[00:00:00] Speaker 03: Good afternoon. [00:00:02] Speaker 03: You may be seated. [00:00:03] Speaker 03: And welcome to the Ninth Circuit. [00:00:05] Speaker 03: This is the time set for argument in Doyle against Royal. [00:00:09] Speaker 03: Before we proceed, can I just confirm, Judge Lee, can you hear us? [00:00:12] Speaker 02: Yes, I can hear you. [00:00:13] Speaker 02: Thank you. [00:00:13] Speaker 03: All right. [00:00:14] Speaker 03: Then Ms. [00:00:16] Speaker 03: Murphy, whenever you're ready, you may proceed. [00:00:40] Speaker 00: Good afternoon, your honors and may it please the court. [00:00:42] Speaker 00: My name is Jocelyn Murphy and I'm here on behalf of petitioner appellant Antonio Doyle. [00:00:47] Speaker 00: I'd like to reserve five minutes for rebuttal and I will keep an eye on my time. [00:00:53] Speaker 00: Antonio Doyle is facing execution based on a conviction that was entered by a jury from which prosecutors intentionally excluded African-American jurors and based on a habeas review [00:01:05] Speaker 00: that failed to consider on the merits 80% of Doyle's claims, including every claim challenging his death sentence. [00:01:13] Speaker 00: I'd like to focus my argument today on two specific points, Batson and tolling, and unless this court prefers I begin elsewhere, I'll start with Batson. [00:01:24] Speaker 00: The Nevada Supreme Court applied an incorrect legal framework when it determined that the only way Doyle could establish a prima facie case as to juror Velasquez was through a pattern of exclusion. [00:01:36] Speaker 00: This was contrary to and unreasonable under Batson, as the 14th Amendment protects all prospective jurors from discrimination during voir dire and not merely those excused by means of a pattern. [00:01:47] Speaker 00: Under Batson, all Doyle needed to establish was an inference of discrimination based on the totality of relevant circumstances. [00:01:56] Speaker 00: Because the Nevada Supreme Court prematurely ended its inquiry after it determined that no pattern was evident, its decision is not owed deference by this court. [00:02:07] Speaker 04: Had the Nevada Supreme Court... Couldn't you explain that last bit? [00:02:11] Speaker 04: When you said no deference, help me understand why you think there's no deference. [00:02:16] Speaker 00: Because the Nevada Supreme Court's opinion was contrary to Batson when it held that the only way Doyle could establish a prima facie case as to Gerva Velasquez was through a pattern of exclusion. [00:02:27] Speaker 00: The Nevada Supreme Court hinged its basis on the fact that Doyle had not established that the two, the second and third jurors who were struck were ultimately found to be non-discriminatory and thus undoing the pattern and Doyle could not establish an inference of discrimination and that was contrary to Batson. [00:02:45] Speaker 00: Batson does not require a pattern in order for a defendant to establish an inference of discrimination. [00:02:51] Speaker 00: Had the Nevada Supreme Court applied the correct legal framework, they would have saw that the record in this case is replete with evidence demonstrating an inference of discrimination as to juror Velazquez. [00:03:03] Speaker 03: So can I ask you, I mean, so the explanation of this is in the footnote in the Nevada Supreme Court decision. [00:03:10] Speaker 03: We've got two sentences, somewhat cryptic. [00:03:17] Speaker 03: But the first sentence I take to be just a description of what happened below and says the trial court declined to order the state to provide an explanation. [00:03:26] Speaker 03: And that refers to a pattern because the trial court said there wasn't a pattern. [00:03:30] Speaker 03: The holding of the Nevada Supreme Court is in the second sentence where they say, after accepting the state's explanation, it was not error for the trial court to refuse to require an explanation. [00:03:44] Speaker 03: So that doesn't refer to a pattern. [00:03:47] Speaker 03: So what do you understand the rationale of the Nevada Supreme Court to have been in that second sentence? [00:03:54] Speaker 00: So the Nevada Supreme Court used the fact that the Samuels and Smiths strikings were found to be non-discriminatory as the basis for Doyle not having established a prima facie case. [00:04:06] Speaker 00: And so that establishes, implicitly, after they first referenced the pattern of exclusion, that it was relying on the fact that there was no pattern because the Samuels and Smiths strikings were found to be non-discriminatory. [00:04:18] Speaker 03: Well, maybe it means that, but what about, [00:04:23] Speaker 03: really really offer another possible reading and you can you can tell me this makes sense that uh... that it's not so much that uh... [00:04:34] Speaker 03: The consideration of the explanation for Samuels and Smith tells you what to do about Velazquez, but that the trial court was entitled to proceed sequentially. [00:04:45] Speaker 03: It ruled on Velazquez in light of the information it had before it. [00:04:48] Speaker 03: Then some other stuff happens, namely Samuels and Smith. [00:04:52] Speaker 03: And it doesn't need to go back and revisit the ruling on the first challenge. [00:04:59] Speaker 03: Is that a possible reading of what they meant? [00:05:02] Speaker 03: Well, your honor, maybe that's wrong too, but like, is that, is that what they might've been saying? [00:05:08] Speaker 00: Well, even under that interpretation, what the Nevada Supreme court did was still unreasonable. [00:05:14] Speaker 00: Um, trial council renewed the, uh, Batson objection as to, as to Velasquez after Smith was struck. [00:05:21] Speaker 00: And under the interpretation that your honor is discussing right now, that would mean that the Nevada Supreme court would have negated the pattern. [00:05:29] Speaker 00: And that also misapplies Batson and Perquette because that would be using the ultimate decision at step three to negate a finding at step one. [00:05:38] Speaker 00: So if an inference of discrimination had been created based on a pattern, and Velasquez was always a part of that pattern because she was the first juror struck. [00:05:45] Speaker 00: So it was based on her striking that the court required trial counsel to provide race neutral reasons for the second juror struck, Samuels, and the third juror struck, Smith. [00:05:54] Speaker 00: And so if the court, [00:05:57] Speaker 00: use the ultimate finding at step three that the striking of Smith and Samuels were non-discriminatory, then that cannot be used at step one to negate that pattern. [00:06:07] Speaker 00: Batson and Perquette state that the steps in the burden-shifting framework have to be taken within the proper sequence. [00:06:15] Speaker 00: So under either interpretation, Your Honor, that would be my answer is that it is still either contrary to or unreasonable. [00:06:23] Speaker 03: So in addition to- And just to be, so is it your view, I mean, is it consistent with Batson for a state to say our procedure is [00:06:37] Speaker 03: You make your objection to the striking of an individual juror. [00:06:42] Speaker 03: And we go through the three steps with respect to that juror. [00:06:45] Speaker 03: And then if we say that strike is OK, then we're done. [00:06:48] Speaker 03: Then we move on to the next one. [00:06:50] Speaker 03: Then we move on to the next one. [00:06:52] Speaker 03: And by the time we're several jurors down, maybe you have more information that sheds a different light on the first one. [00:06:59] Speaker 03: But you don't need to go back, because you can just stick with the ruling you made on the first one. [00:07:04] Speaker 03: Is the state allowed to do that under Batson? [00:07:09] Speaker 00: That would be contrary to Batson to not allow a defendant to go back and particularly when it concerns a pattern because the first juror would always be a part of that pattern and it would actually undermine Batson's purpose to not permit petitioners through a pattern to go back because the first juror struck would always be immune from constitutional scrutiny. [00:07:32] Speaker 00: And it would allow prosecutors to always use discriminatory means to strike the first juror, as long as the second and third juror were struck for race neutral reasons. [00:07:42] Speaker 00: So under a bastion, no, under a pattern, the state would not be allowed to negate that finding under a pattern. [00:07:50] Speaker 02: If I may ask a question. [00:07:53] Speaker 02: So if Samuels and Smith were not on the jury pool, just suppose that the prosecutor strikes Mr. Lasquez, and then the judge said the same thing that he said at trial where he said, well, I don't find a pattern here, so I'll move on. [00:08:10] Speaker 02: Would that violate Batson? [00:08:12] Speaker 00: Yes, it would still violate Batson for two reasons, Your Honor. [00:08:15] Speaker 00: First, Batson is clear. [00:08:17] Speaker 00: You do not need a pattern. [00:08:18] Speaker 00: So using the lack of a pattern as a basis is contrary to Batson. [00:08:23] Speaker 00: Batson says courts should look at the totality of relevant circumstances. [00:08:28] Speaker 00: And here, at the first strike for Velasquez, there was other evidence creating an inference of discrimination. [00:08:33] Speaker 00: Specifically, prior to trial, the trial counsel [00:08:38] Speaker 00: issued pretrial motions warning the trial court that they believed that prosecutors would strike jurors discriminatorily, and prosecutors used their very first strike to remove Velazquez, and prosecutors failed to ask Velazquez any questions during voir dire that would be specific to her questionnaire or that indicated that they had any concern with any of her answers or her juror profile. [00:09:01] Speaker 00: Additionally, the way that prosec... If I can just ask a follow-up question. [00:09:06] Speaker 02: So under your... [00:09:09] Speaker 02: view of Batson. [00:09:11] Speaker 02: For even the first juror, you would have to do a Batson analysis all three steps, even if at least on the face, there may be potentially some grounds, non-discriminatory grounds for striking the juror. [00:09:22] Speaker 00: Yes, Your Honor, because the 14th Amendment protects all prospective jurors from discrimination during voir dire and not merely those removed by means of a pattern. [00:09:31] Speaker 00: And it's for that very reason that the Supreme Court decided Batson. [00:09:34] Speaker 00: In Swain, the standard was a very high burden for petitioners. [00:09:38] Speaker 00: They had to prove a pattern of systemic exclusion. [00:09:41] Speaker 00: And the purpose of Batson was to lower that burden for petitioners. [00:09:44] Speaker 00: And so even at step one, the court is not to look at whether there's a pattern, they're to assess the totality of relevant circumstances within the record. [00:09:52] Speaker 00: And that's simply not what happened here. [00:09:54] Speaker 04: Help me understand why even [00:10:00] Speaker 04: Right off the bat with Ms. [00:10:01] Speaker 04: Velasquez, there was enough to alert the trial judge that he should have questioned, should have allowed questioning as to why there was the strike. [00:10:16] Speaker 04: There's to say, we know one thing, okay, we presume that she was black. [00:10:22] Speaker 04: What else do we have? [00:10:23] Speaker 00: Yes, Your Honor. [00:10:24] Speaker 00: The fact that it was the prosecutor's very first strike, the fact that prosecutors only asked Velasquez four questions during voir dire. [00:10:32] Speaker 00: And all of them were general questions about her veracity to perform and be impartial when she answered the affirmative. [00:10:38] Speaker 00: And they asked Velasquez nothing specific to anything in her questionnaire or about her juror profile that indicated that they were concerned. [00:10:46] Speaker 00: And then also the way prosecutors treated Velasquez in comparison to similarly situated non-black jurors. [00:10:52] Speaker 04: So on that last point, what veneer people had come up before Velasquez? [00:10:59] Speaker 04: Do we have a pattern of questioning before Velasquez gets on the stand to be questioned? [00:11:04] Speaker 00: So prior to the prosecutor's strike of Velasquez, a prospective non-black juror, Jurre Renard, testified. [00:11:12] Speaker 00: And Jurre Renard's profile in comparison to Velasquez made her less favorable because her mother had been arrested for a DUI, so she had more serious criminal associations. [00:11:22] Speaker 00: And she indicated that she had a highly negative view of police officers. [00:11:29] Speaker 00: And so that prosecutors chose not to challenge prospective juror, Renard, but did challenge Velasquez, who was by all intents and purposes an ideal juror. [00:11:39] Speaker 00: who testified that she had a positive view of police because her best friend was a retired police officer, and her only criminal association was that she was present when her niece was arrested for shoplifting, raised an inference of discrimination here. [00:11:51] Speaker 00: And there was even more evidence after trial counsel renewed its Batson objection, after Samuels was struck, through the three out of four jurors being removed, and then also the warnings against exclusion. [00:12:02] Speaker 00: Here, the trial court warned prosecutors throughout Vaudier three separate times that it found its conduct highly unusual in how it was excluding African-American jurors. [00:12:11] Speaker 04: Yeah, so I'm going to come back to the point that you made. [00:12:14] Speaker 04: So you're arguing that even without respect to what comes afterwards, at the time that Ms. [00:12:20] Speaker 04: Velasquez is on the stand as a veneer person, there was enough already to require questioning under Batson. [00:12:28] Speaker 04: There was already a primification. [00:12:29] Speaker 00: Yes, Your Honor. [00:12:30] Speaker 00: Yes, Your Honor. [00:12:31] Speaker 00: But the trial court was merely focused on a pattern, and so that's why it was denied at step one. [00:12:36] Speaker 04: Okay. [00:12:37] Speaker 03: And what do you do? [00:12:38] Speaker 03: I mean, there's some force, I think, to the point you made that [00:12:43] Speaker 03: The prosecutor doesn't get a free pass for the first blank juror they strike. [00:12:49] Speaker 03: But what do we do with the language in Batson itself, where the court said we decline to formulate particular procedures to be followed? [00:12:57] Speaker 03: And I don't know that there's a Supreme Court case that says that you can't do the sort of sequential one-by-one analysis of Batson challenges that I was asking about earlier. [00:13:10] Speaker 03: So what's your answer to that? [00:13:12] Speaker 00: Well, Your Honor, in addition to Batson, I would also point this court to Perquette. [00:13:17] Speaker 00: And there, the court recognized that you cannot combine, when the court was reviewing a case where a trial court attempted to combine steps two and three, instead of doing them in order, the trial court attempted to do away with both at one time. [00:13:34] Speaker 00: And that's where the Supreme Court emphasized that these steps all must be taken in sequential order. [00:13:41] Speaker 00: And so that is why that reasoning so too applies here, that to say that once step one has been created through an inference of discrimination, that the court can use a step three finding to now go back and undo a step one finding. [00:13:56] Speaker 03: Well, no. [00:13:56] Speaker 03: I think we might still be positing different understandings of what the Nevada Supreme Court did here. [00:14:05] Speaker 03: The theory I'm suggesting that maybe they adopted is not that the step three findings on Samuels and Smith undo the step one finding on Velasquez, but that [00:14:19] Speaker 03: At the time Velasquez was challenged, there wasn't yet a step one showing. [00:14:24] Speaker 03: And I know you disagree with that for the reasons we were just going through. [00:14:27] Speaker 03: And the trial court gets to rule on the challenge then and doesn't need to revisit that based on what happens later. [00:14:36] Speaker 03: And my question is, is Perkett your answer to the question of what case says that that mode of proceeding is impermissible? [00:14:48] Speaker 00: Yes, I would say perquette, Your Honor. [00:14:50] Speaker 00: Yes. [00:14:54] Speaker 03: OK. [00:14:55] Speaker 03: And if we agree with you, suppose that we agree with you with respect to Velasquez, but none of the other arguments you're making, what would we do if we think the Nevada Supreme Court was [00:15:12] Speaker 03: wrong, contrary to our unreasonably applying Supreme Court law in its treatment of Alaska's. [00:15:21] Speaker 03: And that's the only thing we find. [00:15:24] Speaker 03: What would we do? [00:15:26] Speaker 00: If this court agrees with our reasoning, then it would have to make a finding as to step one and then remand back to the district court for an evidentiary hearing as to step two. [00:15:37] Speaker 00: because Batson requires that the prosecutor provide those race-neutral reasons. [00:15:41] Speaker 00: And at no point in this case yet has the prosecutor provided the race-neutral reasons for Velasquez. [00:15:45] Speaker 03: And it's appropriate for those to be provided in the first instance in an evidentiary hearing in a federal district court? [00:15:51] Speaker 00: Yes, Your Honor. [00:15:52] Speaker 00: There has been other cases within this circuit where that has occurred. [00:15:55] Speaker 04: And how, as a practical matter, is this going to work? [00:15:58] Speaker 04: Because the events that we're talking about were 30 years ago. [00:16:02] Speaker 00: Yes. [00:16:04] Speaker 00: In the cases that I have researched and read, Your Honor, the prosecutor is called and is allowed to, if they remember those reasons, is allowed to state that. [00:16:15] Speaker 00: But courts have also permitted prosecutors to rely on their notes from that time and the transcript. [00:16:22] Speaker 00: While they cannot speculate, but they are allowed to use these things to recall their memory as to why they struck the jury. [00:16:28] Speaker 04: This is outside the record that we have in front of us. [00:16:30] Speaker 04: Do we know whether the participants, prosecutor or defense, do we know if they're still alive? [00:16:37] Speaker 00: To my knowledge, they are, Your Honor. [00:16:39] Speaker 04: Okay. [00:16:39] Speaker 04: Yes. [00:16:42] Speaker 04: To your knowledge, you mean so far as you know, you don't know they're dead, or to your knowledge, they are alive? [00:16:48] Speaker 00: Oh, to my knowledge, they are alive. [00:16:50] Speaker 04: You do know they are alive? [00:16:52] Speaker 00: Yes, the last time I checked. [00:16:58] Speaker 00: So the Nevada Supreme Court's opinion was not only unreasonable as to juror Velasquez, but it was also unreasonable as to the second juror who was struck, juror Samuels. [00:17:10] Speaker 00: The Nevada Supreme Court's decision was an unreasonable determination of fact as to Jura Samuels. [00:17:18] Speaker 00: It found that her striking was non-discriminatory because she had a family member who was incarcerated. [00:17:24] Speaker 00: There were no non-black jurors. [00:17:26] Speaker 00: who similarly had family members who were incarcerated. [00:17:29] Speaker 00: And the disparate impact of family incarceration is not dispositive at step three. [00:17:36] Speaker 00: However, this was an unreasonable determination of fact because the Nevada Supreme Court's opinion entirely omitted any analysis concerning that when the prosecutor struck Samuels, the first reason they provided for striking her was pretextual. [00:17:50] Speaker 00: And it was found to be pretextual by the trial court. [00:17:52] Speaker 00: Indeed, prosecutors first stated that they were striking Samuels because she had children, and they did not believe that someone who had children would be able to sit on this veneer. [00:18:00] Speaker 00: It was only after the trial court pointed out that there were other jurors who had not been challenged who had children that the prosecutors proffered its second reason that Samuel's brother had been incarcerated. [00:18:10] Speaker 00: However, even that, too, is proved to be implausible based on the record we have before this. [00:18:17] Speaker 00: Now, while I will admit, there were no other similarly situated non-black jurors [00:18:22] Speaker 00: who had family members who were incarcerated, that's not dispositive. [00:18:26] Speaker 00: Here, looking at evidence in the record, it demonstrates this was not credible, and specifically because the prosecutor mischaracterized Samuel's testimony and its reasoning for why it struck her. [00:18:37] Speaker 00: Prosecutors didn't just say they were striking Samuels because she had a brother who was incarcerated. [00:18:41] Speaker 00: Specifically, prosecutors stated that Ms. [00:18:44] Speaker 00: Samuels was going to be thinking about her brother in relationship to what she should do in Doyle's case, and that it would put too much pressure on her. [00:18:51] Speaker 00: But Samuel's testimony during voir dire indicated the exact opposite. [00:18:55] Speaker 00: She indicated that she was not close with her brother. [00:18:59] Speaker 00: She didn't know where he was incarcerated, whether or not he had a trial, or what exactly he had been convicted of as the crime had happened nearly 25 years prior. [00:19:08] Speaker 02: Moreover- If I may interrupt, wasn't her brother convicted of murder and she was the only juror whose family member was convicted for murder? [00:19:16] Speaker 02: Isn't that a differentiating fact? [00:19:20] Speaker 00: Your Honor, yes, she was the only juror who had a family member who was convicted of murder. [00:19:24] Speaker 00: But that fact is not dispositive at step three. [00:19:27] Speaker 00: And prosecutors stated that they weren't just concerned that she had a brother who was a family member. [00:19:32] Speaker 00: They were concerned that this would put too much pressure on her and that she would be thinking about her brother. [00:19:37] Speaker 00: But her testimony indicated that that simply wasn't true, and prosecutors failed to ask Samuels a single question during voir dire about the fact that her brother was incarcerated or what impact that would have on her. [00:19:48] Speaker 00: And the Supreme Court stated in Miller L2 that the state's failure to engage in any meaningful voir dire examination on a subject it alleges it's concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination. [00:20:03] Speaker 04: So how do we know that the brother's in prison for murder? [00:20:06] Speaker 04: She says, I think, or I heard. [00:20:08] Speaker 04: Do we have any evidence beyond what she says? [00:20:11] Speaker 00: No, Your Honor, precisely. [00:20:12] Speaker 00: That's what she stated, that she actually had only heard from secondhand sources that that's what he was incarcerated for, but she wasn't even sure, which further indicates that she wasn't close with her brother. [00:20:25] Speaker 00: So it is for these reasons, Your Honor, that we would ask this Court as to Batson to remand back to the District Court for an evidentiary hearing. [00:20:34] Speaker 00: And if there are no further questions regarding Batson, I'd like to spend some of my time on tolling. [00:20:43] Speaker 00: The District Court dismissed 80% of Doyle's claims on the basis, without a consideration on the merits, on the basis of untimeliness. [00:20:54] Speaker 00: This court should find that Doyle is entitled to equitable tolling because he reasonably relied on a confluence of factors in determining that if he filed his amended petition in accordance with the district court's standard scheduling orders, it would be timely. [00:21:11] Speaker 00: As this court is well aware, this court has already recognized in Williams v. Filson that the change of law in Mayo v. Felix has entitled petitioners to equitable tolling. [00:21:23] Speaker 00: The reasoning in Williams should similarly apply here because Doyle's case was being governed by the same scheduling orders at issue in Williams. [00:21:35] Speaker 03: The difficulty in this case, though, is that even after mail came out, there was a considerable delay before he filed the amended petition. [00:21:47] Speaker 03: So isn't that reflective of lack of diligence, which would be a requirement for doling? [00:21:55] Speaker 00: No, Your Honor. [00:21:58] Speaker 00: Mayo was not instructive to petitioners like Doyle, who had already run out of time. [00:22:04] Speaker 00: And Mayo did not provide guidance to petitioners like Doyle in how, after relying on the unsettled state of the law, he had passed his EDPA time by four years in how to comply. [00:22:15] Speaker 00: And so Doyle was reasonable in assuming that he would be grandfathered in [00:22:19] Speaker 00: And he would need to comply with the district court standard scheduling orders in order to have a timely petition. [00:22:26] Speaker 00: And it's important to note that the test under Holland is reasonable diligence, not maximum feasible diligence. [00:22:33] Speaker 00: And so Doyle was diligent in the time. [00:22:35] Speaker 00: after mail that he took to file his petition because he continued to pursue discovery in accordance with the district court scheduling orders. [00:22:43] Speaker 00: And indeed, he was required to file status updates every 60 days with the court after mail, and he also was seeking judicial intervention because the state was refusing to comply. [00:22:55] Speaker 00: So by continuing to comply and seek discovery, Doyle demonstrated that he was pursuing his rights and diligent in the time after mail. [00:23:04] Speaker 00: And Doyle was not alone in this assumption that the district court's standard scheduling orders were still governing his case. [00:23:13] Speaker 00: The district court's conduct after mail also indicated that the district court shared this assumption. [00:23:18] Speaker 00: After mail, the district court did not amend its scheduling orders. [00:23:24] Speaker 00: referencing mail or changing the standard scheduling practice and the District Court continued to issue extensions of time for Discovery and extensions of time for Doyle to file his amended petition after Discovery had concluded. [00:23:38] Speaker 00: Neither does the state's conduct. [00:23:40] Speaker 00: After mail, the state did not oppose extensions of time. [00:23:44] Speaker 00: The state did not expose, excuse me, the state did not oppose the district court's granting of extensions of time for discovery. [00:23:53] Speaker 00: And the state waited four years after mail before it raised its first timeliness objection. [00:24:00] Speaker 00: So it is for these reasons, your honor, that it's clear from the course of conduct of the parties that everyone reasonably believed that if Doyle filed his amended petition in accordance with the district court scheduling orders, it would be timely. [00:24:11] Speaker 00: And as to tolling, we would ask this court to remand to the district court for full consideration of Doyle's claims on the merits. [00:24:18] Speaker 00: And if there are no questions, your honor, I will reserve the rest of my time for rebuttal. [00:24:21] Speaker 00: You may. [00:24:22] Speaker 00: Thank you. [00:24:33] Speaker 03: Mr. Proctor. [00:24:43] Speaker 01: Good afternoon and may it please the court. [00:24:44] Speaker 01: My name is Heather Proctor and I have the honor of representing the respondents in this matter. [00:24:48] Speaker 01: Excuse me. [00:24:50] Speaker 01: I'd first like to address the exclusion of Ms. [00:24:55] Speaker 01: Samuels from the board dire. [00:24:58] Speaker 01: The prosecutor did initially reference that Ms. [00:25:02] Speaker 01: Samuels had two small children, but the prosecutor also noted that she did have a brother who was incarcerated for first degree murder and Ms. [00:25:12] Speaker 01: Samuels actually stated that [00:25:14] Speaker 01: They say that he killed someone, so she wasn't even sure as to his guilt. [00:25:19] Speaker 01: As already noted, there were only other individual on their perspective or dire that had a similar situation of someone who was incarcerated for a serious felony was Ms. [00:25:33] Speaker 01: Smith. [00:25:34] Speaker 01: And the state district court actually noted that after the- You mean Ms. [00:25:38] Speaker 04: Samuels? [00:25:39] Speaker 01: No, Your Honor. [00:25:40] Speaker 01: Ms. [00:25:41] Speaker 01: Samuels was the second juror who was struck. [00:25:43] Speaker 01: Ms. [00:25:43] Speaker 01: Smith was the third juror who was struck. [00:25:48] Speaker 04: But I thought it was Samuels who had... Samuels has the brother in prison, correct? [00:25:53] Speaker 01: Yes, Your Honor. [00:25:54] Speaker 01: Ms. [00:25:54] Speaker 01: Samuels had the brother in prison for first-degree murder. [00:25:57] Speaker 01: Ms. [00:25:57] Speaker 01: Smith had the brother in prison for the robbery, I believe. [00:26:01] Speaker 01: I'm sorry. [00:26:01] Speaker 01: And the probation violation. [00:26:03] Speaker 01: Of course, Your Honor. [00:26:04] Speaker 01: And the state district court noted that following the exclusion of Ms. [00:26:10] Speaker 01: Samuels, the court was concerned, would be surprised if the prosecution did not use a peremptory challenge to strike Ms. [00:26:19] Speaker 01: Smith because she was a similarly situated individual who had also a brother who was incarcerated for a [00:26:25] Speaker 01: violent felony and was the only other prospective juror who had an individual who was incarcerated for a violent felony. [00:26:36] Speaker 01: And the Nevada Supreme Court's determination on those facts was entitled to deference by this court. [00:26:43] Speaker 03: And what about the fact that, I mean, [00:26:47] Speaker 03: Assuming that to be a good reason for the strike, before the prosecutor got around to saying that, they offered another reason that I think everybody agrees was not actually true. [00:27:01] Speaker 03: And the Nevada Supreme Court did not consider that. [00:27:05] Speaker 03: But isn't that evidence, at least some evidence suggestive of pretext, that needs to be considered, isn't it? [00:27:12] Speaker 01: Your Honor, that was certainly the first reason the prosecutor gave, it wasn't the only reason. [00:27:18] Speaker 01: And yes, the state district court did know that there were others in the jury, but there's no indication that that was the only reason the prosecutor intended to provide. [00:27:27] Speaker 01: It was simply the first reason the prosecutor gave, and then the court made its determination that there were others on that jury. [00:27:36] Speaker 01: who was similarly situated, and the court provided that second reason. [00:27:40] Speaker 01: That second reason alone was certainly sufficient to support the Nevada Supreme Court's conclusion that the prosecutor provided a race-neutral reason for excluding Ms. [00:27:52] Speaker 01: Samuels. [00:27:53] Speaker 04: But what do we do with the fact that the prosecutor advanced, I assume, truthfully, as to the prosecutor's own motivation, a reason that was a non-reason? [00:28:06] Speaker 01: Your honor, that was certainly the first reason that was given. [00:28:08] Speaker 04: No, I understand that. [00:28:09] Speaker 04: What I'm asking is, the prosecutor gave us a reason that this is why I did it. [00:28:16] Speaker 04: Well, if that's a reason why he did it, [00:28:21] Speaker 04: He's ignoring that he had that very same reason for non-black jurors. [00:28:28] Speaker 04: In other words, one of the reasons he had, maybe it's not a sufficient reason, but one of the reasons he had applied only to a black veneer person. [00:28:38] Speaker 04: And it did not apply to the others. [00:28:40] Speaker 01: Your Honor, that is certainly true that he did give that as A, his first reason. [00:28:44] Speaker 01: It was not his only reason. [00:28:46] Speaker 04: No, I understand that. [00:28:47] Speaker 04: But even having given that reason, assuming that he's truthful in saying that that is a reason, and I'm not charging him with telling a lie, assuming that that's a reason why he did it, well, he had a reason for excluding the black juror, then he had exactly the same situation and did not use that reason for a white juror. [00:29:04] Speaker 04: That strikes me as discriminatory. [00:29:07] Speaker 01: Your Honor, you are certainly correct that there were other non-African-American jurors who did have a similar reason. [00:29:14] Speaker 01: But we cannot ignore the fact that that was only one of multiple reasons the prosecutor did give. [00:29:19] Speaker 04: How many discriminatory reasons do we need? [00:29:23] Speaker 04: I think we only need one. [00:29:26] Speaker 01: Your Honor, there has to be an indication of discriminatory intent. [00:29:30] Speaker 04: And the fact is... There's clearly an indication, if that's a genuine reason, [00:29:35] Speaker 04: If he's telling the truth, that that's why he did it. [00:29:38] Speaker 04: That's a discriminatory reason given that he doesn't use that same reason where it's applicable for white jurors. [00:29:45] Speaker 01: Your Honor, that is correct as to that first reason, but it was not the only reason. [00:29:49] Speaker 04: I understand that, but are you agreeing with me that if we look only at that first reason, I understand there's a second reason, but given that he applies the reason to a black person but not to a white person, [00:30:03] Speaker 04: That sounds to me like a discriminatory reason. [00:30:05] Speaker 04: Why am I wrong about that? [00:30:07] Speaker 01: Your Honor, if that was the only reason he gave. [00:30:09] Speaker 04: No, no. [00:30:09] Speaker 04: I understand it's not the only reason, but I want you to look only at this reason for purposes of answering the question. [00:30:15] Speaker 04: Is that a discriminatory reason? [00:30:18] Speaker 01: Your Honor, it certainly applied to non-African-American jurors as well, yes. [00:30:23] Speaker 04: No, it did not apply. [00:30:25] Speaker 01: that other non-African-American jurors also had children at home. [00:30:29] Speaker 01: That was correct. [00:30:30] Speaker 04: So he said, this is a reason why I'm disqualifying. [00:30:36] Speaker 04: Over here is the same reason, but I'm not using that reason to disqualify. [00:30:40] Speaker 01: You're correct, Your Honor. [00:30:42] Speaker 01: But under Batson, we do have to look at the circumstances surrounding the exclusion. [00:30:49] Speaker 01: And not just the one reason, but all of the reasons the prosecutor gave. [00:30:53] Speaker 01: And the prosecutor did give a non-discriminatory reason for excluding Ms. [00:30:58] Speaker 01: Samuels as well. [00:31:00] Speaker 04: No, I understand that. [00:31:01] Speaker 03: Maybe you can turn to Velasquez. [00:31:04] Speaker 03: I've read footnote two in the Nevada Supreme Court decision probably a dozen times at this point, and I'm not sure I understand what their rationale was for saying that the trial court did not need to require an explanation for the striking of Ms. [00:31:25] Speaker 03: Velasquez. [00:31:26] Speaker 03: What do you understand the Nevada Supreme Court to have held? [00:31:31] Speaker 01: Your honor, based on Ms. [00:31:33] Speaker 01: Velasquez, the court did note that it wasn't necessary to go to that second question because she was the first peremptory challenge by the state. [00:31:44] Speaker 01: And as that first peremptory challenge, there was no pattern of intentional discrimination. [00:31:49] Speaker 01: And there does have to be some sort of indication of intentional discrimination. [00:31:55] Speaker 03: But then why did they say after accepting the state's explanation for the exclusion of Ms. [00:32:02] Speaker 03: Samuels and Ms. [00:32:03] Speaker 03: Smith? [00:32:05] Speaker 03: That seems to suggest that it had something to do with accepting the explanation for Samuels and Smith. [00:32:13] Speaker 03: Am I wrong to read it that way? [00:32:18] Speaker 01: No, Your Honor. [00:32:19] Speaker 03: So then, I mean, is what they're saying in your view that [00:32:25] Speaker 03: You have a pattern, you know, Velasquez, Samuel Smith. [00:32:30] Speaker 03: You've accepted that there's a race neutral explanation for Samuelson Smith. [00:32:37] Speaker 03: Now we no longer have a pattern and therefore we don't need to go to step two on Velasquez. [00:32:42] Speaker 03: Is that what they were saying? [00:32:43] Speaker 01: Your Honor, I think you have to read that footnote regarding Velazquez in conjunction with the Nevada Supreme Court addressing the first prong of Batson, where the Nevada Supreme Court said, presumably, we're going to assume Ms. [00:32:56] Speaker 01: Velazquez is African-American. [00:32:58] Speaker 01: We're going to presume that striking three out of four black jurors would be prima facie case of discriminatory intent, but we don't have to make that decision here. [00:33:12] Speaker 01: So the Nevada Supreme Court never actually found that the prima facie evidence had been established. [00:33:20] Speaker 03: Clearly they didn't find that a prima facie case was established. [00:33:24] Speaker 03: My question is why? [00:33:25] Speaker 03: Why did they not think that there was a prima facie case with respect to Alaska's? [00:33:32] Speaker 01: Your Honor, the Nevada Supreme Court relied on Hernandez, and in Hernandez, the prosecutor, the state district court never actually ruled on the first step of Batson. [00:33:43] Speaker 01: They went straight to the second and third steps of Batson, and in Hernandez, the United States Supreme Court said, that's okay. [00:33:50] Speaker 01: You don't actually have to reach the first step of Batson if you get both the second and third steps. [00:33:56] Speaker 01: And so in Hernandez, that was acceptable, and that was the case the Nevada Supreme Court relied upon. [00:34:01] Speaker 03: But they never did go to the second and third step for Velazquez. [00:34:05] Speaker 01: That is correct, Your Honor. [00:34:06] Speaker 01: And so the argument would be, based on that decision in Hernandez, the state district court never actually ruled on the prima facie evidence as the first step of Batson. [00:34:19] Speaker 03: Right. [00:34:19] Speaker 03: But the question to which I still would like your answer to is, why did the Nevada Supreme Court think that that was OK? [00:34:28] Speaker 01: Your Honor. [00:34:32] Speaker 01: The determination was that there was no pattern. [00:34:37] Speaker 01: With Ms. [00:34:37] Speaker 01: Velasquez, there was no pattern established when they first used the peremptory challenge, and there was no pattern established when the defense counsel asked them to revisit Ms. [00:34:51] Speaker 01: Velasquez on that first day of trial after they discussed Ms. [00:34:57] Speaker 01: Smith. [00:34:57] Speaker 03: But at that, because at that point, though, when he asked them to go, when defense counsel asks the trial court to go back and revisit Velazquez, at that point, he's got three out of four, right? [00:35:08] Speaker 03: So that seems like a pattern, doesn't it? [00:35:12] Speaker 01: Yes, Your Honor. [00:35:13] Speaker 01: The State District Court actually addressed, because defense counsel argued, we've struck three out of four jurors. [00:35:20] Speaker 01: We do have to determine that there is a pattern here. [00:35:23] Speaker 01: And the State District Court found, no, I'm not going to, [00:35:26] Speaker 01: use a determination of percentages. [00:35:29] Speaker 01: There is no pattern asked to miss Velasquez. [00:35:31] Speaker 01: She was the first juror. [00:35:32] Speaker 01: You haven't established any discriminatory intent because I've already determined that under Smith and Samuels, there was no discriminatory intent. [00:35:42] Speaker 03: So, okay, so then I think you are saying, and tell me if this is not true, but it sounds like what you're saying is the thing I suggested at the beginning that [00:35:52] Speaker 03: The reason that there was no pattern, the reason that you don't get past step one with respect to Alaska's is because having looked at steps two and three with respect to Samuels and Smith, you find no intentional discrimination there. [00:36:08] Speaker 03: And so now they're effectively off the table, and therefore there's no more pattern. [00:36:13] Speaker 03: Is that a fair characterization of what you think the state courts held? [00:36:17] Speaker 04: Yes, Your Honor. [00:36:19] Speaker 04: OK. [00:36:19] Speaker 04: Let me ask you this. [00:36:22] Speaker 04: I wanted you to respond to what we heard from the other side, even before we get to the questioning of the other black women in the veneer. [00:36:32] Speaker 04: So we're just at the stage of questioning Velasquez. [00:36:38] Speaker 04: The contention is there was already reason to believe that there was an inference of discrimination based on the pattern of questioning of the jurors or prospective jurors that had preceded Velasquez and compare that questioning to the questioning given to Velasquez and then look at the characteristics of Velasquez who has a great deal of respect for police [00:37:02] Speaker 04: and a very close friend who was a policeman. [00:37:04] Speaker 04: So why is that not enough right then to require that there be questioning because there's been a prima facie case? [00:37:13] Speaker 01: Your Honor, we don't know what the prosecutor was considering when they were doing this discussion. [00:37:20] Speaker 01: And when you're looking at a Batson analysis and determining whether or not there's discriminatory intent and not necessarily step one. [00:37:28] Speaker 04: Well, you don't need very much to require the first question in order to get past that first step of Batson. [00:37:33] Speaker 04: All you need is an inference. [00:37:34] Speaker 04: And why is it not enough of an inference that we have questioning that's quite differential as to white prospective jury people compared to a questioning of Velasquez combined with, you know, as I look at Velasquez, irrespective of color, I'm the prosecutor, I look at a pretty good witness. [00:37:54] Speaker 04: A close friend is a retired policeman, great real deal of respect for, you know, she looks like a pretty good juror to me. [00:38:02] Speaker 01: Your Honor, unfortunately, we do not know what the prosecutor was considering with respect to Velazquez. [00:38:06] Speaker 04: Well, what we do know is what the prosecutor asked prior Veneer people compared to what the prosecutor asked Velazquez. [00:38:14] Speaker 04: Why is that not enough by itself to suggest enough that we have to get a response as to why? [00:38:21] Speaker 01: Your Honor, the questions that were asked prior to Ms. [00:38:24] Speaker 01: Velasquez were consistent with the questions that the prosecutor was asking other prospective jurors. [00:38:30] Speaker 04: Were they consistent with the questions asked of Ms. [00:38:32] Speaker 04: Velasquez? [00:38:34] Speaker 04: Yes, Your Honor. [00:38:35] Speaker 04: They were more detailed. [00:38:37] Speaker 04: They were more in-depth. [00:38:39] Speaker 04: We got four very generic questions of Velasquez, and that was it. [00:38:43] Speaker 01: Your Honor, the other prospective jurors to whom the prosecutor went more in depth were based on the questions, excuse me, the answers those prospective jurors gave to the court's initial questions as to do you have any other, do you know anybody who has been in the legal system? [00:39:00] Speaker 01: Do you know anybody, have you been a victim of crime? [00:39:03] Speaker 01: The prosecutor's in-depth questioning as to those prospective jurors were directly as a result of their earlier questions and responses [00:39:11] Speaker 01: to the court's inquiries. [00:39:15] Speaker 01: So those additional questions in and of themselves were not a demonstration of discriminatory intent. [00:39:23] Speaker 04: Not even a sufficient suggestion to require any further questioning? [00:39:29] Speaker 01: No, Your Honor, when taken in context, no. [00:39:33] Speaker 02: Do we know, maybe I missed it in the record, I saw some jury questionnaires, do we know of all the entire jury pool, the entire [00:39:41] Speaker 02: background. [00:39:43] Speaker 02: I don't know if there's a way to figure that out. [00:39:45] Speaker 02: And the reason why I asked is Miss Valesquez isn't, objectively speaking, the worst juror for the prosecution. [00:39:53] Speaker 02: As Judge Fletcher mentioned some of the things of friends with the police, generally good experience with the police. [00:39:59] Speaker 02: On the other hand, she did have a niece who had problems with the law. [00:40:04] Speaker 02: Is there something in the record that shows what, at the time, [00:40:08] Speaker 02: what the characteristics or backgrounds of the other jurors were? [00:40:13] Speaker 01: Your Honor, unfortunately, the jury questionnaires were never made part of the state court record. [00:40:18] Speaker 01: They were never before the Nevada Supreme Court. [00:40:20] Speaker 01: At the time, it made its determination. [00:40:22] Speaker 02: I thought I saw some questionnaires in the, or did I miss something in the record? [00:40:27] Speaker 02: I mean, it's voluminous. [00:40:28] Speaker 02: I thought I saw something, but I don't know if that were all of them or not, but at least a few, a handful, that I saw some of them. [00:40:35] Speaker 01: There was a very small handful, but we do not have all of the juror questionnaires to be able to determine if other jurors were similarly situated from their jury questionnaires alone. [00:40:52] Speaker 04: Let me ask you this. [00:40:53] Speaker 04: The questionnaires were not in front of the Nevada Supreme Court. [00:40:57] Speaker 04: Are any of them or all of them in the record now, put in the record later? [00:41:02] Speaker 01: There is a very small number of juror questionnaires in the record. [00:41:06] Speaker 01: The Nevada Supreme Court specifically noted that they were never presented. [00:41:11] Speaker 04: And those that are now in the record in front of us, can we consider them? [00:41:17] Speaker 01: No, Your Honor. [00:41:17] Speaker 04: Or are we foreclosed from considering them because they were not in front of the Nevada Supreme Court? [00:41:22] Speaker 01: You are foreclosed from considering those as they were not part of the record. [00:41:26] Speaker 04: Well, they were part of the record in the trial court. [00:41:28] Speaker 01: They were part of the record of the trial court. [00:41:30] Speaker 01: But you have to look at this case from a consideration, because you're evaluating the Nevada Supreme Court's decision, you have to look at it from the perspective of route records Doyle's counsel provided to the court, or the state district court provided to the court. [00:41:44] Speaker 01: The jury questionnaires were not part of the docket, and they were not presented to the Nevada Supreme Court on direct appeal. [00:41:50] Speaker 04: So in terms of our comparing the questioning on what information was in front of the lawyers, in front of the judge, the only thing we can look at is the transcript? [00:41:57] Speaker 04: That is correct, Your Honor. [00:42:00] Speaker 03: And what do you say to the argument your friend on the other side makes that the mode of proceeding that we were discussing earlier that the Nevada Supreme Court seems to have adopted here seems to create a rule where the prosecutor can strike a bunch of black jurors, and then somebody makes a Batson challenge. [00:42:22] Speaker 03: And if they struck n jurors, they really only need to explain n minus 1 of them. [00:42:28] Speaker 03: Because they say, here's my race neutral explanation for all but one of them. [00:42:35] Speaker 03: I've offered that, and the court accepts that. [00:42:38] Speaker 03: Now we only have one left, and one isn't a pattern. [00:42:40] Speaker 03: So I don't need to explain that one. [00:42:43] Speaker 03: Is that really consistent with Batson? [00:42:47] Speaker 01: Your Honor, it is consistent with Batson. [00:42:49] Speaker 01: Batson does point to two examples of what can be used to determine if there's prima facie evidence of discriminatory intent. [00:42:56] Speaker 01: One is a pattern, and one is the prosecutor's questions and statements made on the record. [00:43:02] Speaker 01: And as stated earlier, the prosecutor did ask some questions of potential prospective jurors in response to their earlier questions. [00:43:10] Speaker 01: But the prosecutor did not make an indication otherwise that they were acting in with discriminatory intent as to Miss Velasquez. [00:43:22] Speaker 03: It says one way to do it is a pattern, but it doesn't say, and I don't know of any case that says that the pattern ceases to be a pattern for purposes of step one once you have explained away some of the strikes at step two that you get to go back. [00:43:40] Speaker 03: So is there a case that says that? [00:43:42] Speaker 01: Your Honor, we only have Hernandez, which does state that if you do make a determination that it is not necessary to do a step one analysis if a race-neutral reason has been given for the steps two and three. [00:43:59] Speaker 01: And that's what the Nevada Supreme Court relied on. [00:44:01] Speaker 01: And that's what the district court relied on below in determining that the Nevada Supreme Court's decision was a reasonable interpretation of federal law. [00:44:08] Speaker 04: When you say a race neutral explanation, let me come back to the question I'd asked you earlier. [00:44:17] Speaker 04: There were two explanations given. [00:44:19] Speaker 04: One was children, and the other one was a brother in prison. [00:44:24] Speaker 04: Now, I want to proceed from the assumption that the first one was not race neutral. [00:44:31] Speaker 04: You're saying that the second one was, but in terms of evaluating permissible objection, we don't need to show that the dominant reason was racially discriminatory. [00:44:43] Speaker 04: All we need to show is that there was something that was racially discriminatory. [00:44:48] Speaker 04: Isn't that right? [00:44:49] Speaker 04: We don't have to show that the dominant reason was discrimination. [00:44:56] Speaker 01: Your Honor, you do have to, you are, [00:45:00] Speaker 01: You're taking two multiple explanations, and you're focusing on one. [00:45:06] Speaker 04: Yes, I am. [00:45:06] Speaker 04: But I'm asking you, why do we get to disregard that, which is what you wouldn't want us to do? [00:45:12] Speaker 01: Your Honor, I'm not asking you to disregard that. [00:45:15] Speaker 01: I'm asking you to consider that one of the reasons that was given was a race-neutral reason. [00:45:20] Speaker 04: Well, but one of the others, at least is the way I'm tempted to look at it, was not race-neutral. [00:45:25] Speaker 01: your honor there are multiple reasons given for both miss samuels and miss smith if there was a nondiscriminatory reason that was given that was unique to the individuals who were struck and was not in common with the other [00:45:40] Speaker 01: structures, then there was a, and the court determines that that was a race neutral reason for striking those individuals. [00:45:51] Speaker 01: And it's conceded that there is no other individual who had that determination. [00:45:56] Speaker 04: Let me ask you this in a slightly abstract way. [00:45:59] Speaker 04: Let's say that I have two reasons for striking the jury. [00:46:03] Speaker 04: One is based on race and the other is not. [00:46:06] Speaker 04: And I just say to the judge, well, listen, one of my reasons is she's black. [00:46:10] Speaker 04: The other one is that she's got this other, am I okay in making the objection when I've got one race-based reason and one non-race-based reason? [00:46:19] Speaker 04: I don't think so. [00:46:22] Speaker 01: That's correct, Your Honor. [00:46:23] Speaker 04: Yeah, so what do we do then with the first one, which is to say, you said one of my reasons is she has kids, and as to white people, that's not a reason. [00:46:34] Speaker 01: Your Honor, all I can state is that was not, that was a basis. [00:46:41] Speaker 01: Other non-black prospective jurors did have children that they were caring for. [00:46:47] Speaker 04: That's exactly what I'm worried about, yes. [00:46:50] Speaker 01: I don't believe, I'm not entirely sure, and I'm not 100% of this. [00:46:55] Speaker 01: I don't know if any others were being cared for by the prospective juror who was in the courtroom, but there was, [00:47:05] Speaker 01: I don't believe that it was discriminatory in and of itself. [00:47:09] Speaker 01: It was part of the reasoning that was given for the jury. [00:47:13] Speaker 01: And I don't believe Batson addresses when there are multiple reasons given for [00:47:20] Speaker 01: When a prosecutor provides multiple reasons for excusing a jury, you can only focus on one of those reasons. [00:47:31] Speaker 04: I think the established case law under Batson is if there is a discriminatory reason that the prosecutor has, that's enough to violate Batson, even though there may be other nondiscriminatory reasons, which is what I think you conceded two minutes ago. [00:47:46] Speaker 01: Your honor, that is correct. [00:47:50] Speaker 01: But we still have to look at the record as a whole. [00:47:55] Speaker 03: Can I ask you the same question I asked your friend on the other side? [00:47:58] Speaker 03: If we conclude that they're right on Velasquez, but you're right on everything else, what do we do? [00:48:11] Speaker 01: Your honor, I do agree that this can be remanded to permit the prosecutor to provide a raise neutral reason. [00:48:17] Speaker 01: I do know that at least one, I believe both of the prosecutors are still living. [00:48:23] Speaker 01: I have not checked on the defense attorney. [00:48:27] Speaker 01: And that would be consistent with circuit case law. [00:48:29] Speaker 03: And so the district court would then just be deciding [00:48:34] Speaker 03: DeNovo, I guess, at this hearing, do I think that the strike against Velasquez was on the basis of race or not? [00:48:45] Speaker 03: Is that right? [00:48:46] Speaker 04: Yes, Your Honor. [00:48:47] Speaker 04: So we don't have to send this back to the state court to do the hearing first? [00:48:52] Speaker 04: The district court can do it itself? [00:48:54] Speaker 01: Your Honor, if this court determines that the Nevada Supreme Court's decision was not entitled to deference, then yes, it could be remitted backward in overview. [00:49:08] Speaker 01: As to the second argument regarding the equitable tolling, the fact remains that once mail was decided in 2005, Doyle continued for another three years to conduct discovery and to continue seeking extensions in order to file the amended federal habeas petition. [00:49:30] Speaker 01: There's no question that once mail was decided in 2005 that the petitioner would have to determine, argue that his claims related back to the original timely petition. [00:49:44] Speaker 01: The scheduling order that was issued in 2000 [00:49:47] Speaker 01: prior to expiring and prior to mail were very clear that the scheduling order did not mandate that any new claims in the amended petition would relate back. [00:50:01] Speaker 01: It did not state that if there was some unknown case that was decided in five years that everything would be ground fathered in. [00:50:09] Speaker 01: There was no indication from the scheduling order that any really amended petition would relate back that would undermine the determination in mail. [00:50:20] Speaker 01: The fact is that mail came out and they continued to delay in filing that first amended petition for another three years. [00:50:27] Speaker 01: And there's nothing in mail or any other case law that permits a petitioner to continue litigating and conducting discovery to attempt to discover new claims. [00:50:42] Speaker 01: There has to be some stopping point at some point that they have to come to the federal court with their final claims. [00:50:52] Speaker 01: And they did that eventually three years later. [00:50:56] Speaker 01: Williams is an opposite. [00:50:58] Speaker 01: In Williams, the petitioner filed his amended petition prior to mail. [00:51:02] Speaker 01: And we're not addressing the status of the claims. [00:51:07] Speaker 01: There was a certain amount of unsettled law prior to mail. [00:51:11] Speaker 01: But once mail was decided, that unsettled law was no longer in effect. [00:51:15] Speaker 01: The petitioner knew he had to satisfy. [00:51:18] Speaker 01: Rule 15C in order to argue his claims related back as of the decision in mail and he took another three years to file his amended federal habeas petition. [00:51:30] Speaker 01: Nothing in the scheduling order misled the petitioner to believe that he was somehow grandfathered in or that he would not be held susceptible to the mail decision. [00:51:42] Speaker 04: Let me go back if I can. [00:51:43] Speaker 04: I understand that your position as to [00:51:48] Speaker 04: how it would work out, but is there anything that prevents us from looking at the questions asked of the veneer persons before the questions are asked of Velasquez in trying to determine whether or not there's a prima facie case? [00:52:02] Speaker 01: Your Honor, according to Batson, you look at the prosecutor's questions and statements as to the juror that was struck. [00:52:10] Speaker 04: I know, but I'm asking comparatively, is there anything that prevents us from looking back at the questions of the earlier jurors to determine whether there's a differential in questioning? [00:52:19] Speaker 01: Your Honor, I don't know that that was necessarily permitted in Batson in 1997, in the Batson line of cases. [00:52:25] Speaker 04: Well, in the Batson line of cases, they say, is there something from which we can infer? [00:52:31] Speaker 04: Is it excluded to, that is to say, we can't look back at questions that were asked before, of the near people before? [00:52:37] Speaker 01: No, Your Honor. [00:52:39] Speaker 04: Okay. [00:52:42] Speaker 01: Unless there are any questions on these two issues or any other, all right, thank you, Your Honor. [00:52:46] Speaker 01: Thank you. [00:53:02] Speaker 00: Thank you, Your Honors. [00:53:03] Speaker 00: There were a few points that I would like to touch upon in rebuttal. [00:53:07] Speaker 00: First, whatever angle that you look at the Nevada Supreme Court's opinion, failing to require the prosecutor to provide race-neutral reasons as to juror of Alaska's was contrary to or an unreasonable application of currently established federal law. [00:53:25] Speaker 00: Either the Nevada Supreme Court determined that Doyle could only establish a prima facie case through a pattern, and that was contrary to Batson, as Batson emphatically requires that you do not need a pattern, or the Nevada Supreme Court merely looked at the pattern, but negated that pattern after the Samuels and Smith strikings were found to be non-discriminatory. [00:53:46] Speaker 00: And that is unreasonable under Batson and Perquette, because it misapplies those two cases [00:53:52] Speaker 00: and conflates the steps in the burden-shifting framework, which the Supreme Court has consistently reaffirmed have to be taken within sequence, but also undermine Baxin. [00:54:02] Speaker 00: because it would allow prosecutors to receive a free strike. [00:54:07] Speaker 00: Second, Your Honor, in reference to the juror questionnaires, while the juror questionnaires were not before the Nevada Supreme Court, they were before the state court, and so this court can consider them under de novo review. [00:54:19] Speaker 00: Moreover, all of the questionnaires for the jurors who were seated [00:54:25] Speaker 00: are within the record, and there are also some questionnaires from jurors who were not seated, but their questioning was still concerning. [00:54:35] Speaker 00: Furthermore, there is evidence in the record of the statements that were given from information in the questionnaires that is more than sufficient to show and raise an inference of discrimination. [00:54:45] Speaker 04: So on what ground can we look at the questionnaires, even though the Nevada Supreme Court did not? [00:54:53] Speaker 00: Under de novo review, if this court finds that the Nevada Supreme Court applied an incorrect legal framework, then this court can review the questionnaires. [00:55:00] Speaker 00: However, a lot of the information that is within the questionnaires is already available within the record during voir dire, because trial counsel pointed to different issues that jurors referenced in their questionnaires within voir dire. [00:55:14] Speaker 00: And the final point that I wanted to make, Your Honors, in regards to Juror Samuels, [00:55:20] Speaker 00: It's important to note that Miller L2 states that the pretextual answer that was given by prosecutors should be considered at step three because it is the totality of all relevant circumstances. [00:55:32] Speaker 00: That's the test. [00:55:33] Speaker 00: Not merely if prosecutors provided a race-neutral reason, it's whether the totality of all circumstances raised create that it was a discrimination that motivated the prosecutor. [00:55:44] Speaker 00: And it's also important to note that whether or not the reason was race-neutral [00:55:49] Speaker 00: is not the test at step three. [00:55:51] Speaker 00: At step three, it's whether or not that race-neutral reason was credible. [00:55:55] Speaker 00: Very likely, a prosecutor will provide a race-neutral reason at step two. [00:55:59] Speaker 00: But at step three, courts have to determine, based on those circumstances in the record, whether it was credible and whether it was plausible. [00:56:06] Speaker 00: And here, as to Juror Samuels, we know that it was not. [00:56:09] Speaker 00: because the prosecutor mischaracterized her, provided a pretextual first reason. [00:56:13] Speaker 00: The prosecutor mischaracterized her testimony in regards to her brother and the prosecutor didn't ask her a single question concerning her brother as it would have had that truly mattered. [00:56:23] Speaker 00: And it's for those reasons that we're asking this court to remand back to the district court for an evidentiary hearing as to the Batson claim and for full consideration on the merits of Doyle's other claims. [00:56:35] Speaker 00: Thank you so much. [00:56:36] Speaker 03: Thank you. [00:56:37] Speaker 03: We thank both counsel for their helpful arguments and the case is submitted and be returned.