please the court this case is about whether the federal corpus power extends to to judge the validity of the state courts declamation to adjudicate review of a special circumstances allegation now the state court and the district court below found that it didn't matter because while the state court held that it didn't matter that the defendant solace was convicted of the special circumstance of gang purchase a patient because he was also convicted of another special circumstance felony murder well that was years ago and as explained in the briefs the law on felony murder in california is going out the window so in fact it does on out the window or is it going out the window well that's an interesting question but the law it's why i asked yeah the law is the path and the path has switchbacks and some of those  switchbacks have happened and some of them have yet to happen in this case some of them have happened and there are people such as appellant pablo solace who now as a result of s b fourteen ninety three which actually did a version of it did pass and go into effect a month ago and they are eligible understanding is that he met that it's questionable whether he's even eligible for re sentencing now because of the existence of the gang murder special circumstance i would expect the prosecution to argue that mr salis had an active enough role in the robbery that he should be held  responsible for the murder as well even though he didn't personally commit it now the jury found that mr solace did not deliberate that they found him guilty of murder but they they also found that they rejected an allegation that he deliberated how precisely would the new statute apply to the robbery special circumstance that was found true in mr solaces case i believe it would apply directly your honor like what language in the in the new statute would it jack to the robbery special sac circumstance so the only thing left standing is the gang murder special circumstance seventy point ninety five and then it has several subdivisions and i'm not sure off the top of my head exactly which it's a very broad statute but it does say that when somebody was convicted of murder under the felony murder rule and that they did not act they did not actually do the murder nor did they  actively promote the whole situation that resulted in the murder and then then they're entitled to recent unsing and they should not but the problem with him is he's got this gang participation special circumstances well that is a problem because when you have the gang exactly your honor when you have the gang participation it's almost impossible to not cognizable and they found that under a case called the levy hill but in that case the cognise ability issue was totally was completely distinct it it had to do with an issue that was not cogni good morning your honour's brian means representing ward and indeed better police court judge o'neil was correct in dismissing this case for lack of jurisdiction specifically because the petitioner had simply failed to satisfy the in custody requirement as the court is already aware twenty two fifty four a requires that the petitioner be in custody and that's a jurisdictional requirement that he be in custody in violation of the constitution or other kind of cut to the chase sure so let's assume that we don't have the gang murder special circumstance and the only premise for the life without parole sentence is the robbery murder special state court to gain relief but to answer your question more directly my reading of the statute although it is only four weeks old and of course subject to interpretation there are a number of provisions here that appear to be  impossible for the petitioner to overcome for example he'd have to show that he was not a major participant and that he did not act with a record reckless indifference with respect to the crime so he's got to get through those initial gates to be able to show that he doesn't the girl as she said that the superior court would have to decide correct that's correct and there be a motion before the new statute constipate contemplates proceedings before the superior court for somebody who seeks to take benefit of the  statute and then the spirit or judge would have to go through all of the elements and decide whether or not he said is that is correct right so what is the biggest hurdle for him though he probably is not even eligible for it is he's got this gang participation in special circumstances are they murder robbery special circumstance would probably preclude it as well but that's what it but that's what the statute seeks to give him an opportunity to overcome and that's what he would have to do in the superior court right but i'm just saying with him in this proceeding this in this proceeding he seeks to challenge the constitutionality of the gang participation finding on the basis that it's not supported by substantial evidence that's right right right district court didn't rule on that that no jurisdiction has cracked ok so if he goes back to the district court let's just assume this for a minute and the preclude him from obtaining relief oh well i mean first of all i think we have the cart before the horse i think that the superior court initially has to go through the new felony murder statute and then the petitioner has to show that he qualifies under that and then he could then challenge both special circumstances or in particular the gang murder special circumstance but mind you that was never imposed by the superior court anyway so we're speculating that that's going to be an obstacle the jury made the finding but the superior court ignored it the six court only applied to murder robbery so far as far as we know it may not apply it when it goes back down as well so this whole thing may just be academic except that that's a decision for the spirit court not us well i mean i mean there's nothing that precludes if  you know we've rejected that doctrine and as far as direct appeal has concerned is concerned we said that that the discretionary concurrent sentence doctrine is no longer valid i see he completely different because it involves a fine so tell us why you think we should adopt that doctrine and a b s i think there are two different doctrines one is a discretionary doctrine and that is the concurrent dr sentencing doctrine and the court has rejected that in the direct appeal contacts but it's still precedent in this court that it maintains that discretion to do it in the hague be as context so under this court's decision and van gelder versus felder this court still has the ability and the discretion to do so in this case but i think there's a probably more fundamental purpose for that has to be considered before reaching the discretionary issue and that's the jurisdictional issue and in custody and at this point as we are here right now petitioner is not in custody under the gang more special circumstance because it the spirit of court simply ignored it did not impose it so as the petitioner sets in custody that up to this appear court in other words once the jury finds a robbery murder special circumstance isn't that self executing and it leads  life without parole no i don't think that's true at all in california and the judgment controls in the judgment here is that he was sentenced doesn't the statute say must or shall i well if the jury finds robbery special circumstance then the defendant shall be sentenced either to death or life without parole so what difference does it make what the judge says well we under we know from richie versus bradshaw from the spring  bound by what the california courts tell us they are the final arbiters of state law and the california court here saw it fit that the superior court did not impose this and left it they didn't correct it they didn't send it back down and say you made a mistake and to impose it they left the judgment as it is and i think we take the judgment as it is and that is the way the california state courts left it and i don't think the federal  fact that the trial court rested the life without parole sentence solely on the gang murder special circumstance and not the robbery murder special circumstance not mine also then there was nothing for the state appellate court to decide so therefore there's no holding of the court court to which this court has to defer correct well they're certainly aware of it they discuss the issue and they certainly have the jurisdiction to a sponsor corrected if they saw fit and they didn't but again we're back to the situation as it is and the situation as it is is he simply is not in custody under that special circumstance he is under in custody only on the special circumstance with regards to the robbery murder and that is it so if he's not in custody then there on the gang murder special circumstance then there is a lack of nexus between the two another way the court put it is that in i harmless because of the result that he was already received l wop sentence as a result at the other special circumstance that being the robbery murder and they found therefore it was harmless error so the question then becomes is their decision that it was harmless error and objectively unreasonable application of clearly established supreme court precedent or using the breck standard was there a substantial this and injurious effect to the position or so looking for that perspective there was harmless error here because the petitioner had already been sentenced on a different  special circumstance in the robbery murder special circumstance so let me i just want to make sure i understand your view on how he should go how he should proceed so as i understood what you said before was that he should go back to the superior court and start afresh exactly right if you file a motion and disappear court judge will probably say well you got to ga finding special circumstances find i don't know if you're out of your you just don't qualify you're out of luck well then what does he do you well i'm not sure that's exactly what the way the statue i mean subsection e two and three are the prerequisites under the statute for him to satisfy first and in particular he'll have to show he wasn't a major participant in a debt act with  rather reckless indifference and until he can get past a past those thresholds showings the new statute as just passed in january i don't think he can get any further and i don't think that question been exhausted i think his appropriate remedy in this particular instance is to return to spirit court a provision is allowed specifically in this statute for him to challenge that and he and that's the procedure and vehicle that he should use i just want just one other question i was down that i soon from your responses today that if he goes back to superior court and petitions for relief that the state would not say he's  for relief because of the gang and handsome and because your position is it was never imposed central well that that's a little unclear this would be handled at a different level by the district attorney's office now it was not imposed that doesn't necessarily mean that it cannot be revisited as an unlawful sentence so i can't guarantee what the result will be but it's in the superior court record it's still there this appears the judge the jury returned a finding i w asli i would have to speculate as to what would occur in the superior court all i can say is that this point the record is is that the superior court on the first go round did not impose that particular special circumstance whether it would revisited i cannot i don't know i think what my colleagues are concerned with is that in federal court you're saying well but l wop sentence rests  and it doesn't rest on the special circumstance the gang murder special circumstance so therefore there's no in custody i think what my colleagues are concerned with and i'm concerned as well is that you're going to do the reverse in superior court and say well send stands on the other special circumstance so there's no reason to reach the one that's the robbery murder special circumstance and state court in other words you're going to put mr solace in a catch twenty two and i think what my colleagues are asking is will the state commit not to put mr solace in a catch twenty two if in fact he goes back to state court no i can't commit to that your honor but what i can commit to is that he would have the full remedies available to him starr on behalf of mr solace i appreciate the concern that your honour's have expressed he is intitled to a clear record of where he stands in the eyes of the law that's a matter of fundamental due process i believe substantive due process as opposed to procedural and whether whether a special circumstance fits in the box of being a crime or an enhancement or something else matters not the supreme court has told us again and again that elements matter and anything that is the basis for a sentence including imposition of an l wop sentence that's elements so let's say we get past the in custody issue and we decide that he's in custody what's wrong with the state appellate courts spend harmless error finding under chapman why is that an unreasonable application a federal law well it's unreasonable under jackson versus virginia because there's not there's a lack of sufficient evidence presented to support that finding the jury did find that allegation true but there's there's a lack of sufficient evidence to support it for one thing but that's the state appellate court said that that didn't matter because there was this robbery murder special circumstance as well exactly but it does matter and why because if there's two grounds to send somebody to la and one of them goes away you still have the other one and that's what the state appellate court said is we still have robbery murder so we don't even it doesn't matter whether we get rid of gang murder because he still has the same sentence that's right and they said that in the light of the most extreme criminalization and incarceration policies that have existed in any of our lifetimes and the voters of california got sick of it and in starting in two thousand and twelve they and their acted three strikes reform and then in two thousand and fourteen it was a state appellate court wrong at the time that it made its decision and it was it but it didn't have a crystal ball so it couldn't have known what was going to happen to the law state law afterwards at the law the california law as it existed at the time the state  ruled said what it said it didn't need a crystal ball it just needed to keep its on the long view on the full horizon of what the law is about what it does where it is that it is not fixed in time and especially when it comes to extreme policies law changes and here we have petitioned a defendant then who is a young man he's  still a young man let me ask you one quick one thing i want to and no one understand about this gang participation as i recall that the court of appeal did set aside his gang participation off ince there was a was there a of sufficient evidence that's right and it would it didn't do with it didn't go it didn't go further and look at the at the special circumstance again participation finding that supported the l w anymore so the state court will really didn't address that no they didn't let me ask a practical question basically this is the status kind in here and said he's not in custody because of the special circumstance he was never there was never applied to  that's right you're on the stay says it was never applied well you know it's risky errors happen just like the error that happened in this case where we're here litigating today many years later but if as a practical matter that's that made that ike right there's no guarantee of anything well that's the holding of the state appellate court that is deserving of deference under twenty two fifty four d it's that the gang murder special circumstance even if it was erroneous it was harmless error because the l wop sentence rested independently on the robbery murder special circumstance it was a chapman holding well your honor i would say that what's entitle to deference is the state courts ruling that there was a lack of sufficient evidence to support the stand alone active participation in a gang count and because there was a lack of evidence to support the stand alone gang count that alone is an element of the special circumstance so logically the deference that must be accorded to the state cord goes to the state courts finding that there was a lack of sufficient evidence to support the stand alone gang find thank you counsel the case just argued will be submitted for decision and will proceed to the next case on the oral argument calendar which is clayborne versus blause