constitutional law made retroactive by the supreme court and therefore respectfully submitted at the motion should be allowed now the government through two different lawyers has presented the court with two different arguments why mr turner's motion should be denied first through original counsel the government has essentially made a merits argument to this court arguing that there are sufficient textual differences between nine twenty four c's residual clause and the a c c a residual was struck down in johnson that makes or would allow the nine twenty four c residual laws to survive a vagueness attack of this textual argument feels for three three reasons first in johnson justice scalia made it clear why the a c c a residual clause was unconstitutional when he wrote but there were quote two features of the residual clause that conspire to make it unconstitutionally they and the two features were the categorical assessment of the crime not tied to particular facts and that categorical assessment tied to the language potential serious risk rendered that particular residual clause unconstitutional and so it was not the other textual couldn't agree more and we're at a prima facia analysis to circuit courts have already concluded that identical language is unconstitutional government counsel admirably notified me right and clearly at this stage mr turner has met that burden of making a prima facia presentation that that johnson applies them and so through new counsel other government has a new argument raised for the first time in a supplemental brief and that argument is essentially that mr turner is not looking to apply the rule of johnson but is instead looking to extend johnson and have this court to clear a new rule in essence the government wants you to hold that the holding or a fine of the holding of johnson is very narrow that is that the residual clause that ties judicial assessment of risk to a traditionally imagined ordinary case of a crime not real world facts is unconstitutional stated another way when a court must decide what a usual ordinary violation entails and then determines how great a risk that imaginary case presents a residual cause resulting in decades of imprisonment is rule that johnson announced has to do with judicial characterizations of risk is not a problem for the nine twenty four c argument were the jury decided the level of risk terms of the ultimate sentence i think there is a twenty year statutory maximum punishment for the remaining counts as my standing unless the court has further questions thank you good morning your owners and may please the court michael rucker from the department of justice on behalf of the united states i think in response to the questioning really the issue before the court what it really comes down to is what must be shown to make a prima fashion case and  search morning is basically saying that he's made a prima facia case but he's never really expounding upon what that means and as i understand his position in the filings it's basically as long as a constitutional claim is sort of sufficiently debatable that's enough to kind of const for purposes of h two and i would respectfully disagree i think that this standard for prima fashioned showing under each two or under twenty to forty four states even provisions which are incorporated is much more demanding for a couple of reasons first of all the debatable constitutional standard sounds very much like what the court would apply in deciding whether to grant a certificate of appeal ability but that's of course something that we deal with in a first twenty to fifty five this is a second twenty two fifty five and as the court said in its decision united states versus george just as a direct appeal is more defend friendly than a first twenty to fifty five a first twenty to fifty five is more defended friendly than a second which is an awkward way i think of saying that the standards for section two successive applications under twenty fifty five it's deliberately set by congress as a very high bar and the question of what a prima facia showing is in the government's view is not simply whether the constitutional claim is debatable in fact i think that points in the exact opposite direction if the claim is debatable and it means by definition that the rule upon which the application is base claim is based upon a new rule of constitutional law that has been made retroactive by the supreme court and that was previously unavailable he has to make a showing that all four of those statutory elements under age two have been satisfied in this case i f he if he has to make a showing that all four of them have been satisfied that's no different from saying he wins on the merits correct and i should qualify that i don't mean to say yes to prove a conclusive entitlement to relief he has to make a showing what that's what where you know everyone agrees with the elements right all right what we're what we're talking about here is the nature of the show right now that that must mean you say you say showing that  clean each of before elements right isn't is is fairly debatable isn't them off it all right you agree and he doesn't have to prove absolutely correct that he isn't title what so what your middle example i know it's not an issue in this case but let's look at the rest are actively requirement none of which before you start giving me examples sure you appreciate what i do problem is that we have to articulate a principle yes that will that will guide future court right all right so it's not enough for us to say well it's somewhere in between these two things but we kind of have to believe what i understand your honor and i appreciate the question i think what i would say because this case is really focused on the new rule the first requirement of the statute and what we would say is that to make a prima facia showing the defendant has to identify an on point rule of law that is a political in his case now he can't can't he argue logical necessity it would apply to this case isn't there so that's an authority for that proposition there is on the retroactivity component and if we assume that there is sufficient authority for that on the new rule requirement here i'll accept the premise of the question i don't think this is a case where it's logically necessary at all and again i also appreciate the question that we're not dealing with sort of obama merits assessment but my opponent seems to think that it's sort of a fait accompli that johnson invalidates the residual but when you say you you you don't think it it necessarily  because that rule as applied to the is going to be enough to invalidate the statutory provision and relief all right you seem to regard that as an extension yes and and it seems to me that that that's a narrow walk conception then i would have thought because you are in effect saying that that the only way you can have a new rule for this purpose is if the defendant is challenging the exact think we take a very narrow view of the matter and i think i would just point out to the best of our knowledge in preparing for this argument in the briefing we're not aware of any cases where this court has actually done that sort that let me phrase it more positively the cases where this court has granted authorization have always involved a new rule that is squarely on point so for example in akala the court was dealing with an a c c a residual clause plain and it was directly on point in evans garcia the court was dealing with the miller rule about juveniles and life sentences directly on amendment prohibits the execution of a defendant who is under the age of eighteen now garner the defendant in that case said yeah i'm over the age of eighteen but because of my upbringing and my mental capacity i really only have the intellect of the mental age of a fourteen year old and so i should really be subsumed within the within the rule of roper and the six circuit deny the application and they said look there may be reasonable arguments why roper will be extended to that situation but on a successive application we take the law as we find it at a moment in authorization and what the six circuit reason is that you take the law as it stands at a moment in time and i would point out that the view that this court's role in the gatekeeping passage is very narrow is also consistent with the statutory text because remember when congress authorized this court citizen gatekeeper it made the proceedings expedited in one of the court to make a quick up or down to terminate it within thirty days and as the supreme court said in tyler versus cain the whole point of that expedited procedure is to obviate the need for the court to engage in difficult legal analysis of these issues that really the way the system is supposed to work stepping back i think from a global perspective the courts of appeals as they have today since johnson are really grappling with whether and to what extent that decision may apply outside of  context in cases on direct review maybe even in first twenty to fifty five's but when we get to the point in time where the success of twenty to fifty five a law is sort of frozen in time and it's not again in evans garcia there was no problem because the miller rule was on point and of there was no problem because it was a c c it was on point a look at governor garner took the view that we think is correct which is to say look maybe there are reasonable arguments why our mental age rule for roper purposes is justified but we can't make that determination for the first time in a successive collateral attack and i would just emphasize to tyler versus cain also has a very hopeful language on this point that we think supports our view and i may run out of time but i'll try to get the answers to since as i can the issue in tyler was whether a particular constitutional rule had been made retroactive by the supreme court and the defendant's primary argument was that he later supreme court case had effectively made the rule retroactive and the supreme court said no that's not correct and the reasons why really aren't your main to the point that  making here today the defendant also went on to say though even if the supreme court hasn't already made the rule retroactive you know the supreme court can make it retroactive here now in my own case and i will get the benefit of that rule and then i can attain authorization and your claim we can't do it for the first time here and now now i can see that tyler was dealing with the retroactivity requirement not the new rule requirement but i still think it underscores the idea and my life is going to come on if i may just finish i think it underscores the idea new rule of law that's on point if there's any daylight between the two then we're dealing more with what's an extension of the law rather than its application now i would concede to k so with respect to the new rule point  your position would be that the one year statutory bar just has no application here because this is a premature filing secor act i'm sorry the one in the statue of limitations yes our view i think takes your question our view is that the make it clear that it was dictated by johnson but we could assume for the sake of argument the court would write an opinion and it would say what was the government's position be we oppose on the merits i'm sorry on the statue of limitations we would say yes you get i can't answer the question concretely because it depends and the department of justice and discretionary concision to make certain concessions but not to make a concession on the question of new rule in this case i'm not certain i follow the rationale for what the department of justice is doing or why there is an exception from your rationale for a  no your honor and i you know we're not trying to give your appearance or any kind of impropriety in terms of the way were approaching the litigation but i think i think the concern is frankly that the district courts we know anecdotally that the district courts are are facing significant workload in terms of johnson related first applications the numbers are staggering and the courts the chief judges prosecutors public defenders are all concerned about the workload our point is that if we start authorizing secular successes in cases where it's not squarely dictated by the rule of law it's going to further inundating burn the courts and the whole point of the gatekeeping provisions i think is to limit the court's function so that it's really just mechanically saying here's the claim here's the law has he made a showing and if he has if there's any daylight between the two and for the reasons we stated in our filing we don't believe that johnson controls ninety four c the supreme court was very clear that it was in response to the orders of the government the dissent that it wasn't cast in constitutional pout on much less invalidating any and all residual streaker the congress really one of the courts to be acting in a relatively expedited fashion and not to prolong these determinations that we don't want the court to have its hands tied we just want the court to conduct a relatively mechanical process and it seems to me that marian started to college we think that the court was right in terms of the way it applied it i'm just not aware of any precedent and i'm i'm not saying the court has never issued an unpublished order it may be but the prevailing overwhelming trend is the say if the rule of law isn't on point then it's not often it's not something that can be authorized and just to be clear we did make it clear in our supplemental brief and in response to it just so you're saying he doesn't have to prove a conclusive entitlement to relief there may be subsidiary factual issues so one could imagine for example like actions versus virginia which said amendment prohibits the execution of someone who's intellectually disabled if the defendant proffers evidence to show that he's got an i q of sixty and he meets all the other requirements the fact that the state could come back and say well his i q is really seventy five that's not going to negate a prima fashion showing because the rule of law is still the rule of law you can have a factual issue and that wouldn't be good but i think that's very different than saying the rule of law hasn't get that announced but the court for the first time here and now should extend a precedent thank you