[00:00:01] Speaker 02:
Thank you, Judge Miller.

[00:00:02] Speaker 02:
My name is David Ness.

[00:00:03] Speaker 02:
I'm with the Federal Defenders of Montana, and I represent Patrick Nice.

[00:00:08] Speaker 02:
This case presents two issues, one having to do with the court dismissing his 2254 petition under Rule 4, and the second has to do with whether or not he can establish an effective assistance to counsel with respect to his suppression issue.

[00:00:25] Speaker 02:
I think at this point, probably the most important issue has to do with the Rule 4 issue.

[00:00:32] Speaker 02:
As I've always understood Rule 4, it's more or less akin to Rule 12 motion to dismiss in regular civil practice.

[00:00:42] Speaker 02:
That is that a court looks at the face of the pleading, reviews the pleading, and determines whether under any set of circumstances

[00:00:51] Speaker 02:
the litigant can make out his or her case.

[00:00:56] Speaker 02:
The language of Rule 4, I think, supports that.

[00:01:00] Speaker 02:
The standard is whether or not it plainly appears from the petition and any attached exhibits the petitioner is not entitled to relieve.

[00:01:07] Speaker 02:
the court is aware in this case What occurred is that?

[00:01:12] Speaker 02:
Mr. Nice filed his petition and the district court judge then asked for the state courts to submit the state number of state court documents and then from there she reviewed those hundreds of pages of documents and wrote a 17 page opinion, I think discussing all of those matters.

[00:01:35] Speaker 02:
Mr. Nice had no input in

[00:01:37] Speaker 02:
into it and then determined based upon her review of the entire record.

[00:01:42] Speaker 02:
without receiving an answer from the state, without receiving any further input from Mr. Nice that his petition should be dismissed because he couldn't meet the owner standards of Rule 24D.

[00:01:56] Speaker 02:
Now, I would assert to the court that looking at a petition to determine whether it can establish under the owner standards of Review of 24D,

[00:02:08] Speaker 02:
that it should be dismissed does not equate to the petition being patently frivolous.

[00:02:14] Speaker 01:
So what's the practical significance of that at this point?

[00:02:19] Speaker 01:
So if we agree with you that the district court should not have dismissed this under Rule 4, we have, as you know, a lengthy analysis of the issues from the district court.

[00:02:32] Speaker 01:
We now have full briefing from both sides.

[00:02:36] Speaker 01:
So if we, after looking at all of that, think that ultimately the petition lacks merit,

[00:02:43] Speaker 01:
Should we affirm or should we remand because of the rule for?

[00:02:48] Speaker 01:
Error if there was an error so that the district court can then dismiss on the merits More needs to be done here.

[00:02:58] Speaker 02:
I mean one one thing I can point out that I think that occurred here is

[00:03:04] Speaker 02:
And I apologize, I can't remember the SER number, but included within the documents that are within the supplemental X-ray records are pages from the searches that were allegedly done by Mr. Nice on the computer having to do with

[00:03:23] Speaker 02:
suppressors and murders and things like that.

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Now, after the court, after the state submitted those documents, Mr. Nice then challenged a number of those documents.

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And some of those documents had to do with the searches that he allegedly did.

[00:03:39] Speaker 02:
And he challenged those because on at least one of them, when you look down at the comments that were made

[00:03:48] Speaker 02:
on the website, some of those comments came in 2015, and even later, when he was in jail.

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And the police had the computers, and he challenged those things.

[00:04:01] Speaker 02:
But I don't know that anything was ever done with it.

[00:04:04] Speaker 02:
So there's one thing.

[00:04:07] Speaker 02:
And had the district court required the state to file an answer,

[00:04:16] Speaker 02:
and proceed on this as we believe that it should have been because I don't think that his petition was patently frivolous.

[00:04:23] Speaker 02:
I don't think that it established on his face that he was not entitled to any relief.

[00:04:29] Speaker 02:
You know, he could have had a shot here.

[00:04:31] Speaker 01:
But what, I mean, I guess, what is the practical significance of making the state file an answer?

[00:04:37] Speaker 01:
We now have a brief from the state, so we know what the state would have said.

[00:04:40] Speaker 01:
So what's the point of making them go back and say to the district court the things that they've now said to us?

[00:04:51] Speaker 02:
Well, I guess I'm.

[00:04:57] Speaker 02:
not completely understanding your question, Judge Miller, suggesting that this court could just go ahead and review the Fourth Amendment issue and make a decision on that and decide, well, the district court didn't hear there.

[00:05:10] Speaker 01:
Yeah, that is the question.

[00:05:11] Speaker 01:
Is there a reason that we can't just do that, given that we now

[00:05:15] Speaker 01:
have fairly well-developed positions from both sides and we have the record that we have and a review of the district court would be de novo anyway.

[00:05:25] Speaker 01:
So is there a reason, even if we agree with you that this was not a proper rule for dismissal, is there a reason to send it back rather than just going ahead and resolving the merits now?

[00:05:41] Speaker 02:
Well, the other reason to do it, I think, Judge, is just to make sure.

[00:05:44] Speaker 02:
I don't think this was an appropriate procedure, and I think it would be appropriate for this court to point that out.

[00:05:54] Speaker 02:
Judge Waters, who's a fantastic judge in a number of ways, but I think she aired here by what she did.

[00:06:01] Speaker 02:
You can't just dismiss these things on the pleadings, especially when you're looking at it under, as I say, she, I think, used the wrong legal standard, I would suggest.

[00:06:15] Speaker 04:
So may I ask a question?

[00:06:17] Speaker 04:
Because this is the second case from Judge Waters where we have

[00:06:21] Speaker 04:
where she's done this, that we've looked at this week as a panel.

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And I asked my law clerks to go look at Roll Forward dismissals in general.

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And all the dismissals that we've found discuss whether the factual allegations survive dismissal.

[00:06:42] Speaker 04:
We were unable to find any case law other than Judge Waters that addresses

[00:06:50] Speaker 04:
the summary dismissal based on the legal merits of the petition.

[00:06:57] Speaker 04:
I'm wondering if you've seen anything out there that's similar to this.

[00:07:05] Speaker 02:
I haven't, aside from when, for instance, the petition, it just utterly fails to state a cognizable claim.

[00:07:13] Speaker 02:
For instance, filing a 2254 petition that relies on state law or something of that nature.

[00:07:20] Speaker 02:
The other, I don't know that I've seen a case that actually did this, but I've seen a case that mentioned it is, for instance, if a petitioner files his or her 2254 petition, agrees with all of the facts that came out of state court, and so all of the facts are agreed upon, there's no factual issue there, and then the court, I think, in those cases might,

[00:07:52] Speaker 02:
It might be OK in that situation for a court to say, well, there's no factual dispute here.

[00:07:57] Speaker 02:
You totally agree.

[00:07:59] Speaker 02:
We can just go ahead and jump to the merits.

[00:08:01] Speaker 02:
But that's not what happened in this case.

[00:08:04] Speaker 04:
So given that the factual allegations in this case would have survived before, is there benefit to having the government actually answer

[00:08:21] Speaker 04:
and put it through the litigation process, a more rigorous litigation process instead of just the judge deciding without really having the benefit of argument.

[00:08:43] Speaker 02:
No, I do.

[00:08:45] Speaker 02:
I think that there is.

[00:08:46] Speaker 02:
I think that there is a benefit to, especially in a case like this, where there was a dissent at the Montana Supreme Court.

[00:08:57] Speaker 02:
I think that this is a case that really should have at least had an answer and allowed the court to make a more reasoned decision.

[00:09:08] Speaker 03:
OK, the substance of the

[00:09:12] Speaker 02:
habeas petition as I understand it is that council was uh... uh... ineffective for failure to challenge the lack of particularity particularity of the warrant that night and I think what else and I think facial validity too I mean they they're well yes but primarily the particularity of the two search warrants the twenty thirteen search warrant and the twenty fifteen search warrant

[00:09:42] Speaker 02:
But I'll tell you, the record in this is huge.

[00:09:46] Speaker 02:
But reading through all of the briefs and things of that nature, it wasn't real clear to me.

[00:09:53] Speaker 03:
I'm sorry I didn't follow.

[00:09:56] Speaker 03:
What wasn't clear to you?

[00:09:58] Speaker 02:
Well, for instance, the Montana Supreme Court decided that

[00:10:03] Speaker 02:
The particularity issue in particular hadn't been raised with respect to the 2015 search warrant.

[00:10:11] Speaker 02:
That wasn't necessarily clear to me, for example.

[00:10:14] Speaker 03:
What do you mean it wasn't clear to you?

[00:10:16] Speaker 02:
Whether or not that had been raised or not.

[00:10:26] Speaker 02:
I just, going through the record myself, I'll just use myself, I mean, I was left with a number of questions, I'd say that, and I think that this case deserved further development as I think, and I think there's also benefit to just following the rule.

[00:10:42] Speaker 02:
It wasn't, you know, what the rule states is it has to be plainly obvious from the face of the petition and the attachments, and that's not what happened here.

[00:10:54] Speaker 01:
Thank you.

[00:10:55] Speaker 01:
You're over your time, but we'll give you one minute for rebuttal.

[00:10:58] Speaker 01:
And we'll hear from the state.

[00:11:05] Speaker 00:
May it please the court.

[00:11:07] Speaker 00:
Corey Lozing on behalf of the state of Montana.

[00:11:09] Speaker 00:
Because the record conclusively establishes that NICE cannot prevail on his ineffective assistance of counsel claim, the federal district court properly summarily dismissed pursuant to rule four.

[00:11:20] Speaker 03:
nice cannot as we look at the face of the petition or do we study the record to reach that conclusion your honor the under rule for the federal district court of the district court judge in your uh... suggesting that it's my responsibility in these circumstances to uh...

[00:11:41] Speaker 03:
read the petition and then study the record and make up my mind about whether the petition has meritorious, whether or not the petition has meritorious claims without the benefit of an adversarial procedure?

[00:11:58] Speaker 03:
How am I going to do that?

[00:12:01] Speaker 00:
Under the Ninth Circuit's President Jones and its progeny, it requires the habeas court to conduct an independent review

[00:12:08] Speaker 00:
of the state court record or to conduct an evidentiary hearing in order to discharge its duties under rule four.

[00:12:14] Speaker 00:
And so the federal district court here did that by requesting the state submit the state court record because it was not, the documents were not attached to NICE's petition.

[00:12:25] Speaker 00:
And from her review of that record, she concluded that there were no merits to NICE's claims

[00:12:31] Speaker 00:
because they didn't survive EDPA review, deferential review of those claims, and they were adjudicated on the merits.

[00:12:37] Speaker 03:
But they may not have been winners, but that's not the same as saying they were patently frivolous.

[00:12:44] Speaker 00:
It's not the same as saying that, Your Honor, but here, even though they weren't winners, they also were frivolous, because under Strickland, the reasonable application of,

[00:12:55] Speaker 00:
Nice could not establish that his counsel was ineffective simply because they did not more clearly articulate a particularity challenge to one warrant.

[00:13:04] Speaker 04:
That issue was really hotly in dispute and it's a very odd situation where the Montana Supreme Court under record view, and I don't know if I have these facts exactly right, but one court under record view said they didn't raise the particularity challenge below

[00:13:26] Speaker 04:
So they forfeited it on appeal.

[00:13:29] Speaker 04:
And then I guess it comes up again in Montana.

[00:13:32] Speaker 04:
And this time they say he raised it, but it's sufficiently raised it.

[00:13:39] Speaker 04:
They somehow find that he sufficiently raised it, but it's not a valid argument in the district and the trial court didn't commit error.

[00:13:54] Speaker 04:
To me, that leaves a gaping question about how Montana State Courts could have found it both ways and against NICE on that issue.

[00:14:05] Speaker 04:
And I would think that as the dissent in the Montana Supreme Court said,

[00:14:13] Speaker 04:
that this is something that merits getting to the bottom two.

[00:14:17] Speaker 04:
Was it raised and rolled on or was it not raised and rolled on?

[00:14:21] Speaker 04:
And I think there's even dissension in the state courts on this.

[00:14:24] Speaker 04:
So I don't know how a district court judge sitting in her chambers could have taken it upon herself without hearing from the state.

[00:14:34] Speaker 04:
And as to what the right answer is on this,

[00:14:42] Speaker 00:
The record here supports that he cannot establish an effective assistance of counsel claim, even if his counsel did not raise a clear particularity challenge to the August 2015 search warrant.

[00:14:54] Speaker 03:
But shouldn't we reach that conclusion following some kind of adversarial activity?

[00:15:05] Speaker 00:
It wouldn't be necessary here, Your Honor, because the state court record answers the ineffective assistance of counsel claim.

[00:15:11] Speaker 00:
It's a paper-based claim.

[00:15:12] Speaker 03:
So you say.

[00:15:15] Speaker 03:
Montana State Court didn't buy that.

[00:15:20] Speaker 00:
On direct appeal of his trial, there was a dissent about the particularity challenge.

[00:15:26] Speaker 00:
Looking at the denial of the motion to suppress in those cases, both of them, the dissent found more problematic that

[00:15:33] Speaker 00:
would have found that the warrants lacked probable cause and would have found it take an issue with the unreasonable time between the search and seizure of the computers, more so than the particularity problem, even though that was looped into their dissent.

[00:15:47] Speaker 00:
But a majority of the court, even addressing principles of particularity, holistically affirmed the district court's denial of the motion to suppress.

[00:15:55] Speaker 00:
There is a clear paper record between the trial proceedings and the post-conviction relief proceedings that establish here

[00:16:02] Speaker 00:
that NICE's trial counsel was incredibly effective, and that the Montana Supreme Court's application of Strickland was not unreasonable.

[00:16:11] Speaker 03:
But so you say, but given the back and forth in the Montana Supreme Court, you may have won, but it seems to me that's inconsistent with saying this application was frivolous on its face.

[00:16:25] Speaker 00:
It's frivolous on its face because one

[00:16:28] Speaker 00:
small challenge to the holistic approach that council took to attacking both of these warrants through two motions to suppress and a motion to eliminate and obtaining an expert witness to undermine the computer evidence doesn't survive Strickland's standard.

[00:16:43] Speaker 04:
Yeah, so I have a question on that.

[00:16:45] Speaker 04:
You keep using the word holistic.

[00:16:48] Speaker 04:
I think one of the errors throughout the Montana court decisions is that they

[00:16:55] Speaker 04:
brush aside the failure of counsel to make the particularity challenge, saying, oh, but he made all these other arguments and he did all these other things.

[00:17:04] Speaker 04:
But doing all these other things that lose and leaving out the thing you might have had a winner on, that's a problem.

[00:17:15] Speaker 00:
Not necessarily when we're looking at the state district court in their post-conviction relief order, which was affirmed by the Montana Supreme Court, finding that it

[00:17:26] Speaker 00:
That district court judge himself considered particularity when he denied the motions to suppress of that warrant.

[00:17:33] Speaker 00:
He felt it was clearly raised.

[00:17:36] Speaker 00:
And he then further held in his order denying post-conviction relief that even if he hadn't felt like he'd considered particularity in denying the motion to suppress, he still would have denied that motion to suppress.

[00:17:48] Speaker 00:
And it was the same district court judge that was sitting as the trial judge and as the post-conviction relief judge.

[00:17:54] Speaker 01:
Suppose that contrary to the argument you're making, we conclude that this was not patently frivolous within the meaning of our case law.

[00:18:05] Speaker 01:
What should we do in your view?

[00:18:08] Speaker 00:
The appropriate remand, if you find that, would be to remand it to the federal district court with instructions to proceed, I think, as the federal district court would wish to proceed with that petition.

[00:18:22] Speaker 00:
If the issue is that the state didn't file a response, I would imagine based off of this court's ruling, if that's your ruling, Judge Waters would order the state to respond to the petition.

[00:18:34] Speaker 00:
As to your earlier question to Mr. Ness,

[00:18:40] Speaker 03:
the state's response largely would look like uh... it's briefing in this case don't you want to we want to be sure we get this right because we've got a man doing a hundred and ten years in a case where there was no murder weapon no eyewitness no DNA evidence no fingerprints uh... no gunshot residue et cetera et cetera this is uh... uh... at least in my experience

[00:19:06] Speaker 03:
is a pretty unusual first-degree murder case.

[00:19:13] Speaker 00:
Unusual, but not rare.

[00:19:15] Speaker 00:
Here, there was sufficient evidence.

[00:19:18] Speaker 00:
He doesn't challenge the sufficiency of the evidence.

[00:19:20] Speaker 03:
I don't live in Montana, so I don't know what... I think I was probably... I mean, I live in New York.

[00:19:28] Speaker 04:
This is typical of Montana.

[00:19:31] Speaker 00:
Here,

[00:19:35] Speaker 00:
Nice ever challenged the sufficiency of the evidence to the Montana Supreme Court on the direct appeal of his trial.

[00:19:41] Speaker 00:
He does not necessarily dispute that throughout the rest of his proceedings.

[00:19:45] Speaker 00:
There was sufficient evidence for the jury to convict him.

[00:19:48] Speaker 00:
They did.

[00:19:48] Speaker 00:
They heard it all.

[00:19:51] Speaker 00:
Their verdict stands here.

[00:19:53] Speaker 00:
The issue before this court is whether the state court's application of Strickland standard was unreasonable, and it was not.

[00:20:04] Speaker 00:
As the Montana Supreme Court concluded, he failed to overcome the strong presumption that his counsel's performance was reasonable.

[00:20:13] Speaker 00:
They filed multiple motions, as I mentioned earlier, in order to exclude the computer evidence.

[00:20:20] Speaker 00:
They were not successful, and it was not without great effort on their part.

[00:20:24] Speaker 00:
The expert witness significantly did undermine the computer evidence.

[00:20:27] Speaker 00:
The jury heard that, making

[00:20:31] Speaker 00:
discussing how the presentation of the computer evidence by the state was incomplete and made it look more so like a person who was interested in making homemade gadgets of all time.

[00:20:41] Speaker 00:
There was no mention of a 40 caliber weapon in that search history.

[00:20:43] Speaker 00:
Simply put, he can establish that his counsel was deficient and he cannot establish that he was prejudiced by that performance because the state district court in PCR said that it would have still denied the motion to suppress even if particularity would have been more thoroughly argued.

[00:21:01] Speaker 00:
Because he cannot establish the claim for ineffective assistance of counsel, the rule for dismissal after appropriate review of the record was appropriate.

[00:21:08] Speaker 00:
Thank you.

[00:21:09] Speaker 03:
Thank you, counsel.

[00:21:17] Speaker 02:
Thank you, ma'am.

[00:21:19] Speaker 02:
Thank you.

[00:21:21] Speaker 02:
I think that George Wardlock hit the nail on the head.

[00:21:24] Speaker 02:
I mean, no one's going to say that these two lawyers didn't

[00:21:29] Speaker 02:
just litigate the heck out of the searches.

[00:21:34] Speaker 02:
But they apparently missed, according to the Montana Supreme Court, whether or not they raised a particularity argument.

[00:21:45] Speaker 02:
And I don't know that that's ever really been totally fleshed out or litigated.

[00:21:51] Speaker 02:
And that's one reason why I think we need to go back on that.

[00:21:56] Speaker 02:
I would, and also as pointed out by Judge Parker, this was not a strong case.

[00:22:04] Speaker 02:
I can go through it again, but so much of the shoe print and evidence was equivocal at best to add something else.

[00:22:17] Speaker 02:
I really do believe that this case needs to go back for two reasons.

[00:22:21] Speaker 02:
Not only because of Mr. Nice, but I also think that this court should write an opinion, hopefully published, stating that district courts should not engage, should not dispose of habeas petitions in this manner.

[00:22:38] Speaker 02:
Thank you.

[00:22:38] Speaker 04:
Counsel, can I just ask you something?

[00:22:40] Speaker 04:
Because obviously, you're the federal public defender here.

[00:22:46] Speaker 04:
But would you clarify, was Mr. Nice's petition pro se, or did he have representation at the point of filing his motion?

[00:22:59] Speaker 02:
He was pro se.

[00:23:00] Speaker 04:
His 2254 motion.

[00:23:02] Speaker 02:
He was pro se.

[00:23:04] Speaker 02:
There was no lawyer appointed.

[00:23:05] Speaker 02:
If there was, it would probably be me anyway.

[00:23:08] Speaker 02:
OK.

[00:23:11] Speaker 04:
And there's no relation.

[00:23:12] Speaker 04:
You're Mr. Nest.

[00:23:13] Speaker 02:
I'm Nest in ESS, right.

[00:23:15] Speaker 02:
No I in my name.

[00:23:17] Speaker 02:
Okay.

[00:23:17] Speaker 02:
Thank you.

[00:23:18] Speaker 02:
Thank you.

[00:23:19] Speaker 02:
Thank you both.

[00:23:20] Speaker 02:
Appreciate your work.

[00:23:21] Speaker 01:
Thank both counsel.

[00:23:22] Speaker 01:
The case is submitted.