[00:00:04] Speaker 00: Good morning, Your Honor. [00:00:05] Speaker 00: Scout Katowich for Appellant Mr. Noor. [00:00:08] Speaker 00: And I'd like to reserve three minutes for rebuttal. [00:00:12] Speaker 00: The origins of the Certificate of Appealability requirement date to 1908, when Congress acted on a pernicious, racist, and false mythology that lynchings were caused not by white supremacists. [00:00:24] Speaker 03: But when they, in subsequent years, amended and changed, they were acting on other grounds, were they not? [00:00:37] Speaker 00: There is no real legislative history. [00:00:39] Speaker 03: You think that, for example, that the Congress that passed EDPA was motivated by preventing lynchings? [00:00:50] Speaker 00: Not necessarily, Your Honor, but it's important to look at what the original purpose was, what the stated purpose is, and that's the only purpose that we have. [00:00:59] Speaker 04: Well, the only purpose you have, I'm just piling on, I'm afraid. [00:01:03] Speaker 04: EDPA is passed under President Clinton. [00:01:05] Speaker 04: He's kind of an open door to whatever the Republicans want. [00:01:08] Speaker 04: EDPA passed restricting in a whole range of ways the availability of habeas corpus. [00:01:14] Speaker 04: I see nothing in there to suggest that lynching had anything to do with EDPA. [00:01:19] Speaker 00: You're correct, Your Honor, that there's nothing in EDPA's legislative history that discusses lynching. [00:01:25] Speaker 00: And I'd want to point out that the element of the legislative history and the original purpose of this law that's linked to lynching is relevant as we examine rational basis and whether or not when we look... Why would it be relevant to the rational basis review? [00:01:41] Speaker 00: It is relevant because even in rational basis, you look at the stated purpose. [00:01:45] Speaker 00: So we're looking at that. [00:01:46] Speaker 00: That's not my understanding of rational basis review. [00:01:49] Speaker 01: I mean, my understanding is we just think of whether there could be a legitimate reason for the rule, the restriction that we're talking about. [00:02:03] Speaker 01: And we only get to consider the sort of actual stated reasons at higher levels of scrutiny. [00:02:10] Speaker 00: not exactly your honor you're correct that the under rational basis a court can look to any post hoc hypothetical reason but you still start with the stated purpose and then you can move on to legislative history and then on to any asserted purpose and so we see the court say this for example in [00:02:28] Speaker 00: Meriwether v. Lockyer. [00:02:30] Speaker 00: There, the court starts with a stated purpose, looks at the legislative history, and in a footnote explicitly says the legislative history can be relevant to the rational basis inquiry because it is important to, when you're looking at whether or not the purported interests are rational, you can look back at the legislative history and see if that undermines it. [00:02:50] Speaker 00: And we see the Supreme Court do this in Claiborne, in Moreno, [00:02:53] Speaker 00: where they start looking at the statute and then balancing the purported interests that are then asserted concludes that really when you look at all of it, it's animus that's motivating the statute. [00:03:07] Speaker 00: But I also just want to make clear that our argument as to why the certificate of appealability is unconstitutional does not hinge on these racist origins. [00:03:17] Speaker 00: It is unconstitutional as compared to any of the now asserted legislative purposes behind the law. [00:03:24] Speaker 00: So from a basic level, it simply is irrational and arbitrary to try to address frivolous appeals, delays, burdens on court, finality by applying a requirement only to one half of litigants. [00:03:39] Speaker 00: It doesn't rationally further the purported interest in reducing frivolous appeals, because by its terms, the standard is something more than the absence of frivolity. [00:03:50] Speaker 04: So you necessarily have this certificate of... Is there a constitutional right to an appeal in a habeas case? [00:03:58] Speaker 00: There is no constitutional right to an appeal, but the Supreme Court's long line of rights to access to the court's cases make clear that where there is a system of appellate review in place, there's a fundamental constitutional right to access that appellate system on fair terms. [00:04:17] Speaker 00: So everyone is entitled under the Constitution. [00:04:19] Speaker 04: Why is it unfair to have the COA system when we know that an awful lot of appeals and habeas cases are pretty much groundless and Congress has decided that this is an effective way to sort out those that are at least barely plausible and can go forward and those that are not sufficiently plausible and not go forward? [00:04:46] Speaker 00: Well, Your Honor, it is overbroad as to that purpose. [00:04:50] Speaker 00: Again, as I just was mentioning, by its terms, it excludes more. [00:04:56] Speaker 00: It requires something more than the absence of frivolity. [00:04:58] Speaker 00: And we know from looking at numerous cases that make it up to the Supreme Court are ultimately granted, they were initially denied certificates of appealability. [00:05:08] Speaker 04: So we know that there's a mismatch that's having... They were initially denied certificates of appealability. [00:05:12] Speaker 04: How did they get to the Supreme Court? [00:05:14] Speaker 00: by appealing those denials of certificate of appeal ability. [00:05:17] Speaker 00: So what you have is a process that inserts complication and delay. [00:05:21] Speaker 00: And if you don't have the dogged persistence to appeal all the way up to the Supreme Court and have the Supreme Court grant cert, [00:05:29] Speaker 00: And I'll also point out that if the goal is to reduce frivolous appeals and habeas, there's no reason to exclude the state from that. [00:05:37] Speaker 00: We know that the state also files frivolous appeals. [00:05:40] Speaker 00: We know that those appeals cause delays of years. [00:05:44] Speaker 00: We're in rational basis review. [00:05:46] Speaker 00: We don't ask for a perfect fit. [00:05:48] Speaker 00: Even in rational basis review, a case like this where it's so over-broad and under-inclusive at the same time can lead to the conclusion that it's not rational. [00:06:00] Speaker 00: It's not rational to address frivolous appeals by only addressing it as to one group of litigants. [00:06:07] Speaker 00: The question is, is the classification rationally related to the purpose? [00:06:12] Speaker 00: It may be that it is rational to require some kind of screening for frivolity. [00:06:18] Speaker 00: Is it rational to require that only for habeas petitioners? [00:06:22] Speaker 01: I mean, I would imagine it would be if they were much more common for the petitioner to be filing the appeals. [00:06:29] Speaker 00: Well, first of all, we don't have any basis in the record to support that. [00:06:34] Speaker 00: That is a presumption that an entire group of individuals only files frivolous appeals. [00:06:41] Speaker 00: That kind of presumption that's unsupported by any factual basis should not be able to support this kind of restriction on a fundamental right, let alone in rational basis, it also is not sufficient. [00:06:54] Speaker 04: I think you know this, but you may not know it in detail. [00:06:58] Speaker 04: Here's how the COA system works in our circuit. [00:07:00] Speaker 04: I don't know the other circuits. [00:07:03] Speaker 04: You ask for a COA from the district court. [00:07:05] Speaker 04: District court grants, doesn't grant, grants on one issue, denies on the other. [00:07:11] Speaker 04: That denial of COA can be appealed to the Ninth Circuit. [00:07:16] Speaker 04: We routinely review denials of COA, and with some frequency, grant COAs more broadly than the district court did. [00:07:28] Speaker 04: and I've been doing this for 20 some years, the standard we apply in terms of whether or not a COA granite is pretty close to, is there something just barely plausible about it? [00:07:43] Speaker 04: I mean, that's how the system works. [00:07:45] Speaker 00: I appreciate that, Your Honor, and I recognize that the Ninth Circuit may be applying a standard that is perhaps closer to this purported interest. [00:07:54] Speaker 03: That is also, I think I can take traditional notice of it, that that's also the standard in the Second Circuit, exactly the same in that respect for the Ninth Circuit. [00:08:09] Speaker 03: And I would be surprised if that's not the situation in most circuits. [00:08:14] Speaker 00: Well, the standard set out in the law itself is requiring a substantial showing of a denial of a constitutional right. [00:08:22] Speaker 00: That in and of itself is not frivolity. [00:08:25] Speaker 00: Substantial showing is substantial. [00:08:27] Speaker 00: And the Supreme Court has also repeatedly said it requires something more than the absence of frivolity. [00:08:33] Speaker 00: So whether or not certain judges or certain circuits are applying a different rule, that is the one that's in the legislation. [00:08:42] Speaker 00: That is the one that the Supreme Court has said. [00:08:43] Speaker 00: And we know that even under application, perhaps of a standard that is more trained on frivolity, many meritorious cases are missed. [00:08:52] Speaker 00: Many meritorious cases are denied certificates of appealability. [00:08:56] Speaker 00: And even when they're granted, we know that. [00:08:59] Speaker 04: How do we know that? [00:09:00] Speaker 00: We know that from many of the cases we cite. [00:09:03] Speaker 00: Miller L is one. [00:09:05] Speaker 00: Buck v. Bell is another. [00:09:07] Speaker 00: Slack, which came out of the Ninth Circuit, is also one where there is an initial denial that went up and wasted three years on a certificate of appealability. [00:09:17] Speaker 00: And so the other thing I'll point you to is a study that we cite in our briefs that focused on [00:09:23] Speaker 00: one subset of cases where the magistrate judge had recommended granting the habeas request the district court disagreed and denied the request and also denied the certificate of appeal ability and so there we have a situation where [00:09:40] Speaker 00: It likely there's a federal judge, a magistrate judge, who is determined that there is merit to this, and yet the certificate of appealability requirement is cutting off access to the appellate court. [00:09:49] Speaker 04: So then what happened in that case? [00:09:50] Speaker 04: Was there a request from the circuit for a COA? [00:09:54] Speaker 00: I don't have each of those cases looked at in the study on hand. [00:09:59] Speaker 00: I don't believe that all of them ended up going to the circuit and getting a certificate of appealability, if I'm remembering correctly. [00:10:06] Speaker 00: And even if the COA process works and you're ultimately granted a COA, whether at the district court or the circuit court, it doesn't prevent delay. [00:10:17] Speaker 00: And that is, if we ignore the racist origins. [00:10:20] Speaker 04: What you're talking about delay. [00:10:21] Speaker 04: This system is a total pain in the neck. [00:10:23] Speaker 04: If I could redraft that statute I would do it in a second. [00:10:27] Speaker 00: Well exactly. [00:10:28] Speaker 04: But that's not the question in front of me. [00:10:29] Speaker 00: Well, the question is, is the requirement rationally related if we're in rational basis? [00:10:34] Speaker 00: And again, we believe we should be in strict scrutiny land. [00:10:37] Speaker 00: But under rational basis, is this a rational response to the government's purported interests in reducing delay and reducing judicial burden? [00:10:48] Speaker 00: As you see from your own experience, it's not. [00:10:51] Speaker 00: And it makes sense that it's not. [00:10:53] Speaker 01: When you reframe it that way, [00:10:56] Speaker 01: It's easy to say, no, but I don't really believe that that's how we do rational basis review, right? [00:11:03] Speaker 01: I mean, my understanding of rational basis review is not, do we just ask us something rational? [00:11:10] Speaker 01: Does it make sense in all its applications? [00:11:12] Speaker 01: And, you know, is this the best possible way to address this problem? [00:11:16] Speaker 01: But rather, you know, it's, you know, can we, it's something, [00:11:22] Speaker 01: Can we imagine that there is some legitimate basis for the burden that they're imposing? [00:11:29] Speaker 01: There has been articulated a rational basis that is on its face a legitimate thing for Congress to have considered. [00:11:41] Speaker 01: We don't require that the choices that they make work optimally. [00:11:50] Speaker 01: So then what I hear you arguing is like, this is a suboptimal system, but where do we, I mean, I don't think, I mean, that we have a case saying we can strike it down because it's suboptimal. [00:12:05] Speaker 00: Well, it's not just suboptimal. [00:12:07] Speaker 00: It is irrational to address these purported interests through the classification. [00:12:12] Speaker 00: And that's what we look at. [00:12:13] Speaker 00: We don't ask, is it rational to try to reduce frivolous appeals generally? [00:12:17] Speaker 00: Is it rational for Congress to have chosen to single out this one group to prevent them from moving forward in the same way that every other federal civil litigant can with an appeal as of right? [00:12:30] Speaker 00: And that distinction, that classification is not rational. [00:12:33] Speaker 00: And we can look to cases like Claiborne, we can look to cases like Moreno, I've already pointed the court to Merrifield, where that is rational basis review, but the court is not simply taking the word of the government and saying, well, you know, it seems like this work. [00:12:52] Speaker 00: There's some inquiry into, is this logical? [00:12:55] Speaker 00: Does this rationally make sense? [00:12:58] Speaker 00: And here, when you look at it and when you think about it, does it make sense to try to reduce delays by inserting a whole separate process into habeas appeals? [00:13:08] Speaker 00: and only preventing delays when they are caused by petitioners. [00:13:12] Speaker 00: The state can and does delay as much as it wants. [00:13:17] Speaker 00: And I see I'm coming down to time and unless you have any more questions at this moment, I'd like to reserve for rebuttal. [00:13:24] Speaker 00: Thank you. [00:13:32] Speaker 02: May it please the court and good morning Mark Fowler for the state of Washington, Assistant Attorney General. [00:13:38] Speaker 02: I don't know where to begin. [00:13:42] Speaker 02: The fatal flaw in my opponent's argument is that there's a mischaracterization of the dual classification between the litigants at the propellant stage, between the respondent petitioner. [00:13:58] Speaker 02: The key and, I think, fatal flaw of their argument is that they talk about efficiency versus the right or the need to pursue the appeal process further. [00:14:09] Speaker 02: What's missing is the core element of EDPA, which is comity. [00:14:18] Speaker 02: which is that the petitioner from the get-go is in a disparate state, a disparate and dissimilar situation from the respondent, from the start of habeas. [00:14:32] Speaker 02: Habeas is a bar to read litigation from the get-go. [00:14:35] Speaker 02: From 2254D, it bars litigation. [00:14:39] Speaker 02: So the relitigation burden is always upon the petitioner, even at the appellate stage. [00:14:45] Speaker 02: Respondent, on the other hand, has an entirely different set of motivations for pursuing claims. [00:14:52] Speaker 02: It is seeking to uphold the finale of judgment of a presumptively correct state court judgment of a federal claim. [00:15:00] Speaker 04: You know, I'm not sure I agree with this presumptively correct. [00:15:02] Speaker 04: I mean, it may or may not be. [00:15:03] Speaker 04: And the reason we have habeas is so it can be challenged. [00:15:06] Speaker 04: I have to say, I see nothing in the statute that says we must presume that the state is correct. [00:15:11] Speaker 04: I see lots of little provisions that set up various standards of review and so on, but to say that it's presumptively correct to me is an overstatement. [00:15:19] Speaker 02: No, Your Honor, if I could disagree with you respectfully, the Supreme Court has even said [00:15:27] Speaker 02: Recently, well, a few years ago, in Harrington versus Richter, that habeas corpus acts as, in a way, of a collateral stopple. [00:15:35] Speaker 02: It's raised to a kind of effect. [00:15:37] Speaker 02: The thing has already been decided. [00:15:39] Speaker 02: There's no need to revisit it. [00:15:40] Speaker 02: The plain reading of the statute from the start, 2254D1, states clearly, you shall not relitigate unless the state somehow got it wrong. [00:15:51] Speaker 02: The presumption of correctness [00:15:53] Speaker 02: certainly does apply and has been specifically stated with regard to factual findings in a 2254D, as you well know. [00:16:00] Speaker 02: But the decision itself comes clothed with the presumption that it is constitutionally sound until the petitioner only proves that the state court adjudication somehow entered into a field or a level of extreme dysfunction. [00:16:19] Speaker 02: That's what habeas is for, is to correct gross miscarriages of justice in the state court. [00:16:25] Speaker 02: Respondent, on the other hand, has no burden in habeas from the start. [00:16:29] Speaker 02: The filing of a petition doesn't require the respondent to file an answer. [00:16:35] Speaker 02: That's why there's no default procedure. [00:16:37] Speaker 02: The disparity of burden between the two litigants is from the start. [00:16:42] Speaker 02: And it carries through all the way, including that comity principle, into the appeal process as well. [00:16:49] Speaker 02: They're not the same. [00:16:51] Speaker 02: Equal protection does not demand equal outcomes. [00:16:54] Speaker 02: It's equal application of the law. [00:16:55] Speaker 02: But equal protection doctrine certainly allows disparate treatment of dissimilar situated positions [00:17:03] Speaker 02: of parties, and that's exactly what is the respondent versus the petitioner and habeas on appeal. [00:17:11] Speaker 02: I have to also disagree with my counsel about the mention of every other civil litigant and other federal remedies. [00:17:21] Speaker 02: Habeas is sui generis. [00:17:23] Speaker 02: I mean, the problem's with it. [00:17:25] Speaker 02: Certainly, Your Honor has mentioned that. [00:17:29] Speaker 02: Justice Stephen Bryan, now retired, once said an oral argument that [00:17:33] Speaker 02: characteristically crapping his forehead that habeas law is as complex as a tax code certainly there are difficulties in their burdens [00:17:41] Speaker 02: But they're meant to be burdensome upon the petitioner. [00:17:44] Speaker 02: So said the Supreme Court in cases like Coleman v. Thompson, which is a seminal case dealing with exhaustion, doctrine, and procedural default. [00:17:52] Speaker 02: It's supposed to be hard. [00:17:54] Speaker 02: They almost expressly say it. [00:17:55] Speaker 02: I'm paraphrasing, but they said that exactly. [00:17:58] Speaker 02: It's supposed to be hard on the petitioner because of the core principle of comity and respect for the state court judgment. [00:18:05] Speaker 02: So if you're honest, I don't have any other questions. [00:18:10] Speaker 02: There's not a colorable claim to either due process or equal protection here. [00:18:13] Speaker 02: And we ask that you affirm the decision. [00:18:19] Speaker 01: No further questions. [00:18:20] Speaker 01: Thank you. [00:18:20] Speaker 01: Thank you, counsel. [00:18:27] Speaker 00: I'd like to briefly address the point that was made about comedy. [00:18:32] Speaker 00: So first of all, by the time a petitioner has been granted habeas, and that's where the certificate of appeal ability requirement would not prevent the state from appealing as of right. [00:18:43] Speaker 00: all of those difficult habeas burdens have been overcome, and the state really has no strong interest in preserving an unconstitutional conviction, an unconstitutional and unreasonable, as the habeas statute terms it, decision. [00:19:01] Speaker 03: They're appealing because they don't agree that that is the right decision. [00:19:05] Speaker 00: Certainly, and we believe that. [00:19:07] Speaker 03: So, I mean, wasn't it clear that a major [00:19:14] Speaker 03: motivation of Congress in passing EDPA was the perception that habeas was being misused to delay the carrying out of final judgments of the state court, in particular the death penalty, and that therefore the attempt, whether successful or not of EDPA, was to cut down through various mechanisms [00:19:42] Speaker 03: including the certificate of appeal ability mechanism, the ability for litigants to delay the application of final judgments in the state. [00:19:55] Speaker 03: The state itself [00:19:57] Speaker 03: has the opposite motivation. [00:19:59] Speaker 03: They want to uphold the final decision of the state, and that's why Congress felt that you didn't have to have a certificate of appealability in their case. [00:20:13] Speaker 00: Well, Your Honor, the question of an interest in finality is not solely about the finality upholding an unconstitutional conviction. [00:20:23] Speaker 00: There's also a finality interest in acquittals and in promptly reaching the right decision. [00:20:30] Speaker 00: And in that case, if we're only focused on finality, [00:20:34] Speaker 00: why give the state the opportunity to appeal rather than go back to state court, retry the person or resentence them. [00:20:41] Speaker 00: So finality isn't served by giving the state the right to appeal, but not the petitioners. [00:20:47] Speaker 00: And also as to comedy, I want to point out that this is at, by the time we get to the certificate of appeal ability, the question is about a federal appeals courts jurisdiction to review the federal district courts decision. [00:21:00] Speaker 00: And the federal court system has a great interest in ensuring that federal district courts correctly apply the law, correctly apply the Constitution, and that habeas, which is of fundamental importance to our Constitution and to our democracy, is made meaningful. [00:21:18] Speaker 03: And so the question of whether all the others... First, that is an argument against [00:21:24] Speaker 03: Edpa as a whole, but not an argument about the specific points you're raising. [00:21:31] Speaker 00: Well, respectfully, Your Honor, I disagree, because I think that the fact that you're at the point where there's a final judgment, all of Edpa's other burdens have been applied. [00:21:41] Speaker 00: And the question is simply, within the federal court system, can you have a federal appeals court review a federal district court decision? [00:21:49] Speaker 00: So I think that distinguishes it from all of the other EDPA provisions, which I agree are very burdensome. [00:21:56] Speaker 00: So the comedy interests at play are different, and I see that I am over time. [00:22:01] Speaker 00: So unless you have further questions, I'll rest. [00:22:06] Speaker 01: Thank you for your arguments, counsel. [00:22:08] Speaker 01: This matter is submitted, and we are adjourned for today.