and with the court's permission i'd like to reserve eight minutes for rebuttal time thank you your honor runners after a week long evidentiary hearing the district court in the southern district of texas found that alford  of davenport garza and and webster are all informative but i think particularly informative for these this court's two most recent cases in the lead and perky in those cases this court intellectual disability claim just like him perky and leave the fundamental problem that was presented was an ineffective assistance of counsel claim and it's impossible to show that section two thousand two hundred and fifty five is inadequate to address that c proper use of the statute results in a denial of relief mr bush was the core of his argument in this case on the merits is simply that the district court in the southern district of texas in essence got it even taking doing count the newest diagnostic manuals on intellectual disability the the district court's conclusion in the southern district of texas was sound putting that out there is an additional matter secondly if you view diagnostic manuals as the equivalent of new evidence which i'm not i'm not entirely sure that that's precisely they have an argument that mr bush wyden finances but is perhaps the best box to fix this and and i think that webster standard at that point comes into play and this court was pretty clear in webster that only very narrow types of new evidence would be enough to trigger the savings  clause specifically the court said that that's a newly discovered evidence that existed at the time of trial and was unavailable despite the diligence of defense counsel it and here he can't meet that standard because the district court did employ the contemporary standards that were available at the time of this two thousand two hundred and fifty five motion and anything that came thereafter at that subsequent to that would not fall within the webster standard and i would just note your honor that that in webster even though this court allowed that claim to proceed it did so while recognizing that there were very serious finality concerns that that were in play and it made an effort to narrowly tailored that holding and here if the court were to accept mr bush was argument and apart from lee and perky and webster and this line of cases i don't think it's hyperbolic to say that it would in effect eviscerate finality in federal capital cases because just one look at the petitioners appendix indicates that there are frequently articles and minor tweaks and updates to the diagnostic manuals that are published and there is every reason to think that even if the district court were to proceed with the twenty to forty one dollars action adjudicate that that the day after that happens in the day after this court's   appendix of this court which is to view it in the government's position it is but i'd like comparing it to d s m four what what's the government's position if there really is eight significant difference when it comes to and a a id d eleven the th edition of the a i d d which is what the district court here also relied upon is indeed the manual that the supreme court discussed in more there may have been some different verbiage used in these manuals but as it affects the district courts and malice this below there truly is no difference i think what the supreme court was getting at in more is that the texas court of criminal appeals disregarded the current clinical standards at the time of that adjudication and embarked upon its own application of the factors and here that's in effect the opposite of what the district court did in its two dollars page opinion it is clear that the district court is both cognizant of the political standards including the way i d d the th edition which remains in that system that the africans and certainly more try to to bring together and prevent there being any any real holo daylight between those would you address that aspect of the decision your honor i don't think that judge jackson opinion is truly any different than what the supreme court itself has articulated on page seven hundred and twenty two of hall for example the supreme court makes clear that the termination of intellectual disability and i believe this is a direct quote is informed by the views of medical experts these views do not dictate the court's decision the court isn't is not disregard these informed assessments and the court in moore made clear that while states don't have unfettered discretion to disregard the clinical standards that it's not an inquiry in in essence to see if there is a psychologist who has signed on the dotted line that that there is an intellectual disability the court actually has to engage in its role of evaluating expert testimony  just as it did here i mean the problem that the district court judge jack in texas faced here is that you had a number of clinical psychologist who had examined mr bush law applied the scientific criteria to that examination and came to die in my metrically opposite conclusion so the district court did what in my view at least the district court is supposed to do in these instances and examined that expert testimony look for example at dr swanson and said what are the inputs to dr swanson's analysis and how do they affect the conclusion and it found that dr swanson had basically based her adaptive analysis primarily on a test that had been it ministry ministered to an individual who had observed mr bush in his youth only sporadically and said well that that really affects the conclusion that dr should add by contrast she looked at doctors more in price and their inputs to what they examined were of a nature that the district court judge jack in southern texas found to be sound so i think when there is a discussion of the differentiation between a legal approach and a psychological approach it doesn't mean as the supreme court said it in more that  court is free to sort of throw out the psychological criteria the decision must be informed by the imagines self makes the what the legal approach is it's basically the district judge executing his or her duty as a as a district judge to evaluate the expert testimony of value weight credibility resolve the issues in play and i think that that's exactly what judge jack did here i mean fifty five with more recognizing that more is not retroactive but finding that it made adkins which was retroactive newly available and the i make two points about how those cases are different and one observation that i mean the two points are those petitioners for slightly difference at least situated in mr bush why is because they never raised an ad guinn's claim initially and the issue in those cases was their i q scores and whether or not it was they they had reached the cutoff the the observation that i would make is that acton's itself was on the books both at the time of the conviction sentencing the twenty dollars to fifty five dollars here so i think any notion that allow those a claim to proceed based on the retroactivity of the decision that predated the conviction the sentence and the crime in on the facts here just can't stand because that's a way to back door  evade truly the teague analysis on more and i think it's the th circuit held in smith v i think it's warden of the alabama department of corrections and more does not provide a retroactive  rule and trying to escape that conclusion by hinge ing on the retroactivity of a decision that predated the conviction i think would be a fairly strange notion and one that the government but certainly  disagree with your honor the government's position i think it's clearly laid out in the briefs on the savings flaws and on the merits of the southern district of texas is the solution i would just turn for a moment to address waiver unless the court has another preference one question if we find that there wasn't a waiver why should we decide this in the st instance rather than it to the district court to make that determination well your honor i point to a couple reasons st of all in the government's view the the law on this matter is is very is very clear the savings clause it's very clear for all the reasons that we laid out in the briefs and i think judicial economy it counsels in favor of this court going ahead and deciding the clear issue but there's also a very real timing concern here and it's the supreme court has repeatedly and recently recognized both the public and the victims of crime and have an important interest in the time implementation of of the death sentence here and this sentence has been stayed both in the execution protocol litigation for grounds that were ultimately determined to be meritless and in this court's  the district court's decision and in this case and i think both the public interest in judicial economy would counsel in favor of this court expeditiously resolving this issue and lifting this stay as soon as possible and and scheduling the execution have any impact on our analysis i don't think so your honor we break briefly touched upon this in our briefs and i i believe that there are that there is a supreme court an opinion i believe that was justice thomas opinion that makes the point that i think that would have the perverse incentive of penalizing the government for engaging in a thoughtful and careful process but the development of the protocol  litigation i mean in essence it would be i'm sorry with the development of the protocol not the litigation in essence it would be penalizing the government for attempting to exercise its duties and in a thoughtful constitutional and lawful way and not that that it should not have done so and that that was your honour's just briefly turning to the waiver point i would make a couple of points here which i think are clear in our briefs but i would just like the nonsensical to think that the government filed one hundred dollars page opposition yet somehow intentionally allowed or wished mr bush was substantively identical statutory going to proceed there is nothing in the record that supports that notion while we recognize in retrospect it may have been better to be more explicit about some of our arguments when the government referred to mr bush was at tim's claim it referred to it intelligent decision to forgo an argument and there is nothing in the record to suggest the government did so here the district court found the government's in its view the government's waiver to be in and i think that that's true and that indicates that the district court should not have found a waiver because this court focuses on issues such as if there's a strategic reason for the waiver in determining whether or not was intentional and here there plainly was not a cause mr bush law and the district court have never posited a reason even even if there's not intentional waiver you obviously have this rule there embarrassing over know probably better than than iraq for haps my colleagues the government is very often the party urging us to strictly enforce the procedural requirements of fair presentment  was judge poser's opinion and forget the government not argued harmless error yet the court applied it and it did so in ford for the same reasons why the supreme court did so and would in another case is that it found that it  is necessary when interests of rd parties are at stake and here there are where the interests go beyond the interest of the parties in the case and here that's plainly so i mean for example in ford the interests that the court found at stake there were interest of litigants in the court system overburdening the courts and in this case it goes far beyond that to your question about discretion if your honor i would say st the district court didn't find not even consider the factors that this court said would be appropriate and forward and supreme court said in other cases and i think the failure to consider those factors is significant and i think as as this court made clear  forward it's appropriate for this court to now consider those factors and i think when you're looking at a capital case that's been litigated for a decade where the claim has been in the government's view and i think is a fair of you fully and authoritatively reviewed in a decision that was not appealed following a week long evidentiary hearing a two hundred page opinion i think to reopen  reopen that question for the victims for the public of aiding the requirements the congress to put into place those are all interests that plainly go beyond the specific touch on nikken view older than they can be older requirements in the spring court has made clear that there must be a strong showing of likelihood of success on the merits for all the reasons that we've discussed there is not been one also the public interest merck the rd and th factors emerge from the government as a party here for all the reasons that we've stated the supreme court has repeatedly and recently made clear that there is a strong public interest in finding for court has but if there are there are not i'm happy to reserve the rest  your honor souter whose wife is intellectually disabled and under the government's position if the government's argument is accepted then mr watt would be executed without any court ever evaluating his claim under current we go and die houses and if the government's argument is accepted then it would be free to proceed on mr good was execution regardless of whether or not he's  but i have trouble seeing why earlier finding that a person is not intellectually disabled doesn't carry forward despite the focus on the present mr williams in your brief ng you argued that more won and more to have abrogated certain law certainly they've addressed some of the texas stance or state law standards that were applied but cannes well i i mean i think this is it is both in that good it does clarify the standard that needs to be employed in an intellectual disability determination bu when you when you talk about the criticize the district judge in texas for going through the late evidence i assume you would agree that all that evidence is relevant  b on the theory that at the very least if the people who knew mr bourgeois when he was growing up who knew him before this awful crime was committed  experienced him as someone who was intellectually disabled surely that would be relevant inadmissible for the defense correct what your honor depends on what that testimony would eat if he knew any of the but for not i'm not talking about just an overall opinion but i'm talking about observations about what he was able to do in school in graduating from high school in working successfully as an over the road truck driver for many years all over the country winds up it has to be addressed and then it winds up it sounds to me like just a question of kind of nuance and emphasis in how you write the opinion that differentiates between standard so this isn't a question of running it through the same appropriate analysis and coming out in play in different places but in both prong one problem to this report identified the difference between assumed that there will be strengths that exist within weekends and what the district court is you did so explicitly in twenty dollars to fifty five dollars proceedings as the district court said i recognize that that's what the psychological standard had the opportunity to raise all of these arguments before the th circuit when you asked for a successive petition more one had come out by the end you cited more wanting to successive petition and the th circuit rejected that recently clarified or expanded upon what we have said in webster and davenport that the safety valve in order to be able to use it there has to be a compelling showing that as a practical matter it would be impossible to use twenty dollars to fifty five dollars to cure the fundamental problem but it's not impossible because you were able to raise that issue and present it to the th circuit the th circuit just rejected know webster was different because there was a new evidence that was available at the time and even addict at the webster court went on to say that if this were just in issue raised under the federal death penalty act that likely wouldn't be able to bring it on to the savings clause which is exactly what we have here and here i think the differences will do there are many differences and i think fundamentally are pieces more compelling  idiocy going back to the lady in century and there's an argument that the supreme court standard today is too restrictive that something closer to a fourteen year old level of intellect is more consistent with the original intent of the mint and would be roughly comparable to an i q of let's say eighty if the american psychological association were to meet next year and say we think that's right and we're going to raises the the threshold here to an i q of eighty plus or minus five disability has already been made and lay the cadence under certain psychological medical standards and those standards subsequently change that then you were able to relive a case that why wouldn't that be a pretty big door opened for every time the medical community changes the standards well and i think your honor my response is that we're not asking this court to you know to draw t and if you look at the analysis i know she says legal versus medical but if you look at the analysis she is applying the guidelines it's in her two hundred page opinion yeah and you are respectfully disagree with determination should be made under the medical sam's and that's the distinction that when the district court makes a determination as to whether or not it and it's on the arm that actually be made under the medical standards and the district court is entitled to make credibility determinations but as the supreme court and more to those determinations must use current diagnostics and years of the type of analysis and that's just what this report did not do in the twenty to be partisan williams what seems to me that the scenario that you're describing here is exactly where we would be if the supreme court  not just through mistake oversight inadvertence and the standard you just articulated suggest just a mistake are overlooking something would be enough for a waiver and that's not what our case law has clearly said well what evidence here is there that the government made a strategic decision or intentionally chose not oh yes right because we clearly set out their omission in our reply and the government didn't just fail to respond to the federal the specific we the government put out the response to our challenge to the carrying out sentence but if you didn't even ask in your reply for a waiver of that argument to say you clearly state said it out this is a bit of a stretch and there was nothing at least that i saw saying well they haven't directly raised it but it's in there you know toward the end of that in a link they reply but there's nothing in terms of putting the government on notice that you're going to seek waiver or there's a request for a waiver of that argument so the district court found that because they didn't ask for a server reply on that that that was evidence of intent but if they were put on notice in the st instance that it could be waiver runners i would make two record points and one legal point and other than meets three points i think that everything has been well covered in the briefs the st record point is to the argument that this is a claim pertaining is quote a b s relief from his convictions and sentences including the senate's a death that's not a implementation of the senate's claim that's a collateral attack on the the senate's so that that would be the st record point in the has covered it really is controlled that this point by purt the elite those two cases the court's most recent cases make clear that in order to proceed under the savings clause there has to be some fundamental defect with dollars to fifty five dollars there is nothing that prevented mr borzois from raising these arguments that he has now about the district court's application of the intellectual disability standard it is tw fifty five dollars he did present the arguments in district court he chose not to appeal the home and especially in the f t p a context there is absolutely nothing that would have prevented him from it dancing those more the more decisions to be retroactive and also that the district court's analysis is still contestant with those decisions and the contemporary diagnostic standards as it employed in its link the analysis following it's substantial evidence here hearing on this issue your honour's if the court has no further questions i would just ask that the court please be conason of the public interest in moving this case along and the government would ask that the court consider expeditiously lifting the stay and potentially issuing the mandate forthwith the opinion and we think the government the government thanks the court for its time in this case