[00:00:00] Speaker 00:
Good morning.

[00:00:01] Speaker 00:
Welcome to the Ninth Circuit.

[00:00:02] Speaker 00:
I'm glad to be joined by my colleagues Judge Fletcher and Judge Berzon, and we would just like to ask everybody to, we've got four arguments set for argument today, so try and pay attention to the clock and sum up as the time's expiring.

[00:00:18] Speaker 00:
Let us know if you want to reserve any time for rebuttal.

[00:00:22] Speaker 00:
We'll go ahead and proceed with the first case set for argument, which is Kale versus Holbrook, case number 23-2774.

[00:00:32] Speaker 03:
Good morning, Your Honors.

[00:00:33] Speaker 03:
Excuse me.

[00:00:34] Speaker 03:
Alan Sarkin on behalf of Mr. Kale.

[00:00:36] Speaker 03:
I'd like to reserve three minutes.

[00:00:38] Speaker 03:
I'll watch the clock.

[00:00:40] Speaker 03:
As the Court knows, equitable tolling is about injecting flexibility into a system to prevent inflexible rules from creating injustice.

[00:00:48] Speaker 03:
This case is about giving Mr. Cale, who was a pro se in district court, a fair chance to establish that he was entitled to equitable tolling.

[00:00:57] Speaker 03:
The district court should have ordered an evidentiary hearing.

[00:01:01] Speaker 03:
Mr. Cale did the best he could as a pro se to get facts in front of the court, and the court should have given him.

[00:01:06] Speaker 02:
Could you just tell me what facts in particular you think might have come out or could have been inquired into, or you would inquire into if you represent him at a hearing?

[00:01:17] Speaker 02:
that could meet what standard?

[00:01:21] Speaker 02:
Are we talking about the extraordinary circumstances standard or abandonment or whatever?

[00:01:25] Speaker 03:
Yes, Your Honor, there are really two issues.

[00:01:28] Speaker 02:
First of all, what is the standard that you're talking about?

[00:01:31] Speaker 03:
The two issues as to which he would have presented facts pertain to one, did Mr. Brown represent him on his habeas?

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And second, were there extraordinary facts?

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In terms of the first, both the state and the court erred in treating the written contract as dispositive.

[00:01:50] Speaker 02:
It's clear that Mr. Brown, that that contract was amended in some way because it only... Well, let's say you could establish... I mean, it seemed from the fact that the paralegal

[00:02:01] Speaker 02:
did get involved in at least supporting him on the habeas later, that there was some kind of commitment.

[00:02:10] Speaker 02:
I mean, it might have been a commitment not to have him do a pro se, but to help him, or something like that.

[00:02:15] Speaker 03:
But let's assume that.

[00:02:17] Speaker 03:
All right.

[00:02:17] Speaker 03:
So he would have been able to establish further facts who established there was a contract, there was a promise to represent him on the habeas.

[00:02:25] Speaker 03:
And Your Honor, I will first fully agree that the

[00:02:31] Speaker 03:
factual predicate he lays out is not as clear and as specific as it would have been, and he'd been represented by counsel.

[00:02:37] Speaker 03:
But implicit, I think, in his representations are facts sufficient that he would have been able to then establish at an evidentiary hearing

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that there were extraordinary circumstances in terms of – contrary to what the state suggests, extraordinary circumstances does not require that they be tantamount to abandonment.

[00:02:56] Speaker 03:
It can be other things such as promising to get thing in on time and then failing to do so with repeated promises and so forth.

[00:03:05] Speaker 03:
And that's the sort of thing that I think Mr. Cale

[00:03:08] Speaker 03:
Admittedly, not as explicit as it would have been had I been representing him, but sufficient given the liberal construction that pro se pleadings are entitled to.

[00:03:17] Speaker 04:
So what are those circumstances here?

[00:03:20] Speaker 03:
Well, obviously, I can't refer to facts not in the record.

[00:03:25] Speaker 02:
Well, it would be helpful, actually, if you did.

[00:03:28] Speaker 02:
I mean, not to facts, but to hypotheticals.

[00:03:30] Speaker 04:
You can tell us what might be established in a hearing, right?

[00:03:34] Speaker ?:
OK.

[00:03:34] Speaker 03:
Hypothetically, that Mr. Brown not only agreed to represent Mr. Cale on the habeas, but repeatedly promised that any such habeas would be on time, and that Mr. Cale

[00:03:48] Speaker 03:
checked on that and sought assurances, got the assurances, and despite that, Mr. Brown and his law office allowed the habeas statute to lapse by not filing the PRP in a time that would be consistent with federal rules as opposed to state rules.

[00:04:06] Speaker 00:
Don't we have case law that says that an attorney's miscalculation, even if that's true,

[00:04:11] Speaker 00:
that the attorney's miscalculation of the statute of limitations is not a basis for extraordinary circumstances?

[00:04:18] Speaker 03:
Yes, Your Honor.

[00:04:19] Speaker 03:
The mere miscalculation is not enough.

[00:04:21] Speaker 03:
But we have cases such as Luna and other cases I cited in our opening brief that make clear that if there are repeated assurances, that can constitute extraordinary circumstances.

[00:04:35] Speaker 02:
That's a little peculiar because, I mean, so if you missed the date and you didn't, I mean, any lawyer who undertakes to represent somebody is promising to do it in a timely manner, presumably.

[00:04:52] Speaker 02:
I mean, what difference does it make if you tell them that you can do it in a timely manner?

[00:04:59] Speaker 03:
You know, a line here and there's a question of where you draw it, but we have case law where this court and other circuits have consistently said that repeated assurances that you will get a habeas file bond time is different from simply miscalculated.

[00:05:16] Speaker 02:
Which case, nine circuit cases are you talking about?

[00:05:19] Speaker 03:
Luna is the main case in which we're relying.

[00:05:23] Speaker 03:
But it cites it to a number of other cases.

[00:05:28] Speaker 03:
both in this circuit and others, and that is discussed in detail in our opening brief.

[00:05:32] Speaker 03:
So I agree that Mr. Cale's petition, as I said, is not as detailed as I would have liked it to have been and as it would have been had I been representing him at the time.

[00:05:47] Speaker 03:
But that's why the court should have granted evidentiary hearing.

[00:05:50] Speaker 03:
Recall that, Your Honor, Mr. Brown was under a conflict.

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had admits that he had messed up in terms of the statute of limitations.

[00:06:04] Speaker 03:
And the Supreme Court in Maples v. Thomas points out, when a firm's interest in avoiding damages to its own reputation are at odds with the petitioner's argument, in that case, the attorney had abandoned.

[00:06:18] Speaker 00:
Well, but now you're trying to switch it over to an ineffective assistance counsel claim, it seems like.

[00:06:24] Speaker 00:
No, Your Honor.

[00:06:26] Speaker 00:
I'm not sure what more this adds.

[00:06:29] Speaker 03:
What it adds is the difficulty in Mr. Cale getting things into the record prior to an evidentiary hearing, given that his former attorney is under a conflict.

[00:06:40] Speaker 00:
It seems like that all circles back to the same question, though, which is, what would you have put in?

[00:06:45] Speaker 00:
Because you still have to show that there was a good faith allegation that, if true, would entitle

[00:06:52] Speaker 00:
your client to equitable relief.

[00:06:54] Speaker 00:
And so I mean, all of this, I mean, I don't even think you have to show that I think you don't have to show that there was conflict or any of that.

[00:07:01] Speaker 00:
You just have to show that you had a

[00:07:04] Speaker 00:
a good faith allegation that if true.

[00:07:07] Speaker 00:
And that's what I think we're trying to grapple with.

[00:07:09] Speaker 00:
What is that?

[00:07:11] Speaker 03:
I perhaps took the court down the wrong path.

[00:07:14] Speaker 03:
I mentioned Mr. Brown's conflict only because it relates to the fact that it's harder for Mr. Cale to make a record.

[00:07:23] Speaker 00:
But we're already saying, your claim here is we wanted to create a better record.

[00:07:28] Speaker 00:
The whole question seems to stem on what would that record have been.

[00:07:34] Speaker 00:
At least I'm still looking for something that would meet our standard in Roy that says a good faith allegation, which if true, would entitle your client to release.

[00:07:46] Speaker 03:
And I'm down to my three minutes, but let me try to answer your question.

[00:07:49] Speaker 03:
Again, I can't say things that are not currently in the record, but the kind of things that could come out in hearing would be the kind of things that satisfy the test as discussed in cases like Luna in terms of repeated assurances

[00:08:03] Speaker 02:
And to me, the real mystery here, and what I would not mind knowing more about, is the fact that this paralegal sent him a couple years too late a model petition for him to file in his own name, not in the name of the law firm, and also sent him the record.

[00:08:26] Speaker 02:
So it seems to have gotten reactivated in some way.

[00:08:29] Speaker 02:
I mean, I would be interested to know what

[00:08:32] Speaker 02:
What he was told at that time, were they representing to him that there was still some way to resurrect the case, or what?

[00:08:40] Speaker 03:
That all would be interesting.

[00:08:41] Speaker 03:
I would agree that the errors of counsel that constitute extraordinary circumstances ultimately have to occur before the statute is run.

[00:08:49] Speaker 03:
And I don't dispute that.

[00:08:51] Speaker 03:
But I agree these are some interesting questions that we would hopefully be able to address in an evidentiary hearing, and if I could reserve the rest of my time.

[00:09:01] Speaker 00:
OK, thank you.

[00:09:19] Speaker 01:
Good morning.

[00:09:19] Speaker 01:
May it please the court, Keith Hines for Donald Holbrook.

[00:09:22] Speaker 01:
Starting off with Judge Nelson's question about this claim that he can get an evidentiary hearing just by making good faith allegations that if true entitle him to equitable tolling, this court rejected that exact argument in a case called Ortho versus Yates, 795 F3D 395.

[00:09:43] Speaker 01:
and it starts at 398.

[00:09:44] Speaker 01:
The court rejected that exact argument.

[00:09:48] Speaker 02:
The court said, no, the law- Don't get an evidentiary hearing if you have good faith allegations on which you would be entitled to relay.

[00:09:56] Speaker 01:
No, the court rejected that argument and said the law is not that simple.

[00:09:59] Speaker 00:
The law is... What argument?

[00:10:02] Speaker 00:
About the statute of limitations?

[00:10:04] Speaker 01:
About you can get an evidentiary hearing if Trayvon Kale just makes good-faith allegations that entitle him to equitable tort.

[00:10:10] Speaker 04:
Well, you know, I've not read that case, or maybe I've not read it recently, but if that's what it says, it's wrong.

[00:10:15] Speaker 04:
That can't be the law.

[00:10:17] Speaker 04:
That is to say, if you have good faith allegations that if true would entitle you to relief, it cannot be true that you don't get a hearing on those good faith allegations.

[00:10:25] Speaker 01:
Well, the ruling is that the district court has to look at the sufficiency of the record, and that the record is amply developed.

[00:10:32] Speaker 01:
And if the record is amply developed, then an evidentiary hearing would be futile.

[00:10:37] Speaker 04:
That's a different question.

[00:10:38] Speaker 00:
Yeah.

[00:10:38] Speaker 00:
And that is the rule.

[00:10:39] Speaker 00:
I mean, you might be carving out a little more than you need to in this case.

[00:10:43] Speaker 00:
Because let's take Roy.

[00:10:45] Speaker 00:
Which I have read.

[00:10:47] Speaker 00:
I have not read Wortho.

[00:10:48] Speaker 00:
But Roy says, if you have good faith allegations that have proven, would entitle them to equitable relief.

[00:10:58] Speaker 00:
I thought there wasn't much here.

[00:11:00] Speaker 00:
But he raises the Luna case.

[00:11:02] Speaker 00:
Because our case law also seems to be clear that the miscalculation of the statute of limitations is not enough.

[00:11:09] Speaker 00:
Now we get reference to the Luna case that says miscalculation is not enough.

[00:11:15] Speaker 00:
but apparently repeated insurances could be.

[00:11:21] Speaker 00:
Can you address the Luna case?

[00:11:23] Speaker 01:
So the facts of Luna are not present in this case.

[00:11:25] Speaker 01:
So this record shows.

[00:11:27] Speaker 00:
I mean, he's claiming they are, because he's claiming he could show evidence.

[00:11:32] Speaker 00:
And that would be.

[00:11:33] Speaker 00:
Luna actually said what he says it says.

[00:11:35] Speaker 00:
I don't know.

[00:11:35] Speaker 00:
That might be an open question.

[00:11:39] Speaker 01:
Well, the record here shows John Brown has that declaration on ER 42 and 43 saying he filed the state court personal restraint petition after the federal habeas deadline expired, and he didn't recognize that.

[00:11:53] Speaker 00:
And that's negligence.

[00:11:54] Speaker 00:
I agree with you on that.

[00:11:57] Speaker 00:
The question is, could there have been an evidentiary hearing that

[00:12:02] Speaker 00:
posited this idea that he gave repeated assurances.

[00:12:06] Speaker 00:
And if that's true, would that have made a difference?

[00:12:10] Speaker 00:
Your opposing counsel claims that Luna says that that's true.

[00:12:14] Speaker 00:
I'm going to read it with interest, but I want to know if you have a response to that.

[00:12:19] Speaker 00:
Does Luna say that?

[00:12:20] Speaker 00:
And do we need to look at that?

[00:12:22] Speaker 01:
No, and I would direct the court to Morris versus the state of California, which says, and that's in my response brief, Morris versus the state of California says, you can't just speculate your way into an evidentiary hearing.

[00:12:36] Speaker 01:
You can't make bare allegations.

[00:12:38] Speaker 01:
You need to produce some evidence first.

[00:12:40] Speaker 02:
You're now at an interesting point again.

[00:12:41] Speaker 02:
We want to know, assuming that he made it, on what they have,

[00:12:49] Speaker 02:
and assuming that there are good faith allegations and that the good faith allegations are sufficient.

[00:12:56] Speaker 02:
In other words, we don't need more evidence if we have good faith allegations.

[00:13:02] Speaker 01:
No, and my point is you can't get an evidentiary hearing just based on good faith allegations.

[00:13:06] Speaker 02:
I know that's what you're saying.

[00:13:07] Speaker 02:
We're extremely skeptical of that proposition.

[00:13:10] Speaker 02:
So we would like to know whether, if that is not so, if good faith allegations are good enough.

[00:13:18] Speaker 02:
um, substantively, substantively, what kind of allegations would be enough to get him an evidentiary hearing?

[00:13:27] Speaker 01:
And my answer is going to be somewhat speculative in a way.

[00:13:30] Speaker 01:
If John Brown did something like in Luna, where the attorney dismissed a pro se habeas petition, as this court said, for no good reason.

[00:13:41] Speaker 01:
If John Brown made some promise, I'm going to file your petition soon or shortly.

[00:13:47] Speaker 01:
And he just never did.

[00:13:48] Speaker 02:
Well, the difference may well be that in Luna, at least in part, it appears that the promises

[00:13:57] Speaker 02:
put him in a position where he could have done something differently if he didn't have the promises, right?

[00:14:02] Speaker 01:
In Luna, yes.

[00:14:04] Speaker 02:
Here, at least once the time was passed, there's nothing he could have done.

[00:14:13] Speaker 02:
So any promises would presumably have to be before that.

[00:14:18] Speaker 02:
I don't know.

[00:14:20] Speaker 04:
So what about the following?

[00:14:22] Speaker 04:
I'm speculating, but what if the evidence were to show that Brown says to Mr. Cale, I'm on top of this.

[00:14:31] Speaker 04:
Don't worry about it.

[00:14:34] Speaker 04:
Cale said, well, you know, I'm perfectly prepared to file my own document.

[00:14:39] Speaker 04:
And he says, no, I'm on top of it.

[00:14:41] Speaker 04:
Don't do it.

[00:14:42] Speaker 04:
And then he's not on top of it, but Cael, we have evidence of the record that says Cael relied upon his saying that he was on top of it, and if he had not relied, he would have filed the protective petition on his own.

[00:14:56] Speaker 04:
Is that not enough?

[00:14:58] Speaker 01:
I mean that is very similar to cases like Luna.

[00:15:01] Speaker 01:
Right, that's what I'm saying.

[00:15:02] Speaker 01:
So the problem is, but the problem with doing hypotheticals in this case is that Morris v. the state of California said you can't speculate your way into an evidentiary hearing.

[00:15:11] Speaker 01:
You have to produce evidence first.

[00:15:13] Speaker 01:
Wait a minute.

[00:15:13] Speaker 01:
You can't just make a bare allegation.

[00:15:14] Speaker 04:
Wait a minute.

[00:15:15] Speaker 04:
So you've got to produce evidence that would be produced in the hearing before you even get the hearing?

[00:15:21] Speaker 04:
What if you say I will produce evidence, I need the hearing in order to produce it?

[00:15:28] Speaker 01:
No, Morris versus the state of California said you got to produce affidavits, documentary evidence.

[00:15:33] Speaker 01:
You can't just say, well, here's a bare allegation of this or that.

[00:15:38] Speaker 01:
John Brown said this.

[00:15:39] Speaker 01:
John Brown said that.

[00:15:40] Speaker 01:
No, you have to produce affidavits, documentary evidence first.

[00:15:44] Speaker 01:
Even looking at the facts of Morris, there was a bare allegation of an attorney conflict of interest.

[00:15:49] Speaker 01:
And this court said, no, you can't just make a bare allegation of a conflict of interest and get an evidentiary hearing on that question.

[00:15:56] Speaker 01:
You have to produce evidence first.

[00:15:58] Speaker 02:
Go back to the thing that I'm sort of curious and mystified about, the fact that this paralegal later prepares a petition for him and gets the record for him indicating that the firm, in terms of demonstrating that the firm seemed to have been leading him on in some way because

[00:16:20] Speaker 02:
well after the time had run, there seemed to be showing, representing to him that he can still file a petition.

[00:16:31] Speaker 01:
Well, I think that's speculative in a way, to say.

[00:16:35] Speaker 02:
I mean, they did in fact provide him with, and it came through a paralegal, but I don't know what difference that makes, it's the firm, provide him with a petition filled out,

[00:16:47] Speaker 02:
and send the state court record to him at this later juncture.

[00:16:55] Speaker 01:
I mean, I can just assume for the sake of argument that John Brown did represent Trayvon Cale on the federal habeas petition.

[00:17:02] Speaker 02:
But the issue you're going to run into quickly is... Including some suggestion well after the fact that there was still something that could be done about this.

[00:17:11] Speaker 01:
I don't think that's suggested by that.

[00:17:13] Speaker 01:
The paralegal didn't say anything like that.

[00:17:14] Speaker 01:
We're inherently speculating and inferring that from the record.

[00:17:18] Speaker 02:
And what's the point of sending somebody a petition that's going to be thrown out?

[00:17:22] Speaker 01:
Well, I'm not sure anyone knew that.

[00:17:24] Speaker 01:
I'm not sure.

[00:17:25] Speaker 01:
Chavon Kill could have chavon killed.

[00:17:27] Speaker 02:
Oh, it's a matter of self is a problem, and it's two years after the fact, right?

[00:17:30] Speaker 01:
I mean, this is the problem with speculating.

[00:17:32] Speaker 01:
I mean, Trayvon Kale could have just said, hey, can I get the petition and the record?

[00:17:35] Speaker 01:
And then they send it to him.

[00:17:37] Speaker 01:
I mean, we don't know what's going on.

[00:17:38] Speaker 01:
The record shows right now garden variety negligence because of John Brown's declaration.

[00:17:43] Speaker 00:
That's right.

[00:17:44] Speaker 00:
But I want to point you to your brief at page 17, where you actually cited Luna.

[00:17:51] Speaker 00:
And you said, egregious misconduct by counsel arising to the level of abandonment

[00:17:56] Speaker 00:
may be a basis for equitable tolling if the attorney's misconduct actually prevents the petitioner from filing a timely federal petition.

[00:18:04] Speaker 00:
Isn't that exactly what their argument is here?

[00:18:07] Speaker 00:
That because of the repeated assurances, it's not just that he missed the deadline, but he repeatedly, allegedly, repeatedly misled him that everything was fine, and if he had known that he wasn't gonna file the petition timely,

[00:18:26] Speaker 00:
that he would have perhaps taken it on himself.

[00:18:30] Speaker 00:
Why wouldn't that be enough for an evidentiary hearing to flesh out those facts?

[00:18:34] Speaker 01:
But that allegation is inherently contradicted by the fact that Trayvon Kale filed the petition pro se.

[00:18:42] Speaker 01:
No attorney signed it.

[00:18:44] Speaker 02:
Yes, but it was an aversion that was sent to him by them.

[00:18:49] Speaker 01:
But he filed it himself, pro se, and no attorney signed it.

[00:18:52] Speaker 00:
And there's no evidence an attorney worked on it.

[00:18:55] Speaker 00:
Your point is he didn't independently come forward and file it within the statute of limitations at all.

[00:19:01] Speaker 00:
In fact, apparently he didn't even file it.

[00:19:04] Speaker 00:
Did he file it within the statute of limitations that apparently was mistaken?

[00:19:10] Speaker 01:
No, he didn't file the pro se petition until December 2021, which was years after the deadline passed.

[00:19:17] Speaker 00:
OK, so your response to my question is, even if there were alleged misconduct here, egregious misconduct, it didn't actually prevent him from filing.

[00:19:29] Speaker 01:
Yeah, at any point in May 2018 when direct review ended, he could have filed his pro se petition.

[00:19:36] Speaker 01:
There's nothing in the record, there's nothing stopping him from filing his own pro se petition.

[00:19:41] Speaker 04:
He just didn't do it.

[00:19:42] Speaker 04:
But on the other hand, what do we know as to why he didn't?

[00:19:46] Speaker 04:
I'm going to ask the other side as to what evidence we have now that might produce at least an evidentiary hearing to see whether it's true or not, that he was assured by Brown, listen, don't worry about it.

[00:19:58] Speaker 04:
Don't file anything.

[00:19:58] Speaker 04:
I'm on top of this.

[00:20:00] Speaker 01:
And I'm going to go back to my speculative point.

[00:20:03] Speaker 01:
Like, that is speculation.

[00:20:04] Speaker 01:
And we're just guessing.

[00:20:05] Speaker 00:
And that doesn't get you an evidentiary hearing.

[00:20:09] Speaker 00:
Or whether he was continuing to represent him, right?

[00:20:13] Speaker 00:
Or does that go to the statute of limitations?

[00:20:16] Speaker 01:
It can go to both.

[00:20:17] Speaker 01:
It can go to both parts of that.

[00:20:18] Speaker 04:
It's very clear that he was represented by Brown through the filing of the state PRP.

[00:20:25] Speaker 04:
The state PRP was filed so late that by that time the federal deadline had already passed.

[00:20:32] Speaker 04:
The sin had already been committed during the PRP proceeding or leading up to the PRP proceeding.

[00:20:39] Speaker 04:
It doesn't matter at all whether Brown was representing him later in the attempted federal stuff because Brown had already betrayed him by filing the PRP too late.

[00:20:47] Speaker 01:
And that betrayal would be garden variety negligence, which does not get you equitable tolling.

[00:20:51] Speaker 01:
That's the question.

[00:20:52] Speaker 02:
One other thing is that what you just read from your brief about Luna is wrong.

[00:20:57] Speaker 02:
Because you said that Luna has to be extraordinary circumstances arising to the point of abandonment, and that is not the law.

[00:21:04] Speaker 01:
Luna does say a wide variety of misconduct could constitute extraordinary circumstances for ordination.

[00:21:09] Speaker 02:
That statement in your brief is incorrect.

[00:21:11] Speaker 01:
Yes, yes.

[00:21:13] Speaker 01:
Luna, I'm going to obviously follow this court's decision in Luna.

[00:21:15] Speaker 01:
That is what this court articulated in Luna.

[00:21:19] Speaker 01:
John Brown was merely negligent.

[00:21:22] Speaker 01:
The district court is not required to hold evidentiary hearings on issues that can be resolved just by looking at the record.

[00:21:28] Speaker 01:
And just by looking at the record, we see garden variety negligence.

[00:21:31] Speaker 01:
So there's no abuse of discretion.

[00:21:33] Speaker 01:
I ask this court affirm the district court's decision.

[00:21:35] Speaker 01:
Thank you.

[00:21:36] Speaker 00:
Thank you.

[00:21:37] Speaker 00:
We'll give you time for rebuttal.

[00:21:39] Speaker 03:
Yes, Your Honor.

[00:21:42] Speaker 02:
I'm sorry about that.

[00:21:48] Speaker 02:
Is there a diligence problem here anyway?

[00:21:49] Speaker 02:
I mean, why, he didn't file it right away.

[00:21:52] Speaker 02:
He didn't file it when he was told it was too late.

[00:21:55] Speaker 02:
He filed it a while later.

[00:21:57] Speaker 02:
Is that correct?

[00:21:59] Speaker 03:
Yes, Your Honor, but I think about a month later.

[00:22:03] Speaker 03:
Just a month later, is that right?

[00:22:05] Speaker 02:
I thought it was a year later.

[00:22:08] Speaker 03:
I believe they gave it to him in December and he filed it in January.

[00:22:11] Speaker 03:
I'm sorry, I don't have the dates right in front of me.

[00:22:14] Speaker 03:
I see.

[00:22:15] Speaker 03:
But that diligence would not... Well, no, I'm not talking about when they gave it to him.

[00:22:18] Speaker 02:
I'm talking about when he was told... When was he told that it was too late?

[00:22:26] Speaker 03:
He was not ever told it was too late until the court said it was too late.

[00:22:30] Speaker 02:
I see.

[00:22:31] Speaker 02:
So he was not... Well, could that be egregious circumstances if they didn't... I mean, we know there was interactions with the firm.

[00:22:38] Speaker 02:
after the deadline had passed.

[00:22:43] Speaker 02:
So do we know whether they told him at that point that it was too late?

[00:22:47] Speaker 03:
We do not, Your Honor.

[00:22:48] Speaker 03:
That's not on the record.

[00:22:50] Speaker 02:
But it sort of seems like they didn't, because why are they sending him these petitions?

[00:22:56] Speaker 03:
All right, go ahead.

[00:22:56] Speaker 03:
So just quickly, the suggestion that Mr. Cale could have filed a protective petition

[00:23:02] Speaker 03:
earlier that would undo all of equitable tolling law.

[00:23:05] Speaker 03:
You could say that about any individual, but if an individual is misled by his attorney and assured you don't need to file, you don't need to file.

[00:23:12] Speaker 03:
I've got it.

[00:23:14] Speaker 03:
He still could file a protective, but that can't undo equitable tolling.

[00:23:18] Speaker 03:
Secondly, I'm sorry.

[00:23:21] Speaker 04:
What do you mean that cannot undo equitable tolling?

[00:23:23] Speaker 03:
It cannot deny equitable tolling the ability to file a protective petition in every circumstance.

[00:23:29] Speaker 03:
There are certain circumstances where it might.

[00:23:30] Speaker 04:
Please, please.

[00:23:31] Speaker 04:
Can we say that the other way around?

[00:23:32] Speaker 04:
This is to say cannot undo.

[00:23:34] Speaker 04:
Is it a basis for equitable tolling?

[00:23:37] Speaker 04:
If the attorney says, don't file anything, I've got it.

[00:23:41] Speaker 04:
relying on the statement of the attorney, he doesn't file anything, had the attorney said, well, hey, maybe you better file something, he would have done.

[00:23:48] Speaker 04:
Now, is that a basis for equitable tolling?

[00:23:51] Speaker 03:
If the attorney gives him the notice, then I think there is at least a much closer question, and potentially equitable tolling would be denied due to a lack of diligence, yes.

[00:24:03] Speaker 03:
So very quickly.

[00:24:04] Speaker 04:
No, I'm going to keep going on this.

[00:24:07] Speaker 03:
I'm sorry.

[00:24:07] Speaker 04:
What evidence, if any, do we have at this point as to correspondence between Brown and Kale?

[00:24:14] Speaker 04:
Brown saying, I've got it.

[00:24:15] Speaker 04:
Don't file anything independently.

[00:24:18] Speaker 03:
We do not have that evidence now, which turns to the point I was going to make.

[00:24:20] Speaker 04:
And do we have any reason to think that evidence might exist?

[00:24:23] Speaker 02:
On the record.

[00:24:25] Speaker 03:
There's no evidence on the record that other than Mr. Cale's allegations that I think fairly with a pro se liberal reading suggests the potential for that.

[00:24:36] Speaker 02:
Let me go back to my question, my diligence question.

[00:24:40] Speaker 02:
When was the motion for discretionary review with the Washington Supreme Court denied?

[00:24:49] Speaker 02:
Because he filed, it was filed in 2019, and he didn't file a habeas petition until 2022.

[00:24:59] Speaker 02:
So the question is, why did he wait until 2022 to file the federal habeas petition?

[00:25:05] Speaker 02:
Well, because he was relying on Mr. Brown.

[00:25:08] Speaker 02:
To do what?

[00:25:09] Speaker 02:
Well.

[00:25:11] Speaker 02:
I mean, what I'm saying is, if he had already been informed that the

[00:25:18] Speaker 02:
Washington petition was denied, I know, a year or two ago, right?

[00:25:23] Speaker 02:
I mean, he had to have known that the federal, or he should have known that the federal timeline was running in the meanwhile.

[00:25:32] Speaker 02:
So what I'm trying to figure out was, did it run for more than a year after that, after the denial such that he had to have been late no matter what?

[00:25:45] Speaker 03:
The mandate on the PRP was December 4 of 2021.

[00:25:48] Speaker 03:
The petition was filed January 4 of 2022.

[00:25:52] Speaker 02:
Oh, I see.

[00:25:53] Speaker 02:
So he did file promptly after the?

[00:25:56] Speaker 03:
Mandate, yes.

[00:25:57] Speaker 02:
Mandate, OK.

[00:25:57] Speaker 03:
So look, very quick, as I think Judge Nelson was soliciting,

[00:26:06] Speaker 03:
I don't have a copy of Brown with me.

[00:26:08] Speaker 03:
I didn't respond to it in my reply brief, but I know from prior briefing and other cases that case does not undo the law, that it is allegations, not evidence.

[00:26:18] Speaker 03:
We'll look at that.

[00:26:22] Speaker 03:
Although you quote what the government, what the state says regarding Luna, they're still wrong to say that it needs to arrive to the level of abandonment.

[00:26:29] Speaker 02:
He agreed with that.

[00:26:30] Speaker 02:
He agreed that he was wrong.

[00:26:32] Speaker 03:
All right.

[00:26:34] Speaker 03:
Unless the court has other questions, I'm prepared to submit.

[00:26:37] Speaker 00:
Thank you.

[00:26:38] Speaker 00:
Thank you both, counsel, for your arguments in the case.

[00:26:41] Speaker 00:
The case is now submitted.