[00:00:11] Speaker 03: Good morning, everyone. [00:00:13] Speaker 03: Judge De Alba and I are happy to be sitting here in Phoenix, and we are pleased to also welcome Judge Gutierrez, who is sitting by designation from the Central District of California. [00:00:23] Speaker 03: We appreciate his help and glad that he's here with us. [00:00:26] Speaker 03: We have one case that's being submitted today without oral argument, and that is Butron v. Kapoma v. Garland, and we will hear four cases which will take up in the order they appear on the calendar. [00:00:39] Speaker 03: We'll hear argument first in Martin v. United States. [00:00:42] Speaker 03: Counsel, are you ready? [00:00:44] Speaker 03: All right, Mr. McDonald, you may begin. [00:00:48] Speaker 04: Good morning, Your Honors. [00:00:49] Speaker 04: Randy McDonald on behalf of the Petitioner Joseph Martin. [00:00:53] Speaker 04: I'd like to reserve a couple of minutes for rebuttal if I may. [00:00:55] Speaker 03: You'll keep your own time. [00:00:58] Speaker 04: Yeah. [00:00:58] Speaker 04: So this case raises, or I have briefed two issues in this case, one relating to the availability of equitable tolling, which is the certified issue. [00:01:08] Speaker 04: And the other issue is related to the question of whether the one-year statute of limitations should apply in this case, given it challenges subject matter jurisdiction. [00:01:17] Speaker 04: I will limit my comments to the equitable tolling argument, but I'm happy to answer questions related to the argument relating to subject matter jurisdiction. [00:01:26] Speaker 01: So, Counsel, let me go ahead and ask then, what is the correct deadline under the equitable tolling in this case, in your opinion? [00:01:33] Speaker 04: So, I think that's a difficult [00:01:37] Speaker 04: question to answer given what was happening in this case. [00:01:41] Speaker 04: I think that, you know, the case law says that something has to be going on throughout the period of time prior to the filing and I think certainly in this case something was going on throughout the period of time. [00:01:55] Speaker 04: that the district court found that at least up until August 19th of 2019, the petitioner was entitled to equitable tolling because his appellate attorney who he had hired to file a brief in the Supreme Court had actively lied to him about whether that brief had been filed. [00:02:14] Speaker 04: That he did discover that on August 19th and that he did take some steps after that to remedy it. [00:02:19] Speaker 04: After that, I think a number of other factors this court should consider lead to the conclusion that equitable tolling is appropriate here. [00:02:31] Speaker 04: First off, there was the issue of whether Mr. Martin or his substitute counsel were able to get the full record from trial counsel. [00:02:40] Speaker 00: And there's in the record there are some... What was in the record that would have made a difference? [00:02:45] Speaker 00: I'm sorry? [00:02:45] Speaker 00: What was in the record that would have made a difference? [00:02:47] Speaker 00: You seem to have all the information he needed. [00:02:49] Speaker 04: There was a claim in the 2255 relating to an ineffective assistance of counsel for failure to call a particular witness. [00:03:01] Speaker 04: And I think the trial counsel's file would certainly be relevant as to why trial counsel had failed to call that witness. [00:03:09] Speaker 04: And there's some emails back and forth in the record [00:03:13] Speaker 04: that indicate that some of the file may have been presented, but some of it may have not. [00:03:18] Speaker 04: There was a reference in one of the emails from trial counsel that she was seeking an ethics opinion from the state bar as to how much of the trial file could be turned over because it was subject to a joint defense agreement. [00:03:31] Speaker 01: So, counsel, correct me if I'm wrong on this. [00:03:33] Speaker 01: I have that by June of 2020, [00:03:36] Speaker 01: Martin had received all the documents necessary for the 2255 petition. [00:03:44] Speaker 01: So is that our date? [00:03:46] Speaker 04: So I think that it appears that Mr. Martin had received the relevant files. [00:03:51] Speaker 04: Mr. Martin or his successor counsel had received the relevant files on or about that date. [00:03:57] Speaker 04: But what happened after that date was that his successor counsel, [00:04:01] Speaker 04: So he had to fire the counsel who had lied to him, obviously. [00:04:07] Speaker 04: Mr. Martin's family had moved back to Wisconsin. [00:04:10] Speaker 04: This part is not in the record. [00:04:11] Speaker 04: I admit that the record here is something less than a picture of clarity because Mr. Martin had to file pro se. [00:04:16] Speaker 04: Mr. Martin's family moved back to Wisconsin and had consulted with an attorney in Wisconsin to assist with the 2255. [00:04:23] Speaker 04: And that attorney helped them create the draft of the motion that was ultimately filed. [00:04:29] Speaker 04: And the motion is dated April 2nd of 2020, if you look on 2ER 248. [00:04:37] Speaker 04: So the motion that would ultimately not be filed until January of 2021 was at least prepared by April of 2020. [00:04:47] Speaker 04: with the help of this Wisconsin lawyer, but the Wisconsin lawyer said, look, I'm not licensed in the Ninth Circuit. [00:04:52] Speaker 04: I can't help you there. [00:04:53] Speaker 04: You have to find a counsel who... That was two months before he got the entire file. [00:04:58] Speaker 04: Yes. [00:04:58] Speaker 04: So he had prepared the bare bones motion alleging the claims that he believed he had, but he did not file it because, you know, he still needed to obtain the entire file. [00:05:11] Speaker 04: He still needed to obtain counsel in [00:05:15] Speaker 04: Arizona or ultimately California who was licensed to practice here in the District of Arizona and the Ninth Circuit. [00:05:23] Speaker 04: And so with the assistance of this Wisconsin attorney he prepared the motion and then found an attorney who was licensed in the Ninth Circuit and that attorney told him [00:05:33] Speaker 04: effectively that what he was trying to do was not a 2255, that instead he ought to seek an unavailable civil remedy, that he should file a Rule 60B motion in the court. [00:05:47] Speaker 03: It's interesting that one of your arguments is that he didn't file the 2255 motion because he was told by this counsel that he needed to concurrently file the Rule 60B. [00:05:56] Speaker 03: But in the end, he filed just the 2255 motion, so I don't really quite understand this argument, because if that really was doing any work, he would have filed both and then said, look, I was waiting because I was told I needed to file both. [00:06:10] Speaker 04: He was told that he needed to file the Rule 60 first. [00:06:14] Speaker 04: And at some point, and again, it's not exactly clear in the record at what point and how he discovered this, but at some point he did discover that he could file both concurrently, despite the fact that his counsel had been representing to him, no, you have to exhaust these remedies that... And then he didn't. [00:06:34] Speaker 04: He didn't, you are correct, that at some point he discovered on his own that he was able to file both of these things concurrently. [00:06:41] Speaker 04: And in fact, eventually after having filed the Rule 60B and it having been appealed to this court, this court ultimately said no, the 60B is not a remedy that you can file in a criminal court. [00:06:54] Speaker 04: And so that's why I think the Thomas case from the 11th Circuit is relevant because in that case, similarly, a petitioner had failed to file a 2255 because the council believed that they were trying to get case law that the EDPA one-year statute of limitations was unconstitutional. [00:07:16] Speaker 04: I think similarly here, although the record is not, again, entirely clear as to why appellate counsel decided to pursue the Rule 60B, I think there's at least the suggestion that, you know, she thought that this civil remedy was the correct way to go, despite the lack of any case law suggesting that it was applicable in a criminal case. [00:07:43] Speaker 04: and that she actively prevented or told Mr. Martin that he could not file a 2255 concurrently with that Rule 60B. [00:07:56] Speaker 04: And I think it's relevant that in the Thomas case, there was, there had initially been a remand back to the district court to do a little bit more fact-finding about specifically why the council had given that incorrect advice as to the deadline for EDPA and that there had been some additional fact-finding as to whether that constituted an abandonment by council. [00:08:21] Speaker 00: In Thomas, they're trying to set up a challenge to the statute of limitations. [00:08:24] Speaker 00: This was the lawyer's motivation. [00:08:26] Speaker 00: There's no evidence in this case what the lawyer's motivation was in terms of challenging case law. [00:08:30] Speaker 04: I agree that there's no evidence in the record and that's why I think perhaps a limited remand for purposes of an evidentiary hearing on why counsel was giving him that advice is appropriate, just as happened in Thomas. [00:08:42] Speaker 04: So Thomas was returned to the 11th Circuit after an initial remand. [00:08:47] Speaker 04: I see that I have two minutes remaining. [00:08:49] Speaker 04: I'd like to reserve some time. [00:08:50] Speaker 04: Thank you. [00:08:51] Speaker 03: Thank you. [00:09:02] Speaker 03: Mr. Lord, you may begin when you're ready. [00:09:04] Speaker 03: Okay. [00:09:05] Speaker 02: May it please the court. [00:09:06] Speaker 02: My name is Carla Hodes Delore representing the United States to answer Judge Alva's first question when the statute of limitations ran in this case. [00:09:16] Speaker 02: On August 19, 2019, the defendant received notice that his attorney did not properly file the cert petition and his case was dismissed. [00:09:26] Speaker 02: It was at that point that the one-year statute of limitations began running, and so then it expired on August 19, 2020. [00:09:34] Speaker 02: The defendant has not shown or demonstrated that he is entitled to equitable tolling because no extraordinary circumstances exist [00:09:43] Speaker 02: and he did not exercise any reasonable diligence in filing his 2255 petition. [00:09:52] Speaker 02: Instead of pursuing a 2255 motion, the defendant instead, in the first half of 2020, pursued and filed a complaint against his appellate attorney in the Texas State Bar. [00:10:06] Speaker 02: And in that complaint to the Texas State Bar, he [00:10:10] Speaker 02: acknowledged that he knew the importance of timely filing a 2255 petition, yet he failed to do so. [00:10:18] Speaker 03: What do you say to the argument that your friend on the other side made that, in fact, he had prepared the 2255 motion in April of 2020, that it just wasn't filed due to the circumstances relating to finding local council, et cetera? [00:10:32] Speaker 02: Well, that shows two things, Your Honor. [00:10:34] Speaker 02: First, it shows that there were no extraordinary circumstances that prevented him from timely filing it. [00:10:39] Speaker 02: And it also shows that he was not reasonably diligent in filing it. [00:10:44] Speaker 02: I know counsel mentioned the record not obtaining the record from trial counsel in a series of emails going back and forth. [00:10:52] Speaker 02: But if you look at the record and the 2255 form itself and the memo supporting it, [00:10:59] Speaker 02: it's clear that the defendant did have the record from trial counsel. [00:11:05] Speaker 02: Trial counsel had sent an email January 6th stating, I will get whatever I have to this week. [00:11:12] Speaker 02: Then on April 1st, she followed up with another email that said, I just sent you a drop box link for all of the documents in my computer. [00:11:24] Speaker 02: Then the Form 2255 petition was dated the next day, April 2, 2020. [00:11:31] Speaker 02: Thereafter, on June 1, trial counsel sent the defendant's family the documents related to the witness, Nicholas Broccoli. [00:11:45] Speaker 02: And in that email also stated that she was seeking an ethics opinion from the state bar as to whether she could turn over [00:11:53] Speaker 02: the investigative reports that were made pursuant to a joint defense agreement, and that she would follow up on that. [00:12:02] Speaker 02: The record does not indicate or does not specify at what date those documents were turned over. [00:12:10] Speaker 02: But if you look at the 2255 memo, that's at the memo, it's at 2ER 248. [00:12:23] Speaker 02: There, the, oh, I apologize, it's 2ER20. [00:12:29] Speaker 02: In the 2255 memo, the defendant added a new claim that was not in the 2255 form itself. [00:12:38] Speaker 02: And that claim was ineffective of assistance of counsel for failure to obtain the investigative reports. [00:12:45] Speaker 02: And then in that claim, he states, through the investigator's reports, [00:12:50] Speaker 02: it's apparent Nicholas Broccoli was an important defense witness. [00:12:55] Speaker 02: So that indicates that the defendant did have all the records from trial counsel. [00:13:02] Speaker 02: In addition, the defendant knew the substance of this testimony regarding Nicholas Broccoli. [00:13:10] Speaker 02: And we know that because in the underlying criminal case, [00:13:13] Speaker 02: the trial counsel had filed a motion to allow the witnesses to appear by videoconference, by teleconference. [00:13:23] Speaker 02: And that's because Nicholas Broccoli, his dad and brother were having problems with their passports and they didn't know if they would be able to travel from Germany. [00:13:32] Speaker 02: And in that motion, trial counsel set forth the relevance and substance of what Nicholas Broccoli's testimony was going to be. [00:13:39] Speaker 02: And in response to that motion, the government submitted the sworn statement of Nicholas Broccoli. [00:13:46] Speaker 02: So the defendant knew what the substance of his testimony would be and could put it in his 2255 motion. [00:13:57] Speaker 02: And defendant has not shown what else [00:14:01] Speaker 02: prevented him from putting anything in his 2255 motion and timely filing it. [00:14:10] Speaker 02: And with respect to the advice from counsel regarding filing a Rule 60 as opposed to Rule 2255, as Judge Desai pointed out, nothing prevented the defendant from filing a Rule 2255. [00:14:23] Speaker 02: He filed it six weeks before the Rule 60 motion, and he also filed [00:14:29] Speaker 02: After that, a motion to stay the 2255 proceedings. [00:14:33] Speaker 02: So nothing prevented the defendant from pursuing the 2255 motion in this case. [00:14:38] Speaker 02: There were no extraordinary circumstances, and defendant has not shown that he acted with any reasonable diligence in filing his petition lately. [00:14:52] Speaker 02: If the court has no further questions, we ask that you affirm the denial of the [00:14:59] Speaker 02: 2255 for being untimely. [00:15:02] Speaker 02: Thank you. [00:15:02] Speaker 02: Thank you. [00:15:11] Speaker 04: So, Your Honors, I think it's important to remember that filing a 2255, you have to include all of the claims that you could potentially know about or else they run the risk of being time barred. [00:15:27] Speaker 04: And so I don't think that the question of whether he knew enough to file on these particular claims is necessarily the relevant question, but whether he had enough from the trial file to do a thorough review of any potential claims that he might have had under 2255 in order to file, because he would have needed to file on all of his claims within that one year statute of limitations. [00:15:55] Speaker 04: And if he filed a petition, [00:15:57] Speaker 04: that included only those claims that he knew about based on the record that he had at the time, he would be running the risk of waiving other potential claims that he would have had. [00:16:08] Speaker 00: So the fact that he... He still would have had time to amend his petition before the statute. [00:16:12] Speaker 04: Well, I guess that's an open question based on when the statute of limitations would have run in this case because he can only amend his petition to add new claims [00:16:26] Speaker 04: within that statutory one year period. [00:16:31] Speaker 00: That would have been August of 2020. [00:16:34] Speaker 04: Assuming that none of the stuff that had happened after the August 19th [00:16:41] Speaker 04: his discovery that his counsel had not filed the Supreme Court. [00:16:45] Speaker 04: I agree that absent anything else that followed that, that would have been the deadline. [00:16:51] Speaker 04: But again, I think I would submit that there was enough happening in this case that warranted equitable tolling beyond that. [00:17:01] Speaker 04: If there are no more questions. [00:17:04] Speaker 04: Thank you. [00:17:05] Speaker 03: Thank you, counsel. [00:17:05] Speaker 03: This matter is now submitted.