being on the telephone with us today lisa branch and i my colleague lisa branch and i would like to welcome for the th and final day a visiting colleague judge stan baker judge baker is my family and i just got back from a trip to a ranch in montana so we can appreciate the hard work that stand put went through out there but in any event and any event stan thank you so much for helping us with our work this know the drill time before us is limited so please dispense with present trees and factual recitations and procedural histories and just proceed directly to the main points of your appeal there's no lighting system of course but this guess is on hand to let you know when you've got two minutes remaining so that you can begin to collect your thoughts and wind up she will also let you know when the time is expired and while we won't cut you off  we would ask that you bring your argument to a close when you hear that morning all right with that we will introduce the st and only case before us this morning which is number eighteen that one hundred and sixteen to seven clifford address the claim as mr center raised it in violation of christie versus gents in his two thousand and fifty five motion mr center argued that his a c c enhanced sentence could not stand following johnson in part because his prior attempted robbery conviction could not qualify as a violent felony under the elements clause or enumerated offenses clause at the time of mr sanders state conviction alabama law made clear that attempted robbery was a non existent offense accordingly prior conviction did not have an element of force or the elements to match and to great offense the district court however misconstrued mr sanders claim as merely a collateral attack to his prior state judgment to avoid i suppose a slippery slope how how would you have a stroll along i mean surely not every garden variety misunderstanding of a coin is going to give rise to a clue violation what is it that makes  sort of what is it the cause of that to cross the line well your honor in this case the reason that it crosses the line is because the district court didn't analyze it under a johnson based framework as soon as the court made th determination that this was a collateral attack as opposed to a johnson based claim that cut its analysis off there and ended merely when you know collateral attacks are impermissible in the twenty dollars to fifty five an attack on the validity of a guilty plea that violates clisby because it's not because the court isn't engaging and not strickland kind of analysis and the same issue occurred here the district court didn't engage in centers argument was not a collateral attack on his part or sentence he wasn't arguing simply that this is prior conviction is constitutionally infirm for example  that that would be an avenue but this case can be addressed in the johnson framework already because to determine whether a whether a state court tenant qualifies  but even presuming that mr sanders conviction is valid that doesn't answer the next question under the a c c and alice which is to determine to determine what the elements are as the state courts  the conviction had no element in order to rule on your underlying argument and wouldn't the finding that the conviction had no element therefore necessarily imply a conviction was  honor but that's not the meat of the claim and the question is valid for what purposes what we're talking about in this case is whether this offense can qualify as a violent felony under the num assessed in the p s r you can presume that the conviction is valid and that answers the question but in this case you still are left with the issue of what are the state law elements and you know the alternative to proceedings courts are bound to the law as the state defines it and this state has made clear that attempted robbery is a non existing offense following that change in the law so mr centers conviction which occurred after that change could not qualify as a violent felony and the district court by pass all  didn't wrestle with the facts you know the alternative is making it elements and what that means in this two thousand two hundred and fifty five setting and because it didn't wrestle with that because it didn't address it didn't address the claim as mr center raised it as a claim under johnson darby can i just try to pick up on judge baker's question a little bit because i think he's on the something that you know you say that you're going to take the conviction sort of as a given but as he says in order to rule for you on johnson grounds we'll call them the federal court would have to conclude  that the state law the state law offense had no element and thus his point is sort of that that necessarily indicates or implies that the conviction self is invalid so my question is this and i'll just confess that i haven't given a lot a lot of thought to it but the bar on collaterally attacking state convictions sort of on their own terms and twenty to sit for proceedings does that is that a bar d on sort of direct call it sort of tour of the conviction or is that a bar on sort of a slightly broader category of challenges that would include doing the work that would necessarily imply the ability of the underlying convictions i just don't cases in which the supreme court has you know explained this involves things like ineffective assistance of counsel and they didn't want the district court to go through digging through state records since hermann whether in these underlying state proceedings  asking this court to do or the district court that's not what mr center is asking the district court to do mr hunter has only requested that the court undertake that analysis that is necessary under the ac ca and determin hello yes sir you are alive i think you may have please the court proving christian of for the united states there simply cannot be a valid conviction for a nonexistent offense or  offense that has no elements all the alabama cases the mistress under relies on for the proposition that attempted robbery is nonexistent those same cases explained that for that reason the defendant's attempted robbery convictions are no and void therefore the district court in this case satisfied clisby by relying on that rationale to conclude that it couldn't treat attempted robbery as a nonexistent offense now mr center disagrees mr center disagrees with the district court over the scope of what the presumption of validity that is required in a tw and fifty five proceeding what that requires of the district court but that disagreement is a disagreement over the merits of the district court's ruling it is not our lives be it so mr kristol let me just push back on that a little bit i mean the sort of the troubling passage to me in the district court's opinion is that page seven where the district court you know sort of facing a petition that says johnson you know sort of says residual cla e element because the district court responds in other words center argues that his attempted robbery conviction is invalid as a matter of alabama state law no reference to federal law no mention of johnson is that i mean is that a fair summary of the claim that center had made it is because mr center is asking the court to assume that his offense lacked elements now in pages two and three of the district court's order it fully recognized that this was a johnson two thousand two hundred and fifty five and that johnson is front and center of mr sanders claim for relief and the question after the vacant for the residual clause is whether the elements clause could come into play and rescue these violent felony convictions so with that backdrop that is what that's what in court's mind when then it can fitters this question of whether or not attempted robbery has elements and so when it decides that well i have to presume that this conviction is valid in order for me to do that i have to presume that there are in fact elements that can be proven beyond a reasonable doubt that is a ruling on the merits if this case were to go back to the district court to vacate its conclusion that it had to treat the offense as if it lacked elements and it would also have to vacate its conclusion that his attempted robbery offense was an element clause on the state court aspect of mr sanders claim because as we point out roughly a decade before mr center was even sentence the supreme court had already made clear that any use of the violent felony definitions is going to require an examination of the statutory definition that is the residual clause provides no better basis for and handsome and in the case of johnson was the only basis for his and handsome and and if at the time of the sentencing there i mean the state supreme court was clear that even a residual clause analysis would require an unsure making now and that's a good beer sure i think that is what the defendant mr center is saying however clisby doesn't require the district court to address the claim for a leaf on the defendant's prefer terms clisby requires that the district court resolve the claim for relief and here there's no dispute that mr center has argued that his attempted robbery conviction is cannot qualify as a violent felony after johnson the district court ruled that that was incorrect and his conviction remained a conviction for a violent felony under the element cla analysis section of the district court's opinion you say the district court resolved that claim i guess that's where i'm getting kind of hung up the analysis of that claim so far as i can tell is that page seven and page seven the district court seems to say you're wrong as a matter of state law and i'm sure center when you read that that's not what i argued right i think the district court is inferring that if you're saying the district court is  implicitly by mid that if his if mr centers offense has no element then it is invalid as a matter of law and the same state court cases that mr central relies on t say that his offense lacks and the elements they say the same thing they say that because this offense is nonexistent and has no element the conviction is null and void and the state court had no jurisdiction that that an argument that would necessarily imply the invalidity of a conviction is an attack on the conviction self in other words do we apply a custom when your argument would necessarily imply the invalidity of the conviction are there any cases that you can point to stand for that yes i think daniels versus the united states is our best case that the supreme court case and i think that also goes the quester and judge newsome asked which is the collateral attack that is prohibited under section two thousand two hundred and fifty five dollars it's not just this idea that the federal district court can't go and vacate itself the state court convictions it's also the idea that the federal district court can't impeach those state court convictions by relying on a defect in those state court proceedings to conclude that the conviction honor i think that would that would be a harsh consequence and frankly i'm not sure i don't piers to be is that mr center would be able to get these convictions vacated because other defendants have had convictions vacated decades after they had that conviction for alleged originally entered but assuming that it couldn't i think that the lapse of any attempt to get a remedy in state court means that he's stuck and he have to presume we have to accept these convictions as they stand right now but but i think that does highlight the matter that state court really is the best way to for mr senator to sort of try and challenge this a c c a sentence and it's better for him to try and get the conviction vacated and then we can see what we can do rather than try and rely on johnson to reach the predicate would you agree that center does not have another qualifying offense and so the enhancement would be valid i would i would agree that he wouldn't have another qualifying offense however i think under the beam in analysis it wouldn't be enough for him to show that his offense no longer qualifies as a violent felony after b and he has to show that only the residual clause provided the basis for enhancement and so that's still a further step that he i don't think you could come close to meeting but that would that's  left hanging and i also don't think it's in the alternative because the basic premise of his argument mr center johnson claim depends on the assumption that his offense has no elements but nonetheless can remain a valid conviction that the sense that that's the centerpiece of mr senator's claim and the district court disagreed with that and so that disagreement is simply a disagreement on the merits there's no way to ovoid that and there's there's no way to get to the johnson issue without st resolving this question of whether you could have a valid conviction for the johnson claim it simply address the underlying assumption that the johnson claim depends upon my question i guess then that's a decent segue to my question earlier when when i was sort of teasing out implicit holdings in district court opinions is consistent with sort of the spirit of close the i mean i guess i take the to be enforcement of the rule of judicial administration we basically said we're sick of having to do these piecemeal appeals and so it was like an instruction to district courts to take very seriously the federal claims put before you and was all clearly you know sort of resolve them on the merits so that they were sort of clearly teed up and i guess i worry a little bit all this kind of stretching and straining to tease out of the and terse to seize of this opinion a ruling on a federal issue that doesn't seem to me like leap off the face of the page is that consistent with clinton of strickland ineffective assistance claims where the supreme court has expressly allowed district courts just to focus on one aspect or another of an ineffective assistance claim if it's sufficient to prejudice both of those conditions are necessary for a successful strickland claim similarly here mr sanders johnson claim can't be assessed independent of this question of whether his offense has elements or not and the idea of an offense without elements that is identical to the idea of an invalid conviction i think that that's sort of where the that's really where the rubber is meeting the road in terms of the reason that those two those two notions can't be detached from one another and so that's why the district court the district court below specifically told us its reasoning and that is that it misconstrued mr center's argument that it said that his argument was that his attempted robbery conviction is invalid as a matter of alabama state law and then from there just went to say he cannot collaterally attack the validity of the state court proceedings and the analysis and that there but that is not the claim that mr center raised mr center raised the johnson based claim based on the fact that this attempted robbery was a non existing offense and these are two independent claims the government also puts a lot of weight on the fact that the district court addressed the alternative claim that mr center raised and likens it to ineffective this is since of counsel under strickland but actually the ineffective assistance of counsel framework lends itself it shows why this claim is different because when you have it with assistance of counsel of course you have to show two you have to show two you have to win on both prongs of the stricklin the test you have to show both deficient performance and and prejudice mr center if he wins on either one of these claims regarding his attempted robbery offense than he would have merited relief and finally we just know  the st clear the clear difference in daniels and this case is that the existence of that conviction and at the analysis he was arguing that of course you know his underlying state conviction was based on an unknowing and involuntary guilty plea and that his his former counsel rendered ineffective assistance of counsel and that is the reason that  and that is to determine what the elements of the offense are and that is based on how the state court defines them and to the to the extent that the court would go further than that it would essentially be inventing elements to an offense for the sake court says that there are none so that's the does the distinction here in with daniels and with mr sanders case