commissioner from the district of idaho were asking the court to vacate the district court's decision because it doesn't comply with the eighth amendment and the recent supreme court decision in montgomery versus louisiana i'm going to first address the district court's decision on the merits and then move on to any questions or has about the procedural issues the facts in this case are that mr wyndham was sixteen years old when he killed his mother there was evidence that he was suffering from mental illness signs manifested in eighth ninth tenth and on into eleventh grade two doctors were of the opinion that when he killed his mother he was suffering from a psychotic break both doctors well respected in the legal and medical communities were of the opinion that if mr wyndham had been properly diagnosed him properly medicated the killing would not have happened both were of the opinion that  presented good potential for rehabilitation and the trial judge took all of this into account i respectfully disagree the child if you're a very very long hearing in a very careful hearing conducted by the trial judge the trial question is whether is whether the trial judge did enough to comply with the supreme court's surprising and recent decision in montgomery is not the problem that is the problem and i submit that the trial judge did not that supreme court was very clear in miller and the subsequent language in montgomery that the sentencing court has to engage in a very specific analysis and that is whether the offense is the product of the use i'm going to let me take let me take you right where were my questions  this court act before the i don't hope supreme court gets a chance to rule on this question well your honor i i don't think this court should actually i think this court can i think the record is sufficient before the court in order you know for the court to ok go ahead i'm sorry your question again and i mean should we wait why should we wait until until until not only had the i don't supreme court has ruled on this but assuming the i don't supreme court rules against you until you pursue your remedies in the supreme court i mean this is we're in a very very strange posture with respect to at the top and we're going to be in some very strange uncharted territory here and it seems to me given given the way that they supreme court treated louisiana that you may have it even if you lose in the i don't supreme court you may district court didn't have the benefit of montgomery the district or didn't have the benefit of counsel for mr wyndham i think the district court would rule differently had these two things happened at the time that mr wyndham's petition was pending in the district court i don't think that district park can book at the state court decision or the idaho supreme court affirm and so that decision and conclude that it's in it complies or comports with montgomery so i think the best thing for this court to do is to a man to district court however i do think if the court wants to grant a petition it could i think the wrong decision would be to deny completely because that will leave mr montgomery without i mean mr wyndham without any remedy at especially in you know regarding his i c claims so i think the best thing for everyone is to start over in distr focus on the view on the on the defendant's use very clearly now that interacts with potential for for change in the future that might of the circumstances of the crime and what not but what what what what would what would you expect to see a trial court do today in light of montgomery and was that sense in court did not do she mentioned do you think passing in her the she did not consider as the supreme court rip requires under miller whether the killing was an act of mr linden's transience immaturity or whether it was an offense that was the result of his irreparable corruption it's a very specific analysis that the sensing court has to engage in and if you look at the sentencing transcript the sentencing judge was completely uncertain about what mr wyndham's prospects for a future she says repeatedly i don't know i'm uncertain i can't tell but she felt i did i think forgive me i didn't take her to be uncertain i took her to be as judged by because it's a very lengthy sentencing hearing i think is about an hour long and i'll grant you that this this language unfortunate yet transplant immaturity versus a crime that reflects irreparable corruption because i think that's what you're looking for waiting bad in particular but she mentions his youth and then and then goes in to some lengths to that the nature of the offense of course and isn't it take isn't in that vein that she talks about i don't want to take a chance i'm worried that this what if he doesn't take  medications you know and sort of to that effect about her her concern about this may being more in the latter crack category about irreparable corruption it doesn't seem to be inconsistent to me the whole thrust of miller is that we can't condemn a child to die in prison because we're uncertain about whether or not they're going to mature the premise is children do mature they grow they develop and if we condemn a child to die in prison because of a single act without looking at their potential for rehabilitation for violating the eighth amendment counseling with respectfully there is always on certainty and for a sentencing judge is a very tough spot she was in very t agree however when we look at an individual we don't define them permanently by a single act in most of the cases where we're going to find irreparable corruption you're going to find a youth who has a history of criminal acts of violence this is not mr wade did she have an expert that said that and i think it's common sense forgive me what i'm sorry i just part of that analysis i think just is common sense we look at a person's history and character and their previous acts before we conclude that they are irreparably corrupt the fact that a person is mentally ill does not define them as a regularly corrupt medicine changes people mature symptoms mitigate over time as dr beaver testified to so let me ask it this way is your problem with the sentencing transcript that the judge spent too much time focusing on the nature of the offense or is the problem that which was horrendous or was the problem that she didn't spend enough time talking about his youth the problem is she didn't take his youth and everything that entails constitutionally under the eighth amendment into consideration he could have been thirty and the sentencing transcript would have read the same she did not consider the fact that he was sixteen and developed a mature and she had she had an obligation under the eighth amendment to take that into consideration in was wrong and i was wrong when we conceded that that eighth amendment claim had not been raised in state court i think it was raised i mean it was exhausted it was exhausted because this the idaho supreme court had the opportunity to to review this claim addressed the eighth amendment issue sue a sponsor and it concluded that the eighth amendment simply doesn't apply to its sentencing scheme and that is in violation of miller if it contravenes miller thank you thank you your honor my name is just colorado i represent the state in this case i apologize i cannot travel to seattle but i certainly appreciate the courts and counsels accommodation if i could start where you left off judge  the split issue i think actually what the federal district court was saying in that regard is he was questioning whether there was some legitimacy to the appellate public defender's argument in the petition f rehearing that the court's opinion itself created an eighth amendment issue and i think that's where the language about the split comes from but i don't think the claim actually alleged in the petition by mr wyndham is a split claim it is a state post conviction petition that was filed while this appeal was pending there is no substantive eighth amendment claim the claims alleged in the petition our sixth amendment ineffective assistance of counsel claims with respect to trial counsel and appellate counsel but there's no substantive eighth amendment claim in the original petition so there is no claim being exhausted currently that is the same as the claim that is alleged in the federal petition are you saying that the idaho supreme court won't address the mongomery question so with respect to the montgomery question your honor what happened i believe in district court i don't have all those pleadings but i did provide the court with the order of dismissal by the state district court on the petition and it reflects that there was a motion to amend the petition to add the mcgann reclaim because montgomery of course had not been issued when the petition w initially filed that petition was filed i'm missing august eighteenth two thousand and fifteen and of course montgomery did not issue for about five months after that so as i understand what occurred in the state post conviction as there was a motion to and to add montgomery to the petition the state court denied that motion to amend and by the way with respect to the sixth amendment claims the petition was dismissed in state court because it is untimely so there was no actual consideration of any of the six amendment claims as true than the gun reclaim the court analyze the merits of that in the context of a motion to amend which brings me to i think what could be an important point  judge has you asked what would you expect the trial court to do today in light of miller the state district court's decision on the motion to amend to add in montgomery claim answers that question the court deny the request to amend because it concluded that wyndham's actions did not reflect the transit immaturity of youth and the facts establish that this is one of those rare cases where fics life is appropriate so the st unclear certainly as to the other claims election petition the state would anticipate that the i don't supreme court would agree that that petition is untimely not consider the merits of those claims and the state would would supreme court right that's right and we don't know when they might decide that issue we don't honor it's it's very early in the appeal process and i see actual order court no brief has been filed yet your honor so ultimately about of course will be up to the council on appeal to decide that but it would be something related to the order dismissing the petition as untimely and i consideration and that list certainly several issues that could potentially be raised on appeal but ultimately whether those are not raised will be up to whatever whoever whoever handles that case on appeal but how can we do that given what's happened in montgomery and why shouldn't we wait for the idaho supreme court to get the i don't supreme court a chance to weigh in on this question how can we make a judgment about whether idaho has violated clearly established federal law when that federal law was only clearly established in january of this year and all we have that is a is the order dismissing the petition in february and i understand i guess my concern your honor and in terms of this court staying this opinion i understand the court's concern in terms of you know especially with and certainly we would want the deference that the state is entitled to under on any resolution of that eighth amendment issue but i i guess my main concern is procedurally as to the petition actually filed in district court in federal district court for which a final judgment was entered i don't think that that petition can go be go and be amended with for example as and i thought that's the request as i understand it on this day is to amend it with all of these other claims that were dismissed six amendment claims that were dismissed as untimely so that's one of my main struggles on stay and the nature of the request to stay is how that federal petition gets and then amended with all of these other claims as opposed to count as opposed to mr wyndham being required to raise those in a success petition and follow that procedure but i certainly do understand the concern about what the auto supreme court may or may not do with the montgomery issue but i as to the point counsel made in response to the question what would the sentencing judge do in light of mongomery we know the answer to that but if the court this court wants to see what supreme court also says in relation to that i do understand that position i would also h note that at the end of the day the supreme court has never held that you this dispositive of course in cases like this obviously the supreme court has said that a fix life sentence on it for a crime committed by a juvenile a homicide crime committed by a juvenile does not per se violate the eighth amendment all that is required is the consideration of factors relative to youth and frankly your honor i  that the sentencing court did consider you it wasn't a discussed at length certainly at the sentencing but it was considered for interim excuse counsels jeff interrupting but right on that point when you said that the trial court did discuss use i read the transcript differently is there is there more than the one reference to his youth at the very beginning the very top of the transcript where the judge said i have considered his youth is there more than i think it was that brief reference i thought there was one at the end as well but i could be mistaken about that that said your honor to the extent it assists the court at all in the order for the condition of the order dismissing the state post conviction petition the court says it was a factor that it considered and it did not think that this was a case where th transience the immaturity of the individual the defendant was the reason for this offense and by the way i think that's abundantly clear in the sentencing the whole focus was the mental illness and was it a product of that not was it a product  immaturity or his age but it certainly goes to the question about trying to predict the future and whether or not he's amenable to treatment and whatnot can i get you to focus you just mentioned the order conditionally dismissing the petition and i think i might be operating with a typo here but i want to be i'm sure i attach that to a recent document i felt with the court ok and i just i'm sorry i can't remember the name of the document but it was that's ok i've got it was was that the we ask you that was that the the matter back to the district court for the district court to take another look the district court can wait just as well wait for the idaho supreme court us and then they everything can be sorted out in the district court and when it comes to us it comes up on a record that we can review because our you know we're our function basically is an appellate court right and you know judge judge watching his order did discuss my grammar and just said it doesn't procedural suggestion your honor i certainly can appreciate that being an effective way to dispose of this case my only concern that i would repeat from earlier is i don't think that should put when i'm in the position of amending the petition to add additional claims that were alleged in the state post conviction action that in this court dickens be ryan it was in the supplemental authorities letter i filed a week or so ago in that case it talks about martina's and i see claims and the fact that a person doesn't have counsel or ineffective coun this court appointed c j counsel on appeal so these issues are really just getting flushed out he has been under represented in effect for many years and this is a very active area of law very complicated and