[00:00:00] Speaker 03:
flexibility today and we'll hear first Ms.

[00:00:05] Speaker 03:
Spiro.

[00:00:07] Speaker 01:
Thank you your honors and may it please the court Leah Spiro for Mr. Wilkins.

[00:00:12] Speaker 01:
This appeal centers on the six-year prosecution of Mr. Wilkins for bank robbery with a BB gun.

[00:00:20] Speaker 01:
The legal saga ended with a life sentence for Mr. Wilkins and involved several failures of the criminal justice system along the way.

[00:00:27] Speaker 01:
I would like to focus on three of those failures.

[00:00:31] Speaker 01:
The first is trial counsel's ineffective assistance of counsel during the plea negotiations, which led Mr. Wilkins to forego a 22-year plea deal and face 513 years at trial instead.

[00:00:46] Speaker 01:
The second is appellate counsel's

[00:00:48] Speaker 01:
ineffective assistance on direct appeal, a claim which Mr. Wilkins exhausted, but the district court refused to consider as a sanction for Mr. Wilkins not notifying the court that he was returning to state court.

[00:01:02] Speaker 01:
And the third is the denial of adequate medication, which intersects with several of Mr. Wilkins' claims for relief.

[00:01:10] Speaker 03:
That goes to the competency?

[00:01:13] Speaker 01:
It actually goes to several claims, so I think that intersects with the

[00:01:17] Speaker 01:
exclusion from the competency hearing, the speedy trial delays, the inability to remain consistently competent, and then his emotional suffering during that period.

[00:01:31] Speaker 01:
On the first claim, there are two main issues.

[00:01:34] Speaker 01:
The first is whether trial counsel gave Mr. Wilkins incorrect advice that taking the plea deal would extinguish

[00:01:42] Speaker 01:
all of his appellate rights and whether there is a reasonable probability that Mr. Wilkins would have agreed to the plea deal if given the correct advice.

[00:01:51] Speaker 01:
And the answer to both of those questions is yes.

[00:01:55] Speaker 01:
The heart of the problem is that defense counsel did not tell Mr. Wilkins that in the words of the United States Supreme Court, no appeal waiver serves as an absolute bar to all appellate claims.

[00:02:08] Speaker 01:
As we know, appellate waivers come in many different shapes and sizes.

[00:02:12] Speaker 01:
It's not clear what the district attorney had in mind for this waiver.

[00:02:16] Speaker 01:
But a claim can always be brought if it's not precluded by the scope of the waiver.

[00:02:21] Speaker 03:
Well, but the speedy trial claim would have been.

[00:02:26] Speaker 01:
That's right.

[00:02:27] Speaker 01:
The speedy trial claim would not have been included.

[00:02:29] Speaker 01:
But the problem is the district court thought that was a sticking point for Mr. Wilkins.

[00:02:34] Speaker 01:
And that's an unreasonable inference from the record.

[00:02:38] Speaker 01:
because the record focuses Mr. Wilkins on a very specific plea offer.

[00:02:44] Speaker 01:
We know what he would have done in that context.

[00:02:46] Speaker 01:
We don't know what he would have done with the correct advice.

[00:02:49] Speaker 01:
So let me go over what the district court relied upon.

[00:02:53] Speaker 01:
It looked at the colloquy between the trial court and Mr. Wilkins' defense counsel.

[00:02:59] Speaker 01:
And specifically, the trial court offered to broker a deal where Mr. Wilkins would take more of a sentence than the

[00:03:06] Speaker 01:
the prosecution had offered in exchange for getting a certificate of probable cause on any issue of his choosing.

[00:03:16] Speaker 01:
And when faced with that proposition, defense counsel said that Mr. Wilkins would choose his speedy trial claim to preserve.

[00:03:25] Speaker 01:
However, counsel didn't say that there was going to be no plea deal without a carve out for the speedy trial claim.

[00:03:34] Speaker 01:
And we don't know what Mr. Wilkins would have done if he knew that he couldn't preserve his speedy trial claim, but that an appellate waiver would give him some appellate rights.

[00:03:45] Speaker 01:
And back to the point that there are many ways to attack an appellate waiver.

[00:03:50] Speaker 01:
You can always challenge that it was not knowing involuntary, either based on ineffective assistance of counsel or some other basis, and he could have attacked it based on a subsequent change in law.

[00:04:01] Speaker 00:
I guess I'm not quite following, because in these cases, we sort of have to try to imagine what was going to happen or what would have happened below.

[00:04:10] Speaker 00:
And here, what we know from the record is that Mr. Wilkins was particularly concerned about his speedy trial rates.

[00:04:18] Speaker 00:
And he communicated that I think more than once to his attorney.

[00:04:23] Speaker 00:
And so the attorney was aware of that and would have taken that into consideration and advising his client.

[00:04:29] Speaker 00:
And so I guess what I'm hearing your argument being is that that's not, that's not going to win the day on this claim because that concern was only raised in the context of a particular agreement.

[00:04:41] Speaker 01:
That's right.

[00:04:42] Speaker 01:
So, you know, if my kids say, do you want to go to Great America or Disneyland, and I say Great America, that doesn't answer the question of what I would actually want to do if they say, you know, what do you want to do this Saturday?

[00:04:53] Speaker 01:
I would have a much different response.

[00:04:55] Speaker 01:
And what we have on this record is Mr. Wilkins' reaction to a very specific question about what one issue he would want to preserve if given this option.

[00:05:06] Speaker 01:
that it turns out.

[00:05:06] Speaker 00:
Is there a case law to indicate that in assessing an ineffective assistance of counsel claim in this context that you've got to have a discussion about speedy trials specifically every time you're facing a new offer?

[00:05:23] Speaker 01:
Well, I think that the most applicable case is Lee versus United States.

[00:05:29] Speaker 01:
And we don't have that in our briefing.

[00:05:31] Speaker 01:
I can put it in a 28-day letter.

[00:05:33] Speaker 01:
But that was a Supreme Court case that talked about when there's ineffective assistance of counsel and counsel has not advised on what the correct legal implications will be on the defendant's immigration status.

[00:05:48] Speaker 03:
That seems to me far different because there you're saying, well, if you plea, you're going to be deported.

[00:05:58] Speaker 03:
That's different than saying, you're almost saying, well, he left something out about, well, there's another challenge we could make.

[00:06:04] Speaker 03:
But look, I think we've got to look at this realistically.

[00:06:08] Speaker 03:
I mean, one of your arguments is, well, there could have been a change in the law.

[00:06:13] Speaker 03:
OK, but that's pretty rare.

[00:06:15] Speaker 03:
It happens, but it's pretty rare.

[00:06:17] Speaker 01:
Well, in California, not as rare.

[00:06:20] Speaker 03:
That may be true.

[00:06:22] Speaker 03:
And the other one is, well,

[00:06:27] Speaker 03:
I mean, I'm not sure when else you get a waiver.

[00:06:29] Speaker 03:
I mean, appeal waivers are very, very difficult to come by.

[00:06:33] Speaker 03:
I'm sure that defense counsel wants to believe that more common than they are.

[00:06:37] Speaker 03:
But the fact of the matter is, I mean, it's so rare.

[00:06:40] Speaker 03:
It's like, how does that enter in?

[00:06:44] Speaker 03:
I don't even know how you would explain that to Wilkins, that he could make a decision.

[00:06:51] Speaker 03:
Help me out here.

[00:06:52] Speaker 01:
I think some important things to keep in context is clearly Mr. Wilkins views it as important to have some avenue for relief if he feels that there is a need for those avenues.

[00:07:06] Speaker 03:
And so if you said, well, there's about a 0.5% chance, I don't know what number that is, that you could have relief based on some circumstance outside of our control.

[00:07:20] Speaker 03:
You think that that would have been enough for him to say, oh, well, that's enough.

[00:07:22] Speaker 03:
I'll give up my speedy trial.

[00:07:24] Speaker 01:
I think the opportunity to bring the claims is important as well for this particular defendant.

[00:07:30] Speaker 03:
He would have been giving up his right to bring a speedy trial.

[00:07:35] Speaker 01:
Right.

[00:07:36] Speaker 01:
And I think if he were told you still have avenues to attack this, if you- Well, okay.

[00:07:43] Speaker 03:
Maybe we're beating around the bush.

[00:07:44] Speaker 03:
Because I mean, the avenues to attack it would have been significantly reduced.

[00:07:50] Speaker 03:
I mean, the Speedy Trial waiver, if he'd waived, I just don't see how the Speedy Trial claim could have survived an appellate waiver issue.

[00:08:00] Speaker 03:
Can you tell me how?

[00:08:01] Speaker 01:
Well, it depends on the language.

[00:08:04] Speaker 01:
I don't want to say-

[00:08:05] Speaker 01:
that it couldn't have been brought.

[00:08:08] Speaker 01:
Honestly, I think a crafty attorney could have found some language if this was several years back.

[00:08:14] Speaker 01:
The language might have been very broad.

[00:08:17] Speaker 01:
and not crafted in a way that it could prevent a collateral attack.

[00:08:22] Speaker 01:
So I guess that the most important thing for your review is the record.

[00:08:27] Speaker 03:
Then your argument seems to be, well, if we'd had a defense counsel that was in the top 5% of all defense counsel who really could have worked this, but that's not our basis for ineffective assistance at counsel.

[00:08:41] Speaker 03:
It has to be, here's a consequence.

[00:08:45] Speaker 03:
I didn't tell you about it.

[00:08:46] Speaker 03:
And it seems like here he did the opposite and say, look, your chances are much better.

[00:08:51] Speaker 03:
I mean, if Speedy Trial is important to you, your chances are much better if you don't sign a plea deal.

[00:09:01] Speaker 03:
And that seems to be eminently correct.

[00:09:03] Speaker 03:
I mean, he didn't misstate the law, did he?

[00:09:06] Speaker 01:
He didn't tell him that there were other rights he would preserve.

[00:09:09] Speaker 03:
He didn't misstate the law, though, right?

[00:09:12] Speaker 01:
We don't actually know what he told his clients.

[00:09:14] Speaker 01:
So I think that's part of the problem on review and why this needs an evidentiary hearing.

[00:09:19] Speaker 01:
And I would say that's the clearest route for this court.

[00:09:22] Speaker 03:
So that's your fallback argument is at least you want an evidentiary hearing on this.

[00:09:25] Speaker 01:
Right.

[00:09:25] Speaker 01:
And I think there's a very compelling basis for that because we just don't have in this record any indication of what defense counsel

[00:09:33] Speaker 01:
actually advised him what Mr. Wilkins cared about, whether the speedy trial right really was a sticking point.

[00:09:42] Speaker 01:
And back to the Lee case, these evidentiary hearings have become more common and district courts are very well equipped to reconstruct what the facts were at the time and get a better sense.

[00:09:54] Speaker 01:
But we just don't know from this record whether there's a reasonable probability

[00:10:00] Speaker 01:
which is actually a fairly low standard, a reasonable probability that Mr. Wilkins would have accepted this deal if properly advised.

[00:10:09] Speaker 00:
Can you pivot to the appellate ineffective assistance of counsel claim?

[00:10:13] Speaker 01:
Yes.

[00:10:14] Speaker 01:
So on that issue, the district court essentially refused to consider the exhausted claims

[00:10:24] Speaker 01:
of appellate IAC as a sanction for Mr. Wilkins not informing the court that he was going back into state court to re-exhaust.

[00:10:32] Speaker 00:
Which decision are you referencing?

[00:10:36] Speaker 01:
That would be the decision.

[00:10:42] Speaker 01:
It's at ER 87 to 88.

[00:10:44] Speaker 01:
Can you give me the date of it?

[00:10:47] Speaker 01:
Apologies.

[00:10:49] Speaker 01:
Let me turn to that.

[00:10:58] Speaker 01:
That is the order that was entered on February 10th, 2021.

[00:11:07] Speaker 01:
And at ER87, from the bottom of the page and including footnote five,

[00:11:18] Speaker 01:
The court discusses that it gave Mr. Wilkins the option to stay the proceedings while he endeavored to exhaust the claim.

[00:11:26] Speaker 01:
Mr. Wilkins declined to make use of that option, so the court will only consider the petitions filed prior to having given Mr. Wilkins this option.

[00:11:37] Speaker 01:
It would not consider the

[00:11:39] Speaker 01:
the petition that he had exhausted after being given the choice of staying the proceedings or continuing on the exhausted claims.

[00:11:49] Speaker 01:
But we need to step back and look at the full context of Mr. Wilkins' extended efforts to exhaust these claims in order to see that Mr. Wilkins' efforts were made in good faith.

[00:12:03] Speaker 01:
They did not result in harm and prejudice.

[00:12:06] Speaker 01:
and that the district court's punitive measure here was improper under the circumstances.

[00:12:11] Speaker 01:
So Mr. Wilkins attempted to exhaust the claim of appellate IAC in 2015 before filing his federal petition.

[00:12:21] Speaker 01:
And we submit he succeeded in exhausting the claim at that point, even prior to bringing the petition.

[00:12:27] Speaker 01:
So he filed a petition in the California Court of Appeal that explained in detail the many assignments of error against appellate counsel.

[00:12:35] Speaker 01:
And we tried to lay this out in reply brief to pages two to three.

[00:12:40] Speaker 01:
I realized the district court used different numbers for this petition throughout its different rulings, so it gets confusing.

[00:12:47] Speaker 01:
But again, we tried to lay it out.

[00:12:50] Speaker 01:
That petition was brought in the California Court of Appeal.

[00:12:53] Speaker 01:
It explained all of the assignments of error in detail.

[00:12:56] Speaker 01:
It was denied.

[00:12:57] Speaker 01:
Mr. Wilkins filed a petition in the Supreme Court, but used a lot of reference back to the Court of Appeal petition in explaining these 23 claims of error.

[00:13:11] Speaker 01:
However, the Supreme Court did receive the full record from the Court of Appeal, and so it had the petition before it, and then it ultimately denied the petition.

[00:13:20] Speaker 01:
When Mr. Wilkins raised this claim before the District Court,

[00:13:23] Speaker 01:
And this is at ER 124, the district court said that his use of incorporation by reference in the Supreme Court petition did not fairly present the claims to the Supreme Court.

[00:13:36] Speaker 01:
We feel that this ruling was an error because the California Rules of Court actually allow for an abbreviated petition when it's used for exhaustion purposes as it was here.

[00:13:46] Speaker 01:
And in any event, the Supreme Court had the full Court of Appeal record before it, so it did have all of the claims incorporated by reference, so they were fairly presented.

[00:13:58] Speaker 01:
Now Mr. Wilkins was given the option of going back and exhausting because the district court said this was not fairly presented.

[00:14:06] Speaker 01:
Admittedly, he did not ask for a stay.

[00:14:09] Speaker 01:
Well, he went back to state court.

[00:14:11] Speaker 01:
He was acting, per se, and he did not follow that particular order of the district court.

[00:14:16] Speaker 01:
But the attorney general knew he was returning to the state courts to re-exhaust because they were served with all of these petitions trying to re-exhaust the claim.

[00:14:26] Speaker 01:
in order to comply with the court's exhaustion ruling.

[00:14:31] Speaker 01:
The district court then decided that it would not review this, and that's the portion I just read, because Mr. Wilkins had not asked the court to stay the proceedings.

[00:14:42] Speaker 01:
But there was no indication, you know, there was a change of counsel in the interim, there was a second amended petition, there were many things going on, and there's no indication that Mr. Wilkins' decision

[00:14:55] Speaker 01:
to return to state court without asking the district court for a stay resulted in any harm or prejudice.

[00:15:04] Speaker 01:
And the effect of this is that the district court's order means Mr. Wilkins will not be able to have these claims heard on the merits by any federal court.

[00:15:15] Speaker 01:
And that's a very severe sanction, usually before a district court has that sort of claim-ending sanction and has to consider lesser

[00:15:26] Speaker 01:
lesser sanctions before imposing something that severe.

[00:15:31] Speaker 01:
And there's no indication that the district court did here.

[00:15:33] Speaker 01:
It just said we're not considering those 23 appellate IAC claims.

[00:15:38] Speaker 01:
So we ask that the court find those claims exhausted and remand them to the district court for a decision on the merits.

[00:15:46] Speaker 01:
I'll just quickly touch on the denial of adequate medication because I do want to save time for rebuttal.

[00:15:52] Speaker 01:
It intersects with several of the other claims, as I mentioned.

[00:15:56] Speaker 01:
And I think the common theme here is that Mr. Wilkins was continually blamed for his behavior that predictably resulted from being untreated or undertreated.

[00:16:09] Speaker 01:
And then that behavior was used as an excuse to deny him further treatment.

[00:16:16] Speaker 01:
And through whatever lens this issue is viewed, the denial of adequate medication violated Mr. Wilkins due process rights in several regards.

[00:16:26] Speaker 01:
And I'll reserve the remainder of my time.

[00:16:28] Speaker 03:
Thank you.

[00:16:29] Speaker 01:
Thank you.

[00:16:36] Speaker 02:
Good morning.

[00:16:37] Speaker 02:
Gregory Ott for respondent.

[00:16:39] Speaker 02:
May it please the court?

[00:16:40] Speaker 02:
I'll take these issues in order.

[00:16:43] Speaker 00:
Can we actually start with the appellate ineffective assistance and sort of walk me through what your position is there?

[00:16:53] Speaker 02:
That the district court was entitled to rule as it did.

[00:16:57] Speaker 02:
The district court made its decision on two grounds.

[00:17:01] Speaker 02:
One was this wasn't a reconsideration because he had filed the petition where he went back to state court after

[00:17:10] Speaker 02:
After it denied his prior, or after it made the decision of, you know, here are your options, it found it.

[00:17:18] Speaker 02:
Let me back up.

[00:17:24] Speaker 02:
He filed his first petition with claim 23, which was an IAC of appellate counsel, but different than the one we're talking about now.

[00:17:33] Speaker 02:
where he says counsel was ineffective for not raising all these claims and raising these other claims instead.

[00:17:42] Speaker 02:
The district court found that unexhausted, denied a motion for reconsideration, and then gave him the option within 21 days.

[00:17:52] Speaker 02:
So he doesn't exercise the option.

[00:17:54] Speaker 02:
He instead goes back on his own.

[00:17:55] Speaker 02:
He has counsel at that point, but he goes back on his own, files a petition in the Cal Supreme.

[00:18:02] Speaker 02:
He comes back, he has new counsel, then he moves for reconsideration.

[00:18:07] Speaker 02:
So that's one of my points is the district court was correct in saying this isn't a, it's not reconsideration.

[00:18:15] Speaker 02:
You filed this after I made the exhaustion ruling.

[00:18:19] Speaker 02:
So you can't proffer this later filed petition in support of reconsideration of what I decided before, because that was not what I was looking at before.

[00:18:30] Speaker 02:
The other aspect was, I gave you the option, you didn't use it.

[00:18:35] Speaker 02:
So here we are.

[00:18:36] Speaker 02:
Now, I want to clarify one thing.

[00:18:39] Speaker 02:
Appellant says that, well, I had actually exhausted this in an earlier petition and the district court erroneously found it unexhausted.

[00:18:53] Speaker 02:
The problem with that is.

[00:18:55] Speaker 02:
That earlier petition, when the district court considered that earlier petition and said that's not exhausted, this Claim 23 wasn't before it.

[00:19:05] Speaker 02:
It wasn't considering Claim 23 as we see it now.

[00:19:10] Speaker 02:
It was considering Claim 23 in its original form, so it had no reason to consider whether that earlier petition exhausted the claim that we're talking about now.

[00:19:22] Speaker 02:
It simply was irrelevant.

[00:19:23] Speaker 02:
The court had no reason to look at it.

[00:19:26] Speaker 02:
I want to make that distinction because there's an argument that, hey, the court considered this and found it, erroneously found it unexhausted before.

[00:19:36] Speaker 02:
And on the question of whether that was error, it's a longstanding California rule of court on the books that we don't consider in corporations by reference.

[00:19:49] Speaker 02:
So there's really no viable argument that the district court was wrong in finding that unexhausted.

[00:19:57] Speaker 02:
So I hope I've, did that answer your question?

[00:20:00] Speaker 00:
I mean, I guess I'm still, as in habeas cases, often the case you're sort of swirling with the procedural history and how all the steps went.

[00:20:08] Speaker 00:
Um, that's helpful in terms of figuring out what to make of the February, 2021 order.

[00:20:13] Speaker 02:
It does have admittedly has a very lengthy history to it.

[00:20:19] Speaker 00:
So let me point you to another issue and that and I don't think your opposing council talked about this in her opening statement, but the March 2022 order.

[00:20:30] Speaker 00:
where the district court sort of changes its position a bit on exhaustion of these issues that we've been talking about, um, and concludes that some claims that had, it had previously identified as exhausted were in fact unexhausted.

[00:20:46] Speaker 00:
And then at that point, we've got a mixed petition where the district court is saying some claims are exhausted and some claims are not.

[00:20:55] Speaker 00:
And then it proceeds to just issue a decision.

[00:20:58] Speaker 00:
Isn't there a procedural problem with proceeding that way once the district court changes its view of the various claims and their status and we now have a mixed petition?

[00:21:06] Speaker 00:
Was it procedural error for the district court to just proceed to decide the claims rather than dismiss the petition or go over the options again?

[00:21:16] Speaker 02:
My position is no for a couple of reasons.

[00:21:20] Speaker 02:
One is it had given him the opportunity to exhaust the claim before.

[00:21:31] Speaker 00:
The problem is previously the court was saying for some of these claims, these claims are exhausted.

[00:21:37] Speaker 00:
said that in February, 2021, if I'm understanding the history rate.

[00:21:41] Speaker 00:
And then in a little over a year later in March, 2022, changes its mind and says, some things I thought were exhausted or not.

[00:21:48] Speaker 00:
So in that context, the petitioner wouldn't have had reason to be pursuing exhaustion because the court had previously said it was exhausted.

[00:21:56] Speaker 02:
Strictly speaking, this isn't, we've been talking about exhaustion, but it's,

[00:22:04] Speaker 02:
it's not really an exhaustion issue.

[00:22:06] Speaker 02:
He, as we, and this is what, how I inadvertently confuse the district court, he did present Claim 23 as it is now.

[00:22:16] Speaker 02:
He did present that to the state court.

[00:22:19] Speaker 02:
But when he came back, and so in a sense, it's exhausted.

[00:22:22] Speaker 02:
He exhausted state remedies.

[00:22:24] Speaker 02:
But the court, when he came back to federal court, the court declined to consider that petition.

[00:22:30] Speaker 02:
So yes, it's,

[00:22:33] Speaker 02:
and exhausted in a sense, but he did present it to the state court.

[00:22:37] Speaker 02:
It was more of a procedural problem with the way he did it, a strategic choice, I suppose, in timing.

[00:22:46] Speaker 00:
So does all of that mean that you think that the district court really isn't changing its view of the status of the various claims between February 21 and March 22?

[00:22:55] Speaker 02:
Well, yes.

[00:22:58] Speaker 02:
It did change what it said.

[00:23:00] Speaker 02:
It erroneously found

[00:23:02] Speaker 02:
that it was exhausted by another petition and then changed its, I think it was confused by what I had said.

[00:23:09] Speaker 02:
But I'm not sure I understand that the question is the question that the court had an obligation to give him the opportunity to do something?

[00:23:17] Speaker 00:
Because once it changes and changes its mind, the court, in March 2022,

[00:23:24] Speaker 00:
Isn't it true that the district court then is by its own conclusion and analysis of the claims looking at a mixed petition.

[00:23:31] Speaker 00:
It concludes that some of the claims in front of it are exhausted and some of them are not right.

[00:23:38] Speaker 02:
Right.

[00:23:38] Speaker 00:
And so our case law and Supreme Court case law talks about when a district court is faced with a petition that has some that are exhausted and some that are not, there are some procedural steps that have to be taken.

[00:23:50] Speaker 00:
And I don't see in the record that those procedural steps were taken at that time in March of 22.

[00:23:55] Speaker 02:
Well, procedural steps, I would submit that they were taken before.

[00:24:01] Speaker 02:
on this issue that he was given the option.

[00:24:04] Speaker 00:
Is there authority to say that when things change later on down the case, that if you've done it before, you don't have to do it again?

[00:24:11] Speaker 02:
Well, no.

[00:24:12] Speaker 02:
There's none suggesting to the contrary either.

[00:24:15] Speaker 02:
This is an unusual situation, admittedly.

[00:24:23] Speaker 02:
I think the reality is district courts routinely will leave petition.

[00:24:28] Speaker 02:
Well, two things here.

[00:24:29] Speaker 02:
One is also there's an argument that he had to dismiss them.

[00:24:33] Speaker 02:
Well, district courts routinely just leave them in the petition.

[00:24:36] Speaker 02:
They just don't address them.

[00:24:37] Speaker 02:
They might find it unexplained.

[00:24:38] Speaker 02:
So I don't think that's a real problem.

[00:24:40] Speaker 02:
But in terms of giving him the option, no, it didn't give him the option again, but it had given him the option before and through

[00:24:48] Speaker 02:
Like I say, this is an unusual situation.

[00:24:52] Speaker 00:
Again.

[00:24:53] Speaker 00:
I don't understand how your argument squares with the very clear Supreme Court direction that when a district court has a mixed petition, it must dismiss.

[00:25:00] Speaker 00:
Or it has the option to stay, but it doesn't have the option to go forward.

[00:25:04] Speaker 00:
And that's what this court did.

[00:25:08] Speaker 02:
I think it implicitly dismissed it, didn't it?

[00:25:13] Speaker 00:
That's not how I read the record.

[00:25:14] Speaker 00:
How I read the record is that it proceeded to decide the claims on the merits.

[00:25:19] Speaker 02:
Not that one.

[00:25:20] Speaker 02:
And district courts, like I say, routinely will just leave it in the petition.

[00:25:23] Speaker 02:
They just won't address it.

[00:25:25] Speaker 02:
I mean, there's no formal order dismissing it now.

[00:25:30] Speaker 00:
OK.

[00:25:32] Speaker 00:
All right.

[00:25:32] Speaker 00:
I've taken enough time on that issue if you want to hit the other ones.

[00:25:41] Speaker 02:
Let me talk about the IEC of trial counsel.

[00:25:47] Speaker 02:
This claim has proceeded on the asserted fact that counsel told Mr. Wilkins that he could not appeal anything.

[00:25:59] Speaker 02:
Now, the district court and the state court didn't, well, I'm sorry, this was a summary denial at state court.

[00:26:07] Speaker 02:
The district court didn't address the performance prong, but that advice, if given here, was correct.

[00:26:14] Speaker 03:
So when you say if given here, counsel is saying we need an evidentiary hearing to determine what was actually told to counsel.

[00:26:23] Speaker 03:
What do we know about what was told?

[00:26:27] Speaker 02:
Well, we don't know exactly, but as these cases often go without a statement from counsel, the way it goes is you have an allegation of what happened.

[00:26:37] Speaker 02:
by the defendant.

[00:26:38] Speaker 02:
And the allegation is I was told I couldn't appeal anything.

[00:26:44] Speaker 03:
Does it become a misstatement of the law because it doesn't account for the fact that, well, you could appeal something.

[00:26:53] Speaker 03:
Defense counsel all the time tries to bring appeals challenging an appellate waiver.

[00:27:01] Speaker 03:
As I noted, I don't know what the statistics are, but they're not

[00:27:04] Speaker 03:
successful, a high percentage at the time.

[00:27:07] Speaker 03:
But what if they were successful, you know, 30 percent of the time?

[00:27:11] Speaker 03:
Would that be a misstatement of the record?

[00:27:14] Speaker 03:
I mean, would that be enough to say, well, you led him to believe you didn't have any chances and you did have a chance?

[00:27:20] Speaker 02:
Well, no.

[00:27:23] Speaker 02:
There is no authority, no California authority permitting that says that a waiver

[00:27:33] Speaker 02:
is an effective, except for a challenge to the voluntary nature of the waiver itself.

[00:27:40] Speaker 02:
That's the one thing I agree that he could challenge.

[00:27:44] Speaker 02:
But between an express waiver, as alleged here, Tollett v. Henderson, a CPC requirement, he wasn't going to be able to appeal anything, and he certainly wasn't going to be able to appeal a speedy trial claim.

[00:28:02] Speaker 03:
So maybe that's the better argument is that because the only appeals even to a challenger would be voluntariness, that wasn't available.

[00:28:10] Speaker 03:
Although I suppose he still could have crafted some hypothetical argument about voluntariness.

[00:28:19] Speaker 03:
He'd say it wasn't voluntary if he didn't know the full ramifications.

[00:28:23] Speaker 03:
I don't know.

[00:28:24] Speaker 03:
I mean, she does cite to leave her

[00:28:29] Speaker 03:
United States versus Lee, which has some bearing on this, although it does seem like a distinguishable case.

[00:28:37] Speaker 02:
It says the Supreme Court has mentioned it depends on the terms of the waiver.

[00:28:42] Speaker 02:
Now, we don't know the terms of the waiver, but what we do know is the terms of the waiver didn't include speedy trial.

[00:28:47] Speaker 02:
How do we know that?

[00:28:48] Speaker 02:
Because they said on the record, my client would agree to a longer term if you carve this out.

[00:28:55] Speaker 02:
And silence.

[00:28:59] Speaker 02:
the waiver wasn't going to include a speedy trial, and that didn't survive a guilty plea, let alone with an express waiver.

[00:29:08] Speaker 02:
And neither would double jeopardy, which was mentioned.

[00:29:13] Speaker 02:
So if you want to drill down to the crux of it, what we have is both the district court and the state courts found that

[00:29:23] Speaker 02:
His concern was speedy trial.

[00:29:24] Speaker 02:
Whether that's reasonable or not, that was his concern.

[00:29:27] Speaker 02:
And that wasn't going to survive.

[00:29:31] Speaker 02:
So regardless of what, and that's also why an evidentiary hearing is unnecessary.

[00:29:38] Speaker 02:
I will point out, by the way, for the record, that sadly, trial counsel is deceased for what that's worth.

[00:29:45] Speaker 02:
So I don't think we can know exactly what was said.

[00:29:53] Speaker 02:
Let me move on to the medication issue, because this does over arch several things, several points to make here.

[00:30:03] Speaker 02:
This was thoroughly examined in the trial court.

[00:30:06] Speaker 02:
There was a lengthy hearing with the jail medical staff.

[00:30:11] Speaker 02:
A lot of reports were submitted.

[00:30:14] Speaker 02:
There's a substantial disagreement, both as to the diagnosis and to the proper prescriptions.

[00:30:20] Speaker 02:
Uh, as the Supreme Court has said, this isn't an exact science.

[00:30:24] Speaker 02:
Um, physicians disagree over, you know, orthopedic issues, let alone mental health.

[00:30:31] Speaker 02:
Mr. Wilkins was not a credible historian.

[00:30:35] Speaker 02:
The record is replete with his inconsistent histories.

[00:30:39] Speaker 02:
Uh, I would point out when he returned from the state hospital and by all accounts was competent, he said, I don't want anything except Prozac.

[00:30:49] Speaker 02:
didn't mention Seroquel.

[00:30:51] Speaker 02:
When he asked for a do-over for the competency hearing, he didn't say, I'm not on Seroquel, I want Seroquel, I want a do-over.

[00:30:58] Speaker 02:
No, he said, I wasn't taking my meds that they were giving me and I like a do-over.

[00:31:03] Speaker 02:
And that was indulged.

[00:31:07] Speaker 02:
He refused when he was at the state hospital, he refused to allow access to his medical records, which may or may not have shown that

[00:31:17] Speaker 02:
He had taken Seroquel before.

[00:31:18] Speaker 02:
The fact is he wasn't cooperative.

[00:31:20] Speaker 02:
He wasn't cooperative with testing.

[00:31:21] Speaker 02:
When the jail tried to test him for malingering, when they tried to do blood tests, he refused.

[00:31:26] Speaker 02:
He simply wasn't cooperative.

[00:31:29] Speaker 02:
Last thing I'd like to point out is I'd like the court to ask itself whether his behavior has really changed since he is reportedly on Seroquel.

[00:31:39] Speaker 02:
No.

[00:31:41] Speaker 02:
He was, he says he was tried while on Seroquel.

[00:31:45] Speaker 02:
He still filed Marsden's at the same rate.

[00:31:48] Speaker 02:
He's on his fourth attorney in federal court.

[00:31:51] Speaker 02:
Whenever something adverse happens, he demands a new attorney.

[00:31:56] Speaker 02:
He's filed over 50 habeas petitions in the Cal Supreme Court alone, and that was going back a couple years, so I suspect there are many more.

[00:32:04] Speaker 02:
A quick review of this court's pacer sites in the Ninth Circuit will show numerous, numerous cases since conviction.

[00:32:15] Speaker 02:
So, Seroquel wasn't the end-all, be-all.

[00:32:20] Speaker 02:
Whether it helped him, I don't know, but it wasn't the solution.

[00:32:25] Speaker 02:
His behavior really hasn't changed, and that's actually consistent with what Dr. Chafin testified to, which is, he has a personality disorder, yes.

[00:32:33] Speaker 02:
He has mental problems, yes, but they're not really amenable to medication.

[00:32:39] Speaker 02:
And that's borne out, because if he's on Seroquel, things haven't changed much.

[00:32:50] Speaker 02:
I would submit it unless the court has any questions including on the question of the IAC of concerning the alibi.

[00:32:58] Speaker 02:
If the court has any questions on that, I'm going to submit.

[00:33:03] Speaker 02:
Thank you.

[00:33:04] Speaker 02:
Thank you.

[00:33:14] Speaker 01:
We'll start by addressing the points on appellate IAC.

[00:33:18] Speaker 01:
The state has argued just now and argued in their briefing that Mr. Wilkins raised different appellate IAC claims initially.

[00:33:28] Speaker 01:
And then when he returned to state court, he raised different claims.

[00:33:31] Speaker 01:
And so I want to make sure the court has what it needs to trace the claim and see that he raised exactly the same claims.

[00:33:40] Speaker 01:
In our reply brief at page four, we've laid out the relevant case numbers because in this large of case, it does take a lot of peeling back of the onion.

[00:33:49] Speaker 01:
But at ER 262, that's the initial California Supreme Court brief.

[00:33:59] Speaker 01:
that sets forth the claims.

[00:34:02] Speaker 01:
And so the relevant numbers for the claims that were raised before he even got to federal court are A145484, that's the court of appeal number, and S227880 is the Supreme Court number.

[00:34:18] Speaker 01:
You can compare that to ER 201, which is the California Supreme Court petition that he files when he has to go back to re-exhaust, and that's S253692.

[00:34:30] Speaker 01:
And you'll see that those are exactly the same 23 subclaims against appellate IAC.

[00:34:39] Speaker 01:
He did raise exactly the same issues.

[00:34:42] Speaker 01:
both times.

[00:34:43] Speaker 01:
And then the state has also pointed to the general California rule that you can incorporate by reference in a California Supreme Court brief.

[00:34:52] Speaker 01:
We're relying on the more specific rule that controls for petitions to exhaust, and that's California rule of court 8.508.

[00:35:06] Speaker 01:
which dictates for petitions for review to exhaust state remedies that you can file an abbreviated petition.

[00:35:12] Speaker 01:
So we think the general rule that they're citing for most litigants just simply doesn't apply to this sort of petition.

[00:35:20] Speaker 01:
And then in response to the trial council IAC issue, I think council just admitted we don't know what the scope of the proposed waiver was.

[00:35:32] Speaker 01:
We don't know what advice was given.

[00:35:35] Speaker 01:
And we know what issues Mr. Wilkins would have chosen if he had been given a certificate of probable cause on some of the issues, but we don't know how he would have reacted if he were told it might be a slim chance, but you have all of these potential ways to challenge an appellate waiver because no appellate waiver truly extinguishes

[00:35:56] Speaker 01:
all appellate rights.

[00:35:57] Speaker 01:
And as I said before, it's clear that Mr. Wilkins finds it very valuable to exercise his legal rights.

[00:36:04] Speaker 01:
So knowing that he had avenues to still challenge the appellate waiver would have been worth something to him.

[00:36:11] Speaker 01:
And he is owed at the very least an evidentiary hearing to substantiate that claim.

[00:36:19] Speaker 01:
Thank you, Your Honors.

[00:36:19] Speaker 03:
Hey, thank you.

[00:36:20] Speaker 03:
Thank you to both counsel for very professional and helpful arguments.

[00:36:24] Speaker 03:
The case is now submitted and the court stands in recess until tomorrow.