for the for circuit oh yea oh yea oh yea all persons having any manner or form of business or the honorable united states court of appeals for the fourth circuit admonish to draw nigh and give their attention for the court is now sitting god save the united states in th already took place and stay post conviction on this issue in his rule sixty six motion richen richardson argued that one the change in the law bach hall was extraordinary and that two he there is no allegation or claim defect in the federal proceedings or the district court order he argued from his two thousand and five and two thousand and fifteen filings on the state court on the underlying merits of the klein in a sixty six motion the movement seeking relief from the judgment order and the attack is on the district court judgment subsequent state court proceedings which occurred twenty first prong of the two prong test then it didn't need to consider the adaptive functioning and and as i understand it north carolina law is that you have to do both if not they tell us that now right yes ma'am it's the law it's not like if you don't meet one it's all over you have to you have to consider both isn't th law you don't just fall out of magically say that someone is doesn't qualify for saying they're impaired because they have the seventy because that their their score isn't that correct you have to go look at the adaptive functioning as well asserted and argued for a right line test and consistently did that saying if you if you're not a seventy under the statute you can prevail because you have to show both parts of that if you can't meet  seventy right now of this now date argue that you you do need to consider adaptive functioning if you're within the range of error yet yes the this state argued that you should in fact the court judge denied that and let them put on any evidence they write so but we never know federal court is ever considered the adaptive functioning evidence right correct that the ruling of this was isn't that then a defect in the original he is proceeding if there because north carolina tells us that's part of their law but that you have to consider that i don't i don't i guess i just don't understand what problem you're having with that question you may not agree but tell me ah well i i guess i'm can what i'm struggling with your honor is i don't know scare a lot of didn't say oh no we were wrong about the law we know that's all by way of background but has this court or the district court ever considered adaptive functioning no ma'am it's not known it isn't that a defect in the process that was given to this man in the district court in the first baby is no ma'am no ok and the reason you're required to consider it under north carolina law now right isn't that your position well my position the success of haiti's petition motion which the state opposes but or say the rule sixty should be reopened then all the opinion in the hall in the opinion more i would argue cannot be considered by the federal that change the analysis or does it i don't i don't believe it does your honor because the petitioner cannot reset of the two to four four bar own claims by following another successive state court and they are and so yes paul was in the fight and that's what he argued in the state court  proceedings so you're saying don't undershoot were bound by the state of the federal law at the time he has made it through but what here are we talking about that's locked in undershoot for our consideration the two thousand solely on holdings of this court that were very clearly established that were clearly established to the relevant tom joad but the second the second petition was filed after all right i mean the state court proceedings only way that we can consider is to grant authorization for a new twenty two fifty four i don't even thank you i don't think they could be considered then i think  hills pretty clear that it has to be evaluated holdings of the court there were clearly established at the relevant top the state court decisions that from two thousand and five so i don't believe in either way well that i understand what you're under sam but if this court and moses said prior judgment should not be reopened merely because of inconsistency with united states supreme court decisions and so not raised so and if and if it is involved of those then it should be not hall is not retroactive more is not retroactive and the supreme court made that clear just as recently as earlier this month so i stay in their policy not retroactive how to do that well it hall was a they said we applaud hall and more and i guess you're right honor i should say i made it clear i made it clear more wasn't retroactive but they've never held hall retroactive so it seems without the support i think the test for retroactivity is the supreme court has to say that it's retroactive or by necessary implication in other supreme court cases like henry right yes ma'am that's correct but i would say that more goes against that in the sense that more was an application of paul and then in the hill they say the court said that you have to look at the holdings of this court that were clearly establish found that north carolina does not apply its strict i q cut off seventy or below and determine intellectual disability the state court further held that north carolina law allows for consideration of  penalty under acton's and that in two thousand five it had considered standard error of measurement these are state procedural rules that the u s district court this construed in two thousand and eleven the alleged state procedural rule requiring a strict cough and applied by the district court never existed under north carolina law did not exist in two thousand and one when the north carolina statute exempt in expressed in hall but it also violated the law state law as expressed by the state court in two thousand and fifteen and that's clarified violated what the state court did in two thousand and five  because the federal court applied a strict cut off and therefore did not reach the merits of the constitution claim and that is a defect in the integrity of that whole court proceeding e in terms of what had been raised in the sixty's i think it's important to consider not just what we said in our motion but what the state said in response because the state's response was well hold us and change anything i'm talking about the states reply to our our rule sixty b motion that we follow federal district court ok this time around ok the stand argued that the superior court rejected the state of the facts in that case so here we had a seventy three and a seventy four and that and if to the extent that the court considered that as a cutoff that would that would have been an unreasonable interpretation not which would stretch satisfied the requirements of saying that both of these requirements there wasn't a strict cut off that you looked at both right that's correct and but we'll world state control of us has changed its position after all so is it this goes back to doesn't do in then you're sixty or you you're out and you don't have to actually pay attention to what the attorney general says because we know what the state court the court said haul versus florida has no effect on this court's prior determination that halt that richardson it's not intellectually disabled has no effect why because we have comes t look like they do that because they there's all this evidence about the adaptive factors but that's right so what you if you would prevail on your argument that this is that you have about sixty be could be what would give you the right to a new hearing so if you're saying that the law is exactly the same as it was then this should there's already been a hearing by the state court on the law as it exists at this moment how could you possibly get a hearing you  show that there was a defect in the integrity of the federal court proceeding and that defect was a misunderstanding that still how did you ever get it and evidence rehearing i just don't understand that because the and you waited in others you've come in on sixty b to or and you say the state law always considered adaptive function so you could have filed this years ago you didn't and then all of a sudden we're given that the state law wasn't at this court thought it was once in two thousand and fifteen when the state court in june of two thousand and fifteen said we've always applied standard error measure right but we will never apply the strip that doesn't i don't think ruling on the rule sixty six motion specifically because we wanted to put before the court the point that state law since two thousand and five had always been that indicated that the district court had failed to recognize the state's own procedural rule all thereby undermining the principle of comedy  statute circuit is considered similar issue scuse me in bucklin versus secretary of corrections of florida and they've come to the same conclusion as published judge in this case in two thousand and fifteen did clarify the law for the whole state to clarify how it was applied in this case and absolutely the state always argued that it was right on test for the first prong of the then mental retardation now intellectual disability statute after all that change is the new law it's still a two part test you have to show both sub average general general intellectual the defend is not precluded from presenting additional evidence of intellectual disability whatever that would be and that is swat happened in this court in the sense of there was no limitation on the evidence presented and the order of the two thousand and five order the court does not apply standard or measurement of the superior court but finds he doesn't meet either of the two prongs and finds he was not mentally the state the state has now said there is no it's always this never had a bright line test since two thousand and five i don't think there was a misunderstanding that was the argument that was made consistently well ok i don't know where exactly that goes ok so you can see if you if we should read this record and conclude that we we federal courts erroneous lee thought there the least the state had a bright line test does that get them sixty really i know you don't think we are maybe you don't think we do that i can't really understand whether you think we did that or not but assume for a moment that we conclude that we did say  i don't believe it gets sixty well the state court addressed both prongs understand this court only addressed the intel question so does it get them sixty relief or not if we had concluded that they were only the only thing before it was the first problem i don't believe so because it's a haul comes down there's no indication that you could have a bright line testily even though we've misinterpreted state law mis interpreted state law had a federal court district court misinterpreting state law and we misinterpreting state law saying that only only require one element that would give the if that's so that in you argue it's not so but if that's so then they would be entitled to sixty would be relieved that would be an extraordinary circumstance of all came down years like i understand your argument but this is a hypothetical and i thought ok just now ok and the hypothetical is that we are not in the first petition misunderstood north carolina law and we said you only need this one factor we the federal court and this court the federal agreed ok that's the hypothetical right yes ma'am and in fact that is not north carolina law we know now or it never and it never was north carolina law because prior to those two opinions north carolina looked at both elements right that's what the north carolina court says now it says it always has its and in fact it why why would it make any difference according to you because you could just exceed on one prong correct that's why it would be important because if they were one problem was wrong in the argument  confess to having had trouble following all of these arguments because i don't remember seeing them in the briefs of the is this issue raised properly is this issue properly before  hearing where there was no restriction on evidence which would distinguish it from the winston case where this court talked about the state for closing  order wasn't uses question thank you i think i understand that we have the same lawyers going in the next case is that correct would you mind if we came down at the end of that argument and shook your hand instead of doing it twice ok thank you