right being asserted that are essentially identical i can like i've explained to twenty to fifty five substantive standard in some ways which turns twenty to fifty five at three to something completely new and you know the government so i take it your if your  it's whether the issue is whether the supreme court's established a rule that is now retroactively available for matters on collateral review but a rule wouldn't necessarily mean the same statute you could have a rule that says there will never be an implied right of action under spending clause legislation and it would apply to any spending clause legislation not just the particular one before the court that's correct and you know we have decades of teague litigation to tell us with a new rule means the line of supreme court cases going from god three to stringer is probably the best example where you have different death penalty statutes and different cases with different wording and yet when you get to a stringer where the i think maybe the mississippi supreme court had ruled that he was relying on a new rule he wasn't really relying on godfrey because godfrey was about a different statute with different wording and it was done in a different way and the supreme court said no this is direct from godfrey godfrey is applied here and the government is is important if at all is it your position that the supreme court has said on some number of occasions several that i can think of that the language of the arm career criminal act in the language of the career offender guideline are as the residual clause were were identical does that help you is it relevant in your view it's helpful and you can also look at the fact that in johnson itself it actually cited to career offender cases to discuss the hopeless indeterminacy indeterminacy of the residual clause so we're really talking about the same thing and unlike in the advisory guidelines context where the supreme court essentially carved sentencing statue fixed sentences prior to booker and so johnson is really a direct application to this case so it's one of the government's arguments is that even with the mandatory guidelines there was the possibility of a departure so they didn't six quite the same way that a statutory tax a moment in a month would and that's no different then i mean that the departures are essentially defined they are defined by the statutes and this court through many cases in the supreme court through many cases said that when departing you look to the guidelines for when you can depart and how you can depart so it's no different from a sentencing statute with subdivisions for you know defined by statute just like that mandatory guidelines defined what could be done was five usually could have liked to ask you about the issue specific to mr cross and to the really includes both the elements know ok so davis commits a series of robberies in one thousand nine hundred one and your argument ultimately boils down to he didn't have fair notice of the additional penalties he was facing under the arm current of the career offender guidelines right if we look at the one nine hundred ninety one guidelines we see the definition and we see the application that says crime of violence includes robbery now i realize it may be rather fictional to imagine mr davis wondering before he commits the series of robberies what his exposure will be but if he looked he would see robbery counts he knows he's got a robbery but probably over ruled but essentially if the commentary is attaching to guidelines tax that is voided then the commentary itself has no independent legal for we getting reversed as a district judge for disregarding an application mouth so we have a fair amount of weight sure and certainly under the mandatory guidelines i mean everything had weight you know rollins was relied and this is an issue that perhaps should require additional briefing if you'd like it your honor but rollins was focused on a couple of supreme court cases including stinson which really defined what the commentary does and what the ki commentary does is interpreted text and so again we have to look to the text is that does the text need interpretation is the something where ambiguity can be clarified and this is kind of a different situation but if you look at johnson which overruled sikes which also overruled james i mean you could say that people were unfair notice that the leading and attempted burglary were considered violent felonies under those cases and yet those defendants got the relief they were entitled to the e c c defendants at least because the basis for finding that the residual clause covered that with those crimes was unconstitutionally vague guideline and so you know to the extent the commentary is interpreted in something that's so big nobody knows what it means that commentary is to some extent worthless do you remember using similar languages in the case i mentioned as a district judge and get a reversed shield and you never know what the  in order to get as far as you need is to go do we also have to and implicitly think that the curtis johnson case should inform the way we look at the notion of an old crime of violence under the the pre book are guidelines in other words is that somehow just that need to be retroactive to i know if this was constant cases defining the simple robbery in such a mild way that it  certainly would not sit curtis johnson the curse johnson was well in the future at the time you know mr davis was acting yes and you know there's a footnote with a long line of string cites with all of the federal courts every circuit court that's considered the issue that curtis johnson the taylor that shepard that all these other sorts of cases do come into play regardless of whether they were themselves retroactive regardless of timing where what you're looking at is essentially prejudiced or harmless there now if we had a freestanding curtis johnson claim that was unrelated to female johnson then we would have a big problem here  want to say anything about mr cross's appeal waiver i mean mr cross appeal we've heard i first want to start by saying that this court has never addressed an appeal waiver that looks like this so we agree there's this body of law where you have a bow and that appeal waiver there are certain exceptions that are read into it for things that are truly fundamental that people should not be able to give up that's not what we're talking about here we're talking about an agreement that included an exception that the prosecutor's office chose to put in that mr cross that you can tell from frankly the fact that you filed a direct appeal from the fact that when he was when he was still pro se in this twenty two fifty five case he considered it a done deal the six option applies so i'm going to move on with my argument it's only when i came in i start to recognize what it is we're arguing about but he may still not know what we're talking about because there was an exception that applies to the fair so you're not arguing are you the any that the court relies on which is found to be constitutionally and permissive something substantive as opposed to a procedural errors in the sentencing it's hard to imagine a procedural error involving a factor that is itself constitutionally that that the government is relying on they they don't have like which like you had correct i mean they don't if if it had just said we waive everything th these would be applicable or they might be as interpreted in terms of limitations of equal protection are something isn't isn't their problem here that they put language in there yes or anybody would reasonably understand said what it said yes rather and so if they think cases that they're relying on earth centrally blanket waivers that limit it so much it's really i mean it's mostly race theoretically it could be something like gender but the  three creates a one year statute of limitations that runs as relevant here from the day that but of course mr tables and you probably know since you have clearly been practicing law since johnson twenty fifteen was decided that we saw a lot of johnson twenty fifteen cases where people came in and said the supreme court and of course welsh comes along the supreme court has recognized  a substantive right basically not to be so it may be a negative right not to be an armed career criminal and it's the first time in my memory that we granted substantial numbers of petition seeking permission for a second or successive habeas corpus application meaning twenty two fifty five or twenty two fifty five motion i should say and that standard is even stricter than statutes of limitations it seems to me that we don't just have a straight forward one year you missed it because in fact a great number of people because of the right recognized in johnson twenty fifteen have been given the chance to go back maybe the government has defenses in some cases government clearly has sometimes there's been a controlled substance of the fence sometimes have been other things but in this instance i can't see a principled way to distinguish these two people from the second or successive  johnson issues those are as those decisions are as many of this court's precedents pointed out sort of preliminary decisions based on a prime fascist owing and that's all this is to this is just saying you get to have your case you're not too late because the relevant date is the date when johnson twenty three of samuel johnson if you will was decided and they both filed comfortably within a year of the decision in the samuel johnson case so why isn't  for this argument trying to extract from it anything about mandatory guidelines and all i get is justice thomas over and over again i highlighted all the places where justice thomas referred to advisory guidelines that's and the entire rationale of tackles is that if it's advice it's not the kind of thing five finally ends up because the advisory sentencing guidelines are not subject to dia actually did an ounce a new role because the dia did not just apply the tried and true strip and standard as a matter of course but he did dress the threshold question of whether strickland even had any application of setting i that he you that the government would argue that this was just an application of a standard to this particular language when there's a mandatory sentencing regime the residual clause is voi since then arguing that for example that the departure features of pre book or guidelines were sufficient to address the vagueness problems because ever since booker the u s department of justice has been arguing to make the guidelines as forceful and continually binding as possible and so my question is did the u s g s office approve this breach you find if you're following orders i understand he said i am and i realize that the government's changing positions are frustrating all i can say at this point is that we do have consistent marching orders and so at the very least the positions that are being taken right now across the courts circuits the eleventh circuit has mentioned it but in an unpublished opinion right there is there is a signal that there is a conflict in the circuits on this point and all we would need to do is line up on one side or the other of that conflict do you mean with your back to the first and third circuit right no first and third and then there's fourth and six the first and third circuit have not actually address the question other than in a second or successive posture and so as i think both parties agree those decisions are not sort of fully presidential but you're absolutely right that some of the reasoning in the first and third circuits is contrary to the reasoning in the fourth and six but the fourth circuit observed that it had previously granted second or successive petition and allowing these guidelines claims to go career offender guideline that wording is unconstitutionally vague when it is against the backdrop of a mandatory regime such as the armed career criminal act is another mandatory regime is the pre book are guidelines i don't think we're talking about somebody saying you know that the gun free school act is is now suddenly back in play or something completely asserting is the right that johnson talked about now somebody on the merits may say well there are distinctions between the our career criminal act in the pre book or mandatory guidelines the merits will be the merits but it's very hard to say that mr cross and mr david are asserting this right and it was recognized by the supreme court well your honor i would try or tension also to the words immediately following was initially recognized by the supreme court and it simply defies believe that any issue the supreme court has deliberately left open can be said to dance around it not just know the right asserted is that right about the residual clause you would you would say that this is that is actually just completely duplicative that the supreme court in johnson asserted the right and johnson so johnson is the law for johnson you know and that's absurd why bother to have twenty to fifty five f at all if that's what you're saying i  to issue no there's isn't the next day yes we still agree with johnson so now we have that i suppose to the center honors asking how broad is the reagan johnson no i'm not i'm saying your position is that only an exact replica of johnson would be able to take advantage of twenty to fifty five apps three and you don't need twenty to fifty five if three for an exact replica of johnson that's the that's the second or successive petitions the aca cases and the government does not mean to suggest that every petition needs to be an exact replica yes you do that's the exact essence of your argument you can't get away from that your honor i would i would be happy to address this more but i see that i have three minutes left and if if i could also move on to the many other issues ok that's fine but i do not mean to we would not take  the except for the exception that he had which we were discussing this is exactly true and the u s attorney's office in the eastern desert of wisconsin has been putting those exceptions in the plea agreements for decades the same exceptions are still there are you saying somebody should come at the fan it should come in there and i understand what i read it and i took it literally i think you know the district court interpreted the exceptions objectively which it was supposed to do under this court's case law and consistent with the decades of this court's opinions and that conclusion is doubly unconstitutional both under being sentenced under unconstitutional mandatory guidelines that were also unconstitutionally vague why should we not just treat that language as simply to do something on the basis of race there's a fundamental constitutional problem with that it really doesn't even need to be mentioned in the appeal waiver is so obvious which is why when the appeal waiver does go out of its way to go beyond simply you district of wisconsin will drop this language now i don't know but one point taken from your honour's comment is that i do not think there is a limiting principle inherent in crosses proposed interpretation of this language so a constitutionally impermissible that there is not just under i mean there's lots of law that says please grievance their contracts are going to be construed against the drafter ordinarily contracts are it's just plain language there's also lots of law on the circuit saying that forecloses process claims with respect to procedural defaults that the government's basic argument is that both petitioners have attempted to squeeze through very small loopholes in the procedural default doctrine but they cannot they have not alleged actual innocen and they have not demonstrated that their claims are so novel that they should be excused from normal rules about so what's the point of a while and people to pursue claims under retroactive supreme court opinions we have into question the continuing the liberty of the read standard and that is why the read standard for cars about you know raising novel claims is still rarely applied i think my friend said that every court in the country has decided in petitioners favor on this that is not true adding the exceptions include a court in the western district of wisconsin and so in our state that rule the other way and this court has certainly no one history of relying on the reed standard to states are always good they march in here day in and day out and say you have to accept every word out state courts mounts so we do you know that's what we're supposed to do but you got to take the bad with the good i guess i have to say well your honor is purely independent walton or whitaker is the fact that the that robbery was listed in application no two to guideline section four b one point two and as this court very recently noted those application notes can quote disambiguate the sentencing guidelines and as a all right apparently there are none thank you very much for your presentation and i think further ms fight it will give you a little bit of extra to balance things out thank you and i all actually have a couple of points i think i get that the court understands lot of what i'm saying so i don't have much to clarify on the twenty two fifty five f three timing issue you know i think they just keep coming back to treating the work right like the work holding these are these are different words great i think you can easily say that johnson recognized a right not to have your sentence fixed by the residual clause which applies directly here the government says that it's not planning on arguing that there is that the rule in the future with knappy a new retroactive rule and i might be saying that backwards but the point is in the end the courts have to decide whether that rule will be new and given that clear straight line from johnson to these cases i do not see how it could be a rule to apply johnson here to read versus ross issue first i just want to say i think she's right if it was actually one of my cases it wasn't it wasn't published but i had forgotten that there was one judge in the western district who made a comment in the midst of a number of other issues and because it's not published i missed that in doing my westlaw research but other than that maybe if my memory serves me correct the judges throughout the country and the circuit courts are certainly in agreement that read applies to these cases and then you know if you look at crassus case it's particularly obvious what he got was an endurance british and the court accepted his interest groups this just wasn't an issue it was not on the horizon this is precisely what reed was designed for where lawyers aren't making strategic reference to disambiguate ng that was in dicta hill is actually an a c c case so this is a much bigger issue if we want to get into commentary and i guess we'll just say for the third time that if the court intends to go there it would ask