to be considered in light of all of the evidence in the trial record to see if it would make a difference and the state took the position based on legislative intent then and good sense that all the evidence meant all the evidence of guilt but you didn't consider all the evidence of innocence and or argument in response to that was all means all in or about that statute that congress passed recently for retesting of d n a under the newer methods no this was actually under an arkansas state statute you're on that permitted a new action based on d n a but i don't mean to suggest a tangent the point of making that reference is that in our case here just as all means all is a fairly simple argument our argument here is any means any you have a good textual argument based on that word at however it's kind of risky for a circuit court to say that a supreme court decision no longer applies when there isn't any explicit supreme court decision saying it doesn't apply and when the statute doesn't appear to speak quite directly to it that's our difficulty now as i recall and i may be recalling wrong so i need your education on this i need you to educate me as i recall two or three circuit courts have spoken and say stone survives a one west virginia and district court has spoken and said no it doesn't if i got the authorities right i think that's right yes and so i want us to stick our nose our  out and go with the west virginia district court well let me respond to that as as best i can the there's really only one opinion that deals with this with any  any substantial way which is the seventh circuit opinion in hampton and let me say this judge used to brooke is a great intellect but you it is really apparent that he went far beyond  a reasoned decision in this sense he actually ruled that fourth amendment claims are not within twenty to fifty four a because they don't involve custody which would mean that not only put ed but aside it would mean that there never was any basis to have federal habeas corpus over a fourth amendment claim and the response to that was of course the supreme court decided many fourth amendment claims and other courts did before stone versus powell but more importantly stone versus powell says that fourth amendment claims are within the jurisdiction of twenty two fifty four a and says that that relief can be granted if there is no full and fair hearing so it's impossible to say that stone stone vs pal directly refutes a judge estabrooks opinion that that the custody is not you may be in jail for the rest of your life but that is not custody for the purposes of twenty to fifty four a day because it only deals with a fourth amendment claim that you don't have a personal right to i seems to me is the claim itself is a custody claim and absent custody there's no reason to have it and i think that's what he's saying no but but but your honor that was not a case which involved somebody who was walking around in the streets it was a claim in which somebody was in prison and was claiming that custody was illegal because their fourth amendment rights had been violated and judge easterbrook said a fourth amendment violation does not produce illegal custody and stone versus powell and therefore no fourth amendment claims are or really have ever been within twenty to fifty for a my own reaction is what he's saying is that if he's not in custody just as a civil claim we have twenty t fifty five statute to get it but what he's saying is to use this process to get the key to you have to be in custody and what he's right or wrong it seems to me that's his position but your honor if i understand what he meant i'm not arguing for him i'm just trying to tell you as you will i'd like to understand why you think that what that that his position is wrong but i i understand and i think it's clear that his position is that therefore fourth amendment claims are not within the purview of twenty to fifty four a at all and stone versus powell says they are indeed this is not jurisdictional it's prudential on our part they are indeed in there and you can grant them if there wasn't a full and fair hearing and that's inconsistent judge easterbrook holding that fourth amendment claim simply aren't within the scope of twenty to fifty four and the government's argument is if they're not it will be then twenty to fifty four a day at all then twenty four to fifty four day doesn't why i want you to address something that is on my mind that's a little bit distinct from that my own impression of judge easterbrook supreme in was that it went round robin hood's barn something because he's such a strict textural asked and i was my take on it was a little different and that is there's just nothing about it that suggests that what they were trying to do was expand a b s relief i think one of the other circuit said the same thing well let let me just one thought about the point we're pursuing here be for i go on which is that  more directly answer your question if judge easterbrook was right you can't ever grant a under some verses ballot you can't ever grant a fourth amendment heaviest game weighs on twenty two fifty four and the second circuit  young versus conway only in two thousand and thirteen ruled that they were going to grant a fourth amendment claim because the government had waves of argument in the district court of stone versus powell so clearly they were get to it because we have jurisdiction over it so i would just submit that young versus conway is directly in contrast the judge put these two books opinion where he says these claims are no no no longer really have never been in brogan says is that which we cite is a one thousand and one case says that there was a very good reason why you might want to be an exception to the false statement rule of one thousand and one but any means any and you don't get to come in here and show us a good reason why any doesn't mean any so that the government really advances three arguments against the straits textual argument one is that the supreme court has has  continued to make references to stone versus powell although we all agree they've never addressed this question you know as i would submit to you that in mcnally the supreme court after fo in which it is quite said read the statute more expensive late congress then immediately overturns that bypass and thirteen forty six the supreme court does twenty years affirming or allowing  convictions based on a theory that on a service is fraught includes conflict of interest boom along comes feeling don't have any difficulty with you're having a substantial text argument and i don't have any difficulty with supposing that the supreme court might itself reject stone and it's a based on the text of ed stone is no longer good law what i have difficulty with is there being the first circuit to say a stone is not good law when the supreme court has considered innocent and there's nothing very explicit in the statute to say that they were directing their attention toward it and oedipus the amendment seems like it was designed to restrict p b s relief rather than expand it well a couple of responses to the first is that if the textual argument is very strong any means any unbroken says that it does then the government would have to come up with a way of saying it's ambiguous which it is not on its face and secondly if it was in the us they'd have to be granted with respect to a claim it doesn't say that if one of these not doesn't apply if one of these prohibitions doesn't apply and granting the then the writ has to be granted i can say don't get ice cream at the grocery and don't get cookies at the grocery and it doesn't mean get a whole lot of brussel sprouts you honor i think that it is all they do didn't understand what i'm asking you i'm saying that two knots don't make a must unless the notion of express  one would be that it would be a negative pregnant you're telling me i have to read to have a negative pregnant and i don't see why i have to well i what i'm saying is that if we are correct and stone says it that fourth amendment claims remain in then the language below that any claim constitutional claim and stone recognizes you can still make fourth amendment claims under certain circumstances and see that this is the a clickable standard i think it is perfectly consistent let's look at circumstances where the district court is authorized to grant the writ but it doesn't say that the district court has to grant the writ if neither of those two circumstances apply but i read that as and i think it's been interpreted as saying that that you don't grant the writ except in these circumstances and you do grant the writ there i mean if there isn't a reason it's the words that followed and you do  and where you said and you do grant the writ if those circumstances don't apply and that's what i don't get where does it say that well but this court time and time again in every court including the united states supreme court since stone since s grant well let but but i sense and the judge kleinfeld i think you've stated it that you know why do we go out on this limb when the general impression is that ed was meant to limit federal habeas corpus prior to ed we had two situations they had to conditions didn't apply to a large universe of cases and but but when you got to fourth amendment claims they were out of the mix except under these very limited conditions it makes perfect sense to say no come in and we're going to have a a uniform system it is going to make it's going to apply to all haiti is corpus cases including for the betterment claims which still can be brought under stone versus fell but it's uniformly everybody is going to have to meet a more rigorous set of conditions that's a perfectly reasonable interpretation of what congress was wanted to do analysis supports it and there's nothing we would agree with this there's nothing in the evidentiary in the legislative record one way or another to indicate that were does it say here tha and the district court must grant the writ if there was a denial of constitutional rights with respect to a search and seizure even if there was a the second circuit issued an opinion and a surveillance case and they said they found a statute illegal and they say we do so with the so confidence that congress can if it chooses to either we get this wrong  put together a statute that makes it clear what our intent was i want to make a comment on t it's a very interesting difficult case and as i said earlier we're going to go beyond our scheduled time especially when there are questions from the panel and so i want to say to mr richard don't worry that there's a red light saying to stop and you're six minutes over as long as my colleagues are asking questions and you should keep advocating system of limitations but that would apply to all hey vs cases so if we consider stone versus powell to be to limit fourth amendment claims by imposing a requirement that they not be heard unless there was a full and fair hearing congress decided to step in and set a standard more arduous for a more difficult for non for them in cases but a uniform system how would it write a statute why isn't writing the word any in there a perfectly reasonable way to indicate that it now wanted all claims subject to this as opposed to having no limitations on non fourth amendment claims and the stone limitation and forth and then  who could use all but any plane went to the sub sections of twenty to fifty forty ok but that doesn't really help me because it says shall not be granted with respect to any claim in these categories unless one o two exceptions applies it doesn't say shall be granted if the exceptions don't apply it's it's a negative pregnant that i'm asking about rather than go now thank you and it's helped provisions that is to say that that a case has to make it through one of those two gateways before this this court considers absolutely the no vote a fourth amendment claim as it would on direct appeal from a federal case so what i what i'm submitting to the court is that is that there was a gateway provision in stone versus powell you can still raise fourth amendment claims but you know it's going to have to be absent the full and fair hearing and that congress now has set up a bigger gateway that applies to everything but the use of the word and they suggest that these are the gateways and of course the response to a question but it doesn't say you must grant them absolutely not if you get if somebody gets through the gateway provisions it just means that a federal court considers the that claim as if it came up from the federal district court and of course it could find either that it is not there wasn't a for the men the violation or it could find in its own denotable opinion or it could find it was  fourth amendment violation but this seems to be the subject of the the argument we just heard it wasn't prejudicial under brecht so that helps and i think i understand your argument mr raydon what i'm go make please court i hope that i don't take a lot of time i don't want to take a lot of time on the question of the survival of stone b pow if you look at the language of twenty two fifty four the initial shall we say gateway you have to establish as a petitioner that someone is in custody newman is not in custody because of a fourth amendment violation he's in custody because of the exclusionary rule a constitutional violation that led to their custody and fourth amendment is just one more and i understand lation the person was tortured and never given a miranda warning and he confessed and there was value to give him a miranda warning and also actual duress let's take that hypothetically still get a it still get his  and judge eastern brooks reasoning in that seventh circuit opinion would seem to apply to him as well as to the fourth amendment and i understand the court's concern in that regard the problem that i have is that there are other remedies that are available for fourth amendment violations and were available prior to mount other members for fifth the meme lation student that's true and there are of course and i can't remember the that we're going to contract the exclusionary rule on real evidence testimonial evidence and it may very well be your honor as far as as map and for that matter in court yes but as for the seventh circuit reasoning i don't see where it suffices to draw a distinction between fourth and fifth well certainly judge easterbrook didn't draw that distinction and of course didn't discuss the fifth amendment but above them beyond twenty two fifty four a of course has been discussed this the notion that actually constricted further the granting of federal hey b s and let me give you just an example twenty two fifty four resulted in decision that was based upon unreasonable facts now we're not worried about twenty to fifty four deep to work i'm focusing upon day one let's assume for the sake of argument that a state court does in fact make an unreasonable application or of fourth amendment jurisprudence and so this court but for stones the pal would have to review the claim to know and so are we going to have a situation where we have stone the power that applies to cases that don't survive twenty to fifty four d one but stone deepal doesn't apply to cases that aren't reviewed on the merits it just doesn't make sense to me because twenty two fifty four day one that and i missed i wanted to fifteen forty one is argument is a gateway and if the claim is the fourth amendment claim is on reasonably decided by state supreme court then because it's a gateway stone the power would now a paw id and alice's behind stone the pow but if it doesn't apply then stone the pal doesn't apply that doesn't make sense and applies on one hand but doesn't apply on the other hand saying as you get through the gateway if the state court was unreasonable and then you still don't grant the writ because he got a full and fair hearing that is exactly what i'm saying judge kleinfeld because the any claim the council talks about in twenty two fifty four d is another restriction and it's the claim that said you tecate it on the merits so if it's on reasonably adjudicate it then still in the past applies and the petitioner doesn't get the writ that doesn't make sense you know where you keep getting lost as i have never climbed the reason i hesitate is because i think it's fair to say that the circuit courts have struggled with that issue and i think this court has struggled with that issue we've started cited in my if it's opportunity and leave him alone if the state has a procedure where you can file a motion to suppress evidence obtained in an unlawful search and the judge denies the motion to suppress effects are in dispute he has  a circumstance where that's there's not an opportunity for a full and fair hearing and that and structure or does it only mean if some state i don't know if there is one says you can't make motions to suppress and you can't subject to the admission of improperly tainted evidence at trial well i don't think you can have a situation where you have a sham opportunity for the hearing what's a sham something that and i would  agrees on the facts you know and that's where i was getting to your honor particularly in this case where as far as the automobile exception the probable cause standard that was found by the idaho court of appeals to sustain the motion to suppress prior cases and and leave stone versus follow in fairness judge wallace i don't believe that this court would be overruling its prior cases because this court has not believe the very specific question of survival of stone the power was addressed and it was decided and that we would merely don't cite cases don't exist that that would be true your honor and in fact we've cited a case and i can't find  notes right now plus examine the judges to find well i don't subscribe to that but in any event you're absolutely correct in that this court has continued to side the united states supreme court has continued to decide our side and unpublished dispositions cit circuit i cannot envision the scenario where this court would deny a c away or any court circuit court would deny a c o a on the question of a fair and full opportunity i understand that argument  infamous you know that really a presidential you know for us i believe judge gould that we sided and i hope i'm right that we cited a published opinion in which i thought it was this court maybe it that panel was implicitly applying stone yes i will ever they didn't address head on the issue that is being raised by  richards client and that it's not going to have a lot of sway with most and and your honor i do agree with us i was discussing with judge wallace that this court the ninth circuit has not express y addressed the specific question of the survival and i heard we just got one right yes i want to ask you a different question may have been only covered all bleakly the supreme court has told us and mr rudin made comments on this in his rebuttal argument bus reply but the supreme court has told us in numerable times that we can't do anticipatory overruling when it has to do with the idea that a subsequent precedent of the supreme court has undermined an earlier press  exercised judicial restraint this court should not go beyond what the united states supreme court has done as far as discussing powell and reaffirming pal and in fact we cited danforth versus minnesota where  expanding the exclusionary rule to federal hay b s and other issues of collateral attacks unless the court wants me to discuss the issue of the thirteen at least thirteen issue an opinion that said that we think the textual analysis here is a very very serious question but we think that it's only the united states supreme court that can really iron it out i had the second circuit do that in a case where they said we think we invented the klein doctrine fifty years ago we now think it's wrong but it's the for the supreme court the to fix it they denied cert but at least the the signal is there that this is an important question a law that should be decided secondly if the court were to deny that stone versus powell argument on another grounds i'd love it to be on the grounds that it's embrace and just easterbrook analysis in  hampton cases i think that's a very very large topic to shoot at targets issues that you want to go with easterbrook because you think it's easier to shoot down i want you to go with mr newman on on this question but i'm just saying that that the court has expressed different reasons why it may not want to go that way including just the reason well in the textual analysis but we need to be more careful