'You're Trying To Undo That Final Conviction?': Sotomayor Presses Attorney Over Death Penalty Case

Thank you. Justice O'Meara? I'm not altogether sure. I understood your answer to Justice Gorsuch. You are taking the position that do you want to limit this? You said to Justice Thomas earlier that you wanted to go under both prongs. But your colleague wanted to limit this to that it can't be a new rule if it was announced before the filing of the first petition. Justice Sotomayor, our position certainly and I understand General Peterson's position to be that it cannot be a new rule if it was announced after, it cannot be a new rule with respect to a particular applicant if it was announced after that applicant, before that applicant's conviction. I thought he said it differently. I took down what he said. It can't be a new rule if it was announced before filing of the first petition. He didn't say before the final conviction, because there is a final conviction the moment you file a habeas, you're trying to undo that final conviction. So I suppose I'm best speaking just for our own position. I think that it is a new rule, the timing of a new rule is defined with respect to when the particular defendant's conviction becomes final. The timing for previous availability is tied to the first habeas application. Now you're doing two different. That makes no sense to me. And I understand the General's position, but yours makes no sense. Why would you have two different timeframes? I think that you will announce before this, but not before, but not previously available until the first habeas. I think that accounts for why the statute has two different terms that both have reference to timing. So new is incorporating the concept from Teague, which is tied to the time of conviction, and then previously unavailable should be tied to the first habeas application or the immediately preceding habeas application because we're dealing with second or successive habeas applications specifically. So the question in a second or successive is whether it could have been raised in the In the first, or the immediately preceding. So that's how we would justify the two different timing questions, one for new rule and the other for previous unavailability. You're not unhappy with the general suggestion, are you? I didn't understand us to be advancing different positions, but to the extent that they are Let's listen to the transcript.