be tried by a panel of eight military officers and to be convicted with concurrence of two thirds of those officers but at the time a senior airman louis is court martial in direct appeal now the congress nor any military appellate court and authorize those officers to employ a preponderance of the evidence standard during their deliberations or to use one charge defense approved another defense or appeals to the armed forces or calf has since concluded it was an obvious violation of basic due process for them to do so and senior airman lewis received the ineffective assistance of counsel on direct appeal when his military of lawyers failed to raise that preserved issue senior airman lewis has just two major points of disagreement with the district court otherwise well reasoned opinion and i'd like to address each of those in turn st the court heard when it held that cast decision in hill's announced a new rule of criminal procedure and is thus not available to airman whose convictions were final when hill's  tea as this court is well aware old rules apply on both direct appeal and collateral attack and if a district court noted on fourteen of the excerpts of the record it said quote indeed the hills court stated that the right decision for shadow of its holding and that really should have been the end of the court's analysis with respect to the retroactivity in that hill simply didn't break new ground it merely applied right to new facts in right the phrase under charged appears six times in its discussion upholding the constitutionality of military rule of evidence or thirteen in addition article fifty one  uniform code of military justice has established beyond a reasonable doubt as the standard in courts martial since its adoption in may of one thousand nine hundred and fifty at the i'm a senior airman louis is for marshall and direct appeal there wasn't any authority for the use of the propensity instruction other than an army pamphlet commonly known as the military judge's bench book and as the army court of appeals stated in hoffman that isn't legal authority whatsoever it was a statute to the contrary more importantly article fifty one that statute has just had its th birthday and senior airman louis is entitled to that area old rule if i can turn to the courts harmless beyond reasonable doubt analysis which again is a small town council before you do that to what extent should we be considering the principle that it has to be a watershed rule well judge i don't think that you get to the exceptions of of a new rule if it isn't a new rule and so if you look at a case like wharton v boxing where the court is analyzing whether  crawford is is a new rule from ohio b roberts and that's perhaps an easier answer right in that i think anyone who applied the old roberts test you would know that crawford was a departure from that  here there simply isn't a new rule and so it is senior airman lewis his position that you don't get to the exceptions which the district court did because it's an old rule as i suggested judge the seventy year old rule of what the standard of  evidence is for a military jury and you simply apply the old rule to this case thank you with respect to the harmless beyond a reasonable doubt analysis which is again relevant for president of strickland again the district or citing a calf case called united states versus ducal correctly noted that the prejudice analysis is a balancing test between the prosecution reliance on the unconstitutional propensity instruction because there are cases where the prosecution didn't stress the instruction and you balance that with the sufficiency of the evidence that that extension of experts of the and i page nineteen the court also noted correctly that the prosecution here made extensive use of the unconstitutional propensity instruct and indeed going so far as to say it was the quote glue in quickly that formed the foundation of reasonable doubt in this case where the court heard it was going to help the prosecution's repeated reliance was somehow overcome by the strength of the government's case here and indeed the court heard at page seventeen excerpts of the record and again it eighteen when it found convincing conduct for which the jury actually acquitted a senior airman louis there were five specifications that went before the jury involving four complaining says that the cab has ripped seem to be reversed in the wake of hills at the government points out there are a handful of cases and you can count them on one and where the or the weight of the evidence has been so overwhelming  definitely one federal appendix five hundred and sixty eight and that case is instructive for several purposes want to give an example of what overwhelming evidence that satisfies the harlettes this beyond reasonable doubt what that looks like close to destroy the evidence judges will be submitted the narrow category of cases that is harmless beyond a reasonable doubt and it pales in comparison to the evidence in this case as the th circuit noted in finding no prejudice the government the th circuit noted that also again with respect to the ballots say that the government instead started an evidence base focused on the confession not the person to the instruction in its closing argument as opposed to here where again it was the glue that held the government's case together evans it's also relevant that senior airman lewis's argument that he received ineffective assistance of counsel on direct appeal and specifically the deficient performance prong of strickland the issue in evans was a little bit different there that the government was arguing procedural default because after evidence had raised hill there with the military courts before coming to the circuit and a page five of the one the th circuit notes the evidence ought to excuse that because the law at the time of his trial was settled such that raising the issue would have privileged now the united states as the court noted argued on the contrary and as the government points out litigants in other cases taking place around the same time as evidence two thousand and fourteen trial in two thousand fifteen appeal or rating this very argument it was deficient performance for senior airman lewis's appellate defense counsel to fail to raise this same issue in his two thousand and the government fair consideration has meant many things to many courts and we know that in the in the pleadings both the d t circuit and this circuit have applied to an overview at least with respect to constitutional error and whatever it means we know that the narrower scope of review under one thousand three hundred and thirty one dollars that is set out in councilmen and specifically page seven hundred and forty seven says that article three courts have jurisdiction to review whether courts were void of a fundamental defect and here it is happening senior airman lewis's eight member jury find his guilt beyond a reasonable doubt force court both in this case and the last word on held retroactivity question saying that this military rule does not apply retroactively therefore this court should grant deference to that decision under fo race based purely on deference or there are other rationales that would support your view on the yard is not purely based on deference but what we do have here specifically is a military its own rules and so it is not so not out of just any statutory deference or deference under the principle of comedy and separation of powers but we have a court was in the best position it's retroactive to the state courts and here the argument is not really doesn't really the argument the argument is that by analogy the state court would violate the and gave us cont is that if analyzing whether a new rule d applies retroactively on a v s to ship the government would agree that t is the appropriate analysis that raises the question of had ordered his capital sentence be executed being that the great petitioner who never finished serving his sentence and therefore became a legal and possibility for him to never again for a moment really and therefore the but considered and denied farm notice on the merits and so great to not invalidate the two thousand and seventeen air force court in on lewis which is the finding pres would excuse procedural default and i hear my friend argue both in the in the papers and here today that the lawyer who is ineffective somehow has the obligation to raise the argument that you as ineffect e that isn't required for procedural default and with point of fact when we raised quorum notice before the cast specifically at page twelve of the repeal petition we did raise the ineffective assistance of counsel of prior appellate defense counsel on direct of he'll with respect to full and fair consideration my friend is absolutely right that military opponents are now stuck in a do and we're stuck in a do loop of the court of appeals for the armed forces making and that comes in gray where the court says quote the threshold question is whether this court has jurisdiction to entertain requests  notice in a case that is final in all respects under the you seem to say we hold that we do not and so when military petitioners have a decision like bills that endures to their benefit they go to the military courts appellate government divisions there say you cannot meet the threshold conditions for a court notice go to an article three court the court of appeals the armed forces went even further and said we don't have jurisdiction whatsoever to hear these cases they did in both gray and willing bring where they actually overturned the decision in willing brings case is a very case and they told him to go to a court with appropriate jurisdiction and now when we and the reason that you have to active duty judge advocate's appearing before the th circuit is because we have accepted the government's invitation to go to article three court to vindicate senior airman those rights and now before the th circuit they are you that we were fully and fairly heard by a court that disclaims jurisdiction only this court can bring that do just as the supreme court ultimately had to do in gray by saying that the th circuit had to address  the the issues there now with respect to this court's precedent and specifically page four hundred and forty eight dollars of davis the quote is such determinations however must be consistent with the constitution and within th denial that was issued in this day in this case and issued on the very same day that the court of appeals for the armed forces disavowed its jurisdiction to hear cornrows petitions and gray there's no reason to conclude that it did anything other