[00:00:02] Speaker 04:
Morning, Your Honors, and may it please the court, Dale Ogden for Jermaine Johnson.

[00:00:06] Speaker 04:
I'll try to reserve two minutes of my time for rebuttal.

[00:00:08] Speaker 04:
I'll watch my clock.

[00:00:11] Speaker 04:
I think in many respects, the government's arguments here boil down to the same error I think the district court made below, is that it's making credibility determinations against Mr. Johnson.

[00:00:21] Speaker 04:
They just don't believe him.

[00:00:22] Speaker 04:
They're allowed to proceed with those arguments, but they need to do that in the context of an evidentiary hearing as this court's decision in Earp makes clear.

[00:00:30] Speaker 03:
Is there a more preliminary question in this case, that is, whether there's satisfactory exhaustion?

[00:00:38] Speaker 04:
Your Honor, the magistrate judge, I think, does a very good job of explaining why that would be excused here, because the military courts no longer allow habeas petitions at all.

[00:00:49] Speaker 04:
There's no jurisdiction there.

[00:00:51] Speaker 04:
Now Mr. Johnson did go ahead and file in the Army Criminal Court of Appeals because there's no courts martial, there's no trial court to go back to because they're not standing courts.

[00:01:01] Speaker 04:
So he files in the Army Criminal Court of Appeals and they dismiss it for lack of jurisdiction.

[00:01:07] Speaker 04:
So I would submit that both exhausts that claim and explains why any exhaustion would be excused here because they don't consider those claims at all.

[00:01:14] Speaker 00:
So if it's ... I guess the question is, are there any remedies left for him in the military courts?

[00:01:21] Speaker 00:
If we were to say, it's not exhausted, you need to go back and try to exhaust, or it's not exhausted because there's a remedy available.

[00:01:29] Speaker 00:
Are there any remedies available in the military courts?

[00:01:31] Speaker 04:
To my knowledge, there's no remedies left.

[00:01:35] Speaker 00:
Is that because the ...

[00:01:37] Speaker 00:
The armed, it's ACCA, the armed, I can't remember the name.

[00:01:42] Speaker 00:
The Army Criminal Court of Appeals.

[00:01:44] Speaker 00:
Yes, I'm sorry, I apologize.

[00:01:45] Speaker 00:
I wasn't remembering the court name.

[00:01:47] Speaker 00:
They would just deny it for lack of jurisdiction.

[00:01:49] Speaker 04:
As they did here, that's correct.

[00:01:52] Speaker 04:
The only other thing that comes up in the case law is quorum nobis, but the problem is that requires you to have no other remedies available.

[00:02:00] Speaker 04:
And what the Army Criminal Court of Appeals said in Gray, the case they cite,

[00:02:06] Speaker 04:
is that now it's for the federal courts to decide.

[00:02:10] Speaker 00:
So is the claim not still procedurally barred because he didn't raise it in direct appeal?

[00:02:17] Speaker 04:
No, Your Honors.

[00:02:22] Speaker 04:
I don't know, and the government doesn't cite any requirements that he do that.

[00:02:27] Speaker 04:
A lot of claims, in particular at least another 2254 or 2255, this court has explained that IAC claims are not often appropriate things to bring on direct appeal.

[00:02:40] Speaker 04:
Sometimes it's obvious from the record and sometimes you know it at the time.

[00:02:43] Speaker 04:
But many times, you're not going to know it until long after, as was at least the case with respect to the claim now.

[00:02:50] Speaker 00:
Well, it seemed that both you and the government addressed this case on the merits.

[00:02:55] Speaker 00:
And your battle was over whether there should have been a hearing and whether the district court appropriately considered the merits of your client's claims, which

[00:03:08] Speaker 00:
I think is why we're asking so many questions about exhaustion and procedural bar, because even if your client's claim is technically exhausted, it could still be procedurally barred.

[00:03:17] Speaker 00:
But I don't think the government argued that, and it's waivable.

[00:03:21] Speaker 04:
Correct.

[00:03:21] Speaker 04:
Procedural bars are affirmative defenses.

[00:03:24] Speaker 04:
Well, affirmative might be the wrong word.

[00:03:26] Speaker 04:
But they're things that the government has to raise, or else they're either waived or forfeited.

[00:03:30] Speaker 02:
Let's assume for a moment, arguing though, that

[00:03:34] Speaker 02:
the government's latches, retroactivity, exhaustion, and procedural default issues all fail.

[00:03:39] Speaker 02:
If you get to the merits here, there's just no there or there.

[00:03:43] Speaker 02:
I mean, you've got, from my perspective, your client

[00:03:48] Speaker 02:
had all the rights and explanation.

[00:03:50] Speaker 02:
There was nothing in there about where he was going to be incarcerated.

[00:03:55] Speaker 02:
And yet he says now years later, after he personally repeatedly tried to get transferred, that because he was, that there's somehow an IAC claim.

[00:04:05] Speaker 02:
Isn't that absurd on its face?

[00:04:07] Speaker 04:
I don't think so, Your Honor.

[00:04:10] Speaker 04:
Buried in there, I think, is another credibility concern because I know Your Honor is referencing the November and December 2015 cop-out slips, and I think it would be a very different situation if that first one didn't exist.

[00:04:27] Speaker 04:
That first April slip explains that he is concerned that if he is transferred, that he go near family.

[00:04:34] Speaker 04:
There's clearly something happening behind the scenes.

[00:04:36] Speaker 02:
I thought that was the later of the two.

[00:04:39] Speaker 02:
I believe that's the... And that's the later when he said, I forget which member of the family was ill.

[00:04:44] Speaker 02:
But the bottom line is he made at least two requests to my recollection in which he said, I want to be transferred to the BOP.

[00:04:52] Speaker 02:
I want to be.

[00:04:53] Speaker 02:
And he said specifically where he wanted to go.

[00:04:56] Speaker 02:
And yet now, all these years later, he's claiming that that's ineffective assistance of counsel when the issue of where he was going to be incarcerated wasn't even discussed when he was sentenced.

[00:05:07] Speaker 02:
And he's the one that initiated the transfer.

[00:05:09] Speaker 02:
How can that possibly give you a remedy on the merits aspects of this?

[00:05:13] Speaker 04:
I understand the court's concern.

[00:05:15] Speaker 04:
I think, again, that first, read in context, there are three of those slips to Fort Leavenworth officials.

[00:05:25] Speaker 04:
The first one does say that he's concerned that if he were transferred, he'd go near family, and that's what his contention below, of course he was supposed to say below,

[00:05:34] Speaker 04:
That's what his contention below was.

[00:05:36] Speaker 04:
And to figure out the meaning of what's going on behind the scenes there, I think, does involve a credibility call.

[00:05:43] Speaker 04:
But maybe even more fundamental.

[00:05:44] Speaker 02:
With respect, counsel, why?

[00:05:46] Speaker 02:
I mean, he's blaming his lawyer for not anticipating something that was never discussed in terms of the fee bargain.

[00:05:56] Speaker 02:
Years later, he says he wants to move, and he said that his lawyer didn't anticipate what he was going to do, and he's going to blame his lawyer.

[00:06:03] Speaker 02:
I mean, I've heard a lot of interesting IAC claims, but I've never heard one that's – this is what I would call a hood spot.

[00:06:10] Speaker 02:
This is really an unusual claim that he would blame his lawyer for what he did years later.

[00:06:16] Speaker 04:
Well, I understand it's a little more unusual.

[00:06:19] Speaker 04:
Two responses to Your Honor's question.

[00:06:22] Speaker 04:
One, at 2ER 45, Mr. Johnson does explain that this was discussed with his counsel.

[00:06:28] Speaker 00:
Right, but didn't he say his counsel promised him it would never happen, he would serve all of his time in military prison, he wouldn't go to a federal prison, which is problematic because he also swore under oath at the plea colloquy.

[00:06:39] Speaker 00:
that everything that was represented to him was in the plea colloquy.

[00:06:43] Speaker 00:
So he's adding something outside of what he swore to.

[00:06:47] Speaker 04:
He swears that nobody had made him promises.

[00:06:51] Speaker 04:
Now, I think I lay this out in the brief.

[00:06:53] Speaker 00:
Then he later says, but my counsel is ineffective because they promised me I wouldn't be transferred to federal prison.

[00:06:58] Speaker 04:
I just don't think that counsel's advice is a promise as we contemplate that question.

[00:07:03] Speaker 04:
Because this comes up in Rule 11 all the time is that

[00:07:06] Speaker 04:
Have there been any promises made to you, that type of thing?

[00:07:09] Speaker 04:
And the client doesn't respond with all the advice that there are.

[00:07:15] Speaker 04:
attorney gave them, right?

[00:07:16] Speaker 04:
They don't respond with, well, my attorney explained how good time works.

[00:07:21] Speaker 04:
Here's that understanding.

[00:07:22] Speaker 00:
Sure.

[00:07:23] Speaker 00:
But if the client is going into the plea colloquy and believes that his counsel has told them, okay, here's what this agreement says, but don't worry about it because the judge is going to give you a variance or a departure, and you're really not going to get this sentence.

[00:07:38] Speaker 00:
It's all good.

[00:07:39] Speaker 00:
I'm telling you that.

[00:07:42] Speaker 00:
I think that would be a promise.

[00:07:44] Speaker 00:
I mean, that would be something that would be germane to the person's decision, whether it's knowing and voluntary to enter the plea.

[00:07:50] Speaker 00:
And if they don't say that at the plea colloquy, then I think that the sentencing judge is well within their rights to think this person understands his plea agreement.

[00:08:01] Speaker 04:
Well, I'm not saying that there's not attorney advice that could conceivably rise to the level of promise.

[00:08:07] Speaker 04:
I just think this is one of those background explanations, like when an attorney explains

[00:08:12] Speaker 04:
time credits or things like that, or where they're going to go, or prison placement requests, that that's the type of thing that I don't think we colloquially understand is being promised.

[00:08:22] Speaker 00:
So we have to carve out an exception from a sworn plea agreement.

[00:08:26] Speaker 00:
Somebody says an open court under oath.

[00:08:28] Speaker 00:
This is my agreement.

[00:08:29] Speaker 00:
I understand it.

[00:08:30] Speaker 00:
By the way, if there happened to have been a discussion with your lawyer about whether you're going to serve all your time in military prison or somewhere else,

[00:08:37] Speaker 00:
that part isn't under your oath.

[00:08:39] Speaker 00:
That's accepted because it's just not significant enough, but yet it's significant enough for his IAC claim?

[00:08:45] Speaker 04:
Well, I don't think it's a... I'm not asking for a carve out.

[00:08:49] Speaker 04:
I just think this is the type of thing that often happens outside of the record as this court has made clear in other IAC contexts because when you're talking about advice, these are things that usually happen between the attorney and their client.

[00:09:01] Speaker 02:
You want to save any of your time?

[00:09:02] Speaker 02:
Sure, Your Honor.

[00:09:03] Speaker 02:
Thank you very much.

[00:09:03] Speaker 02:
Could I ask just one question?

[00:09:06] Speaker 03:
Of course.

[00:09:06] Speaker 03:
Are you essentially saying that for 2241s that challenge court martial prosecutions and convictions, that there is no exhaustion requirement because of the lack of jurisdiction in the military?

[00:09:22] Speaker 04:
I think at this point, that is probably true because the courts refuse to consider habeas at all.

[00:09:30] Speaker 04:
There was a time when they did consider habeas petitions.

[00:09:32] Speaker 04:
There's a lot of discussion in the case law about the All Writs Act and Article I courts and their jurisdiction to do those things.

[00:09:42] Speaker 04:
But if the courts are refusing to consider habeas at all, then there's no requirement to futilely exercise exhaustion.

[00:09:52] Speaker 02:
That's my question.

[00:09:53] Speaker 02:
Thank you.

[00:09:53] Speaker 02:
Very well.

[00:09:54] Speaker 04:
Thank you, Ernest.

[00:09:54] Speaker 02:
All right, let's hear from the government.

[00:09:57] Speaker 02:
Mr. Robbins.

[00:10:00] Speaker 01:
Good morning.

[00:10:01] Speaker 01:
Good morning, Your Honors.

[00:10:02] Speaker 01:
May it please the Court, Alexander Robbins on behalf of the United States.

[00:10:08] Speaker 01:
The petitioner in this case committed a horrible murder.

[00:10:11] Speaker 01:
He left ample evidence of his crime, and he confessed to the crime almost immediately in a handwritten statement.

[00:10:19] Speaker 01:
The notion that he would have chosen to go to trial facing the death penalty and even life imprisonment on the lesser included offense that he pleaded to versus taking a very lenient 30-year plea deal that was binding on the trial court that his lawyers obtained for him.

[00:10:37] Speaker 01:
to the point where the trial court apparently, as an act of protest, sentenced him to 38 years, knowing it was going to be knocked back down to 30 years under the plea deal.

[00:10:46] Speaker 01:
The idea that he would have made a different decision because his lawyers didn't tell him that he might be transferred to civilian custody down the road if he repeatedly asked for it is, as the district court put it, palpably incredible.

[00:11:00] Speaker 01:
That's ultimately the focus, and I think that's Judge Smith's point.

[00:11:03] Speaker 01:
On the merits of this case, there is no there there.

[00:11:06] Speaker 01:
Now, there's plenty of other procedural issues.

[00:11:09] Speaker 01:
We've raised, we've attempted to raise all of them because we think it's our job too to give the court as many options to dispose of this case as possible.

[00:11:17] Speaker 01:
But the district court's disposition was exactly correct.

[00:11:20] Speaker 00:
So you argued in your briefing latches, retroactivity—there's not a sixth of a minute, right?

[00:11:27] Speaker 00:
You argued a number of—I don't want to demean them by calling them a collateral, but they're not necessarily the merits that you're talking about right now.

[00:11:35] Speaker 00:
But what I didn't see you argue is procedural default.

[00:11:39] Speaker 00:
And the district court treated this as technically exhausted and did not find procedural default because the government didn't argue it.

[00:11:48] Speaker 00:
But then the petitioner lost on the merits.

[00:11:52] Speaker 00:
Are you disputing the way the district court approached this procedurally?

[00:11:55] Speaker 01:
No, Your Honor.

[00:11:56] Speaker 01:
The district court got it right.

[00:11:58] Speaker 01:
And that exhaustion issue is actually tricky for some of the reasons that the court and my colleague got to.

[00:12:05] Speaker 01:
We stand by all the procedural arguments we raised in our brief.

[00:12:08] Speaker 01:
We think those are alternate bases for this court to affirm the judgment below because ultimately this court can affirm on any ground that's supported by the record as a general rule of appellate practice.

[00:12:19] Speaker 01:
The exhaustion point is tricky because we agree that he couldn't exhaust

[00:12:26] Speaker 01:
through the habeas remedy in the military courts, because he actually tried to.

[00:12:30] Speaker 00:
So he doesn't have a remedy.

[00:12:31] Speaker 00:
You agree he does not have a remedy in military courts.

[00:12:33] Speaker 01:
Well, at this point, his remedy, no, I guess I wouldn't agree with it if it's potentially that broad.

[00:12:39] Speaker 01:
And maybe this gets to conditions of confinement issue versus a habeas issue.

[00:12:44] Speaker 01:
His remedy, if his Sixth Amendment, or sorry, his remedy, if any of his constitutional rights were violated in 2009 when he pleaded guilty,

[00:12:55] Speaker 01:
is a habeas petition in 2241.

[00:12:57] Speaker 00:
In federal court?

[00:12:59] Speaker 01:
In federal court.

[00:13:00] Speaker 01:
That's true.

[00:13:01] Speaker 01:
And that's why we don't have the first footnote.

[00:13:03] Speaker 01:
We acknowledge that this isn't governed by EDPA or 2255 because of that issue, that that's the structure of this system.

[00:13:11] Speaker 02:
So would the government, as I read this, all of the governments, or what I will call, affirmative defenses, if all of them fail,

[00:13:23] Speaker 02:
It really doesn't matter because of the merits decision.

[00:13:26] Speaker 02:
Does the government really want us to go down the line on any of these other issues like exhaustion, procedural default, and so on?

[00:13:33] Speaker 02:
Does it really matter?

[00:13:34] Speaker 01:
No, Your Honor.

[00:13:37] Speaker 01:
We would be entirely happy and it would be entirely correct if this Court affirmed for the same reason as the District Court and the Magistrate Judge.

[00:13:43] Speaker 02:
The government's fine if we just affirm it on the merits.

[00:13:46] Speaker 01:
We are giving the Court

[00:13:48] Speaker 01:
as many bases as possible that are correct, which we see as our job.

[00:13:52] Speaker 01:
But absolutely, the district court got it right.

[00:13:53] Speaker 01:
You can affirm just based on that.

[00:13:56] Speaker 00:
So your opposing counsel, excuse me for interrupting you.

[00:13:59] Speaker 01:
Oh, of course.

[00:14:00] Speaker 00:
So I understood his argument.

[00:14:01] Speaker 00:
He was saying that we should dress the merits, but that the district court really failed because they didn't have an evidentiary hearing and made credibility determinations without hearing testimony or hearing from the petitioner.

[00:14:16] Speaker 00:
How do you respond to that?

[00:14:17] Speaker 01:
I would point this court, and this came up when my colleague was up here at the podium, to pages 117, 118, and 119 of the excerpts of record.

[00:14:26] Speaker 01:
One moment.

[00:14:30] Speaker 01:
117 and 118 are the later two requests for transfer.

[00:14:33] Speaker 01:
119 is the original request for transfer.

[00:14:38] Speaker 01:
All three of them in context are

[00:14:42] Speaker 01:
Clearly requesting a transfer.

[00:14:43] Speaker 01:
Certainly the second two are, there doesn't seem to be any dispute about that anymore.

[00:14:47] Speaker 01:
My colleague just now said.

[00:14:48] Speaker 01:
that while the one on page 119, the first request shows that he was, I think his word was concerned about a transfer.

[00:14:55] Speaker 01:
That's just not true.

[00:14:56] Speaker 01:
Page 119 in the petitioner's own hand says, I can have a meeting with you to change my records to reflect where I will be going when I make parole.

[00:15:07] Speaker 01:
My family is in California from LA to Victorville.

[00:15:10] Speaker 01:
I would like to ensure that if I am transferred to FBOP that I go to the facility in Victorville somewhere else.

[00:15:16] Speaker 01:
He wasn't concerned about a transfer.

[00:15:17] Speaker 01:
He thought he was going to make parole and wanted to move to California sooner rather than later.

[00:15:21] Speaker 01:
And then on pages 118 and 119, he expressly asks for a transfer.

[00:15:26] Speaker 01:
And the district court found as a factual matter that he asked for a transfer.

[00:15:30] Speaker 01:
The district court was entitled to make that finding based on this paper record.

[00:15:34] Speaker 01:
It didn't need an evidentiary hearing.

[00:15:36] Speaker 03:
One way of reading the record is that he did not become concerned until he realized there was a two-year interval for considering parole in California and a one-year interval at Leavenworth.

[00:15:47] Speaker 03:
Is that true?

[00:15:48] Speaker 01:
And potentially, I don't think it makes a difference.

[00:15:50] Speaker 01:
That's an ambiguity that

[00:15:52] Speaker 01:
He, I guess, states in his reply brief that he's back to the Army's parole jurisdiction instead of the BAP's parole jurisdiction.

[00:16:01] Speaker 01:
We don't have any separate independent knowledge of that other than what petitioner reports in his reply brief.

[00:16:06] Speaker 01:
But ultimately, that doesn't matter.

[00:16:08] Speaker 01:
And this goes back a little bit to this question of what relief he's seeking.

[00:16:12] Speaker 01:
What I was going to say to Judge Beatty was that what complicates this case a little bit

[00:16:21] Speaker 01:
is that you have these various conditions of confinement, execution of sentence claims that are sort of being forced into the bucket of IAC back in 2008 in a way that makes them absurd.

[00:16:33] Speaker 01:
And whatever his complaints are, and that's why I said he may have remedies, if his complaint is the quality of dental care that he's receiving in the Bureau of Prisons facility or being housed with foreign nationals in violation of military law or the frequency of his parole hearings,

[00:16:51] Speaker 01:
We're not saying he has no remedy for that.

[00:16:53] Speaker 01:
Those are civil injunctive claims.

[00:16:55] Speaker 01:
He may have a remedy for that.

[00:16:56] Speaker 01:
We don't know.

[00:16:57] Speaker 01:
It's not relevant to this proceeding.

[00:17:00] Speaker 01:
This proceeding is he's saying all of that is why, back in 2009, I was denied my right to counsel.

[00:17:08] Speaker 02:
But bottom line, I gather, is the government is, in effect, saying

[00:17:13] Speaker 02:
this defendant doesn't satisfy either prong of Strickland.

[00:17:23] Speaker 01:
take all of his claims and put them in that sort of retrospective 2009 bucket, it's absurd.

[00:17:29] Speaker 01:
And the district court was well within its discretion, and I guess authority is a fact finder, to find that subjectively on this record, including the part I just read, Your Honors, that that's absurd.

[00:17:41] Speaker 01:
It didn't need an evidentiary hearing.

[00:17:43] Speaker 01:
The district court has discretion to dispose of these types of claims without an evidentiary hearing, particularly in context where, as we pointed out in our brief in footnote eight,

[00:17:52] Speaker 01:
that this is a collateral attack on a military proceeding is pretty much the highest level of deference, even more so than the federal courts normally give to state courts, that we can't find any case that has issued a writ saying that the military courts denied full and fair consideration.

[00:18:10] Speaker 01:
Certainly, it's not going to be this case.

[00:18:14] Speaker 01:
Does the panel have questions?

[00:18:16] Speaker 01:
I think that we ask that you affirm.

[00:18:18] Speaker 04:
Thank you All right, so mr. Ogden you have a little time left Thank your honors, I'll be extremely short Even assuming arguing dough the transfer requests are what the government purports to say they are It's again.

[00:18:38] Speaker 04:
It's the consequences of the transfer that mr. Johnson is concerned with and

[00:18:42] Speaker 04:
And I think at the end of the day, the record could have been more developed.

[00:18:45] Speaker 04:
But the problem is Mr. Johnson was pro se below.

[00:18:47] Speaker 04:
He didn't have the benefit of counsel.

[00:18:49] Speaker 04:
This court appointed us on appeal.

[00:18:51] Speaker 04:
He didn't have the benefit of an evidentiary hearing.

[00:18:53] Speaker 04:
So we're just asking for that hearing.

[00:18:55] Speaker 04:
Thank you.

[00:18:56] Speaker 02:
Thank you, both counsel, for your argument.

[00:18:58] Speaker 02:
We appreciate it.

[00:18:59] Speaker 02:
The case of Johnson versus Rodriguez is submitted.