[00:00:01] Speaker 02:
Good morning, counsel.

[00:00:03] Speaker 00:
Good morning.

[00:00:13] Speaker 00:
May it please the court, Robin Packle, representing Petitioner Appellant Battista.

[00:00:18] Speaker 00:
I'd like to reserve three minutes for rebuttal, and I will keep an eye on the clock.

[00:00:24] Speaker 00:
I'd like to start off, I know the court is very familiar with the record and the allegations in this case, but I would like to start just framing what is at issue here.

[00:00:36] Speaker 00:
Mr. Battista's attorney, Varnell.

[00:00:39] Speaker 00:
refused Batista's request to communicate to the judge that Batista wanted to replace Varnell with retained counsel of choice.

[00:00:49] Speaker 00:
In other words, Varnell refused to advocate for Mr. Batista, refused to assist him.

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That's kind of one of the most basic duties of an attorney.

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And then

[00:01:02] Speaker 00:
Varnel lied to Mr. Battista about a fact that Varnel knew was material, important to his decision making, in the words of the Supreme Court in Lee, to his plea.

[00:01:18] Speaker 00:
Having violated those most basic duties of representation, I don't know how we can say that Mr. Batista was represented by counsel at all in connection with his plea in this case.

[00:01:33] Speaker 03:
But it isn't what we would say.

[00:01:35] Speaker 03:
We're assessing the California Superior Court.

[00:01:37] Speaker 00:
That's correct, Your Honor.

[00:01:39] Speaker 00:
And let's look at what the California Superior Court actually said.

[00:01:45] Speaker 00:
They made two findings without an evidentiary hearing and without providing counsel for Mr. Batista.

[00:01:51] Speaker 02:
Those two findings were- Can you stop here for a second and you can finish answering the question, which is, are you recommending that we would send this back for an evidentiary hearing?

[00:02:00] Speaker 00:
I think the court, at least if it goes the structural error route, can resolve this case without an evidentiary hearing and grant the petition.

[00:02:09] Speaker 00:
But yes, I think at a minimum this court should remand for an evidentiary hearing.

[00:02:13] Speaker 02:
Go ahead, you can answer.

[00:02:14] Speaker 00:
So to respond to the court's questions about what the California Superior Court actually did.

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So the two findings it made were, number one,

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that Mr. Battista could not have hired retained counsel.

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And the record shows that he could, and that he had taken steps, at least taken steps towards doing that.

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The court, the Superior Court made these findings without an evidentiary hearing, and this court has made it clear that

[00:02:50] Speaker 00:
in Bradley versus Henry to cite one case, when the court makes a decision about a defendant's ability to hire retained counsel, it needs to hold an evidentiary hearing.

[00:03:01] Speaker 00:
So there was support.

[00:03:03] Speaker 00:
Mr. Battista's allegations before the Superior Court were that he was prepared to retain counsel, and there was nothing in the record before the Superior Court that shows that he could not have done those, perhaps with the assistance of Ms.

[00:03:19] Speaker 00:
Alvarado,

[00:03:20] Speaker 03:
But just to test you legally and factually, the Supreme Court in Lee does warn courts, federal courts, don't upset pleas on post hoc assertions of counsel deficiency.

[00:03:32] Speaker 03:
And therefore, why was a hearing necessary if the plea colloquy went ahead and Bautista under oath said no threats, the plea is voluntary, and then importantly said, and every question I've had was answered by my attorney.

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And then went to sentencing.

[00:03:54] Speaker 00:
I'm going to try to keep all this in my head.

[00:03:58] Speaker 00:
First of all, I think in response to sort of contemporaneous evidence in the record, there was the fee agreement.

[00:04:06] Speaker 00:
It was two days after the plea colloquy.

[00:04:09] Speaker 03:
But that, I think, shows, along with the sworn declarations of Alvarado and the verified petition of Mr. Battista, that I think that at least lends contemporary- But again, I'm just going to interrupt just because your time's precious, but as Judge Mendoza said, that's there, but that's equally susceptible to the view that a friend said you could probably get a better deal with another attorney

[00:04:33] Speaker 03:
And that attorney, Beliz, we even know he could have, but he doesn't.

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He never files a motion to withdraw.

[00:04:39] Speaker 03:
And when he gets to sentencing, he's there with Varnell, and there's no objection yet again.

[00:04:44] Speaker 03:
So we have sworn statements of the defendant.

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And what you don't have in this record is an affidavit from Bautista himself.

[00:04:51] Speaker 03:
So it really just looks like a friend said to him, geez, get a better deal.

[00:04:55] Speaker 03:
Get another lawyer.

[00:04:56] Speaker 03:
But then he consciously decides, I'll stick with what I got.

[00:04:59] Speaker 00:
There's a lot to respond to there.

[00:05:01] Speaker 00:
So first of all, Mr. Petista's petitions were verified.

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That means they were sworn.

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He swore that the allegations were true.

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Second of all, I think the fee agreement is circumstantial evidence that supports that there were discussions underway with a particular attorney.

[00:05:19] Speaker 00:
This is not, oh, theoretically, I could have found some attorney out there.

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I could have found it.

[00:05:24] Speaker 00:
I think that shows that.

[00:05:27] Speaker 00:
Third, with respect to what happened at the plea colloquy, at that time, Mr. Battista did not know he had been lied to.

[00:05:36] Speaker 00:
It's clear from the allegations that he discovered that only after he entered the plea, based on Varnell's representations, that Ms.

[00:05:46] Speaker 00:
Alvarado had told him to go ahead and plead guilty, when before the lie, Battista had... A lie would be good cause to move to withdraw the plea, but he goes to sentencing two weeks later.

[00:05:57] Speaker 00:
First of all, the constitutional error has already happened.

[00:06:00] Speaker 00:
The constitutional error happened when he entered the plea without his retained counsel of choice and with, based on the advice, the recommendation of a lawyer who had lied to him, even though he didn't know that at the time.

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That's why he said, although I disagree that the plea colloquy, the colloquy is detailed,

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inquiry into his satisfaction with counsel as

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plea colloquies are in federal court.

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But there was sort of one compound question.

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Were your questions answered?

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Are you satisfied?

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And I think the rest.

[00:06:38] Speaker 02:
What do we do with the issue of the Superior Court applying the wrong standard as to choice of lawyer?

[00:06:46] Speaker 02:
What do we do with that?

[00:06:49] Speaker 00:
So the Superior Court, it cited the Hill standard, which the,

[00:06:56] Speaker 00:
respondent says is the only proper standard, but it didn't actually apply that standard.

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So what it made the two factual findings, one is that Mr. Battista could not have retained counsel, and two that any retained counsel would not have gotten a better deal.

[00:07:15] Speaker 00:
Also a factual finding also made without an evidentiary hearing or counsel in the habeas proceeding.

[00:07:21] Speaker 00:
And also contrary to the record.

[00:07:23] Speaker 00:
I mean, if there had been an evidentiary hearing, maybe Bellis would have explained his experience with the system, why he believed he could have gotten or would have gotten a better deal.

[00:07:35] Speaker 00:
But that's deficient fact-finding.

[00:07:38] Speaker 00:
It's not supported by the record and it was made without an evidentiary hearing.

[00:07:44] Speaker 02:
And on that- I thought that the Superior Court applied a prejudice standard, that is, that the attorney, excuse me, that Mr. Bautista needed to establish prejudice.

[00:07:55] Speaker 02:
Did they do that?

[00:07:58] Speaker 00:
I think that's what they purported to do.

[00:08:00] Speaker 00:
I don't think they correctly focused on what was at issue here.

[00:08:06] Speaker 00:
And what was at issue here really is the relationship, Mr. Battista's relationship with his counsel.

[00:08:14] Speaker 00:
He had none at that point, at the point that he entered the plea.

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Counsel had not advocated for him.

[00:08:19] Speaker 00:
Counsel had lied to him.

[00:08:21] Speaker 00:
That is a complete breakdown in the attorney-client relationship.

[00:08:25] Speaker 00:
He failed in the most basic duties.

[00:08:27] Speaker 00:
I mean, that's looking at it through sort of the structural error lens.

[00:08:32] Speaker 00:
I think if you're looking at through the sort of traditional Strickland analysis, was this a proper prejudice analysis, then you also can find prejudice and that the district court was

[00:08:46] Speaker 00:
unreasonable in its prejudice analysis, again because of deficient and unreasonable fact-finding, and also because Mr. Battista, under the Hill standard, Mr. Battista said, I would not have taken this deal.

[00:09:03] Speaker 00:
but for my counsel's lies to me.

[00:09:05] Speaker 00:
And that I think for a pro se petitioner, it sort of misses the, and I would have gone to trial, but that is an allegation of prejudice under Hill that I would not have taken the deal had I known that counsel had lied to me.

[00:09:23] Speaker 00:
I think that's a sufficient allegation under these circumstances.

[00:09:27] Speaker 00:
So I think even going Strickland route,

[00:09:30] Speaker 03:
Right, but going Strickland route, the Superior Court was pretty exhaustive and then the District Court yet again likewise saying the record here contains recorded calls where your client confessed to the victims.

[00:09:43] Speaker 03:
So it's sort of irrefutable proof.

[00:09:46] Speaker 03:
And then he gets a single count plea and he locks on significant reduced exposure.

[00:09:51] Speaker 03:
That seems to me doing the Hill analysis that we don't think he would have gone to trial.

[00:09:57] Speaker 00:
Well, again, I don't think that's what the Superior Court did here.

[00:10:01] Speaker 00:
And under EDPA, that's the analysis.

[00:10:03] Speaker 00:
This court has to look at what the Superior Court based its decisions on.

[00:10:08] Speaker 00:
And those were those two factual findings about he couldn't have retained counsel, and retained counsel couldn't have gotten a better deal.

[00:10:15] Speaker 00:
But also, I think it's important to note that the Supreme Court

[00:10:19] Speaker 00:
has also in cases, particularly Lee, talked about that the sentence somebody faced and the deal they could have got is not the be all and end all of the prejudice analysis.

[00:10:32] Speaker 00:
Lee talks about a client's decision making and when there are matters that are important to the client, for example, in Lee, it was misadvice about deportation.

[00:10:45] Speaker 00:
So what was important to Mr. Battista was

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Who was representing him?

[00:10:50] Speaker 00:
He wanted different counsel.

[00:10:52] Speaker 00:
He didn't get different counsel because of... Because I'm sure you want to reserve time.

[00:10:57] Speaker 03:
So the relief, back to the first question, the relief question.

[00:11:00] Speaker 03:
The most your client would get would be back to square one.

[00:11:05] Speaker 03:
He gets to withdraw his guilty plea and the government then can come at him with how many counts?

[00:11:09] Speaker 00:
That's, I forget how many there were, but there were many counts, I agree.

[00:11:13] Speaker 00:
And he was facing a very long sentence.

[00:11:15] Speaker 00:
But what he got was a life sentence.

[00:11:18] Speaker 00:
So it was the difference between possibility of parole after 15 years, which was the plea deal, and possibility of basically never getting parole.

[00:11:26] Speaker 00:
But I think Lee, again, and other Supreme Court cases made clear that a client can make a rational decision to reject a plea based on factors other than he would have received a worse sentence.

[00:11:45] Speaker 00:
And at least we didn't get a full development of that because no evidence or hearing was ever made.

[00:11:50] Speaker 03:
And if there were for a remand for a hearing, it would be with instructions to the district court to send it back to the state court for the hearing?

[00:11:56] Speaker 00:
I believe the district court can do the federal district court can do the hearing, because federal district courts are not precluded from doing an evidentiary hearing.

[00:12:06] Speaker 00:
The facts are the same.

[00:12:08] Speaker 03:
And just last question, do you have a Ninth Circuit case that remanded for a federal habeas hearing into a Sixth Amendment claim?

[00:12:14] Speaker 03:
Does one come to mind?

[00:12:15] Speaker 00:
That's a specific case, so don't worry if you don't.

[00:12:20] Speaker 00:
Can I answer that on your end?

[00:12:23] Speaker 00:
No, that's very helpful.

[00:12:24] Speaker 00:
That's the right answer, yes.

[00:12:25] Speaker 00:
OK.

[00:12:25] Speaker 00:
Thank you.

[00:12:26] Speaker 00:
I will reserve the rest of my time.

[00:12:27] Speaker 00:
Thank you.

[00:12:28] Speaker 02:
Thank you.

[00:12:44] Speaker 01:
May it please the court, Michelle Swanson, appearing on behalf of respondent Warden.

[00:12:49] Speaker 01:
First, I would address the question with respect to whether the Superior Court properly applied the Hill standard in assessing prejudice.

[00:12:58] Speaker 01:
The Superior Court expressly cited Hill and set forth the prejudice standard, and it... But what they're saying is that it wasn't... Practically, it wasn't analyzed.

[00:13:09] Speaker 02:
In other words, it was cited, but that was not the reasoning.

[00:13:12] Speaker 01:
Well, it did.

[00:13:14] Speaker 01:
First of all, it said it found no prejudice, immediately cited Hill, and then it went into addressing some of Bautista's claims.

[00:13:22] Speaker 02:
Do they need to show prejudice on choice of lawyer?

[00:13:27] Speaker 02:
Choice of counsel?

[00:13:28] Speaker 01:
Well, he didn't raise a freestanding claim of choice of counsel.

[00:13:31] Speaker 01:
What he said was that if counsel had brought his motion to discharge him and replace him with retained counsel,

[00:13:39] Speaker 01:
that the trial court would have conducted an evidentiary hearing on that and granted that.

[00:13:45] Speaker 01:
So even in his petition, Bautista recognized that he did not have an unqualified right to counsel of his choice at that point.

[00:13:55] Speaker 03:
Barnell starts as retained.

[00:13:57] Speaker 03:
Did he become then appointed?

[00:13:58] Speaker 01:
Yes.

[00:13:59] Speaker 01:
There's no dispute.

[00:14:00] Speaker 01:
He was appointed at the time of the plea hearing.

[00:14:03] Speaker 01:
And I will just add this, since he didn't raise a freestanding claim, but I would just like to note that there's no clearly established law that an indigent defendant that currently has appointed counsel and has not retained counsel and is going to make a request on the day of a change of plea hearing

[00:14:24] Speaker 01:
has an unqualified right to counsel of choice under those circumstances.

[00:14:29] Speaker 01:
That's just to the side.

[00:14:30] Speaker 01:
It's not really an issue here since that wasn't brought.

[00:14:33] Speaker 01:
Going back to the question of whether Superior Court did conduct proper prejudice analysis, it found that a... But I'm sorry, just on that point, there would be a valid Sixth Amendment structural argument if it were true that counsel lied to him in order to get him to plead.

[00:14:54] Speaker 03:
Put aside right to change counsel if you've gotten appointed.

[00:14:58] Speaker 03:
I agree that's a different analysis.

[00:15:00] Speaker 03:
But crediting his complaint, we have a lawyer who's lying to him in order to get him to plead.

[00:15:07] Speaker 01:
That's evaluated under Strickland, ineffective assistance of counsel.

[00:15:10] Speaker 01:
So that's evaluated for prejudice.

[00:15:12] Speaker 01:
It's not structural error.

[00:15:15] Speaker 03:
OK.

[00:15:16] Speaker 03:
I have to think about that.

[00:15:19] Speaker 03:
I'm separating out the alleged denial of the right to change counsel from a lawyer who lies to you.

[00:15:27] Speaker 02:
Let me ask you a little bit different.

[00:15:35] Speaker 02:
Judge Hickinson might be getting to this.

[00:15:37] Speaker 02:
The lie was related to getting a lawyer, though.

[00:15:39] Speaker 02:
I mean, I think that's the idea, right?

[00:15:42] Speaker 02:
That it is related to the structural problem of counsel, of one's choice.

[00:15:47] Speaker 01:
I don't believe so because the lie had to do with whether Alvarado thought it was a good deal, and that was the lie.

[00:15:54] Speaker 01:
So it really had nothing to do with him not

[00:15:57] Speaker 01:
telling the court about the new lawyer.

[00:15:59] Speaker 01:
I mean, I guess I could see how it would relate if he thought, Alvarado thought it was a good deal, then he just kind of gave up the fight on that.

[00:16:07] Speaker 01:
But again, there was no structural error was raised in the petition.

[00:16:14] Speaker 01:
So that's a non-issue from our standpoint.

[00:16:17] Speaker 03:
Well, let's assume you're wrong and there is a structural issue contemplated in this case.

[00:16:22] Speaker 03:
Do you still have, do you at that point lose or not?

[00:16:26] Speaker 01:
Well, first, you would have to find it was exhausted in the state courts, and you would have to find that the district court passed upon it.

[00:16:33] Speaker 01:
The district court didn't pass upon that question.

[00:16:35] Speaker 01:
I would say it would remand to the district court.

[00:16:37] Speaker 01:
It would be the proper procedure.

[00:16:38] Speaker 01:
We've never addressed the merits of structural error claims.

[00:16:42] Speaker 03:
But the district court itself implied that it saw faulty reasoning in the superior court.

[00:16:46] Speaker 01:
But not because it didn't address structural error, anything like that.

[00:16:50] Speaker 01:
That wasn't brought up by the district court.

[00:16:52] Speaker 01:
I'm not sure what the district court was talking about.

[00:16:54] Speaker 01:
It didn't really expand on what it found faulty exactly about the superior court's decision.

[00:16:59] Speaker 03:
Well, I mean, I think it seems pretty obvious.

[00:17:01] Speaker 03:
Imposing counsel's argument is that they analyzed it only under Strickland.

[00:17:06] Speaker 03:
And therefore, they resolved the whole habeas, state habeas, according to lack of prejudice, which by and large, I see difficult issues.

[00:17:13] Speaker 03:
But maybe I'm accepting that that wouldn't be reversible under federal habeas, ed-pedeference.

[00:17:17] Speaker 03:
But if the district court was mistaken to assess a structural error,

[00:17:22] Speaker 03:
and deny it purely on prejudice grounds.

[00:17:24] Speaker 03:
That would be inconsistent with clearly established law.

[00:17:28] Speaker 01:
Well, the district court didn't say that that they didn't say that the Superior Court made a mistake in the applying the Strickland prejudice standard.

[00:17:37] Speaker 01:
That's not what it said.

[00:17:38] Speaker 03:
That is the argument here today to us.

[00:17:40] Speaker 01:
But my point is that the district court didn't didn't wasn't presented that issue and it didn't it didn't pass on that issue.

[00:17:48] Speaker 01:
And Ninth Circuit law generally says that

[00:17:50] Speaker 01:
If the district court hasn't passed on a legal issue, then you can't pass on that on appeal.

[00:17:56] Speaker 01:
I would think that the proper procedure would be if you believed that it was exhausted and properly presented in the federal petition, which I've addressed in my supplemental briefing, if you believe both of those things had happened, it needs to go back to the district court because everything changes at that point.

[00:18:12] Speaker 01:
And the government needs to be able to address that on the merits.

[00:18:16] Speaker 01:
And Appellant hasn't really ever addressed that on the merits.

[00:18:20] Speaker 01:
There was some briefing in the appellate brief, but there was no briefing in the federal petition at all.

[00:18:29] Speaker 01:
And the first time that even petitioner himself brought up, first of all, he never brought up the Constructive Denial Council at all in his federal petition or in any of his federal pleadings.

[00:18:43] Speaker 01:
And the only time he brought up, in a substantive way, the denial of the right to choice to counsel was in his traverse and in his request for a COA.

[00:18:53] Speaker 01:
And that's too late.

[00:18:54] Speaker 01:
It needs to be brought in the petition, and it needs to be exhausted in the state courts.

[00:19:00] Speaker 03:
I mean, one alternative answer, I thought it was in your brief, but maybe it's not, is that in fact, the Superior Court did make a secondary filing that to the extent a structural error had been alleged, there wasn't sufficient proof that when you look at the colloquy, the Rule 11 colloquy in the sentencing, in fact, there's no evidence that supports anything more than a friend saying you can get a better deal.

[00:19:24] Speaker 01:
That the Superior Court made a structural error?

[00:19:26] Speaker 03:
No, that the Superior Court's two findings, twin findings.

[00:19:30] Speaker 03:
One, deficient showing to trigger relief under any method of analysis.

[00:19:34] Speaker 03:
Two, Hill prejudice analysis.

[00:19:37] Speaker 03:
We deny the Strickland portion.

[00:19:39] Speaker 03:
But you disagree with my?

[00:19:41] Speaker 01:
Well, maybe we're talking, maybe we're misunderstanding.

[00:19:46] Speaker 01:
So Hill encompasses the Strickland standard.

[00:19:48] Speaker 01:
It just restates it when you have pled guilty.

[00:19:53] Speaker 01:
So it's all of a piece, if I can say that.

[00:19:58] Speaker 01:
So when the Superior Court found

[00:20:02] Speaker 01:
that it was not reasonably probable that he would have obtained a better deal.

[00:20:05] Speaker 01:
There was no evidence record that he could have.

[00:20:07] Speaker 01:
What it was saying was that, so he would have been stuck with the 15 years to life and trial.

[00:20:13] Speaker 01:
And the Superior Court already had evidence of what he would do in that circumstance.

[00:20:18] Speaker 01:
When that was the best deal he could get, he took the deal.

[00:20:20] Speaker 01:
He didn't want to go to trial.

[00:20:22] Speaker 01:
And it was addressing

[00:20:25] Speaker 01:
Bautista's allegation with respect to whether that he would have held out for a better deal.

[00:20:30] Speaker 01:
And it said, no, you wouldn't have obtained that.

[00:20:33] Speaker 01:
So you wouldn't have gone to trial.

[00:20:35] Speaker 01:
You didn't satisfy Hill's standard.

[00:20:37] Speaker 01:
Now, it didn't say it like that.

[00:20:40] Speaker 01:
It didn't have a nice paragraph about that and kind of come full circle.

[00:20:45] Speaker 01:
But it doesn't have to do that.

[00:20:47] Speaker 01:
We don't impose on the state courts that their opinions have to be flawless.

[00:20:54] Speaker 01:
And so I would say that it did make that Hill analysis.

[00:21:00] Speaker 01:
It cited it.

[00:21:01] Speaker 01:
It said it found no prejudice under Hill, and then it found that he would not have received a better deal.

[00:21:07] Speaker 01:
Under those circumstances, we know he wouldn't have gone to trial.

[00:21:10] Speaker 01:
If that was the best deal he could get, he took it, and he would have taken it if he had had retained counsel.

[00:21:17] Speaker 01:
And then all of this sort of doesn't really matter in the end because as Bautista understands, he didn't allege that he would have gone to trial.

[00:21:30] Speaker 01:
He said, I would have held out for a better deal.

[00:21:41] Speaker 01:
let's see, Primo v. Moore, the Supreme Court said that's not enough to satisfy the Hill standard.

[00:21:48] Speaker 01:
And in Lee versus United States, the Supreme Court declined to reach that question of whether that would satisfy it.

[00:21:55] Speaker 01:
When there's no clearly established law that that is the standard, then the petitioner is not entitled to relief.

[00:22:02] Speaker 01:
And so the Superior Courts

[00:22:04] Speaker 01:
rejection of the ineffectiveness claim was not contrary to any clearly established law.

[00:22:10] Speaker 01:
And so, Bautista loses under that point as well.

[00:22:20] Speaker 01:
I think that what was important to Bautista was a better deal, and the Superior Court found that that was not going to happen.

[00:22:29] Speaker 01:
The Superior Court did not have to hold an evidence hearing on that point because, as Lee versus United States says, the Court should look to the contemporaneous evidence at the time of the plea to see

[00:22:42] Speaker 01:
what would have happened.

[00:22:43] Speaker 01:
And we have plenty of contemporaneous evidence.

[00:22:48] Speaker 01:
He submitted a fee agreement between Ms.

[00:22:52] Speaker 01:
Alvarado and Bellis and Bellis in which they agreed that they would represent him to file a motion to withdraw counsel and if that was denied to represent him on appeal.

[00:23:03] Speaker 01:
And petitioner never signed that fee agreement.

[00:23:08] Speaker 01:
And he never sought to replace counsel at the sentencing hearing.

[00:23:12] Speaker 01:
He never sought to file a motion to withdraw his plea.

[00:23:15] Speaker 01:
And he never had Bellis and Bellis file an appeal on his behalf.

[00:23:21] Speaker 02:
So do you think he was just upset at the fact that he got, as counsel indicates, this longer sentence?

[00:23:27] Speaker 02:
Is that why the appeal ultimately happened?

[00:23:30] Speaker 02:
I'm sorry, I'm not understanding the question.

[00:23:36] Speaker 02:
We know he had a retainer agreement or some agreement that was submitted as part of the materials here, and he didn't appeal.

[00:23:44] Speaker 02:
He didn't say anything at the plea.

[00:23:45] Speaker 02:
He didn't say anything at the sentencing, but then later filed the appeal.

[00:23:48] Speaker 02:
Is it because he got this longer sentence at the sentencing?

[00:23:54] Speaker 01:
He got the sentence that he bargained for at the sentencing.

[00:24:00] Speaker 01:
Quite frankly, it surprises me that he would want to appeal this because he is facing ... He wouldn't necessarily get this deal if you reversed.

[00:24:13] Speaker 01:
We go back and the parties go back to the state they were at the time.

[00:24:18] Speaker 01:
They don't have to reoffer this plea at all.

[00:24:20] Speaker 01:
He's facing a substantial, basically an LWOP sentence.

[00:24:24] Speaker 01:
He's facing almost certain conviction.

[00:24:26] Speaker 01:
I'm sorry, life without the possibility of parole.

[00:24:30] Speaker 01:
I'm sorry about that.

[00:24:33] Speaker 01:
And he was facing strong evidence against him, including his very own admissions to the police that he

[00:24:40] Speaker 01:
molested one of the victims, he got a really good deal.

[00:24:44] Speaker 01:
He pled to one count of child molestation.

[00:24:48] Speaker 01:
He got 15 years to life, which means he will be up for parole, I think, very soon.

[00:24:57] Speaker 01:
Not that he might not get it, but at least the possibility is there, and that's the best he could do.

[00:25:04] Speaker 02:
I'm trying to remember, is it similar to ... I know the standard in Washington state where these are indeterminate sentences where they go to the parole board and then they could decide not to release the person even after they've completed their minimum sentence.

[00:25:21] Speaker 02:
Is that what happens?

[00:25:22] Speaker 01:
That's correct, right.

[00:25:23] Speaker 01:
They just become eligible once they've served that sentence.

[00:25:27] Speaker 01:
As far as the district court conducting an evidentiary hearing, the district court could only do that if it found that the state court's decision was contrary to an unreasonable application of Supreme Court law.

[00:25:47] Speaker 01:
It didn't find that.

[00:25:48] Speaker 01:
If this court were to find that, then it could remand to the district court.

[00:25:52] Speaker 01:
and then the district court would have to then consider the issues de novo, in which case it could exercise its discretion to hold an evidentiary hearing.

[00:26:00] Speaker 03:
And does that come down to whether we construe our COA grant to go beyond the Strickland prejudice issue to a constructive denial of counsel?

[00:26:10] Speaker 03:
If we were to see that he both exhausted that

[00:26:14] Speaker 03:
and it's encompassed in the COA, what's your answer as to what we would do with that?

[00:26:19] Speaker 01:
I would say remand to the district court for consideration of those issues and then we can raise our procedural issues down there and merits and it can all be fleshed out.

[00:26:30] Speaker 01:
But I don't think you have to do that because I think he loses because there's no clearly established law that he can establish prejudice by saying that he would have obtained a better deal.

[00:26:41] Speaker 03:
Well, before you have a minute left, would you agree that if we think that a constructive denial of counsel had been presented to the California Supreme Court, then the analysis it gave, the Hill analysis, is in violation of clearly established law?

[00:26:57] Speaker 03:
If that was made to them, that counsel didn't exist at all as opposed to ineffective.

[00:27:03] Speaker 01:
I would say what would change if you found that he had raised this constructive denial since Superior Court didn't spot that issue and didn't address the issue, then the relevant state court decision becomes Cal Supreme and that changes everything.

[00:27:19] Speaker 01:
Because then this court has to presume what

[00:27:24] Speaker 01:
Cal Supreme would have decided and that changes everything on that particular issue, constructive denial of counsel.

[00:27:32] Speaker 03:
Well, we would look through it.

[00:27:33] Speaker 03:
They didn't have any reasoned opinion, right?

[00:27:35] Speaker 01:
Well, when there's a summary denial, when there's no reasoned state court opinion, look at the last decision and the Cal Supreme's rejection on the merits, even though it was summary, that is reviewed with deference under Ed Peh.

[00:27:50] Speaker 01:
Unless there are any other questions, I'm prepared to submit the matter.

[00:27:55] Speaker 01:
Thank you.

[00:27:55] Speaker 02:
Is she right about that last point?

[00:28:03] Speaker 00:
I could take five minutes adjusting this, but yes.

[00:28:08] Speaker 00:
I think the claim was fairly presented to the, the structural error claim was fairly presented to the superior court.

[00:28:17] Speaker 00:
So I think that court is the decision you look at.

[00:28:19] Speaker 00:
You do look through as your honor said.

[00:28:22] Speaker 00:
So I think that is that if the claim was not presented at all or not ruled on on the merits, then yes, you,

[00:28:30] Speaker 00:
you look at whether the court could have come up with any reason, basically, to deny the claim.

[00:28:37] Speaker 03:
In the habeas submission to the superior court, was any Supreme Court authority cited, other than Strickland, ineffectiveness Hill-type case law?

[00:28:49] Speaker 00:
What did he cite?

[00:28:50] Speaker 00:
Yes, he did cite.

[00:28:52] Speaker 00:
He cited Hill.

[00:28:54] Speaker 00:
Sorry, he said Strickland, constructive denial of counsel.

[00:28:57] Speaker 00:
There's that sentence.

[00:28:59] Speaker 00:
I believe he also cited.

[00:29:00] Speaker 03:
He cited legal authority that this was outside Strickland and Hill.

[00:29:05] Speaker 03:
This couldn't be resolved through prejudice.

[00:29:07] Speaker 00:
Our position is that by citing the provision from Strickland that talks about constructive denial of counsel, which he cited on the form part of the petition, that that alerted the court to a constructive denial of counsel argument.

[00:29:23] Speaker 03:
Alerted the court?

[00:29:24] Speaker 00:
Yes.

[00:29:24] Speaker 00:
As a pro se petitioner and under the fairly presented, all he needs to do is give the court an opportunity.

[00:29:31] Speaker 00:
And he cited constructive denial of counsel.

[00:29:33] Speaker 03:
And what did the federal district court do about that?

[00:29:37] Speaker 00:
So the Federal District Court actually took a kind of completely different approach.

[00:29:41] Speaker 00:
It didn't really, other than saying we think the reasoning of the Superior Court is kind of funky in some ways, what it looked at in its prejudice analysis was basically that finding that Mr. Battista would not have risked going to trial because of the long sentence, which disregards the counsel issue altogether, disregards the lie, disregards the

[00:30:06] Speaker 03:
Do you think at every stage of habeas, state and federal, no courts ever wrestled with the structural claim, but it was fairly presented?

[00:30:13] Speaker 00:
Yes.

[00:30:16] Speaker 00:
Again, I think we need to review Mr. Battista's pro se petitions with leniency, but I think he cited the cases, the factual basis is exactly the same.

[00:30:30] Speaker 00:
You have different reasoning and different analyses from both courts, I think, so it's not

[00:30:35] Speaker 00:
You know, maybe it was not a model of clarity, but I think those claims are fairly positive.

[00:30:40] Speaker 03:
What is the single fact that most clearly establishes that Varnell lied to him?

[00:30:46] Speaker 03:
Can you quote a verbatim just from your head?

[00:30:48] Speaker 00:
He said... According to whom?

[00:30:53] Speaker 00:
both Miss Alvarado and Battista say that after the plea, Varnel and Battista, sorry, sorry, before the plea, after Varnel had refused Battista's request for substitute counsel for assistance presenting that to the court, Mr. Battista said, where is Maria Alvarado?

[00:31:18] Speaker 00:
Varnel said,

[00:31:20] Speaker 00:
This is a paraphrase, but said she was here earlier.

[00:31:24] Speaker 00:
She had to leave to go to school.

[00:31:26] Speaker 00:
She said you should take the plea offer because it's the best deal you're going to get.

[00:31:33] Speaker 00:
And then, so Mr. Battista then went into court and he pled.

[00:31:39] Speaker 00:
Afterwards, after court, he's talking to Maria Alvarado on the phone.

[00:31:44] Speaker 00:
And again, this comes from both Mr. Battista's verified petitions and Ms.

[00:31:49] Speaker 00:
Alvarado's sworn declaration.

[00:31:52] Speaker 00:
They were talking on the phone after court.

[00:31:55] Speaker 00:
He says, where were you?

[00:31:57] Speaker 00:
She said, I had a flat tire.

[00:31:59] Speaker 00:
I could not make it to court today.

[00:32:02] Speaker 00:
He says, there may have been some.

[00:32:04] Speaker 00:
He says, I took the deal.

[00:32:06] Speaker 00:
I pled guilty.

[00:32:07] Speaker 00:
She said, why did you do that?

[00:32:09] Speaker 00:
He said, Varnell told me that you were in court and you told him to tell me to take the deal.

[00:32:19] Speaker 02:
All right, Council, I think your time is up.

[00:32:21] Speaker 02:
Let me see if there are any other questions.

[00:32:23] Speaker 00:
Can I just give you one site?

[00:32:24] Speaker 00:
I'm sorry.

[00:32:25] Speaker 00:
Shell versus Witek, 218 F3rd, 1017.

[00:32:29] Speaker 00:
You had asked for a case that remands to the district court for an evidentiary hearing.

[00:32:34] Speaker 02:
Thank you, Council.

[00:32:35] Speaker 02:
Thank you to both, Council.

[00:32:37] Speaker 02:
I thought it was well argued.

[00:32:39] Speaker 02:
This case will stand submitted.