[00:00:00] Speaker 03:
Good.

[00:00:01] Speaker 00:
I'm going to ask you to please speak and project because I may have difficulty hearing you otherwise.

[00:00:08] Speaker 03:
Excellent.

[00:00:09] Speaker 03:
So with the court's permission, good morning.

[00:00:11] Speaker 03:
My name is Caitlin Mac Amos.

[00:00:13] Speaker 02:
Can I stop?

[00:00:14] Speaker 02:
Forgive me for interrupting.

[00:00:15] Speaker 02:
Since you said this is your first argument before our court, welcome.

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

[00:00:19] Speaker 02:
But also, just so you know how we do things, can you see the clock?

[00:00:23] Speaker 02:
That'll be ticking down.

[00:00:24] Speaker 02:
Yes.

[00:00:24] Speaker 02:
So when you look up and it says 2 minutes, that means 2 minutes left.

[00:00:27] Speaker 02:
But when the light turns, then you're over time.

[00:00:30] Speaker 02:
We'll let you know.

[00:00:31] Speaker 02:
Thank you.

[00:00:31] Speaker 02:
OK, go right ahead.

[00:00:32] Speaker 03:
Good morning.

[00:00:33] Speaker 03:
May it please the court?

[00:00:34] Speaker 03:
My name is Caitlin McAmiss.

[00:00:35] Speaker 03:
I'm with Christina Wildeveld's office.

[00:00:37] Speaker 03:
I am presenting today on behalf of Ricardo Perez, following his appeal from the denial of the motion for relief from judgment pursuant to Rule 60B, yeah, excuse me, 60B, Subsection 6, based on the attorney abandonment.

[00:00:54] Speaker 03:
And with the court's permission, I was going to see if you wanted to just ask questions.

[00:01:00] Speaker 03:
Sure.

[00:01:00] Speaker 03:
I have a question.

[00:01:01] Speaker 03:
OK.

[00:01:01] Speaker 02:
It seems to me that we've got a timeline here and it's quite detailed and concerning and you're relying on abandonment.

[00:01:11] Speaker 02:
to satisfy 60B.

[00:01:14] Speaker 02:
So there's quite a history when your client and his mom have affied that their lawyer was dishonest with them and told them he had taken steps that he had not.

[00:01:27] Speaker 02:
And during that time, since he'd entered into parents, your client really couldn't have filed anything, I think, pursuant to the local rule.

[00:01:33] Speaker 02:
But then there's a period of time where your client, I think, pretty clearly becomes aware that he's been abandoned.

[00:01:41] Speaker 02:
Right.

[00:01:42] Speaker 02:
That's correct.

[00:01:43] Speaker 02:
OK.

[00:01:43] Speaker 02:
So that's the period of time.

[00:01:44] Speaker 02:
I think that's the gap you have to close.

[00:01:46] Speaker 02:
In other words, if you just take it as a given that abandonment is an extraordinary circumstance,

[00:01:52] Speaker 02:
Then my question is, he's got to show diligence.

[00:01:56] Speaker 02:
So why did the district court abuse this discussion in finding that your client was not diligent?

[00:02:01] Speaker 03:
Thank you.

[00:02:01] Speaker 03:
And we are submitting that he was diligent based on not only the timeline before, but when he did start to have that notice, particularly starting around

[00:02:12] Speaker 03:
like May of 2020, that's when he and his mother were both very persistent and trying to follow up, requesting that the motion be filed.

[00:02:22] Speaker 03:
There were increasing difficulties in trying to get the attorney on the phone.

[00:02:27] Speaker 03:
Then turning into February of 2021, letters started being returned from the attorney's office.

[00:02:33] Speaker 03:
That prompted

[00:02:35] Speaker 03:
Mr. Perez and his mother to then immediately reach out and then make a bar complaint So that shows the kind of diligence is that they initiated something to get movement on that contact with the attorney trying to come to some like realization of what was happening and why their letters were being returned without any kind of question and then as your honors may be aware our proceedings are not

[00:02:58] Speaker 03:
always a quick resolution and so between roughly the end of February 2021 and Approximately like through July 2021 there was no State bar response and while to the grievance that was submitted by mr. Perez and his mother and so even between that My client's mother continued to reach out to the attorney so counsel of course.

[00:03:23] Speaker 01:
Yes, I

[00:03:25] Speaker 01:
We know that the rule 60 be was filed August 16th of 2022 right.

[00:03:31] Speaker 03:
That's correct.

[00:03:33] Speaker 01:
So what date exactly or approximately do you believe we should start.

[00:03:39] Speaker 01:
are counting from with regard to when the first date that your client, if acting diligently, should have filed.

[00:03:50] Speaker 01:
Are you saying it's actually August 16th, 2022?

[00:03:53] Speaker 01:
Or if it's some date before August 16th, what date do you want us to start counting from and saying, obviously this period of time isn't enough for this motion to have been denied?

[00:04:09] Speaker 03:
Well, I understand.

[00:04:10] Speaker 03:
Part of Mr. Perez's, I think, frustration and strange timeline is that Mr. Penny was subject to multiple disciplinary actions, not just his own.

[00:04:21] Speaker 02:
And so he... But can I just... You're focusing on the disciplinary actions, which, of course, are parallel and really don't have anything to do with what's happening here.

[00:04:30] Speaker 02:
So to get to...

[00:04:33] Speaker 02:
answer Judge Baia's question about when should the clock have started?

[00:04:38] Speaker 02:
What do the disciplinary proceedings have to do with that, please?

[00:04:42] Speaker 03:
Only as to notice, because prior to the disciplinary proceedings, Mr. Perez was unaware of the status of his case.

[00:04:51] Speaker 03:
Beyond something just very generally, there's a plan.

[00:04:53] Speaker 01:
So I use that only as... Well, he wasn't unaware.

[00:04:57] Speaker 01:
I mean, Mom knew and communicated to him in February 2020.

[00:05:02] Speaker 01:
that the petition had been dismissed in June of 2019, right?

[00:05:05] Speaker 02:
That's correct.

[00:05:08] Speaker 02:
That's correct.

[00:05:09] Speaker 02:
And I think your client has taken the position that Mr. Penny was reassuring him no problem, we can get it reinstated, but look at the last eight or nine months, right?

[00:05:18] Speaker 02:
Your client's mother requested a refund in November, received a partial refund in December.

[00:05:24] Speaker 02:
How do you account for the period from December of 2021 until August of 2022, please?

[00:05:33] Speaker 03:
And specifically, Mr. Perez had to locate new counsel.

[00:05:36] Speaker 03:
As your honors are probably aware, appointed counsel generally doesn't step in on this kind of matter because of the delay of the time-sensitive issues and because this was initially something where it was supposed to be pursued in federal court, stayed and abated in federal court, and then put into state court.

[00:05:53] Speaker 03:
Mixed petition, right?

[00:05:54] Speaker 03:
Correct.

[00:05:55] Speaker 02:
So did your client argue before the district court that he had trouble finding substitute counsel?

[00:06:03] Speaker 02:
that's a rule 60 be motion right does that motion did it argue that he had trouble finding new council or affording new council or where is that in the record, please.

[00:06:29] Speaker 03:
I apologize.

[00:06:30] Speaker 03:
I understand what you're asking.

[00:06:32] Speaker 03:
We would submit that that was argued in that Rule 60B and that it's from the Excerpt of the Record.

[00:06:37] Speaker 03:
We've cited at 2-Excerpt of the Record pages 197 to 213 that he did have trouble identifying and locating new counsel, that that was a barrier to him and that he had to retain counsel to do so.

[00:06:51] Speaker 02:
197 to 213.

[00:06:53] Speaker 03:
Yes.

[00:06:55] Speaker 01:
Is there because there's nothing in his declaration about that right.

[00:07:00] Speaker 03:
No there's nothing in his declaration about that.

[00:07:05] Speaker 01:
Is there anything in mom's declaration about that.

[00:07:08] Speaker 01:
It's brief indulgence.

[00:07:16] Speaker 03:
Is my recollection is I'm trying to find the site.

[00:07:21] Speaker 03:
Because mom was the moving party really on all of this.

[00:07:24] Speaker 02:
It seems to me this is the crux of it.

[00:07:27] Speaker 02:
If you perhaps would like to save some time and when you come back, you can do this search and answer Judge Baia's question.

[00:07:34] Speaker 02:
I will do that.

[00:07:35] Speaker 02:
When you come back to the microphone.

[00:07:36] Speaker 02:
I don't mean to cut you off, but it seems like that's going to take a little digging.

[00:07:39] Speaker 02:
I appreciate that.

[00:07:40] Speaker 02:
OK.

[00:07:41] Speaker 02:
OK.

[00:07:41] Speaker 02:
We'll hear from opposing counsel, please.

[00:07:54] Speaker 04:
Good morning.

[00:07:56] Speaker 04:
May it please the Court.

[00:07:57] Speaker 04:
My name is Brooke Jorgensen and I represent the respondents in this matter.

[00:08:01] Speaker 04:
Your Honor, Prez waited an unreasonable amount of time to file his Rule 60B6 motion, regardless of which date he claims he was abandoned.

[00:08:09] Speaker 04:
However, the District Court was not, was it correct in concluding Prez should have recognized abandonment by February 2021, which I will refer to as the letter date, rather than November 2021, which I will refer to as the proposed date.

[00:08:21] Speaker 02:
Does that mean you think that the clock going back to

[00:08:25] Speaker 02:
Bennett's question, the clock should have started in November of 2021.

[00:08:29] Speaker 04:
I believe it should have started in February when he wrote the letter.

[00:08:33] Speaker 04:
However, they argued it should have started in November.

[00:08:36] Speaker 04:
Well, I thought you said it the other way around.

[00:08:37] Speaker 04:
That's helpful.

[00:08:38] Speaker 04:
Go right ahead.

[00:08:39] Speaker 04:
Okay.

[00:08:40] Speaker 04:
First, Perez bases his argument on a subjective and self-serving belief that he didn't recognize that he had been abandoned.

[00:08:47] Speaker 04:
However, the standard is that of a reasonable person.

[00:08:50] Speaker 04:
In his letter, he expressed that attempts to communicate had been unsuccessful for a long time.

[00:08:55] Speaker 04:
and nothing at all seems to have been done with this case.

[00:08:57] Speaker 04:
He even stated, if I do not hear from you, I'm planning on doing what I can to figure out a way to move on and get things done.

[00:09:04] Speaker 01:
Was he in jail the whole time?

[00:09:06] Speaker 01:
Yes, he was in prison the whole time.

[00:09:07] Speaker 01:
So that's a factor, right?

[00:09:11] Speaker 01:
It's relevant that he was in jail where it makes things more difficult, right?

[00:09:18] Speaker 04:
Yes, and Perez, or Penny, his attorney, was very hard to get a hold of.

[00:09:23] Speaker 01:
Well, was his attorney eventually disbarred?

[00:09:27] Speaker 04:
He was suspended, yeah.

[00:09:29] Speaker 01:
So, I mean, he had an attorney who abandoned him, but sort of was writing him lulling letters or having lulling communications with him and mom, right?

[00:09:41] Speaker 04:
Yes.

[00:09:41] Speaker 01:
And he's in jail.

[00:09:44] Speaker 04:
The attorney?

[00:09:44] Speaker 01:
No.

[00:09:46] Speaker 01:
The petitioner.

[00:09:46] Speaker 01:
Petitioner.

[00:09:47] Speaker 02:
Okay.

[00:09:47] Speaker 01:
Sorry.

[00:09:48] Speaker 02:
Yes.

[00:09:49] Speaker 02:
Yeah.

[00:09:50] Speaker 02:
Well, he's in jail and he's represented by counsel.

[00:09:53] Speaker 02:
So pursuant to the local rules, he really couldn't have filed anything himself.

[00:09:57] Speaker 02:
That is true.

[00:09:58] Speaker 04:
Yes.

[00:09:58] Speaker ?:
Okay.

[00:09:59] Speaker 02:
Was he ever in administrative segregation?

[00:10:02] Speaker 02:
Do we know that?

[00:10:03] Speaker 02:
I do not believe that is in the record.

[00:10:05] Speaker 04:
Thank you.

[00:10:07] Speaker 04:
The last communication while there was communication sporadically throughout Penny's representation, he completely stopped communicating with him after that letter.

[00:10:16] Speaker 02:
So after what letter that February letter, the February letter.

[00:10:20] Speaker 02:
Yes, he would.

[00:10:21] Speaker 02:
But the February letter is about the fact that he had stopped communicating.

[00:10:24] Speaker 02:
Yes, it was the last time that Mr. Perez heard from Mr. Penny.

[00:10:29] Speaker 04:
It was February 18th, 2021.

[00:10:33] Speaker 04:
When he said, well, it was through his mother.

[00:10:35] Speaker 04:
So press penny sent a text to his mother February 18th, 2021.

[00:10:39] Speaker 04:
And that was the last communication.

[00:10:47] Speaker 04:
A reasonable person would have known if their attorney stopped all communication that they had been abandoned, and they would have started pursuing their rights diligently at that point.

[00:10:55] Speaker 04:
And to the bar complaint, Perez should have known this was not enough to pursue his rights diligently.

[00:11:02] Speaker 04:
He filed a timely pro se petition in the federal court before this, and he should have known that the bar complaint just wasn't enough to pursue his rights.

[00:11:09] Speaker 02:
Can you explain that part to me?

[00:11:10] Speaker 02:
Because I spent some time thinking about that.

[00:11:13] Speaker 02:
How does a layperson know what the function is of the bar complaint?

[00:11:19] Speaker 02:
Why is that so illogical that a layperson would complain to the bar?

[00:11:22] Speaker 02:
He wants to get a hold of his lawyer, he wants action, can't get the guy to respond.

[00:11:28] Speaker 04:
I think at this point, Perez had done everything he needed to or he tried everything he could.

[00:11:33] Speaker 04:
And doing this and not receiving a response after filing the bar complaint, he should have known that he needed to do something else.

[00:11:40] Speaker 02:
Well, that's what you told me.

[00:11:41] Speaker 02:
But my question is, why do you think he should have known?

[00:11:46] Speaker 02:
Did he get a response from the bar that said we can't help you or did he?

[00:11:50] Speaker 02:
It's not, I'm not trying to give you a hard time, I'm trying to understand him.

[00:11:52] Speaker 04:
I know his mother.

[00:11:53] Speaker 02:
Why you come to that conclusion?

[00:11:55] Speaker 04:
I know his mother was communicating with the bar and the reason they claimed that he should have recognized abandonment was because Penny hired counsel for that bar disciplinary hearing.

[00:12:07] Speaker 01:
Is it in the record, and I apologize for not knowing this, what his education level was?

[00:12:14] Speaker 04:
I'm not sure.

[00:12:18] Speaker 04:
He was 18, I think, though, when the crime happened.

[00:12:21] Speaker 04:
So he was pretty young when it happened.

[00:12:23] Speaker 01:
No, I'm talking about, well, anyway, OK.

[00:12:28] Speaker 02:
You're not contending that abandonment under, for example, maples or some of our other authorities, that abandonment could satisfy the Rule 60B6 standard, are you?

[00:12:38] Speaker 04:
No, well, not alone.

[00:12:41] Speaker 02:
Okay, wait a minute.

[00:12:42] Speaker 02:
So I hear you clearly arguing that Mr. Perez was not diligent.

[00:12:47] Speaker 02:
Are you also arguing that this does not, this fact pattern does not, abandonment would not satisfy Rule 60B6?

[00:12:56] Speaker 04:
No, we agree that he was abandoned.

[00:12:58] Speaker 04:
Oh, you do?

[00:12:59] Speaker 04:
Okay.

[00:12:59] Speaker 04:
Yes, yes.

[00:13:00] Speaker 04:
I think the difficulty with the crux of this case is when he was abandoned and whether he was diligent after that point.

[00:13:07] Speaker 04:
So respondents believe that he was abandoned.

[00:13:09] Speaker 04:
And when he wrote that letter, he should have known about abandonment.

[00:13:12] Speaker 04:
A reasonable person would have known abandonment.

[00:13:15] Speaker 02:
That letter being the February 2021 letter?

[00:13:17] Speaker 04:
Yes.

[00:13:18] Speaker 04:
However, even if we go off the proposed date, we still believe that he waited unreasonable time to file the motion.

[00:13:25] Speaker 02:
Was there a finding that he's indigent?

[00:13:28] Speaker 04:
I don't believe so.

[00:13:31] Speaker 04:
I'm not sure if he applied to get indigent.

[00:13:34] Speaker 04:
Who represented him in his underlying case?

[00:13:36] Speaker 04:
He was indigent in his trial court, I think, yes.

[00:13:40] Speaker 01:
But obviously, this lawyer, the lawyer who abandoned him, there's plenty on the record that he was paying him.

[00:13:44] Speaker 02:
Yes.

[00:13:44] Speaker 02:
Well, his mom was paying him.

[00:13:46] Speaker 01:
Yes, his family.

[00:13:46] Speaker 02:
And then had to request a refund.

[00:13:48] Speaker 02:
So she got a partial refund as of December.

[00:13:54] Speaker 04:
And that's when he also got his files back and then it took an additional 8 months to file the motion after that a reasonable person would not have waited that long to file a motion when they knew this was.

[00:14:06] Speaker 02:
important.

[00:14:08] Speaker 02:
Well, let me ask you about that.

[00:14:09] Speaker 02:
During that eight months, was the status of his case that opposing counsel still had a, I'm sorry, that his counsel, Penny, still had an entry of appearance?

[00:14:19] Speaker 04:
I believe so, yeah.

[00:14:20] Speaker 04:
I don't think he tried to substitute or tried to withdraw him.

[00:14:24] Speaker 04:
There was no action on the case from the time the motion was dismissed to the time they filed the motion.

[00:14:29] Speaker 02:
So your position is that he could have filed something anyway?

[00:14:33] Speaker 04:
Yes, or contacted the court.

[00:14:35] Speaker 04:
Filed what he filed in?

[00:14:36] Speaker 04:
August yes.

[00:14:41] Speaker 04:
Present current Council knew the petition had been dismissed almost 3 years prior and instead of filing it the motion as soon as possible press waited 2 months to hire Council and it took additional 7 months to follow the motion.

[00:14:53] Speaker 04:
This just was not reasonable.

[00:14:55] Speaker 00:
I have a question.

[00:14:57] Speaker 00:
How did the eight months from December of 2021 until the time of file the action August 2022 affect any evidence that was available on the motion?

[00:15:14] Speaker 00:
I mean, it's a passage of nine months, but I mean, did witnesses die or did memories fade?

[00:15:22] Speaker 04:
I mean, it's likely this case, the crime happened 12 years ago and due to his delay and not realizing an abandonment, we have three more years of time between the crime and when a new trial might be granted if this, the petition were granted.

[00:15:38] Speaker 02:
And his argument that he wanted to pursue

[00:15:41] Speaker 02:
I think was going to take a pathologist testimony.

[00:15:45] Speaker 02:
He's one to argue that the first shot which was accidental caused the death.

[00:15:49] Speaker 02:
Yes, and your position in response to judge Bayes questions that that state was going to be prejudiced in pursuing or defending against that.

[00:15:57] Speaker 04:
If the petition is granted and the state has to retry the case.

[00:16:01] Speaker 04:
I think they would be prejudiced by that.

[00:16:02] Speaker 04:
Yes.

[00:16:04] Speaker 04:
I also think it would be unfair to the victims who would have to relive a crime that happened 12 years ago.

[00:16:10] Speaker 04:
If there are no other questions, I ask the court to affirm.

[00:16:13] Speaker 02:
It doesn't look like there are.

[00:16:14] Speaker 02:
Thank you.

[00:16:14] Speaker 02:
Thank you.

[00:16:23] Speaker 03:
If you can let me know when clock resumes, may I address the court?

[00:16:26] Speaker 03:
Go right ahead.

[00:16:27] Speaker 03:
Thank you.

[00:16:28] Speaker 03:
You'd asked me to look up on the Ms.

[00:16:30] Speaker 03:
Durand's declaration.

[00:16:32] Speaker 03:
So that is in the record to, extra to the record, 177 through 178 and also 181.

[00:16:37] Speaker 03:
It doesn't in as many words say I specifically had trouble finding counsel.

[00:16:43] Speaker 03:
It was expressing the difficulty in getting new counsel after waiting so long for the partial refund.

[00:16:49] Speaker 02:
Page exactly.

[00:16:51] Speaker 02:
After waiting for the refund where where do I see that here?

[00:16:57] Speaker 03:
It's Believe it's 181 It's not 181 Okay

[00:17:20] Speaker 03:
I will continue looking for that, but I have it listed as 181.

[00:17:24] Speaker 03:
I did want to just briefly address two of the questions that you asked respondent.

[00:17:28] Speaker 03:
As far as educational level, it's not in the record.

[00:17:30] Speaker 03:
He was young.

[00:17:31] Speaker 03:
There was a question about AdSeg.

[00:17:34] Speaker 03:
He was not AdSeg, and that's not in the record.

[00:17:36] Speaker 03:
But also during this time period, there was the 2000 COVID lockdown.

[00:17:40] Speaker 03:
And so that means that the inmates in prison were not accessing law libraries, were locked down most of the day, and did not have the ability to just

[00:17:48] Speaker 03:
go out and make frequent contact or phone calls.

[00:17:51] Speaker 03:
Was that argued to the district court?

[00:17:53] Speaker 03:
It was not.

[00:17:56] Speaker 00:
Mr. Kamas, as I understand it, your client says that he didn't commit the second degree murder.

[00:18:03] Speaker 00:
The man was killed by an accidental shot.

[00:18:05] Speaker 00:
And my question is, what evidence was lost

[00:18:12] Speaker 00:
in that year from a year and a half, from February 19, 2021, when he wrote the letter to August 2022, regarding the fact of whether a pathologist would find that the shot was accidental.

[00:18:30] Speaker 03:
And I don't believe that any evidence was lost, because this was... Did the pathologist die in the meantime?

[00:18:37] Speaker 00:
Did he move to Nebraska?

[00:18:39] Speaker 00:
Was there any factual basis for saying that evidence was lost?

[00:18:46] Speaker 03:
The pathologist did not die.

[00:18:48] Speaker 00:
I don't think that the judge has to make that determination, but I was just curious as to whether there were any material facts which changed in the passage of time.

[00:18:59] Speaker 00:
I don't believe there was.

[00:19:01] Speaker 03:
I'm not arguing that.

[00:19:18] Speaker 03:
If the court has any other questions, I would be happy to answer them.

[00:19:22] Speaker 03:
I apologize that that site is.

[00:19:24] Speaker 02:
Well, setting aside the site, because we've got the record.

[00:19:27] Speaker 02:
We've got the whole record right here.

[00:19:28] Speaker 02:
Is it your understanding that the facts that we were asking about, arguments that may have been made in the 60B motion, is it your understanding that those are contained in the mother's affidavit?

[00:19:40] Speaker 02:
Or where do you want us to look?

[00:19:42] Speaker 02:
It's the mother's affidavit.

[00:19:43] Speaker 02:
All right.

[00:19:45] Speaker 02:
Thank you.

[00:19:45] Speaker 02:
Sorry for ever speaking.

[00:19:46] Speaker 02:
Thank you very much.

[00:19:47] Speaker 02:
If there are no further questions from my colleagues, it doesn't look like there are.

[00:19:51] Speaker 02:
We'll take this matter under advisement and move on.

[00:19:53] Speaker 02:
Thank you so much.

[00:19:54] Speaker 02:
Very much a pleasure to appear in front of you.

[00:19:56] Speaker 02:
Safe travels back.

[00:19:57] Speaker 02:
Thank you.

[00:19:58] Speaker 02:
Thank you both.