[00:00:00] Speaker 04:
for oral argument is Joseph Albert Teyes versus David Shin.

[00:00:07] Speaker 04:
Well, it says attorney general for the state of Arizona, but I think that should be Chris Mays.

[00:00:30] Speaker 00:
I'm sure counsel on both sides know this, but Mr. Burke was my law clerk almost 30 years ago.

[00:00:37] Speaker 00:
Almost.

[00:00:39] Speaker 03:
We haven't aged a bit.

[00:00:43] Speaker 03:
Well, certainly you haven't.

[00:00:46] Speaker 03:
May it please the court, my name is Michael Burke and I represent Mr. Teyes in his appeal from the district court's dismissal of his pro se 2254 habeas petition.

[00:00:58] Speaker 03:
I will keep track of my time and attempt to reserve two minutes for rebuttal.

[00:01:03] Speaker 03:
Following Mr. Tejas' pro se notice of appeal, this court issued a COA concerning the question of whether he had

[00:01:13] Speaker 03:
procedurally defaulted claim one of his habeas petition, which this court described as a claim of ineffective assistance to a counsel, and specifically whether his claim that counsel was ineffective presenting a justification defense over his objection was procedurally defaulted.

[00:01:32] Speaker 03:
In our briefing, we identified three arguments

[00:01:38] Speaker 03:
alternative arguments for why the claim is not procedurally defaulted.

[00:01:42] Speaker 03:
The first is that the claim was presented in his pro se motion for reconsideration to the Arizona Court of Appeals and the Arizona Court of

[00:01:55] Speaker 03:
reviewed that motion and denied it after consideration.

[00:02:00] Speaker 03:
Our second argument is that Mr. Tejas is still able to return to state court to exhaust his claim.

[00:02:07] Speaker 03:
We've been referring to it as a McCoy claim.

[00:02:10] Speaker 03:
The court is aware of McCoy and that is the basis of the claim here.

[00:02:16] Speaker 04:
McCoy claim or is it an IAC McCoy claim?

[00:02:20] Speaker 03:
Your Honor, I think that they're so closely linked.

[00:02:25] Speaker 03:
And I yesterday submitted a 28J letter where it

[00:02:32] Speaker 03:
Normally, it has been referred to as both a McCoy claim and effective assistance of counsel for failing to recognize the client's right to have autonomy over the course of their.

[00:02:45] Speaker 04:
So how do you view it as a true McCoy claim or an IAC McCoy claim?

[00:02:53] Speaker 03:
In this case, I view it as an IAC claim based on McCoy.

[00:03:03] Speaker 01:
get out of kind of the Martinez issue then of establishing, if it's an IAC claim, of establishing prejudice because it's only the real McCoy that's structural that would avoid that.

[00:03:17] Speaker 01:
So isn't that a problem for you if it's an IAC claim under Martinez?

[00:03:23] Speaker 01:
Under Martinez?

[00:03:24] Speaker 03:
Under Martinez, Your Honor, we would need to show that post-conviction counsel was

[00:03:32] Speaker 03:
ineffective under Strickland's standard, deficient performance, and that Mr. Teyes was prejudiced by that.

[00:03:38] Speaker 03:
Our argument with regard to that is that post-conviction counsel was made aware by Mr. Teyes, as was all of his counsel, that he objected to his trial counsel's refusal to acknowledge his right to maintain his innocence.

[00:03:57] Speaker 01:
When did he do that?

[00:03:58] Speaker 01:
Because as I understand, McCoy is about

[00:04:00] Speaker 01:
contemporaneous at trial objections and everything else is Nixon, IAC.

[00:04:08] Speaker 03:
It is your honor, but the interesting thing about comparing McCoy and Nixon is in Nixon, the Florida Supreme Court twice remanded the case for evidentiary development to determine whether Mr. Nixon had expressed any position on whether his attorney was going to

[00:04:30] Speaker 03:
concede his guilt.

[00:04:33] Speaker 03:
Here, we have nothing on the record from the Arizona court, from the trial court, that shows that Mr. Teyes made any comments at all during trial.

[00:04:42] Speaker 03:
He didn't even testify.

[00:04:44] Speaker 03:
But immediately after, he notified his direct appeal counsel.

[00:04:50] Speaker 03:
So even a year before McCoy was even decided, Mr. Teyes was making it clear that the course of his trial had been against his will.

[00:05:00] Speaker 00:
Well, McCoy didn't exist at that time and it's since been held to be not retroactive.

[00:05:07] Speaker 00:
So how do we judge the performance at trial in terms of IAC?

[00:05:13] Speaker 03:
In this case, this is such a unique case for habeas purposes because

[00:05:17] Speaker 03:
McCoy came down while Mr Tejas's case was still on direct appeal.

[00:05:22] Speaker 03:
So McCoy applies to his case under Griffith v Kentucky.

[00:05:26] Speaker 03:
So we don't have to worry about retroactivity here.

[00:05:29] Speaker 03:
There's no question that McCoy governs Mr Tejas's trial.

[00:05:33] Speaker 04:
But if we're looking at it as an IAC McCoy claim, why doesn't it

[00:05:44] Speaker 04:
for lack of prejudice under Strickland.

[00:05:47] Speaker 04:
Because, I mean, the outcome here, I'm not quite sure how you can show that the result was prejudicial to him.

[00:05:58] Speaker 04:
I mean, he did a lot better.

[00:06:00] Speaker 04:
I mean, he could have done a lot worse here.

[00:06:04] Speaker 04:
And with the second degree murder, it's just an interesting case, as you say, because his lawyer, even though he disagreed

[00:06:14] Speaker 04:
Mr. Tejas disagreed with the lawyer's decision on how to go forward and didn't respect Mr. Tejas' desire to pursue a misidentification defense.

[00:06:28] Speaker 04:
He was found not guilty of the second degree murder.

[00:06:32] Speaker 04:
So I'm trying to figure out, I mean, didn't he fare better here?

[00:06:37] Speaker 04:
and he could have fared a lot worse.

[00:06:39] Speaker 03:
He certainly could have, Your Honor.

[00:06:40] Speaker 03:
The point here though is that under McCoy, McCoy says that the error that occurred at Mr.

[00:06:50] Speaker 03:
Tayez's trial is a structural error.

[00:06:52] Speaker 03:
So we can't consider, it's impossible to consider.

[00:06:55] Speaker 04:
Well, but that's why I was asking you though, is this an IAC McCoy claim or is this an actual McCoy claim?

[00:07:00] Speaker 04:
Because I don't, I mean, can you have it both ways here?

[00:07:03] Speaker 04:
Yes.

[00:07:05] Speaker 04:
And I'm not, it's just an honest question.

[00:07:09] Speaker 04:
I'm trying to figure it out myself.

[00:07:10] Speaker 03:
No, and I admit it's a strange combination.

[00:07:13] Speaker 03:
But

[00:07:14] Speaker 03:
Yes, you can.

[00:07:17] Speaker 03:
Let's say, for example, you had a defendant who was deprived of his right to testify on his own behalf because he was told by his attorney that that was the attorney's decision and the attorney said, you're not getting up there.

[00:07:32] Speaker 03:
That would be a violation of his substantive right to testify on his own behalf.

[00:07:39] Speaker 03:
It would also be ineffective assistance of counsel.

[00:07:41] Speaker 01:
But it seems like there might be

[00:07:44] Speaker 01:
a little two areas of daylight between this claim and and the McCoy claim that would get you to structural error.

[00:07:51] Speaker 01:
The first I think we've discussed in that there was no McCoy involved contemporaneous objections in the courtroom before the judge that were not addressed.

[00:08:04] Speaker 01:
The second, though, is the difference between trial strategy and the client's objectives.

[00:08:11] Speaker 01:
And in this case, I think, as Chief Judge Marquia has said, both of the choices that your client presented and that his counsel went with were pointed in the same direction.

[00:08:25] Speaker 01:
Both would have been sufficient here for acquittal, which is different from acquiescence.

[00:08:29] Speaker 01:
doesn't go to the client's objective of saying, I don't care whether I'm acquitted, I want to be found, McCoy is different.

[00:08:40] Speaker 03:
No, respectfully, I don't see the distinction.

[00:08:43] Speaker 03:
Mr. Tejas' position was, I'm innocent.

[00:08:47] Speaker 03:
And my attorney is getting up there and saying,

[00:08:50] Speaker 03:
I was there and I shot the man, but I am innocent.

[00:08:53] Speaker 03:
I was not there.

[00:08:55] Speaker 03:
It's the same thing that happens in a McCoy case.

[00:08:59] Speaker 03:
It's the exact same thing.

[00:09:00] Speaker 03:
He has the fundamental right, a structural right.

[00:09:05] Speaker 03:
You don't even have to look at error.

[00:09:06] Speaker 03:
If his right to determine the objective of his litigation has deprived him, it is

[00:09:12] Speaker 04:
But he didn't object at trial.

[00:09:15] Speaker 04:
That's a critical sort of piece here, I think, isn't it?

[00:09:19] Speaker 03:
It is, Your Honor, which is, if I may kind of backtrack a little bit, which is why we have asked the court to allow Mr. Tejas to return to state court, because this does need factual development.

[00:09:32] Speaker 01:
Why isn't that futile, given the procedural default?

[00:09:37] Speaker 01:
that it seems like it may be playing under rule 32 in Arizona.

[00:09:43] Speaker 03:
I disagree that it is playing your honor in this courts.

[00:09:46] Speaker 03:
Why?

[00:09:46] Speaker 03:
Well, first this court, this court must look at only one question.

[00:09:51] Speaker 03:
Is his claim under McCoy plainly merit meritless?

[00:09:56] Speaker 03:
And, and we submit that it is not plainly merit meritless.

[00:10:00] Speaker 03:
He has identified that the claim falls under

[00:10:04] Speaker 03:
Nixon, McCoy, it's somewhere either Nixon or McCoy.

[00:10:08] Speaker 03:
We have no way of knowing.

[00:10:10] Speaker 03:
Mr. Teyes is unable to develop that critical fact in federal court because of the restrictions on the development of evidence and habeas.

[00:10:18] Speaker 03:
And we believe that he is, at the very least, entitled to request from the district court a rein stay so that he can go back.

[00:10:27] Speaker 03:
And if the Arizona courts decide that it is precluded,

[00:10:32] Speaker 03:
then Mr. Teyes may have a different argument to make.

[00:10:35] Speaker 03:
I'm out of almost out of time.

[00:10:37] Speaker 03:
So that's all right.

[00:10:38] Speaker 03:
You're okay.

[00:10:39] Speaker 04:
Maybe go a little bit over time.

[00:10:41] Speaker 04:
Um, just, uh, I just had some questions.

[00:10:44] Speaker 04:
If you went back to Arizona state court, uh, to exhaust the can't kick claim, um, I'm trying to figure out what cases that you would point to in state court to show that McCoy is a significant change in the law because that's one of the

[00:11:02] Speaker 04:
the rules that you're pointing to right now, I believe.

[00:11:05] Speaker 03:
It is one of them.

[00:11:06] Speaker 03:
And in Cruzvill Arizona last year, the Supreme Court of the United States said that a significant change in the law occurs when the prior decisions of a court are necessarily overruled by the new rule.

[00:11:27] Speaker 03:
And that would be our argument, that prior to McCoy, for example, as the district court itself noted in this case, and it noted incorrectly that the issue was one of trial strategy that fell within the province of the trial attorney.

[00:11:42] Speaker 03:
That was wrong.

[00:11:43] Speaker 03:
And so that case law has been overturned, an Arizona case law overturned by McCoy.

[00:11:51] Speaker 03:
So that would allow us to come back under that provision.

[00:11:54] Speaker 03:
Also, we submit that the right of which he was deprived to control his own defense was one that he would have to waive.

[00:12:04] Speaker 04:
That's what you argue in the footnote.

[00:12:07] Speaker 04:
there's on a rule of curl procedure, 32.2 a three.

[00:12:10] Speaker 04:
Yes, yes.

[00:12:11] Speaker 04:
Okay.

[00:12:11] Speaker 04:
And what would you point to in support of that claim that would allow you to go forward or be successful at the state?

[00:12:20] Speaker 03:
The fundamental fundamental nature of the right of which Mr Tejas was deprived is one that as McCoy explains,

[00:12:30] Speaker 03:
um, cannot be deprived of, deprived him, um, without his consent.

[00:12:36] Speaker 03:
And we don't know, obviously we have the Nixon versus McCoy question here, but if it is a McCoy Clay case, then our argument is that that right couldn't just be, um, sub voce, you know, denied him.

[00:12:53] Speaker 04:
But don't we have to sort of predict how, how likely Mr. Tay is, um,

[00:12:59] Speaker 04:
would be successful in obtaining a relief under the state procedural rules?

[00:13:08] Speaker 04:
We don't think we have to do that.

[00:13:12] Speaker 03:
No, Your Honor.

[00:13:12] Speaker 03:
In fact, you're actually precluded from doing that.

[00:13:14] Speaker 03:
Your only analysis is whether his claim is plainly meritless.

[00:13:20] Speaker 03:
which is a very, very low standard.

[00:13:23] Speaker 03:
The fact that we have been talking for now almost 15 minutes about this issue suggests that it is not a plainly maritalist case.

[00:13:30] Speaker 03:
So he should be entitled to return to state court.

[00:13:33] Speaker 04:
Do we know how Arizona courts are treating these kinds of claims after Shin versus Ramirez?

[00:13:40] Speaker 04:
Well, Your Honor, are they permitting the petitioners to develop a record?

[00:13:47] Speaker 03:
I do not know that after Shin.

[00:13:48] Speaker 03:
I do not know how the state courts are.

[00:13:51] Speaker 03:
And with particular regard to McCoy, again, this is a very unusual case, because we are in post-conviction.

[00:13:57] Speaker 03:
The Arizona courts have said that it's not retroactive in collateral proceedings.

[00:14:01] Speaker 03:
But in Mr. Tayez's case, there's the distinction that under Griffith, the case does apply to him.

[00:14:08] Speaker 03:
I apologize for going so far.

[00:14:09] Speaker 04:
I have one more question, because I want to make sure.

[00:14:12] Speaker 04:
Because you're saying that Martina's framework

[00:14:15] Speaker 04:
Governance here, even though I think McCoy explicitly said it's not applying an IAC claim, I'm really struggling with the McCoy versus a straight, or somebody said the real McCoy versus an IAC.

[00:14:33] Speaker 03:
McCoy claim.

[00:14:33] Speaker 03:
Right.

[00:14:34] Speaker 03:
And I believe, obviously this is not a criticism, but I believe the problem is with the language that was used in McCoy that says we do not apply our ineffective assistance of counseled jurisprudence.

[00:14:48] Speaker 03:
That being that we aren't going to apply stripling, we're not going to look to prejudice.

[00:14:54] Speaker 03:
What might help is I read the petitioner's brief

[00:14:59] Speaker 03:
before the Supreme Court in McCoy.

[00:15:01] Speaker 03:
And it discusses it both as a substantive claim and as an IAC claim.

[00:15:08] Speaker 03:
The court simply resolved it as a substantive claim because they had the record there.

[00:15:14] Speaker 03:
So in our position is that they are just inextricably intertwined.

[00:15:22] Speaker 03:
Thank you.

[00:15:22] Speaker 04:
Thank you.

[00:15:33] Speaker 02:
Good morning.

[00:15:33] Speaker 02:
May it please the court.

[00:15:34] Speaker 02:
My name is Joshua Smith, Assistant Attorney General, representing the respondents in this matter.

[00:15:39] Speaker 02:
The district court properly found that Mr. Tellez's claim was procedurally defaulted, regardless of whether this court views it as a real McCoy claim or an IAC claim that implicates McCoy.

[00:15:51] Speaker 02:
Mr. Tellez never raised the claim in a procedurally appropriate manner in state court, and he can't return to state court.

[00:15:56] Speaker 04:
Why wasn't the motion for reconsideration sufficient to exhaust his claim or his

[00:16:03] Speaker 04:
multiple attempts.

[00:16:05] Speaker 04:
You have to admire Mr. Teyes to some degree here.

[00:16:08] Speaker 04:
I mean, a trial, he has a lawyer.

[00:16:12] Speaker 04:
He didn't say anything to the judge, but I don't think he knew he could.

[00:16:19] Speaker 04:
And so then when he comes to the appeal, he is telling his direct appeal lawyer, hey, please assert this.

[00:16:28] Speaker 04:
as an issue, and then he tells the post-conviction, and they both say no to him.

[00:16:36] Speaker 04:
And it looks like he might have a McCoy claim.

[00:16:40] Speaker 02:
Well, when you look at the motion to reconsider, he doesn't actually assert a McCoy claim.

[00:16:45] Speaker 02:
What he does is makes factual assertions that at most implicate McCoy because he doesn't argue that I'm entitled to relief because my lawyer raised self-defense over my objections.

[00:16:54] Speaker 02:
He's arguing essentially an IAC claim.

[00:16:56] Speaker 04:
And that's true.

[00:16:57] Speaker 04:
And how much leniency, because our case law says that we should give, you know, pro se.

[00:17:03] Speaker 04:
appellant, some leniency in trying to figure out what their claim is.

[00:17:07] Speaker 04:
So does he not afford it in this situation?

[00:17:10] Speaker 04:
And I'm not arguing it.

[00:17:12] Speaker 04:
I'm just, I'm sincerely asking it.

[00:17:14] Speaker 02:
Well, even if you want to broadly construe it, it's still not a McCoy claim.

[00:17:20] Speaker 02:
It's an IAC claim really being raised in a motion to reconsider.

[00:17:23] Speaker 02:
It wasn't a claim that he raised in his original opening brief.

[00:17:28] Speaker 02:
And in Arizona, claims that aren't raised in your opening brief are generally waived on appeal.

[00:17:32] Speaker 02:
You can't raise it for the first time in a reply.

[00:17:34] Speaker 02:
You can't raise it for the first time in the Arizona Supreme Court.

[00:17:37] Speaker 02:
So logically, you can't raise it for the first time in a motion to reconsider.

[00:17:40] Speaker 02:
The only exception is within the rule itself, which allows you to raise something if there's been a new decision, but McCoy was decided before his opening brief was filed.

[00:17:49] Speaker 04:
Wasn't in the Green and Chambers case, did they hold those claims exhausted under similar circumstances?

[00:17:56] Speaker 02:
Well, in Green, the Washington Supreme Court changed its opinion in response to the motion to reconsider.

[00:18:03] Speaker 02:
That didn't occur here.

[00:18:05] Speaker 02:
Here, the court just summarily denied relief.

[00:18:09] Speaker 02:
And then in Chambers, the Nevada Supreme Court said that it reviewed the pleadings, it reviewed the attachments of the pleadings, and it reached a conclusion that its intervention wasn't warranted.

[00:18:22] Speaker 02:
In that language, this court concluded was enough to suggest that it was a

[00:18:26] Speaker 02:
adjudication on the merits here, it's just they wrote, we considered the motion and it's denied, which could mean that we just looked at it, but we don't adjudicate the merits.

[00:18:37] Speaker 02:
The motion is also four times the page limit that's allowable for a motion to reconsider, so it could simply just be denied on that procedural basis that it is overlong and the court's not gonna consider it.

[00:18:48] Speaker 02:
But again, the substantive basis of the McCoy claim was never raised in the motion to reconsider.

[00:18:53] Speaker 04:
But does Harrington apply at that point, though, in terms of like, don't we interpret that they didn't say why, that they did consider it?

[00:19:01] Speaker 02:
Even if you want to say Harrington applies, you still have the problem of a McCoy claim was never actually raised in the motion to reconsider.

[00:19:09] Speaker 02:
Instead, it's an IAC claim.

[00:19:11] Speaker 02:
And IAC claims cannot be asserted on direct appeal in Arizona.

[00:19:15] Speaker 02:
And then when you get to the PCR proceedings, Arizona courts don't allow the kind of hybrid representation

[00:19:20] Speaker 02:
Mr. Teyes was seeking, so his McCoy claim raise in his PCR proceedings was never considered at all.

[00:19:27] Speaker 02:
The courts summarily struck it and did not address it in any way whatsoever.

[00:19:32] Speaker 02:
And now he cannot return to the state court to try to exhaust it now.

[00:19:38] Speaker 04:
Even under the two rules that he's arguing at Arizona?

[00:19:43] Speaker 02:
Even if those rules applied, it doesn't change the fact that it's untimely.

[00:19:46] Speaker 02:
He's known about this claim since at the earliest as a direct appeal, and it's been over three years since his PCR appeal was denied in the Arizona Supreme Court, and he has not tried to raise a successive claim.

[00:19:58] Speaker 02:
in the state PCR court.

[00:20:00] Speaker 02:
He could have tried to file a successive PCR petition and said, I tried to raise this claim.

[00:20:06] Speaker 02:
My lawyer didn't raise it, and the court didn't consider it, and I want to raise it now.

[00:20:09] Speaker 02:
But he hasn't done that.

[00:20:10] Speaker 02:
And three years is not a reasonable time in which to raise it.

[00:20:13] Speaker 02:
So even assuming, for the sake of argument, that the two rules identified in the briefing by Mr. Taez would allow him to raise it, it doesn't change the fact that it's untimely and it would be precluded on that independent basis.

[00:20:26] Speaker 04:
But isn't there a lot of

[00:20:28] Speaker 04:
or some uncertainty right now on how Arizona, I mean, if he went and filed with Arizona right now, on what would happen, it seems like there's some, or do you know, let me ask you, do you know how Arizona courts are treating these kind of claims post-Shin?

[00:20:45] Speaker 02:
I'm not sure if there's been any real change in how they're treated post-Shin.

[00:20:50] Speaker 02:
The state's position is that a McCoy claim has to be raised on direct appeal.

[00:20:53] Speaker 02:
McCoy requires a contemporaneous objection.

[00:20:56] Speaker 02:
If there's no contemporaneous objection, then there is no McCoy claim.

[00:20:59] Speaker 04:
And does it matter to you whether it's an actual, I think I asked this already, actual McCoy claim or an IAC McCoy claim?

[00:21:06] Speaker 02:
Either way, it's procedurally defaulted.

[00:21:08] Speaker 02:
Just the way you get to the procedural default changes the paint on whether it's an actual McCoy claim or an IEC claim.

[00:21:14] Speaker 02:
If it's an IEC claim, it's much more straightforward because his attempt to raise the McCoy claim, the PCR, was clearly procedurally improper and was never considered at all on the merits.

[00:21:24] Speaker 02:
And again, it's still untimely.

[00:21:27] Speaker 02:
And if you're looking at the rule 32.1, even if you want to look at the 32.1 G, there's been no change in the law because it's still an IEC claim.

[00:21:35] Speaker 04:
But your colleague across the aisle is arguing that all he needs to show is a claim that he has a merit to his claim that's not meritless.

[00:21:45] Speaker 02:
Well, he's relying on Dixon, and Dixon was talking about the actual merits of the claim.

[00:21:49] Speaker 02:
It didn't address whether this court can consider the procedural bars.

[00:21:54] Speaker 02:
And the procedural bar here is plain.

[00:21:57] Speaker 02:
It's untimely.

[00:21:58] Speaker 02:
So, on that basis, it's mirrorless because there's no possibility that the Arizona courts will consider this claim.

[00:22:06] Speaker 02:
It's three years past his original PCR being denied, and he's known about this claim.

[00:22:12] Speaker 04:
Can you point to any cases?

[00:22:14] Speaker 04:
You're pretty confident in that, but can you point to... This seems like it's kind of evolving right now on all these Martinez type of claims.

[00:22:24] Speaker 02:
I don't have any case offhand, I can say, where they say X amount of time is unreasonable, but this is a case where Mr. Taez has known about this claim since, at the very least, his direct appeal, and he's had three years since the denial of his original PCR to try to seek a success of PCR to try to raise this claim, and he hasn't done so.

[00:22:47] Speaker 04:
You say that, with the inference maybe being that he didn't do anything.

[00:22:52] Speaker 04:
tried multiple times.

[00:22:54] Speaker 04:
And you're saying that despite his efforts, because he didn't do it the way it needed to be technically done, we can't look at

[00:23:03] Speaker 02:
Yes, in the context of the 2254E2 analysis, this court has held that failure to comply with state procedural rules precludes a finding of diligence for trying to expand the record on that basis.

[00:23:17] Speaker 02:
And he hasn't complied with the state's procedural rules.

[00:23:19] Speaker 02:
And again, he could have attempted a successive PCR

[00:23:25] Speaker 02:
at any time over the past three years, but certainly right after while his habeas petition was pending and attempted to raise this McCoy claim on the basis that my lawyer's never raised this and this is a claim I want to raise and he hasn't done so.

[00:23:42] Speaker 02:
Three years is not a reasonable time when you've known about the claim the entirety and you've tried to raise it before.

[00:23:49] Speaker 02:
But even if you don't think it's untimely under that rule, 32.1 G doesn't apply.

[00:23:55] Speaker 02:
First of all, if it's a substance of McCoy claim, there has been no change in the law.

[00:24:01] Speaker 02:
32.1 G is intended for situations where after your direct appeal or after your PCR is resolved, the law has changed and it allows you to do it.

[00:24:10] Speaker 02:
So it'd be like a situation like that.

[00:24:11] Speaker 01:
Mr. Smith, how do we know that?

[00:24:13] Speaker 01:
The precedent's a little thin in Arizona on

[00:24:18] Speaker 01:
whether McCoy was or wasn't a change for purposes of the rule?

[00:24:22] Speaker 02:
Regardless of whether it's a substantial change in the law, because McCoy applied on his direct appeal, the law did not change as it applied to Mr. Tejas' case.

[00:24:35] Speaker 02:
McCoy was the law at the time his direct appeal applied.

[00:24:39] Speaker 02:
So if this were a situation where McCoy was decided

[00:24:43] Speaker 02:
After his direct appeal was resolved, that would probably be a closer question.

[00:24:49] Speaker 02:
But here, because McCoy applied to his case under Griffith, there has been no change in the law.

[00:24:56] Speaker 02:
And the second part of 32.1G is the new law has to apply retroactively under Teague.

[00:25:01] Speaker 02:
And this court has held that McCoy does not apply retroactively under Teague.

[00:25:07] Speaker 02:
under, no matter which way you look at it in 32.1 G, the McCoy is not a change in the law.

[00:25:13] Speaker 02:
How about 32.2?

[00:25:13] Speaker 04:
I mean, why isn't this personal waiver rule applied here?

[00:25:18] Speaker 04:
It seems like

[00:25:19] Speaker 02:
Well, initially, I would say that that argument's not sufficiently developed, as I noted in my answering brief, raising an argument summarily in a footnote's not sufficient to develop.

[00:25:28] Speaker 04:
Well, let's say it is.

[00:25:30] Speaker 02:
Well, under 32.283, what you do is you look to, if it's a substance and McCoy claim, the McCoy right isn't a right that's

[00:25:39] Speaker 02:
really a minimal to a personal waiver.

[00:25:41] Speaker 02:
The kind of personal waiver that rule looks to is the kind where there is a... It looks like it's very much a personal waiver.

[00:25:49] Speaker 02:
But the rule is looking more to a waiver involving where there would be a personal colloquy with the judge.

[00:25:55] Speaker 02:
So the errors in the case law looking at it is like... What's your case on that?

[00:25:58] Speaker 02:
I believe I cited to the steward, I forget the case off the top of my head, but I did cite to cases in my brief.

[00:26:05] Speaker 02:
But it's the cases where they found a personal waiver along the lines of your right to a jury trial, your right to a 12-person jury, which is a right under the Arizona Constitution, right to counsel.

[00:26:16] Speaker 02:
So it's the kind of right where there's a personal colloquy with the judge.

[00:26:20] Speaker 02:
Under McCoy, if you don't object to

[00:26:24] Speaker 02:
the council's strategy to concede guilt or raise self-defense, then you've effectively waived the right, and McCoy requires a contemporaneous objection, and here, there has been no, there was no contemporaneous objection.

[00:26:37] Speaker 02:
This is more like Nixon, and in Nixon, the U.S.

[00:26:40] Speaker 04:
Supreme Court said that there was no- Do you say, in McCoy, are you arguing that it explicitly states that it requires an objection?

[00:26:48] Speaker 02:
I think it's implicit under McCoy because McCoy did not overrule Nixon and Nixon is a situation where there was no contemporaneous objection and McCoy there was.

[00:26:59] Speaker 02:
And I think, and I see I'm over, can I finish?

[00:27:05] Speaker 04:
friend across the aisle more time.

[00:27:07] Speaker 02:
Just the logic of McCoy, if you allow a McCoy claim to be raised without a contemporaneous objection, it allows for a perverse incentive for the defendants to basically try to gain the system, which as you pointed out here, Mr. Tejas benefited greatly from the self-defense.

[00:27:24] Speaker 02:
He was acquitted of the secondary murder, but if he's allowed to now raise a McCoy claim without making the contemporaneous objection, he then gets the

[00:27:31] Speaker 02:
benefit of that self-defense claim, and then another trial to try to get an acquittal on the aggravated assaults.

[00:27:37] Speaker 02:
And the state would not be allowed to retrial him in the second degree murder because he's already been acquitted of that.

[00:27:41] Speaker 02:
So the fact that Nixon was not overturned by McCoy, and Nixon did not have a contemporaneous objection, but McCoy did, implicit in that is that for McCoy there has to be a contemporaneous objection, otherwise you're in a Nixon situation.

[00:27:57] Speaker 04:
And I understand your argument.

[00:28:03] Speaker 04:
But there's no case that you can point to right now that has stated that, right?

[00:28:08] Speaker 02:
No.

[00:28:08] Speaker 02:
That's just implicit to – and the fact that McCoy didn't overrule Nixon.

[00:28:13] Speaker 02:
McCoy thought that Nixon was no longer good law in light of what they said.

[00:28:17] Speaker 02:
They would have overruled Nixon, but that Nixon remains when there is no objection means that for a real McCoy claim, you have to object at the time.

[00:28:28] Speaker 04:
I'm just trying to figure out if we know for certain that the state court will dismiss the successor petition as procedurally barred under state law.

[00:28:39] Speaker 04:
And I think you've given me your best argument on that.

[00:28:42] Speaker 02:
Is that right?

[00:28:43] Speaker 02:
Under the rules of criminal procedure, it would be untimely because three years is not a reasonable time in which to raise a claim that you've known about that entire time frame.

[00:28:51] Speaker 02:
Arizona, there is no time limit.

[00:28:53] Speaker 02:
You don't have a reasonable time to discover the claim, but once you do discover it, you have to raise it in a reasonable time.

[00:28:59] Speaker 04:
That is taking into account that the motion for reconsideration and his other references in these petitions that he tried to, the supplemental sort of filings that he had are not sufficient.

[00:29:15] Speaker 02:
Yes, the PCR ones were not procedurally proper and so they weren't considered by the courts at all and in the motion to reconsider.

[00:29:24] Speaker 04:
And what should he have done at that point at that PCR stage when his lawyer, he talked to his lawyer and his lawyer said, no, I know better than you do.

[00:29:32] Speaker 02:
He could have filed a motion to either

[00:29:35] Speaker 02:
ask the WAVE counsel and represent himself, or he could have filed a successive PCR petition after the initial one was denied in order to try to raise the claim.

[00:29:46] Speaker 02:
There are things he could have filed with the court, but at the very least he could have tried to do a successive PCR petition, and in the successive PCR petition explain that

[00:29:56] Speaker 02:
I wanted to raise this claim.

[00:29:57] Speaker 02:
None of my lawyers have raised this claim.

[00:29:59] Speaker 02:
I wanted to raise this claim now.

[00:30:01] Speaker 02:
And I think if he had done so in the immediate aftermath of his original PCR, the state court would have said, okay, state, you know, we'll let you do that.

[00:30:09] Speaker 04:
So he was trying to do that, but you said he was not because he wasn't successful in how he did at the vehicle.

[00:30:15] Speaker 04:
He's, he's out of luck.

[00:30:17] Speaker 02:
Because he was represented by council and council filed a merits PCR proceeding petition in Arizona doesn't generally allow for hybrid representation and didn't allow for hybrid representation here.

[00:30:31] Speaker 02:
If there are no other questions, I would ask that this court affirm the district court's denial of this habeas petition.

[00:30:39] Speaker 04:
Thank you.

[00:30:39] Speaker 04:
Thank you, Mr. Smith.

[00:30:42] Speaker 04:
Mr. Burke.

[00:30:44] Speaker 03:
Very briefly, Your Honor.

[00:30:46] Speaker 03:
The discussion that the court has had with respondent counsel shows why the federal courts are prohibited by issues of comedy and federalism from interpreting the state court rules with regard to this.

[00:31:02] Speaker 03:
This is something for the Arizona courts to determine.

[00:31:05] Speaker 03:
And under Ryan's, all this court can determine is whether Mr. Tejas' claim is plainly meritless, and it is not.

[00:31:13] Speaker 03:
So that is why this- Well, you also have to show that it's not procedurally barred, don't you?

[00:31:19] Speaker 03:
It's not just plainly meritless.

[00:31:21] Speaker 03:
Well, I believe that the plainly meritless would apply to the

[00:31:26] Speaker 03:
the entire universe, is it procedurally barred?

[00:31:29] Speaker 03:
It is not clearly procedurally barred, as the discussion for the last 10 minutes suggests.

[00:31:35] Speaker 03:
There's a lot of questions there.

[00:31:36] Speaker 03:
Those are questions that the Arizona court has, courts have the right to decide, not this court.

[00:31:42] Speaker 03:
Thank you.

[00:31:42] Speaker 04:
Thank you very much.

[00:31:44] Speaker 04:
Mr. Burke and Mr. Smith, thank you so much for your oral argument presentations here today.

[00:31:50] Speaker 04:
The case of Joseph Albert Taiz Jr.

[00:31:54] Speaker 04:
versus David Shin,

[00:31:56] Speaker 04:
now.

[00:31:58] Speaker 04:
Chris Mason, who's in charge of changing that?

[00:32:01] Speaker 02:
Oh, I'm sorry.

[00:32:03] Speaker 04:
You're the attorney general for this, right?

[00:32:05] Speaker 04:
You're right.

[00:32:06] Speaker 04:
He's the director of the Thank you.