may please the court this case presents the issue of whether the court should authorize a second twenty to fifty five petition for mr crandall so that he can bring a johnson challenge to his nine twenty four residual clause of nine twenty four c is unconstitutional a vegan i understand that but my question is why couldn't this push so i use these arguments the statutory argument right no no no you're arguing that he's arguing crime while it's you know we're relying on the johnson role here which is that i understand that you wish to my question is using his argument a statutory argument about nine twenty four  in my question specifically what would have prevented him from making the same argument the same spac should torrie argument free drunks so i think there's two parts a crime of violence under nine twenty four c before johnson there might have been a different basis entirely than the one we're presenting today and mr crandall might have think the judge don't think is getting at is that you make several claims that says this is not a crime of violence that arson doesn't fit because of statutory variations and because of the differ finding you could have presented that before which would have invalidated both the force cause and the residual but there's nothing about johnson that limited your ability to do that and i think that that's right it seems to me that you're trying to use johnson is the gateway to excuse a procedurally default with statutory quite no your honor our claim here is that the residual clause is unconstitutionally vague and that's not a force was or the residual perhaps as i said why is why not the argument that we rely on that arson cannot categorically qualify as a crime of violence because it doesn't require physical force against another right that would have that would have not worked prior to johnson because of course in the ordinary case even in a case where someone burned down his own property of course there's a substantial risk in the ordinary case to the property of another but but our point is that simply because there might have been some other non constitutional basis to challenge mr crandall is conviction doesn't prevent us from coming in on johnson now it's an entirely different claim and the example i would give the court if after graham someone were to come in and try to challenge a life without parole sentence because he was sentenced to life without parole as a juvenile and there might have been some other basis pratt prior to that it was not a new simply that johnson voids the residual clause any question asked the force clause is not a standalone claim subject to the twenty two fifty five h two gatekeeping acquirements if if you're arguing which validate that's a non constitutional role doesn't satisfy its point of fifty five eighty two requirements but simply because there might not have been a barrier to bring a different kind of claim we're talking about an entirely different claim than a statutory claim here we're talking about the johnson rule that a crime of violence definition depending on an ordinary case analysis is void for vagueness that is the rule relying on to say that arson could not have categorically qualified as a crime of violence and the residual clause because it's vagueness after johnson and keep in mind this is a very low barrier this court's binding decision and hubbard said that the government has a nearly insurmountable burden in arguing against authorization based on the merits the question as to procedural default we only need to show that it is at least plausible that procedural default is excused here and it is excused for three reasons one of which is that mr crandall is actually innocent after johnson because there are precedent from the supreme court at the time of his conviction became final it were closed any argument that the residual closets unconstitutionally vague and certainly there is prejudice here because were not for this johnson air there at no nine twenty four c conviction but this court doesn't need to go so far as to say that the only question here is do we have a claim that is not implausible we don't have to show that we are likely right or that we are going to be right just that we may be right it's a very low bar how do you respond to the government's argument under bruce lee that a success of twenty to fifty five would be futile because you can't show innocence of the murder your honor that position is entirely  in contrast in intention with this court's binding decision in united states versus adams or the court explicitly rejected the government's position in adams the defendant pled guilty to a felon in possession charge an armed robbery count seek out an exchange the government dismissed a series of related armed robbery charges that appeared in different counts of the indictment the defendant came back in and said that he was actually innocent of this felon in possession conviction and the government said no wait you need to show you're actually innocent of all of those dismissed armed robbery counts and different counts of the indictment this court explicitly rejected that and said there is no burden to show that you are actually innocent of entirely different conduct in different counts of the indictment so to here there's no burden to show that mr crandall is actually an ascent of an entirely different conduct that is not even charge now hubbard did say that although the focus at this early authorisation stage must always remain on the gate keeping requirements the court may conduct a cursory glance the merits this means only that we need to show our claim is not implausible nothing more this is a low bar and the government cannot overcome its burden and nearly insurmountable burden here to show that mr crandall has an implausible or frivolous claim and in fact the very fact we're here today at oral argument signals regardless of whether or not it prevail d so johnson is just a gateway to every statutory argument it could be could have been made could should have been made previous so to two responses that your honor the this is not entirely on your honor our claim is a johnson claim it's that the residual clause was unconstitutionally vague no other case other than johnson spoke to this and in fact and preparing for today's argument i noted that there are four separate panels of this court that granted authorization to the exact same challenge that we make today which is that a nine twenty four c conviction is invalid after johnson where arson was the predicate offense for separate residual clause was unconstitutionally vague which is a given everybody agrees or at least i think everybody and all that disagree and that's certainly our position your honor and then as to whether or not ar clause or a force clause and granted authorization and harvard there was still an a numerated offenses clause and yet this court granted authorisation this court would have to conclude that the hundreds and thousands collectively  is not a standalone claim the forest clause analysis is not a standalone claim it's a question as to prejudice well covered johnson was necessary to get to the arguments what i'm trying to decide in the first instance argument you could have made no your honor because why not because even in a case where one burned down his own property that would still qualify under the residual class even in a case where someone burned down his own property there's a substantial risk to the property of another satisfying the residual clause but there's simply no requirement here that just because there might have been a statutory claim that someone could have brought sooner that he is now prevented from relying on a new of constitutional law and i don't see if it does the years if it doesn't if it's not applicable or if it's not it's not a great way to get back to school and was wrong johnson does create some kind of clause elements clause analysis is included in every single one of these cases where the the proven is seeking authorization from this court i'll simply because there is an include it as part of the johnson analysis  separate and not a separate part of the analysis a prejudice in craig does not make this claim not johnson it's not a separate standalone claim it's merely a question as to prejudice whether or not the johnson err has caused harm and the eleven claim here that is not our claim here that is a claim as to prejudice part of the johnson inquiry and on finding a statutory interpretation of nine twenty four hastert certainly all that and that means that you on johnson and that is all this court needs to do to deny our claim this court would have to find it's completely implausible that it's totally frivolous then we can get back and johnson has been implicated but johnson is implicated your honor the only thing that voided the residual plaza is johnson none of the other cases have done this and in fact james was in place and entirely for clothes that claim it just takes away any gatekeeping provisions of behavior statute no your honor because this is a very unusual situation here you have both an unusual situation and one which we have decided hundred well what i mean by saying yes the court recently as decided in hundreds of cases that the movement has authorization to file but is there any other time in this court's history that it is ever had so many petitions at the same time this is a lightning strike getting a new rule of constitutional law that the supreme court has made retroactive that was previously unavailable it is difficult  were to do that i highly doubt i think it's a very questionable proposition whether it would change the argument here since nine twenty four c is of course a statutory provision it's a classic example of retroactivity so at this point masquerading as a johnson claim that the defendant movement could have brought years ago and i think judge a j you hit the nail on the head that oath of the claims but there's spec to the mens rea and the burning the property of another apply equally to the residual clause as they do the forced clause so even if you take the merits on this case and you can see the merits which the government course is not then mr crandall would have been right back in two thousand and seven two thousand and nine two thousand and thirteen and if you look at all the authorities the ninth circuit invalidated that particular cars california arson statute under both the force clause and the residual clause i think a great example of a johnson claim certain assault and battery claims be predicated conviction that was at stake in the united states these are claims that qualify as predicate crimes of violence under residual clause but not the force clause that is not arson as according to the move in arson is neither a crime of violence a court of movement under both the force clause and the residual cites johnson does not mean that it is entitle to a grant of a successive twenty to fifty five motion i mean it's this court's job at the gate keeping stage to ascertain whether or not the particular claim else involved burning a property of one's own property again that case in the ninth circuit invalidated a california arson statute under both the force clause and the residual clause because the panel found that it was possible to burn one's own are saying that any johnson claim is for been just because it reserves reverts back to a clause analysis is not our position again i would use the examples i brought up of a qualifying conviction that under the residual clause just because johnson would then render the so under the residual clause and not the fourth clause again i'll bring up the example of fleeing the police officer inside the united states and that case the united states supreme court found that the predicate conviction was a crime of violence or a violent felony under the residual clause let's say the petitioner in that case then challenge his conviction under the name of johnson and then it would revert to a forced clause analysis as to whether that particular predicate conviction qualifies as such under the force clause but that again in this case the arguments apply to bot force clause and the residual clause arson according to the movie and if you side with them on the merits which again we do not concede then arson is no longer it was never a crime of violence before johnson after johnson independent of johnson and  you can see that just based on the authorities that are cited by the movement i want to address judge hendricks claim with respect to i think it's worth remembering that mr crandall killed a federal witness and is now seeking to invalidate the sole count of conviction that the parties including mr crandall selected and agreed to punish him for that murder and he's now seeking to undo that arrangement on a technicality that has nothing do with his factual innocence and he has not alleged and has failed to establish actual occurred on june second two thousand and seven and the actual murder occurred on june nineteenth two thousand and seven i don't think to the extent adam sets forth a test for whether someone must prove actual innocence it's certainly not  found a gun on him and they charged him with felony possession subsequent to that they ascertain that he was involved in armed robberies that had nothing to do with the nine twenty two g nothing to do with his active possessing a firearm on that particular day and so there is no fa whatsoever he was not charged with under nine hundred you charged with possessing a firearm during those robberies he was charged with possessing a firearm on that day pursuant to a terry stop now let's contrast that into this case we have in the same criminal conduct an ongoing plot  mr bundy the fact that it occurred several days later i don't think is dispositive all sorts of criminal acts occur over a long period of time you know conspiratorial acts for example and the fact that it may occur several days shouldn't certainly shouldn't excuse if the issue of having to prove actual innocence i think this case is a great example if you read the indictment in this case there were several counts two counts one to judge a g were narcotics trafficking counts that occurred in february and august of two thousand and seven charges that had nothing to do with mr and that's exactly right mr crandall was very aware that the conviction that he's now challenging was the conviction that the parties agreed would spare him from the potential of the death penalty for executing a federal witness a judge talking to your point as to whether there's a requirement issue we would also submit that the fact that mr bundy was executed for in part cooperated and potentially testifying in relation to the investigation of this kind of a conviction would also separately establish a factual procedural bar or i love love to go into the merits i think the afghan as fail to make a prima facia claim the fact is that notwithstanding the authority cited i've not found a case in which federal arson was committable by burning of other property was involved in each of those cases as to the mens rea argument again i would submit that you have to fail to make a prima facia claim for various reasons first of all the supreme court's case invoicing fundamentally precludes the claim that reckless  offenses cannot be crimes of violence in fact the supreme court explicitly stated that actions that are intentional but have a conscious disregard for its consequences such as the action of an arsonist in a federal arso statute would qualify under the force clause i would also note that the idea that one can accidently set fire with conscious disregard for its consequence doesn't make any sense what we submit is that federal arson must be accomplished by an intentional act the arsonist most intend to set the fire it defies president and constant sense for you to be able to unintentionally set afire with willful disregard as to whether something burns and again the test on the supreme court is whether there's quite a realistic possibility that someone could be convicted of a federal arson statute or unintentionally setting fire i've certainly not found any cases that effect i've certainly not found any cases one can burn their own property and i think the the last  clause of nine twenty four c i think we've all been assuming that at this point in time it's there is a position that that is not the case that it's not appropriate at this k q the gatekeeping stage for your honors to extend the principles of johnson to a subset of statute residual clause of the one twenty four c is or is not invalid under johnson and we submit that in re hubbard it does not apply to this case and neither does johnson also smith the this is not a johnson claim either so u honor's this case presents the issue of whether or not the gatekeeping requirements are met it is not part of the gatekeeper keeping requirements that other meritorious challenges must have been presented our claim is a johnson claim the government does not get to say what case we're relying on here we're relying on johnson to say the residual clause is void for vagueness the government concedes that a prejudiced now this is appropriate and that's precisely what we've done here prejudiced analysis as the forest clause to determine if the johnson error is harmless procedural default at this stage strays very far from the gate keeping armand's because it has nothing to do with the question of whether or not we're relying on johnson a new role of constitutional law and in any event as i said there's there's no issue here of procedural default and even if there weren't issue as the statute of limitations i would note that the supreme court's decision i'm equating versus perkins four cases where this court has authorized the exact claim at issue here but a nine twenty four c challenge is void after johnson those claims also included a claim that there is no qualifier there's no crime of violence under the forest klotz the court did not include conclude that just because there's a forest clause prejudice inquiry that that means the movement is not relying on johnson this is a johnson claim we don't have to exclusively rely on johnson the rely on language and t fifty five eighth's to doesn't require that we exclusively rely on johnson just two or three fully address the government's point regarding the united states versus adams the government entirely misreads that case the burden to prove actual innocence is only on greater and greater dismissed off and based on one instance of criminal conduct alleged in the count of conviction of murder that occurred two weeks later an entirely different conduct that was never