[00:00:00] Speaker 01:
Thank you, Your Honor, and I would request to reserve a few minutes for rebuttal, please.

[00:00:08] Speaker 01:
May it please the court?

[00:00:14] Speaker 01:
This is a comeback case.

[00:00:15] Speaker 01:
We meet again.

[00:00:16] Speaker 01:
This case shows why federal review of state convictions is necessary.

[00:00:30] Speaker 01:
Hopefully, it's not necessary in hardly any case.

[00:00:35] Speaker 01:
That would be an indication that the system is working, but the system is not working perfectly.

[00:00:40] Speaker 01:
And we do need federal review of the state court system to ensure that defendants' constitutional due process rights are being fulfilled.

[00:00:56] Speaker 01:
The panel's concerns expressed in the previous oral argument about leaving Mr. Salas in an unfair procedural trap have come to fruition, and he does need the protection of this court.

[00:01:19] Speaker 02:
There's not much time here, and I'd like you to focus just on a couple of issues for me.

[00:01:25] Speaker 01:
Please, Your Honor.

[00:01:26] Speaker 02:
That would be okay?

[00:01:28] Speaker 01:
Great.

[00:01:29] Speaker 02:
Okay.

[00:01:30] Speaker 02:
So there's one procedural bar that the state raises following our remand in the prior disposition.

[00:01:44] Speaker 02:
The state says, well, you didn't vacate the judgment.

[00:01:48] Speaker 02:
Therefore, you have to do a rule 59 or a rule 60B to set aside the judgment before you can get the question of relation back.

[00:02:04] Speaker 02:
What's your response to that?

[00:02:07] Speaker 01:
My response to that is that the judgment

[00:02:12] Speaker 01:
was not and still is not final in the sense of res judicata because the affirmance was conditional

[00:02:25] Speaker 01:
to other things that the court expressly instructed to be adjudicated on remand.

[00:02:32] Speaker 03:
The judgment remains in place and it was sent back with no instructions as to what procedural boxes applied or anything else.

[00:02:41] Speaker 03:
It was just to consider this issue and so what's the procedural box that's appropriate given that the judgment was left in place?

[00:02:53] Speaker 01:
The procedural box, Your Honor, is that the district court erred in finding inapplicability of either the relation back doctrine or equitable tolling.

[00:03:09] Speaker 01:
Either and or both would fit in this case, and under either or both theory, this case is that extraordinary case that

[00:03:24] Speaker 01:
that does warrant a rule fifteen amendment or

[00:03:32] Speaker 01:
Alternatively, a Rule 60 type of amendment, but I don't even think that Rule 60 comes into play here because the, well, we're going in circles, but the judgment is yes, it's final, but it's not final final.

[00:03:55] Speaker 01:
It's not raised judicata because it was issued conditionally.

[00:04:01] Speaker 02:
Well, we had learned, I think, right before the prior hearing, that he had pursued a petition in Superior Court.

[00:04:17] Speaker 02:
Is that correct?

[00:04:18] Speaker 01:
It is correct, Your Honor.

[00:04:20] Speaker 02:
I remember these events.

[00:04:23] Speaker 02:
And we were aware that he was trying to potentially raise that

[00:04:32] Speaker 02:
raised the felony murder special circumstance.

[00:04:38] Speaker 02:
And after we affirmed the jurisdictional ruling, specifically acknowledged that he should remand so that he could seek leave to amend his petition to raise the felony murder claim.

[00:04:58] Speaker 02:
And we even directed the district court to appoint

[00:05:05] Speaker 02:
Obviously it was something we had in mind.

[00:05:08] Speaker 02:
That he should have an opportunity to pursue his... It does seem so, Your Honor.

[00:05:18] Speaker 02:
Let's put that aside for the moment.

[00:05:19] Speaker 02:
Okay.

[00:05:20] Speaker 02:
You don't have a lot of time.

[00:05:24] Speaker 02:
Okay, well... Let's assume you're able to get over that procedural hurdle that the state raises.

[00:05:30] Speaker ?:
Okay.

[00:05:32] Speaker 02:
Why, where did the district court err in concluding that you could not meet the test for relation back under Ross and Mail?

[00:05:43] Speaker 02:
I think it is.

[00:05:47] Speaker 01:
Because.

[00:05:48] Speaker 02:
Why was it error for the district court to reach that conclusion?

[00:05:53] Speaker 01:
Because the district court overlooked or failed to properly consider

[00:05:59] Speaker 01:
that the unfair gang taint, which has been unfairly prejudicing Mr. Salas from day one when he was arrested and charged, and which was thrown out by the state court, and now this court ruled is, did not in itself, by itself warrant merits

[00:06:26] Speaker 01:
adjudication because it's not a custodial basis of Mr. Solace's conviction, yet custodial or not custodial, it's still being invoked at the state court level now as a means to deny him Banks Clark relief and hold that he's a major participant

[00:06:53] Speaker 01:
who acted with reckless indifference to human life.

[00:06:57] Speaker 01:
But that holding too precedes a lot of work that the state California Supreme Court has been doing and is continuing to do with cases that remain pending that are applicable to whether indeed Mr. Salas was a major participant

[00:07:19] Speaker 02:
Well, I mean, the whole business about what's happening in the state court, in the legislation, for the moment, that's a state law concern.

[00:07:33] Speaker 02:
What I'm really trying to get you to explain to me is why should the relation back doctrine apply here?

[00:07:42] Speaker 01:
Because there's a common core fact.

[00:07:45] Speaker 02:
What are those common core facts?

[00:07:48] Speaker 02:
that underlie the two claims.

[00:07:53] Speaker 01:
The main common core fact is the unfair judgment of Mr. Salas being affiliated with a gang as a reason for, number one, of course, the gang special circumstance, and number two, also, the denial.

[00:08:13] Speaker 03:
But is that based on the same facts as the firearm enhancement?

[00:08:20] Speaker 00:
You're talking theory, we're asking about facts.

[00:08:25] Speaker 00:
So the gang enhancement was based not only on the events of the Night of the Crime, but his whole history of being affiliated with the gang, correct?

[00:08:37] Speaker 00:
In terms of a temporal similarity, they're not necessarily the same.

[00:08:45] Speaker 01:
Oh, but they are, Your Honor, because the fact of the offense conduct is that Mr. Salas accompanied the shooter, the actual killer, Kasikas.

[00:08:59] Speaker 01:
Why did Mr. Salas accompany him?

[00:09:01] Speaker 01:
To re-up on methamphetamine that he was addicted to.

[00:09:04] Speaker 01:
And that's very unfortunate.

[00:09:08] Speaker 01:
It's tragic.

[00:09:09] Speaker 01:
But you know, Mr. Salas, who we know,

[00:09:12] Speaker 01:
um... was jumped into gang life when he was a child and before that uh... his he had a single mother and his next older brother was his caretaker who got shot by a gang when mister solace was like seven years old and then a few years later mister solace himself got jumped into gang life and

[00:09:35] Speaker 01:
well before the if the incident that is the basis of this challenge conviction mister solace had an encounter with police where he stated unequivocally that he's done with the time and he has nothing more to do with the time he's not affiliated he's you know that's about my question is

[00:09:54] Speaker 00:
Really, all those facts go to the gang enhancement, and in terms of time, they are different from the facts that you're talking about in terms of the robbery special circumstances, which are confined to the night of the murder.

[00:10:09] Speaker 01:
No, because actual killer Kasikas left a bunch of gang notes and gang signs at the crime scene.

[00:10:17] Speaker 01:
That was the gang.

[00:10:18] Speaker 00:
But that has nothing to do with

[00:10:21] Speaker 01:
It has nothing to do with Mr. Salas, but it has everything to do with Mr. Salas being convicted with either or both of these two special circumstances.

[00:10:33] Speaker 00:
My questions have taken you over your time.

[00:10:35] Speaker 03:
Yeah, we've taken you over time, but since we did, I'll give you the two minutes you requested for everybody.

[00:10:39] Speaker 03:
Thank you.

[00:10:40] Speaker 03:
We'll hear now from Mr. Means.

[00:10:49] Speaker 04:
Good morning, Your Honor.

[00:10:50] Speaker 04:
May it please the Court, Ryan Means, for respondent M.D.

[00:10:54] Speaker 04:
Bitter.

[00:10:54] Speaker 04:
I would be brief.

[00:10:56] Speaker 04:
Drawing off of what I believe the Court's suggestions may be here is our position is that, of course, that Rule 60B does prohibit any further activity in the District Court until the judgment can be set aside.

[00:11:09] Speaker 04:
And I think it's pretty clear the judgment obviously undisputedly has not been set aside.

[00:11:15] Speaker 00:
But your primary concern is whether or not it constitutes a second or successive petition, correct?

[00:11:21] Speaker 04:
Yes, that's right.

[00:11:22] Speaker 00:
So we have a bunch of case law that says if a case is dismissed on procedural grounds and not on the merits, the subsequent habeas is not a second or successive petition.

[00:11:33] Speaker 00:
So the claim involved here was dismissed on jurisdictional grounds, not the merits.

[00:11:38] Speaker 00:
So why does second or successive petition bar come into play at all?

[00:11:44] Speaker 04:
Because we can't forget there were two other claims that were dismissed on the merits.

[00:11:48] Speaker 00:
Well, I know that, but she's not raising those.

[00:11:50] Speaker 04:
No, but I think the entire petition itself was dismissed on the merits.

[00:11:54] Speaker 00:
The second one... This part of it was dismissed on jurisdictional grounds because it did not relate to the in-custody requirement.

[00:12:02] Speaker 00:
And we've had mixed cases like this before where we said another petition based on that is not barred because it was dismissed on procedural grounds.

[00:12:11] Speaker 04:
It's my belief your honor that when a court district court dismisses a case on procedural grant No, I'm sorry strike that on Jurisdictional grounds flex jurisdiction that is adjudication on the merits of the claim I don't think we I don't think that comports with our case law to go ahead a case that says that I believe I've cited those in the brief Okay in that regard The case you said in your brief or one of them is not a habeas case.

[00:12:37] Speaker ?:
I

[00:12:39] Speaker 04:
Okay, well that is the tact that we would believe.

[00:12:43] Speaker 04:
I get your argument, thank you.

[00:12:44] Speaker 04:
Gotcha.

[00:12:45] Speaker 04:
Then moving on to relation.

[00:12:47] Speaker 02:
I just have one question.

[00:12:49] Speaker 02:
There were pretty clear signals in the memorandum disposition that we filed in this case that we anticipated the case would go back and there would be further proceedings.

[00:13:00] Speaker 04:
Correct.

[00:13:00] Speaker 04:
But the judgment remained in place, and the court didn't authorize.

[00:13:04] Speaker 04:
It would have been different, reverse, and remanded, and then the judgment set aside, and etc.

[00:13:09] Speaker 04:
This court specifically had said, we don't pass judgment on the question of whether or not amendment's appropriate.

[00:13:17] Speaker 04:
So it specifically preserved that question and said, well, we're leaving that for the district court to decide.

[00:13:22] Speaker 04:
And that's exactly what occurred here.

[00:13:23] Speaker 04:
The district court decided that, in fact, amendment wasn't appropriate.

[00:13:27] Speaker 04:
And in this particular case, the district court didn't decide the second successive issue.

[00:13:33] Speaker 04:
It did not decide the Rule 60B issue, instead turned directly to the statute of limitations.

[00:13:40] Speaker 04:
So we could even hear, as courts do, even presume jurisdiction for purposes of argument and just look at the statute of limitations issue, which is appropriate when the jurisdictional issues have become complex.

[00:13:52] Speaker 04:
And here, the statute of limitations issue, as we have argued, forecloses relief for a variety of reasons.

[00:14:01] Speaker 04:
I won't go through the litany of, you know, finality, equitable tolling, statutory tolling, et cetera.

[00:14:07] Speaker 04:
I'll focus just simply on the question of relation back.

[00:14:10] Speaker 04:
And I think here what we've got are two claims.

[00:14:14] Speaker 04:
And the only commonality that you can find between the robbering murder special circumstance challenge and the gang murder special circumstance challenge, the one that was never actually imposed by the district court in lack of custody on that issue, was that he was gang affiliated.

[00:14:36] Speaker 04:
That's it.

[00:14:36] Speaker 04:
That's the primary connection between the gang affiliation

[00:14:40] Speaker 04:
But a gang affiliation by the petitioner has nothing to do with satisfying the major participant requirement under banks, nothing.

[00:14:51] Speaker 04:
And it has little, if anything, to do with satisfying the requirement for the reckless indifference requirement.

[00:15:01] Speaker 04:
Because in the reckless indifference requirement under banks, what you're looking for is a petitioner like here,

[00:15:07] Speaker 04:
that could look at circumstances of his co-defendant and say, I know what this guy's probably going to do.

[00:15:14] Speaker 04:
He's going to kill somebody.

[00:15:16] Speaker 04:
That's where we're looking at for reckless indifference.

[00:15:19] Speaker 04:
Here, what we have is the petitioner just simply saying, yeah, yeah, yeah, I'm affiliated with a gang, says nothing about the shooter in the case, the actual murder.

[00:15:31] Speaker 04:
So there's really no connection between the two of how that would be relevant.

[00:15:34] Speaker 04:
And without that nexus, there can't be a relation back.

[00:15:38] Speaker 02:
Certainly, there's not a common core of operative facts, even if somehow gang affiliation had some causal or rather some... I thought there was an allegation in the information that they committed the murder or the murder was committed to, you know, on the benefit... The allegation was that it was done in furtherance of the gang

[00:16:06] Speaker 02:
you know, of the various gangs of a gang.

[00:16:10] Speaker 04:
That was the one that was struck by the Court of Appeal, correct?

[00:16:12] Speaker 04:
That's the one you're referring to?

[00:16:13] Speaker 02:
Well, there was, but the indictment alleges all these facts about the gang and how the murder as a play, you know,

[00:16:27] Speaker 02:
Just how the murder furthered the expert talks about the reputation of the gang and how this kind of illegal, this terrible unlawful conduct enhances the stature of the gangs.

[00:16:42] Speaker 02:
But the allegation was there in the complaint, in the information.

[00:16:47] Speaker 04:
The problem, I think, Your Honor, is it's not the claim alleged in the original 2254 petition.

[00:16:53] Speaker 02:
No, I'm talking about the information that was filed in the Superior Court.

[00:16:59] Speaker 04:
My understanding for a perfect relation back by the Ombong Court of the Ninth Circuit is we start by looking at the 2254 petition.

[00:17:06] Speaker 04:
Did that put the other party on notice that this other claim— The original.

[00:17:12] Speaker 04:
The original 2254 petition, right.

[00:17:14] Speaker 04:
So in that particular instance, that would be the gang murder special circumstance that was never actually imposed

[00:17:22] Speaker 04:
by the state court.

[00:17:24] Speaker 02:
There was evidence.

[00:17:25] Speaker 02:
I mean, they had an expert on gang life and gang, you know, the whole, what was his name?

[00:17:31] Speaker 02:
I forget his name.

[00:17:33] Speaker 04:
I don't recall.

[00:17:33] Speaker 02:
But I looked at some of his testimony.

[00:17:35] Speaker 02:
He testified about gangs.

[00:17:38] Speaker 02:
You know, he was, he was there.

[00:17:41] Speaker 04:
But we're not trying to relate back to the complaint.

[00:17:45] Speaker 04:
We're not trying to relate back to testimony.

[00:17:47] Speaker 04:
We're trying to relate back to the 22, original 2254 petition.

[00:17:53] Speaker 04:
and the all there's three claims two of them are that nobody disputes and the only other claim is the gang murder special circumstance and so we look for the overlap between that one and the robbery murder special circumstance the only thing petitioner alleges in their papers that there is a the commonality of link is the gang affiliation but gang affiliation is simply not relevant

[00:18:20] Speaker 04:
to his new claim, a robbery, murder, special circumstance.

[00:18:23] Speaker 04:
It's not a common core of operative facts under banks for that determination.

[00:18:27] Speaker 04:
And that should be the end of it there.

[00:18:30] Speaker 02:
Doesn't all of this arise out of, there's a term that's used in Ross, episode in suit, that they take from a case called Tiller, I think it is.

[00:18:42] Speaker 02:
Why doesn't this just all arise out of that horrible event on that night in question?

[00:18:48] Speaker 04:
Well, I don't think we can read quite that broadly.

[00:18:50] Speaker 04:
I don't think that the precedent indicates.

[00:18:53] Speaker 04:
And there is the Schneider situation.

[00:18:55] Speaker 02:
What do you think the court was talking about when they talked about episode ensued?

[00:19:00] Speaker 04:
It's difficult to know exactly what that is, because it's referring back to Tiller.

[00:19:04] Speaker 04:
And Tiller is dealing with two actions almost inextricably intertwined by the same thing.

[00:19:11] Speaker 04:
It doesn't really further.

[00:19:13] Speaker 02:
See, that's what got me back to this.

[00:19:16] Speaker 02:
to the allegations in the information.

[00:19:22] Speaker 02:
They all seem to be connected.

[00:19:25] Speaker 04:
Well, that may be, but regardless, my understanding of Wimbong precedent in this circuit is we're constrained to look at what was alleged in the 2254 petition.

[00:19:38] Speaker 04:
That's it.

[00:19:39] Speaker 04:
Again, notice is key.

[00:19:41] Speaker 04:
That's one of the fundamental principles of relation back.

[00:19:44] Speaker 04:
Did it put them on notice of this claim coming down the line?

[00:19:49] Speaker 04:
And the one claim of the three that's in there that even arguably could be in this arena

[00:19:55] Speaker 04:
would be the gang murder special circumstance claim.

[00:20:00] Speaker 04:
There's no overlap between those two claims except maybe for the one minute issue of gang affiliation, which I've already talked about and I won't repeat over that, and how that is not a common core of operative facts under the bank's decision.

[00:20:20] Speaker 03:
I wanted to ask you a question about something that you pointed out in your brief, which was that the minute order of the sentencing proceeding and the abstract of judgment reflect that the trial judge only imposed the felony murder special circumstance for reasons that are not clear.

[00:20:36] Speaker 03:
The gang murders special circumstance was not imposed.

[00:20:39] Speaker 03:
That's correct.

[00:20:40] Speaker 03:
What does that mean?

[00:20:41] Speaker 03:
And what's the significance of that?

[00:20:43] Speaker 03:
Well, so is there a discrepancy between the judgment and the verdicts?

[00:20:47] Speaker 04:
That would seem to be the case, Your Honor.

[00:20:49] Speaker 04:
I can't explain to you why.

[00:20:52] Speaker 03:
But does it mean that the actual judgment and sentence only rests on one special circumstance?

[00:20:59] Speaker 03:
Yes.

[00:20:59] Speaker 04:
That's part of the judgment.

[00:21:00] Speaker 04:
That's what was imposed.

[00:21:03] Speaker 03:
But if the judgment only rests on one special circumstance, then does that call into question our prior decision?

[00:21:12] Speaker 04:
Well, that's the whole subject.

[00:21:15] Speaker 04:
May I extend my time, Your Honor, to answer your question?

[00:21:17] Speaker 04:
Absolutely.

[00:21:19] Speaker 04:
That was the whole discussion that we had in the first panel, which, of course, you weren't a part of.

[00:21:24] Speaker 04:
And my position was that he is not in custody on the gang murder special circumstance because it wasn't imposed.

[00:21:32] Speaker 04:
It's not part of the judgment.

[00:21:34] Speaker 04:
He's challenging it, but I don't know why, because it wasn't imposed against him.

[00:21:41] Speaker 04:
Only the gang murder special circumstance he was sentenced on.

[00:21:45] Speaker 00:
It's difficult to discern what the state courts did with it.

[00:21:48] Speaker 00:
They seemed to assume that the gang special circumstance was imposed.

[00:21:54] Speaker 00:
They didn't reach the issue.

[00:21:55] Speaker 00:
They said they got rid of the gang association conviction.

[00:22:00] Speaker 00:
But there's no explanation in the record of why.

[00:22:04] Speaker 04:
There is not from the court of appeal.

[00:22:06] Speaker 04:
They bypassed the issue by simply rendering harmless error.

[00:22:11] Speaker 04:
Anything further, Your Honours?

[00:22:14] Speaker 04:
No.

[00:22:14] Speaker 03:
Thank you, Your Honours.

[00:22:14] Speaker 03:
Thank you, Council.

[00:22:16] Speaker 03:
We're here for rebuttal.

[00:22:26] Speaker 01:
Your Honours, the gang murder

[00:22:29] Speaker 01:
special circumstance is relevant to the felony murder special circumstance.

[00:22:35] Speaker 01:
Because in challenging the validity of the felony murder special circumstance in the most recent exhaustion proceedings, the Banks-Clark Habeas Group's petition, the state superior court in its denial of relief,

[00:22:55] Speaker 01:
found that Mr. Solace was a major participant who acted and who also acted in reckless disregard of human life.

[00:23:04] Speaker 01:
And in making that finding reasoned in substantial part on Mr. Solace's gang identity.

[00:23:14] Speaker 01:
And I think that Judge Thomas, I think that you're absolutely correct that the state court, it makes no sense.

[00:23:23] Speaker 01:
The state court, which is why we need review, because sometimes things go wacky and make no sense.

[00:23:30] Speaker 01:
And it seems that the state superior court unwittingly

[00:23:38] Speaker 01:
decided or believed that Mr. Solis was still a gang member and the DA, the AG and the DA, the prosecution were not, did not clarify to the contrary in their papers either.

[00:23:56] Speaker 01:
They allowed this misunderstanding to happen.

[00:24:02] Speaker 01:
Now that Mr. Solis has

[00:24:05] Speaker 01:
amazingly secured local state-level counsel to pursue SB 1437 relief on his behalf.

[00:24:20] Speaker 01:
There is an evidentiary hearing set for late January in Kern County Superior Court

[00:24:27] Speaker 01:
And so we would suggest that it would be a good idea for this court to perhaps give some kind of intermediate decision, or not decision, but indication of its concerns, and that may in fact guide the state court as to

[00:24:51] Speaker 01:
this this mix up um but if but it may not and if the state court thank you councillor okay thank you thank you case just argued is submitted and we will stand