march to the tenth two thousand and nine sentencing he had five residual costs prior convictions the residual cost of course has been voided for vagueness by the supreme court mr coleman file the twenty two fifty five claim challenging the remaining prior and prior convictions the government said he had exactly three left on the psalter resisting and exhibiting the  we know that that he has that they did they were based on the residual costs here back then when mr coleman was sentenced the exhibiting was based on jackson pulliam didn't exist and so the those cases the jackson case which was in place on exhibiting when he was sentenced cited are cursed and parker says that it's a residual clause it was based on the residual cl argued that the exhibiting and resisting offenses were charging the same indictment they were the same course of conduct there curt within ten minutes of each other and they stemmed the resisting arrest them and from the displaying a weapon in an angry and threatening manner in front of others can be satisfied by people who aren't targeted who aren't even in the presence of the gun who don't even see the gun and it's not targeted force aimed at a person the others present requirement can be satisfied by someone who the defendant isn't angry at just holding a gun don't like it and this isn't the end of my court yeah i think if you have a reason why we should we can distinguish swaps which it frankly i don't see that fine with otherwise our hands are  graft sure i think as i as we've argued as our offices argue the math this says that you have to look at the category approached consider how the state implements the statute in this particular case  you can it does not mean the force requirement it just does not holding a weapon in an angry manner does not i mean targeted force against another as all the cases that are  conduct for the elements of cross because this case meaning the resisting presents a serious risk of physical injury so it clearly was under the residual clause once again resisting does not require the violent force because missouri case law says it can be satisfied by standing still by not doing something by being passive while that's when i don't know if it's standing still the missouri cases and they're all missouri still i sometimes think of a protester dropping maybe moving not you know falling to the ground not you know it's passively does kind of involve some  violent force such as in belton which is the missouri case it's said that it can be nonviolent force it specifically says that in belton holding still but that makes the officer have to exert his or her streng the actual ruling on the record said it fails to show whether or not it was based on fly or physical force shockley i think with all that i have a conversation with opposing counsel was different because that past instructor was making a comparison between flight which is clearly not violent force and our president and the other two which i can understand the mistake to look like a violent force under under aca because they use the same language but again no consideration of the case mean there's still some element i think it's there's the story with stockland case which talked about robbery which is completely different not like resisting because there's a targeted person you have to actively do something you have to go to rob somebody there's a victim and you have to touch them or do something to them so it's not a political but they are still requiring some force even if it's light but they're requiring that the defendant do something to put somebody to actually physically do something to them the level of force or to acquire it is debatable but resisting is different because the person the defendant is not actively seeking doesn't have to it's an individual statute doesn't have to it's clear looking at the instructions looking at how it's been implemented by missouri courts that passive nonviolent force holding still but we cry but here's here's the problem you know  clause and so we actually have a little bit of a conflict in the record as to what the district court actually relied on so why not send it back and have the district court try again i agree that we are seeking relief and we would ask the court to do that and i am almost on my time the court my name tiffany backer i represent the united states in the matter and we would ask this court to affirm judge weber's ruling that the twenty to fifty five it was without merit and affirmed the denial of the expansion of the certificate of appeal ability i think judge logan hit the nail on the head with respect to the exhibiting prior that issue was decided on a panel judge was on just two days ago so this panel is bound by those prior decision and i don't think there is anything in the record that would warrant revisiting that colvin argues numerous times that this court has failed to wrestle with state precedent that simply not the case if the court would examine the underlying you get on to the other the other crime here are you relying on the statute when you're statute of limitations is that because i'm trying to figure out why you prefer the statutory question because on initial hey b s the statutory whether it's backstory a constitutional makes it makes a difference i understand that judge and i think we are in a very important procedural posture and i want to give some kind of context to where we are i think that's an excellent question and twenty two fifty three said to be eighty d p a has an extremely limited jurisdictional hook especially on appeals from twenty to fifty five and if the court looked carefully at twenty two fifty three fifty two are you a  which would not be there if you were looking at a one hundred fifty five year group itself but we are in the entrance where the district court specifically denied us or typical of appeal al and they do but the ultimate question is still for us and that's true so let's dive into whether well and even before you leave that i mean i'm still not completely getting what you're doing because twenty two fifty five and i think judge locums getting it that allows you to bring a motion that is imposed and i quote in violation of the constitution or laws of the united states so the jurisdiction is broader so whether it's a statutory or constitutional claim i don't think makes any difference at least for the initial motion and that in terms of the timing of this and i think that's why we need to examine the procedural history and see where things were evolving and when things could have been raised and sentence is reduced and during that time the defendant never said some of my priors don't qualify under this new more vigorous force requirement there was no reason there was no objection no appeal and it's important to look at the p s r and i would urge the court to look at paragraph twenty four which sets forth eight not three but eight predicate violent felonies all separately indicated and it and the defendant never objected to those being separate occasions or different from one another they never objected based on forced based on in the i'm rated now i understand the residual clause was still in effect at the time however there the record is silent on that but doesn't that lead inevitably to the conclusion that the correct procedure is the one identified by judge woman which is the goal of a no walker procedure which is because this wasn't an issue at the time we don't know why the district court did what it did it did it did and judge battens a patient opinion and gove and i was pretty clear that when we are not sure we sent it back to the district or was he just reported look at the sentencing transcript you figure out was before spazz was at the residual clause it satirise would that be the appropriate thing to do here i think we don't need to do that here because i think looking at the stats you we can and we can discern that and i think it's important to look at the white house but how do we  discern it though if you're telling me that nobody objected to it nobody really talked about the baby as for that it's precisely the situation contemplated by judge ben's opinion exactly but we're in a wholly different procedural posture if you let terms of the twenty two fifty five get by old after the johnson samuel johnson case and it is not raised in the initial petition they don't challenge resisting arrest and i would urge the court to look at that strongly their challenge escape they challenge burglary they challenge the exhibiting the challenge of the a they do not challenge the assault and they do not challenge the resisting arrest in that opening brief it is not until the reply brief eight years after the that and saying in this case that we for the very first time in a reply brief see the claim raised so at at that stage that a significant percentage or zero difference between then and the recent case to which judge strauss was referring yeah but the district court addressed both both crimes and its order so it it went ahead and in this particular case deciding whether to expand the certificate of appeal ability well on the resisting arrest is to just to get to the merits i i'm having a lot of trouble now you might be right that procedurally it's not before us but when i look at that missouri case law they very  naturally read what violent force means i mean they talk about stiffening which was the mark pryor type touching anyone else i presume it would also cover somebody who goes limp and does and doesn't and doesn't allow somebody that you know allow them to take them but at the very least it doesn't require any force against anyone else let's take a look at the statute using or threatening the use of physical force and in that belton case to which you're referring they analyze the obviously the physical force the threatening of all of that and i think what you need here is first the court needs to look at the minors case and that case by leon and that's where the element it applies to the enumerated clause they make the point of saying it doesn't apply to the force clause the first clause here we have whether the elements involve the use or threatened use or attempted use of force that means versus the elements doesn't apply once we decide this statute is divisible which i think is on contested here the court can look at the shepherd documents and the shepherd document here show  that the prong of which the defendant was convicted was of hitting and kicking officer bono and detective c n n clear is day that is not defy greed but that's that's using the facts we can't use the facts can we but i think you can when you apply the modified categorical approach to determine what portion of the stagger with back so i think that's where we are and i think the mathis stringency with respect to the means element analysis only applies to the enumerated clause as this court found in minors and that case i am where there was preexisting precedent where before prematch this precedent that something that the forced clause definition and then post mathis they said that's still valid because the intricate means first of the element just to be clear are you saying that i agree it's divisible between one and two in the resisting arrest statute but are you saying that it's divisible between threatening the use of violence and threatening the use of physical force which is all part of one single clause that what you're arguing i think it can be in terms of because it falls under the forced clause i don't think the strange it means  element how could that possibly be that's the same phrase i mean you can't you can't i mean textually that doesn't work you can't divide the same cause the same i mean essentially they're saying there's you've got you've got and then you've got clean such officer that just doesn't seem to fit well fleeing of course the government can see that not a violent felony and imagery that if now we would purport that that phrase would could be divisible in a forced clause analysis where we have shepard document that show which you have another problem though because the charging document says and even if you're right that it's divisible and i highly doubt that the charging document actually says violence or physical force which means that the state court who convicted him didn't even treat it as divisible i don't understand why the visibility matters to me really really you need a tailor and then you read shepard nobody's talking about subsections and the visibility and so forth and says that used that to find physical force that can't possibly rewrite the physical force is defined as deficient to overcome resistance which is the hallmark of a sufficient force as we see in the as we see in th court on bankrupt i agree with you which is why i started out my questioning with with you that they defined the naturally i mean they would define it they apply it i'm actually right because you agree that stiffening without any contact just really like because one of the cases was they were trying to take  out of the vehicle and he stiffened and they said that was the use of physical force and was resisting arrest i understand that and that was when that car was moving however i would point the court to judge woman's decision and holiday where it requires more than just going passive more than just going limp judge woman took a look at the statute a while back i think it was two thousand and six and said it's more than that and i think when you put the circumstances of an individual case was and i think it was so that one just falls away under wants and i don't know that we can reject the interpretation of missouri law that it takes more than just going lacked meaning in that kind of environment can't it's force because the law enforcement officers are doing and i think you need to take into account the idea that this is the scene of an arrest where law enforcement officials are taking someone into custody so by going more question if you know if you don't mind but this is the stiffening the problem is the supreme court just had another case last week or the week before they got a ton of these cases where they they said it has caused physical injury likely to cause physical injury to another person i don't know how stiffening by itself can cause physical injury to another person and certainly not hitting the the officer it's not mean it just seems to me that's a pretty big stretch if the threat of the arrest correct the threat and and the threat to those officers ability because the relief is a constitutional issue i mean and because it's reasonable jurors could differ from one another i think it meets the criteria for said to be could have appeal ability what about the fact that it wasn't raised until the reply brief why was it eight years later down and so i think it it's part and parcel and decisions that have come forward have even been reinforced that question it is clearly a residual clause issue and that it is subject to appeal ability as we said the petitioner traversed the government's contention and argued that the resisting occurred on the same an occasion and also that the missouri law prohibiting exert exhibiting doesn't qualify as a violent offense one thing we want to i want to talk about is the resisting in terms of an officer violent force has to be against another person an active act towards another person even if you're talking about a different level of the but it n written off and focusing on what seems to be relevant under a c c a precedence to sure one thing which i know can be insightful is looking at the jury instructions in and the instruction for resisting is not under violence against others or threats against persons it's about a public safety is about risk it's under the residual clause so it's not targeting it's not like robbery it's not in that category it's a public safety its officers want somebody to comply they request it the person can refuse but they can read that's why they call it nonviolent protest and one question i had is it seems to me and scavenge for to bring us up on our bottle but do the party site the wrong version of the statute throughout the proceedings and that's the other day i think it's there's a particular version in the version had changed and the version that the parties are arguing about might be different than the version that was and i fact it was the one nine hundred ninety five that's what i thought of her yeah and i think i thought you cited correctly but it is so that's what was in place during mr colvin's conviction and so maybe it's the government