[00:00:09] Speaker 01:
are okay with it, I would like to preserve two minutes on rebuttal.

[00:00:12] Speaker 01:
Okay, please, we'll let you talk.

[00:00:15] Speaker 01:
Mr. Blackman is entitled to equitable tolling based on the severe physical and mental impairments that he endured during the limitation period.

[00:00:25] Speaker 01:
His severe impairments included things like extreme delusional thinking, schizophrenia, memory lapses, blindness, and hard hearing, and these all constituted the kinds of

[00:00:42] Speaker 01:
making timely filing impossible.

[00:00:46] Speaker 02:
And yet, despite his circumstances, he exercised reasonable diligence and sought assistance with what he couldn't do alone.

[00:00:55] Speaker 02:
So, on the reasonable diligence prong, the district court says that he filed these behaviors

[00:01:08] Speaker 02:
accept the student's existence with the existence he had, the district court reasoned he could have filed the federal hearing.

[00:01:16] Speaker 02:
So why is that wrong?

[00:01:18] Speaker 01:
Your Honor, that's wrong because the bill's test explicitly states that the district court should examine whether the petitioner's mental impairment prevented him from communicating with or sufficiently supervising any assistance that he obtained.

[00:01:34] Speaker 02:
And how does that work out here?

[00:01:44] Speaker 02:
the district court focused on?

[00:01:47] Speaker 02:
Yes, Your Honor.

[00:01:48] Speaker 01:
He did file several, say, habeas petitions during the limitation period.

[00:01:53] Speaker 01:
However, those were entirely handled by an incarcerated advocate, and that advocate submitted a

[00:02:04] Speaker ?:
no way effectively monitored his assistance or communicated with him.

[00:02:11] Speaker 01:
And we can see that declaration in October 2019.

[00:02:18] Speaker 01:
Mr. France, his incarcerated advocate, stated that he had to do his best to sift through Mr. Blackman's ramblings.

[00:02:26] Speaker 01:
It was difficult to keep his train of thought in a nonsensical fashion.

[00:02:31] Speaker 01:
And he gleaned most of the facts from

[00:02:41] Speaker ?:
so mentally ill that it nearly incapacitated him.

[00:02:46] Speaker 01:
And so because of that, we can see that on page 48 of the excerpt of record in the report and recommendation, the report states that even if he needed assistance of a fellow inmate, he did have access to such assistance throughout the limitation period.

[00:03:05] Speaker 01:
However, merely having that access is not the equivalent of

[00:03:15] Speaker 01:
obtain and so while we commend him for obtaining that assistance which shows that he exercised diligence with what he couldn't do alone he was unable to sufficiently supervise Mr. Blackman during that period and but for his mental illnesses and his physical impairments he wouldn't have been able to monitor what his incarcerated advocate was doing on

[00:03:42] Speaker 02:
under bills, if somebody meets the first prong of mental impairment, then per se they meet the second prong because they wouldn't have the sufficient mental ability to supervise.

[00:03:57] Speaker 01:
Your Honor, the facts in this case do suggest that, in fact, because in spite of his physical

[00:04:17] Speaker 01:
help him even though he wasn't able to actually monitor.

[00:04:21] Speaker 02:
So either with reasonable assistance he was able to file necessary filings or if you're mentally impaired you're excused from filing timely filings because you couldn't supervise

[00:04:42] Speaker 01:
Your Honor, it's our position that Mr. Blackman is entitled to equitable tolling because he does meet both prongs of the bill's tests.

[00:04:51] Speaker 01:
He did have sufficiently severe physical and mental impairments.

[00:05:07] Speaker 01:
In January of 2019, squarely within the limitation period, Mr. Blackmon expressed it was his belief that the FBI was investigating his case on his behalf, and that they were going to get back to him.

[00:05:24] Speaker 01:
He had voices in his head that were telling him,

[00:05:43] Speaker 00:
other he filed state petitions that if he had just filed them in federal court instead would have met the deadline so how do we deal with that I don't it's a little hard to figure out how we can't say he was capable of filing it in federal court instead given that he filed it in state court you're exactly right your honor however it's our position that all of that cuts in favor of the fact that mr. Blackman was in no position to

[00:06:10] Speaker 01:
that his incarcerated advocate was doing.

[00:06:12] Speaker 01:
And so, you know, we don't have to speculate whether Mr. Blackmon was monitoring or communicating with his advocate.

[00:06:23] Speaker 01:
He was not.

[00:06:24] Speaker 01:
That was included in the France declaration and also documented throughout his medical documents.

[00:06:31] Speaker 01:
And, you know, this is a reasonable standard, not maximum feasible diligence.

[00:06:41] Speaker 01:
him to obtain that support and that assistance and his inability to actually supervise cuts in favor according to the Bills versus Clark test that he was unable to

[00:07:10] Speaker 03:
Other than the visual impairment, is there anything in the record that shows that he suffered additional ailments that he hadn't suffered prior to that date?

[00:07:20] Speaker 01:
Your Honor, there's also a hearing impairment that also inhibited his ability to effectively communicate with

[00:07:37] Speaker 01:
records are a little bit iffy as far as exactly when his hearing impairment was initially identified.

[00:07:48] Speaker 01:
Did you want to save some time for rebuttal?

[00:07:51] Speaker 01:
Yes, Your Honor.

[00:08:43] Speaker 04:
assistance of counsel.

[00:08:45] Speaker 04:
Before I continue to address what was raised by Petitioner's Council here today, I did want to address two very quick issues.

[00:08:54] Speaker 04:
The first is the issue of

[00:09:15] Speaker 04:
are asking this court to consider issues outside of the appellate record is highly inappropriate and we would ask the court to not give it any credence.

[00:09:27] Speaker 04:
The second is the fundamental principle of

[00:10:03] Speaker 00:
I was actually wondering about whether they were just

[00:10:34] Speaker 04:
that there were any records that show that he had physical impairments during that limitations period.

[00:10:41] Speaker 04:
And therefore, we would think it would only be appropriate in this case.

[00:11:57] Speaker 04:
280 days.

[00:11:59] Speaker 04:
In theory, if 280 days of cap tolling were given, I believe that would make the petition timely.

[00:12:07] Speaker 04:
I believe your Honor's question, though, was about statutory.

[00:12:11] Speaker 00:
No, this is what I was asking about.

[00:12:13] Speaker 00:
So the 280 days, I thought your position was

[00:12:28] Speaker 04:
would make much of a difference if my math is correct.

[00:13:03] Speaker 02:
Um, yes

[00:13:32] Speaker 04:
than not, that the petitioner handled the first two state habeas petitions by himself.

[00:13:38] Speaker 04:
The reason why it looks that way is because when you look at the signature blocks of the four state habeas petitions that were filed in this case, the first two state habeas petitions only have Mr. Blackman's signature on them.

[00:13:52] Speaker 04:
The third state habeas

[00:13:59] Speaker 00:
brief?

[00:14:00] Speaker 00:
I don't remember this signature argument.

[00:14:04] Speaker 04:
We did not emphasize the signatures, Your Honor.

[00:14:07] Speaker 04:
Did you talk about it at all?

[00:14:09] Speaker 04:
We did mention that Mr. Blackman both filed petitions on his own and with assistance, I believe.

[00:14:18] Speaker 04:
However, even if that were not to be considered, I would say to address

[00:14:32] Speaker 04:
is being relied on a case from the First Circuit called Riva v. Fico.

[00:14:37] Speaker 04:
And in that case, what had happened was a petitioner's father had reached out to private counsel, had asked that counsel, can you please file a petition on behalf of my son?

[00:14:48] Speaker 04:
And the counsel did that without ever discussing the issue with the petitioner.

[00:14:53] Speaker 04:
And the petitioner, without any dispute,

[00:15:19] Speaker 04:
March 21, 2020, he says, I hired Carl Sprantz to assist me.

[00:15:25] Speaker 04:
And then in that declaration, he also says that I was the one that filed the state habeas petitions.

[00:15:32] Speaker 04:
In other medical records, Mr. Blackman says, I am nervous about the paperwork that I filed.

[00:15:49] Speaker 04:
The second point about supervising, though, is I think it's incorrect to say that there was no communication between Mr. Blackmun and Mr. Frantz.

[00:16:25] Speaker 03:
case.

[00:17:06] Speaker 04:
Like in Gonzales v. Aguilar, where those opportunities arose, they found that a preempt for evidentiary hearing would not be appropriate, and that's the same in this case.

[00:17:16] Speaker 04:
The second reason is that we have enough evidence in the record to be able to definitively establish that equitable tolling would not be appropriate in this case.

[00:17:31] Speaker 04:
We see that from the medical records, which show that petition was only housed in the Enhanced Outpatient Program.

[00:17:56] Speaker 00:
coming today making a new argument that I really don't see in your brief that we should be able to tell that he actually filed his state petitions himself and that that shows something more about his competence.

[00:18:05] Speaker 00:
I mean, maybe we do need a hearing.

[00:18:35] Speaker 02:
I mean, it has no legal significance that he was helped by a jailhouse lawyer.

[00:18:40] Speaker 02:
It's not an actual journey.

[00:18:43] Speaker 02:
Isn't that right?

[00:18:44] Speaker 02:
I'm sorry, Your Honor.

[00:18:45] Speaker 02:
Could you read this question?

[00:18:46] Speaker 02:
I don't think that relying on a jailhouse, another inmate, another

[00:19:29] Speaker 00:
So you're arguing both that he did this without assistance and that he had assistance.

[00:19:35] Speaker 04:
I will respectfully withdraw the argument that he did it without assistance or with assistance.

[00:19:57] Speaker 04:
The judicial court correctly found that because of that, he should not be entitled to equitable tolling.

[00:20:03] Speaker 04:
And that's based, if all four CAA's petitions were filed with assistance of a jailhouse lawyer, then this case would fall squarely under the Stancil case.

[00:20:12] Speaker 04:
And therefore, equitable tolling should not be granted.

[00:20:14] Speaker 04:
And you're over, Captain.

[00:20:16] Speaker 04:
Oh, I apologize.

[00:20:18] Speaker 04:
Thank you.

[00:20:38] Speaker 01:
He was housed in the Enhanced Outpatient Program, one level below a mental health crisis bed.

[00:20:46] Speaker 01:
Mr. Blackmon was someone who cannot even read his legal documents by himself.

[00:20:53] Speaker 01:
He was additionally severely hearing impaired.

[00:20:58] Speaker 01:
Mr. Blackmon believed that he was telepathic.

[00:21:02] Speaker 00:
So can I ask, what difference do you think an evidentiary hearing would make here?

[00:21:17] Speaker 01:
that it itself and the magistrate judge identified were missing from the record.

[00:21:23] Speaker 00:
But it seems like the district court thought that the fact that these state petitions were pretty adequate and were filed during the limitations period was all that we need to know to show that he could have found a federal one.

[00:21:34] Speaker 00:
How would an evidentiary hearing undermine that?

[00:21:38] Speaker 01:
Well, to be clear, our position is that the magistrate judge erred in that determination because it's not merely acts

[00:21:49] Speaker 01:
and monitoring the assistance that's obtained.

[00:21:52] Speaker 01:
So that was clear error on the district

[00:22:25] Speaker 02:
But you can do with reasonable assistance, the second problem.

[00:22:29] Speaker 02:
And we know he filed the state habeas.

[00:22:32] Speaker 02:
So what would the evidence show about this second problem?

[00:22:46] Speaker 01:
for all of France to be brought in and questioned about exactly what Mr. Blackman was able to help him with or not able to help him with, and the exact scope of that assistance.

[00:23:00] Speaker ?:
Okay.

[00:23:00] Speaker 02:
I think we have your argument.

[00:23:02] Speaker 02:
You're over time.

[00:23:03] Speaker 02:
Thank you.

[00:23:04] Speaker 02:
Thank you, Your Honors.

[00:23:06] Speaker 02:
The case of Blackman v. Cisneros is submitted.