,atters of the constitution and the federal hay be as statute only applies in federal court. The federal habeas corpus can grant if relief is warranted. Says pleasee acknowledge we are holding a prisoner in contradiction of federal law that used to do nothing about it, then the answer is federal habeas corpus . Theres not a second answer the state can be required under the supremacy clause under its own procedures to enforce the federal law . If i were to take that position, im not sure what would support me. Martinez versus ryan suggested there are advantages to citing the federal hay be us statute the hay be a rather than what the court called a freestanding constitutional plan. A major advantage here is if you say the state courts are bound by the constitution, when it would go to federal hay be us, there would be a very efrin shall review. If you say the redress question in state court is a matter of when the issue goes to federal hay be us, it would not apply because the state court would not have decided the federal issue. That is a major difference. This court would benefit from percolation in the lower federal courts, all of which would be out the window if there is jurisdiction in this are we in effect saying the supremacy clause binds the states only indirect criminal proceedings . Is that another way of phrasing your argument . It would be that the supremacy clause only binds the states in direct proceedings and collateral proceedings where it is an old rule. Thats the equivalent of a direct proceeding. If you are talking about a new rule, that is where the two exceptions apply. Those are based in a statutory all provision. Both the direct review and. Pplication of old rules how would you differentiate this case from standard oil . Richard bernstein the issue was the underlying status of the federal government arm, and the court said that question is controlled by federal law. Standard oil is like miller sl, where the issue was what does the eighth amendment require . That is the federal issue imply, and standard oil as accommodation of statue, regulations, and federal law, and federal law controlled the question. Here, the statute does not apply in state court like other cases have go, like the federal rules of evidence do not apply in state courts, even though many courts follow a similar provision and certainly follow federal precedents in interpreting them. Justice we did say that state could define the exemption Richard Bernstein in any which way it wanted. And many which are it wanted. Richard bernstein correct. Justice we announced what the federal law is, and the state said they would follow it, but i guess it might or might not be free to change its mind about doing that. Richard bernstein i think the difference in what makes this case special is the court has held murdoch versus city of memphis, almost 150 years ago, 87 from 326 10 327, the 1267 jurisdictions question by question. It is not like 1331 case by case, it is question by question. I do not believe the court has jurisdiction to skip over the question of whether federal law applies and then answer the hypothetical, is federal law applies, what would it be . I think the question of whether federal law applies justice lets think of the first exception. Suppose that many states had sedition laws that makes certain conduct unlawful to the 1000 people in prison. This court in the new role holds you cannot criminalize that behavior. What is the law that would make that retroactive to people in prison . It sounds to me that it is not like some kind of statutory discussion rather there are human beings who are in prison who are there without having violated any valid law because it was always protected by the first amendment. If that is right, it is the constitution, the due process clause that says they are being held, even though they committed the crime 22 years ago, they are now being held in confinement without due process of law because you cannot criminalize their behavior. Do you see where i am going . That being so, it is a federal constitutional rule. Richard bernstein in your hypothetical, respectfully, i do not think i would be a new rule. Justice i have made it a new rule for the purpose of a hypothetical. Richard bernstein if it were a new rule, then fourth and going all the way back, the justices and parliaments opinion and mackey said we are not greeting the substance of exception because the constitution requires that justice the case was the states could be more generous, this was the opposite of generous, could they be more stingy . I cannot find anything maybe i will read it again but i cannot find anything there or in danforth that answers the question, so i thought it is any question, hence, that question i posed to you because i want your response. I do not think you can answered by means of precedents. I think you have to figure it out without the help of precedents. Richard bernstein if it is a new rule, the court has held, and sorry to cite the precedent, but there has been much activity on collateral review that it is not constitutional. Justice that is to put that we have tnt says we do not like the letter. You are saying that we have then maybe that is wrong. Why doesnt violate the constitution to hold a person in prison for 20 years for conduct which the constitution forbids making criminal . Richard bernstein it does filing the constitution. Justice it was not criminal at the time. Richard bernstein it was at the time he was convicted, right . Richard bernstein fair enough justice fair enough. The constitution, according to the cases, is satisfied by the federal habeas. Richard bernstein is there anything else you could say . Justice there were some people in salem who were imprisoned for being a witch and lo and behold in 1820, it was held by this court that that violated the constitution. I just made the more outrageous example of the same thing. I wanted to say, i got your point, it did not violate the constitution but i also got the point that you have authority, anything else . Richard bernstein this court has been reluctant, even when there was a violation of the due process clause, to create a judicial remedy and imply judicial remedy on federal statutory remedy, that is cited in our brief. Just as that is not what is happening, mr. Bernstein. If you assume justice that is not what is happening, mr. Bernstein. If you assume the justices hypothesis of keeping someone in prison who has not been criminalize, the state has set up the collateral review mechanism. You are not asking to set up a new mechanism. It does have the collateral review mechanism. The only question is whether it will comply with federal constitution law in that collateral review mechanism. Richard bernstein the other question is whether that issue of retroactivity is itself a federal constitutional issue, if it is, obviously, there is jurisdiction. If not, i would select there is not jurisdiction, and that the proper remedy is federal habeas, if i may reserve the remainder of my time. Justice thank you. Mr. Chief justice and the court, miller versus alabama establish a new substitute role prohibiting mandatory life without parole for juveniles which should be applied after actively. This court has jurisdiction to hear the claimant because the Louisiana Supreme Court relied exquisitely on jurisprudence. In miller, this court held that mandatory life in prison was unconstitutional and it also held that life in prison would be an uncommon, even today. Just as justice could you just say we have a Fourth Amendment and the federal constitution has a Fourth Amendment. We are going to apply our own constitution, but in applying it, we will follow the federal precedent. I think we would say, in that case, that the case has been decided on the state constitutional grounds, even though the state court was interpreting the ground. Even though it is looking to federal decisions. Mark paisance in this case, your honor, the federal court of louisiana did not state it was exercising independent grounds at all. Justice ive got the case is cited said that . I thought it cited an earlier Louisiana Supreme Court case which made it very clear that it was following the federal rule as a matter of discretion and not because it had to, and it could in a later opinion decide not to follow federal law. That was my interpretation. Mark paisance it was my interpretation that the Louisiana Supreme Court said we have a choice. T and they made the choice to applyeague. And they may be trusted to apply teague. They said they were dictated by the taken analysis and that is what was done in this case. Justice did you not say in taylor that they were not bound to follow teague and they went to to make it clear they were not bound to do that . Mark paisance they did say that. Justice they never retracted that. Mark paisance correct, but the choice insult is not necessarily a matter of state law. While the Supreme Court had the authority to make that decision, it said we believe teague by choosing we believe by choosing teague, that is the better law we will follow the federal jurisprudence and law from teague in doing so. I believe that unless they state a clear, independent ground, this court can conclusively presume that they apply federal law as they believe. Justice i thought unless they clearly state otherwise, we will assume that they are applying federal law, and here they clearly did state otherwise. They said, we do not have to follow federal law, but we will model our state law federal law. It seems to me that satisfies the exception requirement of michigan. Mark paisance it is my opinion that michigan v. Lull indicates that the state must say we are following the law in making this decision. We are applying state law rather than federal. Justice they did say that. This is a matter of state law, we do not have to follow teague, but we choose to. I thought that is what they said. Mark plaisance i believe that is efficient to indicate to the court that it is applying federal law. Justice i think what people are saying to you is that it is different from your standard michigan question. This is a different question. It is a state that says we are not bound to follow teague, we can do Something Different, but we want to follow teague. In all the particulars, and then the question is, if the state commits the following teague, it does not think anybody else has committed it, but its up commits the following teague at to following federal law, then what happens . Is there enough of a federal question to decide the case . That is not the michigan question. That is more like a merrell dow question or Something Like that were federal law and the state has chosen it but it is just partial of the claim because the state is so committed to following federal law and all the particulars. Mark plaisance i agree, and even in damper, the court said the question of interactivity is the question of federal law. Justice why dont you finish. Mark plaisance that is the answer to your explanation or hypothetical that you said if the state decided they were choosing federal law, then what is the next step . And the next step is retroactivity, which both the majority and they said in danford that the question of march activity is appear question of federal law. Justice federal statutory law. I thought that was supportive danforth. They can go beyond what federal interpretation is because we are talking about the federal miller v. Alabama the federal habeas statue. Mark plaisance that is correct, but if they consider the state of the merit of the claim and the merit is, is mr. Montgomery serving under the constitutional sentence . Is miller attracted to say he is serving in a constitutional sentence justice to mr. Bernsteins point, are you saying that your client would be worse off, if you are correct, that is if the question comes up on federal habeas and the federal Court Decides that without any [indiscernible] but it to state court goes first, then federal review is truncated . Mark plaisance that would be my understanding, your honor, that while jurisdiction in this court does not depend on what has occurred so far, it depends on what the court does decide. Whether he can go to federal court or his court, does not affect the jurisdiction. The question is justice had you answered oh, i suppose you are right, but your victory is going to leave your client in the worst addition because any get to federal court, he will be saddled with Mark Plaisance not if the court rules they have jurisdiction and makes miller attracted, and then he would not be going to federal court. The question is is mr. Montgomery being held unconstitutionally . Miller said that a mandatory life in prison sentence is unconstitutional because it fails to address the fact of the matter that this court believes kids are different. Justice on the jurisdictional point, let me see if i understand what you are arguing. A lot of states rules of procedure model dr. Federal rules are modeled after federal rules. They follow federal rules but as a matter of choice and not because they think they are bound by the federal rules. Lets say there is a disagreement in federal court about what federal rule of evidence 403 means. The state court says, we will follow the federal rule and we think the right course between these two divergent federal courts of appeals is the second circuit, so we will follow the second circuits interpretation of federal rule 403. Would we have jurisdiction to review that decision as a decision on the question of federal law . Mark plaisance if it was clear to the court that the state court made a conscious choice and sent enough of a signal to the court that it was adopting federal law to use as state law, but in this case, there is no indication that the state of Supreme Court of louisiana was making that decision. They said that we are our analysis is dictated by teague. In doing so, they found that mr. They would not apply at miller interactive and that is the real issue miller retroactive and that is the issue of this case. Justice suppose we held that, we can review and we have jurisdiction because the state court said they would follow teague and then we go on and we say that under teague, miller can be applied on collateral review, and the kid goes back to the Louisiana Supreme Court and they say, we said previously in taylor that we would follow teague, but that was based on our understanding of teague at that time and now that we have seen what it has been interpreted to mean by the Supreme Court, we will not follow teague. Then what would happen . Mark plaisance i think louisiana would be bound to follow this courts ruling. Justice why . Because its a we would voluntarily follow it . Because it said we would voluntarily follow it . Mark plaisance in doing so, it must follow this courts jurisprudence. They had changed their mind and chosen the chose and chosen not to follow. Justice what forces them to stay where they were . It is a matter of state law. They did not do that in this case. Mark plaisance they did not do that in this case. Justice not yet, but if we agree with you and we send it back and they say, that is what teague means, we wont follow teague. What stops them from doing that . Doesnt that make us look foolish . Mark plaisance if the state considers the merit of federal claim, it must grant the relief that federal Court Justice but the question is what is the federal claim . Quite a few site standard oil v. Johnson . Mark plaisance that was the case cited by the solicitor general and i believe my friend from the Solicitor Generals Office can probably answer that question a little bit better. Justice are you asking us to decide the question of october the question is left open in stamford . Danforth . Danford said there could be because additional minimum but it did not answer the question. Mark plaisance i am saying you do not need to get to that question. Justice lets assume. Mark plaisance i was at the balance of my time. Justice u. S. , council. Thank you, council. Thank you, mr. Chief justice. This court does have louisiana has upon fairly incorporated into its law a holy federal standard and in this courts decision with three affiliated tribes have most recently with ohio versus minor, the court has recognized that when the state has chosen to adopt federal law to guide the decisions and binds itself to federal law, there is a federal question. Justice they can change their mind, right . You said voluntarily chose to follow it, they can voluntarily choose not to follow it anymore. Michael dreeben the same is true in any michigan v. Long case. It has jurisdiction under section 1257 to resolve state Court Resolutions of federal law and it will presume that a state constitutional decision of an image of the Fourth Amendment will be binding, that recognized that the only circumstance in which the court will not treat federal law as governing both questions is one the state makes clear that it would reach the same result under state constitutional law as it did under federal law. It did not preclude the option of the state going back and reaching a different decision once enlightened by the court asked of the content of federal law. Standard oil is completely clear on this. It says the state chosen to use federal law to determine whether a federal exchange with federal mentality, and we will correct the understanding of federal law, but on remand, the state cant now, free from misapprehension of federal law, decide what it thinks state law requires. If it does not, then there may be a federal constitutional question. Justice how does it work . I looked at the indian case and that seemed a little far out. It definitely gives you support on your statement. Suppose you to Justice Scalias example, we have iowa state rule 56, we interpret iowa state will 56 the same way as the federal rules of civil procedure. Now, this is what it means in that case. They say, we are doing it under iowa state rule and you say we can review that because they said that iowa state rule is the same as the federal. Is that right . How do you fit that in the words of 1257 . Michael dreeben i doubt that would satisfy the court. There is a theoretical and practical answer. I will give the practical answer first. The federal rule pretty uniformly say they will treat president as guidance in the decision as persuasive value. They recognize there are state rules of procedure and state rules of evidence that would belong to the state. Justice they say in a particular case, it is a great guidance, we agree, our interpretation is the federal interpretation. Kelly review that because it was can we reviewed that