[00:00:13] Speaker 01: Our next case this morning is Jacobs versus Thornell, number 2216822. [00:00:35] Speaker 01: Ms. [00:00:36] Speaker 01: Carlin. [00:00:45] Speaker 05: Good morning. [00:00:46] Speaker 05: May it please the court. [00:00:47] Speaker 05: My name is Molly Carlin. [00:00:49] Speaker 05: I'm an assistant federal public defender here in the district of Arizona. [00:00:53] Speaker 05: I represent Mr. Danny Jacobs who is here in court with us today and I'd like to reserve two minutes. [00:01:00] Speaker 05: Now Mr. Jacobs never believed that he had committed kidnapping when he was home taking care of his daughter. [00:01:07] Speaker 05: the police tried to come into his house? [00:01:09] Speaker 02: Ms. [00:01:09] Speaker 02: Carlin, it really doesn't matter in this case. [00:01:12] Speaker 02: I mean, I know we're supposed to personalize the case, but the only issue in front of us, I think, I want to see if you agree with this, is whether or not we should either, whether we should circulate to the entire court your petition for initial rehearing in bank. [00:01:28] Speaker 02: or ourselves somehow initiate the unbanked activity. [00:01:31] Speaker 02: Correct. [00:01:32] Speaker 02: Because under existing case law in this circuit, you lose. [00:01:36] Speaker 02: Correct. [00:01:36] Speaker 02: So here's what troubles me about the case, wholly apart from whether or not our prior case law is right or wrong or ought to be reconsidered. [00:01:46] Speaker 02: Under the rule adopted by the second and third circuits, don't you still lose? [00:01:52] Speaker 05: No, Your Honor, and I think WAB speaks to that most clearly in the Second Circuit. [00:01:58] Speaker 02: Well, let me tell you why I think you have a problem. [00:02:01] Speaker 02: The Second Circuit case, Ching and others say, look, the district court can't act on the motion to amend while there's an appeal pending, correct? [00:02:13] Speaker 05: Yes. [00:02:14] Speaker 02: And it also says, in the absence of a remand from our court to the district court, [00:02:21] Speaker 02: The motion to amend in the Third Circuit opinion says the same thing, then does become a second or successive petition and should be analyzed as such. [00:02:31] Speaker 02: Both, both Ching and, I forget, it's an Italian name, the other case, Centarelli, say that quite clearly. [00:02:40] Speaker 02: And in this case, because, because the appeals are all done, we can't remand your case to the district court. [00:02:47] Speaker 02: There's nothing in front of us anymore. [00:02:49] Speaker 02: And so, [00:02:50] Speaker 02: even if we were to adopt the rules in those circuits, it seems to me it wouldn't help Mr. Jacobs out. [00:02:56] Speaker 02: Tell me why I'm wrong. [00:02:57] Speaker 05: So while I've actually considered the question of whether the denial of a COA rendered a [00:03:08] Speaker 02: a new claim filed in the interim, second or successive, which is where- I'm assuming for a moment that your claim filed in the meantime wasn't second or successive when filed. [00:03:21] Speaker 02: That's what the Second Circuit and the Third Circuit say. [00:03:24] Speaker 02: And even the denial of a COA doesn't make it one. [00:03:27] Speaker 02: But all the time for appeal, your appeal on the original judgment is final, right? [00:03:31] Speaker 02: You agree to that? [00:03:32] Speaker 04: Um, it, it is when we, you could have sought cert and you didn't. [00:03:38] Speaker 02: It's not, it's not, it, it becomes final at some point in the history of the world. [00:03:42] Speaker 02: And it seems to me once all your appeal appellate remedies are exhausted, whether they're through COA or cert, it's a final judgment. [00:03:50] Speaker 02: And that's what, that's essentially what the second, that's what the second and third circuit said is that if, if we don't remand somewhere along the way on your appeal, then [00:04:02] Speaker 02: Your, your motion to amend while not a second or successive petition when filed becomes one when all appellate remedies have been exhausted. [00:04:12] Speaker 02: And so that's what I'm having trouble with. [00:04:14] Speaker 02: You did exhaust all your appellate remedies here. [00:04:16] Speaker 02: Did you not? [00:04:17] Speaker 05: So we filed the motion to amend on the same day that cert would have been. [00:04:22] Speaker 02: So, and, and, and, but didn't assume that I'm right that these cases say that once your appellate remedies are exhausted. [00:04:32] Speaker 02: that petition, that motion, even if not technically second or successive when filed, becomes second or successive. [00:04:39] Speaker 02: And then Judge Sotomayor says that clearly in a footnote. [00:04:44] Speaker 02: Santorelli says exactly the same thing. [00:04:48] Speaker 02: If that's right, then why wasn't it rendered second or successive by the expiration of your time for appeal? [00:04:57] Speaker 05: Are you saying by our failure to move for remand on that day? [00:05:03] Speaker 02: We don't have anything we can send back to the district court anymore. [00:05:09] Speaker 02: Your petition was finally, initial habeas petition, was finally adjudicated when the time to seek cert was expired. [00:05:19] Speaker 02: And in those cases, what both courts said is, look, as long as, well, if we still have the case, your petition isn't final. [00:05:27] Speaker 02: because we can send it back. [00:05:29] Speaker 02: But they also said, once all appellate proceedings are done, then it does become second or successive. [00:05:36] Speaker 02: And so, assuming that I'm describing those cases right, and you may think I'm not, I don't see how it helps Mr. Jacobs in this case. [00:05:47] Speaker 05: So you're raising a point that I don't think anyone has actually mentioned before, that the district court didn't mention, and that hasn't been raised in the brief. [00:05:54] Speaker 03: It is certainly relevant whether this is [00:05:57] Speaker 03: if we were going to have an on-bank proceeding on the underlying question that you're trying to raise. [00:06:05] Speaker 03: This is not a good case. [00:06:07] Speaker 05: Well, I agree that this is an important question, and I certainly wish we had talked about it before. [00:06:14] Speaker 05: I think that we [00:06:18] Speaker 05: In retrospect, what we might have done is moved to remand on the same day that we filed our motion to. [00:06:26] Speaker 03: But moved where? [00:06:27] Speaker 03: I mean, you have a COA in our court denies, in some sense, you never had an appeal pending. [00:06:35] Speaker 03: I understand that may not matter. [00:06:36] Speaker 03: But certainly by the time the cert petition was filed, you had nothing pending in this court. [00:06:42] Speaker 03: So if you were going to file anything, it would have had to be in the Supreme Court. [00:06:47] Speaker 03: assert petition saying you should send the whole thing back to be reopened, maybe, but you didn't file that either. [00:06:54] Speaker 03: So there was nothing to which a remand request could have attached. [00:06:59] Speaker 05: So just if I can correct you procedurally, we didn't file a cert petition. [00:07:04] Speaker 04: I know you didn't file a cert petition. [00:07:06] Speaker 05: We could have moved to recall the mandate and for remand. [00:07:12] Speaker 03: I suppose you could have filed a cert petition that somehow [00:07:16] Speaker 03: requested a remand, but you didn't do that either. [00:07:19] Speaker 03: Another problem, as far as I can tell with this case, is that all that was filed in the district court was a Rule 15 motion to amend. [00:07:34] Speaker 03: There was nothing to amend. [00:07:36] Speaker 03: There was nothing in the district court. [00:07:41] Speaker 05: I see what you're saying. [00:07:46] Speaker 05: At the time we believed we were following what the guidance of the second and third circuits were. [00:07:55] Speaker 05: We were kind of in a weird position because there was no law to follow in this circuit. [00:08:03] Speaker 02: You do agree with Judge Berzon that when you filed the motion to amend in the district court [00:08:09] Speaker 02: The district court could not act on that motion to amend, whether under EDPA or otherwise. [00:08:15] Speaker 03: But not because of our case. [00:08:16] Speaker 01: The case was on appeal. [00:08:18] Speaker 03: There's nothing in the district court to amend. [00:08:20] Speaker 01: Ms. [00:08:20] Speaker 01: Carlin, why didn't most of these cases are Rule 60 cases? [00:08:23] Speaker 01: Can you explain the choice for Rule 15 over Rule 60? [00:08:28] Speaker 05: I do think it's very clear under Gonzalez that Rule 60B is exclusively for reopening claims that have already been adjudicated. [00:08:39] Speaker 05: or, excuse me, claims that have already been raised that were dismissed on procedural grounds. [00:08:46] Speaker 05: But I think there's a very important distinction between Rule 60 and remand, which is that Rule 60 can be raised long after the case has gone up through cert and years later, and you can still bring a Rule 60 claim. [00:09:03] Speaker 02: We would analyze that as a second or successive petition, would we not? [00:09:08] Speaker 05: No, not at all. [00:09:10] Speaker 02: Well, isn't some of the case law dealing with Rule 60 that treats it as a second or successive petition? [00:09:16] Speaker 05: Well, a true Rule 60-B motion can be entertained years later if it seeks to reopen a claim that was previously raised but was not adjudicated because it was dismissed on procedural grounds. [00:09:34] Speaker 05: It was wrongly dismissed on procedural grounds. [00:09:36] Speaker 02: Well, let me ask you the question slightly differently. [00:09:39] Speaker 02: Let's assume we just went to an en banc court and the en banc court adopted the second circuit rule. [00:09:48] Speaker 02: What would it do for your client? [00:09:49] Speaker 02: What's the relief at the bottom of the thing say? [00:09:54] Speaker 02: We can't order the amendment of a petition that's finally been adjudicated, can we? [00:10:03] Speaker 05: I think what we thought we were doing, at least, and I do see I'm running short on time, is we did request a stay. [00:10:09] Speaker 05: We thought that the court... A stay by whom? [00:10:14] Speaker 05: Of what? [00:10:15] Speaker 05: By the district court of the current... District court didn't have anything to stay. [00:10:20] Speaker 02: It wasn't in front of it anymore. [00:10:21] Speaker 05: Right, which is why we felt the district court didn't rule on it and couldn't rule on it. [00:10:25] Speaker 03: And that ties directly into the problem [00:10:30] Speaker 03: of why you're not in the same posture as the Second and Third Circuit cases, because in those instances, the district court can give an indicative ruling and the appellate court could remand for the implementation of the indicative ruling, but we don't have that circumstance here. [00:10:47] Speaker 05: So this seems to be ultimately a procedural error on my part. [00:10:51] Speaker 02: Well, whether it's a procedural error on your part or not, one of the questions is, even if we were inclined to ask the court [00:10:59] Speaker 02: the whole court, we can't make that decision to reconsider our prior precedents. [00:11:05] Speaker 02: It doesn't strike me as this case is in the right posture for us to do so. [00:11:10] Speaker 02: That's what I'm really concerned about. [00:11:14] Speaker 01: You can take, why don't you take 30 seconds to wrap up and answer any concerns raised by Judge Hurwitz? [00:11:20] Speaker 05: Sure. [00:11:21] Speaker 05: I mean, I guess I feel that this case is, because there was no guiding precedent on that point, and I think the cases are [00:11:29] Speaker 05: unclear, even in the second and third circuits, as to what the correct vehicle is, because some of those cases do say 60B is okay. [00:11:39] Speaker 05: Some say supplement, some say amend, that there wasn't really a clear guiding vehicle. [00:11:45] Speaker 03: But they all had a mechanism for getting back to the district court, and we don't. [00:11:56] Speaker 03: While the case was pending. [00:11:58] Speaker 03: There was no mechanism to get back to the district court. [00:12:03] Speaker 03: That's the case is set up. [00:12:05] Speaker 05: Even in Judge Fletcher's concurrence, he doesn't specify what the mechanism there . [00:12:09] Speaker 05: . [00:12:09] Speaker 05: . [00:12:10] Speaker 05: Excuse me. [00:12:11] Speaker 05: Judge Fletcher's concurrence in Balboa and it doesn't specify what the mechanism would be to return to the district court. [00:12:16] Speaker 03: We do these things and we saw what happened in those cases and we know what it would be. [00:12:24] Speaker 03: There would be a motion to [00:12:25] Speaker 03: remand, there would be a request for an indicative ruling, and then we call it a limited remand sometimes, but there's a road. [00:12:37] Speaker 03: But there's no road once the, particularly when you didn't file for cert. [00:12:43] Speaker 03: I mean, maybe you could have filed a cert request or something, or something while the cert was at least open, but there just doesn't seem to be a mechanism. [00:12:52] Speaker 02: We're sought to recall the mandate, as you say. [00:12:54] Speaker 02: at that time, but you're not even seeking to recall it now. [00:13:00] Speaker 05: I guess I'm wondering if the stay motion would have the effect nonetheless of continuing the federal proceedings while... It wasn't granted. [00:13:13] Speaker 03: It was pending, didn't you? [00:13:15] Speaker 03: While the case was open. [00:13:17] Speaker 05: We did request a stay, which the court didn't address, which we understood didn't address because it was lacking jurisdiction. [00:13:24] Speaker 03: I'm sorry? [00:13:24] Speaker 03: Before the cert petition time had run. [00:13:26] Speaker 03: That's when you... Yes. [00:13:27] Speaker 05: Yes, well, we understood that the Court didn't address it for lack of jurisdiction. [00:13:31] Speaker 05: And so I think we were kind of in a Gordian knot, or we felt we were in a Gordian knot situation. [00:13:36] Speaker 02: Yeah, I understand. [00:13:37] Speaker 02: You take the cases as they come to you, too. [00:13:41] Speaker 01: Thank you, Ms. [00:13:41] Speaker 01: Carlin. [00:13:42] Speaker 01: We'll give you a minute for rebuttal. [00:13:44] Speaker 01: Mr. Knobloch? [00:13:45] Speaker 00: Good morning, Your Honors. [00:13:50] Speaker 00: May it please the Court, Eric Knobloch, attorney representing [00:13:54] Speaker 00: Ryan Thurnell. [00:13:57] Speaker 00: In answer to your question, Judge Horowitz, if an unbox does adopt the Second Circuit, my reading of the case is that it is at the time of filing and not whether or not any appeal has completed. [00:14:12] Speaker 02: No, no. [00:14:13] Speaker 02: The Second Circuit is clear that filing a motion to amend a complaint while a case is on appeal is not a second or successive petition. [00:14:24] Speaker 02: And that's, of course, the position that Ms. [00:14:27] Speaker 02: Carlin would like our court to adopt. [00:14:30] Speaker 02: My problem is that the rest of the Second Circuit opinion says, but you lack the ability to address that motion to amend district court while it's on appeal. [00:14:41] Speaker 02: And the only way you get that ability back is if we somehow send the case back to you. [00:14:45] Speaker 00: And that's how I read the Santorelli case as well. [00:14:48] Speaker 00: And I think the distinction here too as well is that this is not just trying to amend an existing claim that has been procedurally defaulted. [00:14:56] Speaker 00: This is attempting to add a new claim. [00:14:59] Speaker 00: And both the district court and the Jacobs in this court have agreed that this is a new claim that they're trying to bring. [00:15:08] Speaker 02: And I take it, Mr. Jacobs, Ms. [00:15:11] Speaker 02: Carlin also agrees that it doesn't fit within the gateways [00:15:15] Speaker 02: The issue is probably in front of us, whether or not to grant leave to proceed as a second or successive petition, but she doesn't claim it fits within any of the 2254 gateways. [00:15:31] Speaker 00: Correct, yes. [00:15:31] Speaker 00: There's no new, I believe it's new reliable evidence or new constitutional law that is applied retroactively. [00:15:41] Speaker 00: Balbuena and Beatty both do bar the district court from reviewing that. [00:15:49] Speaker 00: That is based on, it's a good reason, based on procedural rules, because as the judges have recognized, there is no jurisdiction in the district court to consider such a motion to amend. [00:16:01] Speaker 03: But there are ways to get it back before the district court, and that was what happened in the second and third circuits. [00:16:10] Speaker 03: So the premise of those opinions, which is it's over forever or it's just not accurate in terms of how the procedural rules work, but it may be accurate in this case. [00:16:23] Speaker 00: Correct. [00:16:24] Speaker 00: And that's why I think this is not a very good vehicle to bring or not a good case to bring this to establish to overturn Beatty or Balbuena. [00:16:33] Speaker 02: I guess I'm asking you for an advisory response. [00:16:37] Speaker 02: But in a different case, even if we retain Beatty and Balbuena as our rule, somebody filed a motion to amend in the district court, it would be a second or successive petition. [00:16:48] Speaker 02: Could the Court of Appeals remand for an indicative ruling on it? [00:16:53] Speaker 00: If under the second and third, if it's... Under our existing case law. [00:16:59] Speaker 02: Our existing case law doesn't seem to treat... No. [00:17:02] Speaker 02: It would be as soon as that decision is made... So we couldn't remand for an indicative ruling because it was a second or successive petition when filed. [00:17:11] Speaker 02: Correct. [00:17:11] Speaker 02: So that might be a good reason in some appropriate case to adopt the second and third circuit rule and find out where... Because if the district court would have denied it anyway, it doesn't make any difference, does it? [00:17:23] Speaker 03: My understanding is that there are at least two cases in this court being held for this one on this issue. [00:17:31] Speaker 03: And what the exact facts are, I don't know. [00:17:35] Speaker 03: But there may be, so it's a recurring issue, and it's one that may well merit on-bank consideration in an appropriate case. [00:17:47] Speaker 03: Do you have any, I gather your argument is that that isn't so, [00:17:52] Speaker 03: original opinions were correct. [00:17:54] Speaker 03: Again, for an advisory opinion, do you want to tell us why? [00:17:58] Speaker 00: So I'm not aware of those other existing cases. [00:18:01] Speaker 03: I don't know the facts of them, but I know they exist. [00:18:02] Speaker 00: But I do believe that Balbuena and Beatty is correctly decided, procedurally, like I discussed. [00:18:10] Speaker 00: The district court has no jurisdiction unless it is remanded or put back forward. [00:18:13] Speaker 03: I know, but our case law doesn't allow the remand. [00:18:15] Speaker 03: That's the problem. [00:18:17] Speaker 03: Our case law says it's over, it's over, it's over. [00:18:20] Speaker 03: Do you agree with that? [00:18:21] Speaker 00: Yes. [00:18:22] Speaker 00: And then it also establishes EDCA's goals of preventing delay and promoting finality. [00:18:29] Speaker 01: Well, yeah, the question is finality of what? [00:18:33] Speaker 01: And sometimes when we think about final judgments, we would think about them in the posture of there's nothing more you can do. [00:18:41] Speaker 01: It would include proceedings before our court on appeal, right? [00:18:45] Speaker 01: Correct. [00:18:47] Speaker 00: Yeah. [00:18:47] Speaker 00: And so under Balbuena and Beatty, [00:18:49] Speaker 00: that does not take into consideration appeals unless there's a limited remand. [00:18:53] Speaker 01: Why isn't that a better understanding of final judgment of our law and what it takes to be a final judgment to say it's not final till you're done with us up here? [00:19:02] Speaker 00: Well, and I think if under that circumstance the court does do a limited remand, then [00:19:10] Speaker 00: then I think that would potentially open up, under that limited remand, a circumstance that they could amend for, let's say, a procedural default to establish, well, hey, there's another, there's a miscarriage of justice, or something along those lines. [00:19:29] Speaker 02: See, that's why I was asking. [00:19:30] Speaker 02: I think I read our case law the same way you do and as Judge Berzon suggests, which is that we can't [00:19:37] Speaker 02: While the case, we can't, if somebody files either a Rule 60 motion or a Rule 15 motion in the district court while an appeal is pending, send it back to consider that because our case law treats it as a second or successive petition. [00:19:51] Speaker 02: If we remand for some other reason, sure. [00:19:55] Speaker 02: What strikes me is the virtue of the Second and Third Circuit approach is that if we see a motion to amend, it looks really, we can say to the district judge, would you have granted it? [00:20:05] Speaker 02: If the district court says no, [00:20:07] Speaker 02: We don't have to worry about whether it's second or successive. [00:20:10] Speaker 02: If it says yes, then we can try to analyze on its merits whether it's second or successive. [00:20:15] Speaker 02: But we're talking about a different world here, not the one that we currently have. [00:20:20] Speaker 00: Correct. [00:20:21] Speaker 00: And then, very quickly, I wanted to also establish or to also note [00:20:29] Speaker 00: that Jacobs does have an appropriate avenue in Arizona to bring his claim, even though it was first taking the claim as asserted, it first arose in 2015. [00:20:45] Speaker 02: So if he brings a PCR, and be careful what you say, if he brings a PCR in Arizona State Court, you won't claim that it's untimely or procedurally defaulted? [00:20:58] Speaker 00: So under the under the rules, he is able to he would be able to bring this claim and the state courts when Jacobs went back down. [00:21:08] Speaker 00: did note that this issue under 32.1 H, which is clearing convincing evidence, would not normally be precluded. [00:21:19] Speaker 00: But under 32.2, the petitioner has to establish good reason for the delay. [00:21:24] Speaker 00: And in this case, there was no good reason for it was established. [00:21:28] Speaker 02: So he really doesn't have a remedy in state court then? [00:21:30] Speaker 00: No. [00:21:31] Speaker 00: Thank you. [00:21:32] Speaker 00: Not in this case. [00:21:35] Speaker 00: If the court has no further questions, thank you for your time. [00:21:41] Speaker 00: And the respondents respectfully request that you affirm the district court's decision. [00:21:46] Speaker 00: Thank you. [00:21:47] Speaker 01: Thank you, Mr. Knobloch. [00:21:49] Speaker 01: Ms. [00:21:49] Speaker 01: Carlin. [00:21:51] Speaker 05: I'm delighted to have an answer to Judge Hurwitz's question. [00:21:55] Speaker 05: Quickly, regarding the state court procedures, the Arizona Court of Appeals, in its recent ruling, did not only answer [00:22:04] Speaker 05: that we were procedurally barred or that we were time barred because the time wasn't reasonable, but that in fact there is no substantive claim for actual innocence. [00:22:13] Speaker 02: Well, and that may well be true. [00:22:15] Speaker 02: In other words, nobody's ever reviewed that here. [00:22:18] Speaker 02: No, but they also said that there's... And my guess is the district court would have to give some deference to the Arizona Court of Appeals. [00:22:24] Speaker 05: I actually think that they... [00:22:25] Speaker 05: that they wouldn't based on the ruling, but they actually held that there is, in fact, no claim for what we are bringing. [00:22:34] Speaker 05: There is no, unless you show new evidence. [00:22:37] Speaker 03: So there's no claim. [00:22:38] Speaker 03: I don't know that we're now way down the line in terms of what, but I thought that if they say it's procedurally defaulted and also rule in America, it's still procedurally defaulted. [00:22:48] Speaker 05: So they actually didn't rule on procedural, they ruled that it was, that it was, [00:22:56] Speaker 05: We didn't explain the time for the procedural reason. [00:23:00] Speaker 05: I think it would ultimately go to adequacy of the procedural default. [00:23:04] Speaker 05: So I don't think we'd fall under timeliness. [00:23:06] Speaker 05: But I do want to, if I could have one minute, I would like to respond to Judge Hurwitz's question, which is that if you look at WAB, at page 120, WAB is talking about the same question you asked, which is, does the court have jurisdiction [00:23:23] Speaker 05: When does the court have jurisdiction? [00:23:26] Speaker 05: When do we look at that? [00:23:28] Speaker 05: And there, it's the same thing here. [00:23:30] Speaker 05: The court says we no longer have jurisdiction. [00:23:32] Speaker 05: We've already denied a COA. [00:23:36] Speaker 05: So the court says we look at whether we have jurisdiction as of the moment that the petition is filed. [00:23:43] Speaker 05: So here, we filed our motion to amend. [00:23:47] Speaker 05: At the time, you still had jurisdiction. [00:23:50] Speaker 05: The day started expired, so you had jurisdiction on that day. [00:23:54] Speaker 03: So even though you no longer have jurisdiction now... But we didn't have... See, the difference is that there, the appellate court had to not enter COA. [00:24:04] Speaker 03: Is that what happened? [00:24:07] Speaker 02: Yes, you do not ACI. [00:24:08] Speaker 02: The case was still in front of the appellate court. [00:24:10] Speaker 02: Right. [00:24:10] Speaker 02: The case was still in front of the appellate court. [00:24:11] Speaker 02: That's the problem. [00:24:12] Speaker 02: The underlying case was still in front of us. [00:24:13] Speaker 03: And here we don't have any, there was no case before us then. [00:24:18] Speaker 03: And you didn't even ask us to do anything. [00:24:21] Speaker 01: And the second piece might be the tricky thing there, because the first part of WAB says that they- And you didn't ask us to file anything with us, because there was nothing, we weren't there, we were done. [00:24:35] Speaker 02: See, there were still appellate proceedings, [00:24:37] Speaker 02: pending on the first case in WAB. [00:24:40] Speaker 02: Even though a COA had been denied, they'd come to the Second Circuit and said, please review that. [00:24:47] Speaker 02: And so there were still appellate proceedings alive on the first petition when the second one was filed. [00:24:55] Speaker 05: Although the Second Circuit also said, you don't have to come to us. [00:24:58] Speaker 05: You can go and file in the district court right away. [00:25:01] Speaker 05: We don't have to do anything. [00:25:03] Speaker 02: Right, because that's the rule. [00:25:05] Speaker 02: But my point is that [00:25:09] Speaker 02: that was done, the second petition was filed in the district court before all appellate proceedings on the first petition were over, correct? [00:25:18] Speaker 05: Yes, but I think at the end of the day what we're talking about is when does second or successive kick in. [00:25:24] Speaker 05: And if second or successive, if that term doesn't actually kick in until cert [00:25:30] Speaker 05: until things are final. [00:25:32] Speaker 02: Let me read you from Wobb. [00:25:33] Speaker 02: Wobb says, this court's denial of the CIOA has not made the adjudication of the earlier petition final. [00:25:39] Speaker 02: That adjudication will not be final until petitioners' opportunity to seek review in the Supreme Court has expired. [00:25:46] Speaker 02: And what the court says is if it had become final, then this second petition would be second or successive. [00:25:56] Speaker 05: Right. [00:25:56] Speaker 05: I think we're looking at the same language. [00:25:57] Speaker 02: So that's what's happened here. [00:25:58] Speaker 02: Yours has become final because you never saw it served. [00:26:03] Speaker 05: No, we filed within exactly this time. [00:26:07] Speaker 02: Let me read page 120. [00:26:09] Speaker 02: The further question arises whether our transfer to the district court is futile because in between the time the filing of the gatekeeping application and its resolution, this court denied petitioners request for a COA. [00:26:22] Speaker 02: And it says it would be a useless gesture for us to send it back. [00:26:26] Speaker 02: if we had to determine that the initial adjudication had been final, but luckily in this case, it was filed before the time for cert expired. [00:26:34] Speaker 02: So it seems to me WAB is perfectly consistent with Ching and Santarelli, which says if the time for cert has expired, it's final, we're done. [00:26:49] Speaker 05: Right. [00:26:50] Speaker 05: We filed before the time for cert expired. [00:26:52] Speaker 02: Right. [00:26:53] Speaker 03: In either of the, in either, any of the second or third circuit cases was, weren't the cases still live before the appellate court? [00:27:07] Speaker 05: Meaning had those courts already ruled? [00:27:09] Speaker 05: Yes. [00:27:11] Speaker 05: At the time the petition was filed, they had not. [00:27:14] Speaker 03: However. [00:27:15] Speaker 03: So you're making an additional assumption, which is that not only is the district courts [00:27:21] Speaker 03: determination not final, but the Court of Appeals determination isn't final. [00:27:25] Speaker 03: And the prospect of a discretionary decision by the Court of Appeals when you didn't even file for the Supreme Court, which obviously was never going to happen, is the truth of the matter. [00:27:36] Speaker 03: So you're asking us to go several steps further even than those cases did, because in those cases there was something. [00:27:45] Speaker 03: They weren't relying on the 90-day Supreme Court time period [00:27:50] Speaker 03: you know, in a case in which a cert petition was never going to be filed and wasn't filed. [00:27:56] Speaker 05: That's true, but I think this actually does present a stronger question, because the question is, when is something finally adjudicated? [00:28:04] Speaker 05: It's in every other context. [00:28:06] Speaker 03: But it's a somewhat practical question. [00:28:08] Speaker 03: The question is, when is there an actual possibility that the district court determination could be, as a practical matter, reopened? [00:28:18] Speaker 03: And in this case, there's just no chance. [00:28:20] Speaker 05: Well, if there's no chance, then there's no chance. [00:28:23] Speaker 03: I mean, no chance, not in this substantive sense, but because the Court of Appeals time decision was already final as well, not just a district court. [00:28:34] Speaker 03: And there was no cert petition either. [00:28:39] Speaker 03: So I understand you filed before the day you ran on the cert petition, but there was no cert petition. [00:28:44] Speaker 03: So that wasn't pending either. [00:28:45] Speaker 03: So there was nothing pending at the time you filed. [00:28:50] Speaker 05: So we were still within the time. [00:28:52] Speaker 03: I understand that, but there was nothing pending. [00:28:54] Speaker 03: In those cases there was something pending. [00:28:57] Speaker 03: Here there was nothing pending. [00:28:59] Speaker 05: Right. [00:28:59] Speaker 03: Anywhere. [00:29:00] Speaker 05: I think what I'm saying or what I'm trying inarticulately to say is that there is still a mechanism in that period for the court and it's again very rarely used and used [00:29:13] Speaker 05: really only in circumstances of manifest injustice or innocence, where this court can recall its mandate and remand. [00:29:21] Speaker 03: But you didn't even ask us to do that? [00:29:23] Speaker 05: We didn't. [00:29:24] Speaker 05: But in the second, in the other cases, they also didn't ask for remand, even though the district court had no jurisdiction. [00:29:31] Speaker 05: So even though it was before, even though those cases did have an appeal before this court, those courts didn't say, [00:29:38] Speaker 05: Uh, you didn't ask us for a remand. [00:29:41] Speaker 05: Sorry, the district court didn't have jurisdiction. [00:29:43] Speaker 02: So here's, here's my, I want to just, because I know you want to file, you'll probably file a petition for, for the whole court anyway, but I want you to, I just address you. [00:29:53] Speaker 02: Bob rather clearly says that if the adjudication of the initial petition had become final, then the second one, second petition in that case would have been second or successive. [00:30:06] Speaker 02: And it says, luckily, it hasn't become final here yet because the time for cert hasn't expired. [00:30:12] Speaker 02: But it says, citing Larianno, that if it had become final, if adjudication of the first petition had become final, we couldn't, you couldn't look at the second petition. [00:30:25] Speaker 02: And it says, luckily here, it hasn't become final because cert is still pending. [00:30:30] Speaker 02: And that's not true in our case. [00:30:32] Speaker 05: Are we distinguishing between, I just want to make sure I understand. [00:30:36] Speaker 05: Are we distinguishing like if I had filed a date early? [00:30:39] Speaker 02: No, no. [00:30:40] Speaker 02: I think the problem is that your first appeal is final. [00:30:46] Speaker 02: Right. [00:30:47] Speaker 02: It's final. [00:30:48] Speaker 02: You never saw it cert. [00:30:49] Speaker 02: I mean, there's nothing pending before any court on the first appeal. [00:30:54] Speaker 02: And under both the Second and Third Circuit rule, there still must be a pending appeal. [00:31:01] Speaker 02: What they say is, it's not a second or successive petition when filed, but district court, you have no authority to act on it unless we remand to you. [00:31:11] Speaker 02: And if we don't remand to you, then it turns into a second or successive petition. [00:31:16] Speaker 02: And so that's my difficulty. [00:31:17] Speaker 05: I understand what you're saying, Judge. [00:31:18] Speaker 05: And I think where I've been trying to go with this is that in [00:31:23] Speaker 05: In the PCR context, in the habeas context, when we're looking at when a decision is final, even if you don't file, and I know this is a recent decision from this court, even if you don't file a Supreme Court, in the state Supreme Court, your time expires for timeliness purposes on the date that you could have filed. [00:31:51] Speaker 05: So your time doesn't start from the issuance of the appellate mandate. [00:31:55] Speaker 05: It starts when you could have filed. [00:31:58] Speaker 05: I understand. [00:31:59] Speaker 05: And so that's how I'm reading WAB as well to say, if you still could have filed the cert petition in that time, then it is effectively pending. [00:32:07] Speaker 05: It remains pending until the date to seek cert runs out. [00:32:11] Speaker 03: But then it's not pending. [00:32:14] Speaker 03: I'm sorry? [00:32:14] Speaker 03: But once the time to cert runs out, it's no longer pending. [00:32:18] Speaker 03: Correct. [00:32:19] Speaker 03: Which means that there's no court [00:32:21] Speaker 03: that has jurisdiction to do anything at that point. [00:32:24] Speaker 05: Right, but this court could still have done something up until that day, and on the day we filed the motion to amend... Yeah, but nobody asked us to. [00:32:32] Speaker 02: See, you didn't file the motion to amend and come to us and say, and please remand it to the district court so we can consider it. [00:32:39] Speaker 02: Now, the truth is we probably couldn't have done that under our rule, but [00:32:45] Speaker 02: You know, we may have had some power, but our power over this case, it seems to me, went away when the direct appeal became final. [00:32:55] Speaker 05: Well, if we're talking about whether the court has the power, assuming the court did have the power up until that day, up through the day we filed, then that's also true in the cases where the, you know, WAB, for example, where the [00:33:11] Speaker 05: The petition was filed while the appeal itself was pending, and nobody asked for a remand. [00:33:18] Speaker 05: And the appellate court said, that's OK. [00:33:22] Speaker 05: You didn't have to come to us. [00:33:23] Speaker 05: Go straight to the district court. [00:33:24] Speaker 05: So in terms of the principle of whether you have to formally ask for a remand in order to adjudicate the issue, [00:33:36] Speaker 05: seems that the court still has a jurisdiction to consider this. [00:33:42] Speaker 05: So I'm speaking in terms of whether the court has jurisdiction to consider this case en banc and consider the issue. [00:33:48] Speaker 05: Which court? [00:33:49] Speaker 03: The district court or the court of appeal? [00:33:51] Speaker 03: I'm sorry? [00:33:51] Speaker 03: The district court or the court of appeal? [00:33:53] Speaker 03: Which court? [00:33:55] Speaker 03: I'm sorry, which court? [00:33:56] Speaker 03: Which court? [00:33:57] Speaker 03: The district court or the court of appeal? [00:34:00] Speaker 03: I'm sorry, which court? [00:34:01] Speaker 03: You said the court still has jurisdiction to consider this and I said which court? [00:34:06] Speaker 05: Oh, well, I meant that this court has jurisdiction to consider this question in terms of the... I don't think anybody's suggesting to you that we lack jurisdiction to consider your appeal, for which there's a COA. [00:34:24] Speaker 02: What I've been trying to suggest, and maybe the dialogue has gone far enough, is that even if we were to agree with your position, the Anbong Court, [00:34:35] Speaker 02: and adopt the rule in the Second and Third Circuit, Mr. Jacob would still be out of luck because the rule in the Second and Third Circuit says that if there is no remand before the appeal becomes final, whether or not there's jurisdiction or not, the subsequent filing becomes a second or successive petition. [00:34:56] Speaker 02: Take a look at those cases. [00:34:58] Speaker 02: I know you're going to file a petition for hearing it back, and maybe you can tell us whether or not. [00:35:03] Speaker 05: So I would suggest that these cases suggest otherwise. [00:35:06] Speaker 05: Thank you, Your Honors, and I would ask you to call for en banc. [00:35:10] Speaker 01: Thank you, Ms. [00:35:11] Speaker 01: Carlin. [00:35:12] Speaker 01: That case is submitted. [00:35:13] Speaker 01: That's the third case. [00:35:14] Speaker 01: We have a couple more cases up for argument today, but we will recess for a five-minute break.