a recent unpublished decision, United States v. Seals, this court held that Johnson was properly applied retroactively to the defendant’s original conviction, which occurred in 1992. The court stated that “[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Because a circuit-split existed prior to Johnson and at the time of the defendant’s original conviction and sentencing, the court concluded that Johnson’s construc t. 906, 157 L.Ed.2d 867 (2004) (distinguishing between rules that are jurisdictional and rules that are merely inflexible claim-processing rules); see also United States v. Leijano-Cruz, 473 F.3d 571, 573-74 (5th Cir.2006) (<HOLDING>). 4 . - U.S. -, 127 S.Ct. 2360, 168 L.Ed.2d 96
recognizing that issue exhaustion is a mandatory although not jurisdictional requirement recognizing the two lines of child custody cases but declining to resolve conflict recognizing authority but declining to issue writ holding that kontrick and eberhart require the conclusion that rule 59e is a claimprocessing rule recognizing that eberhart and kontrick suggest that rule 4b is not jurisdictional but declining to resolve the issue