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

[00:00:04] Speaker 00:
May it please the court, CB Kirshner on behalf of Stanley Reimer.

[00:00:07] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:11] Speaker 00:
There is no question that the US Supreme Court has stated Ms.

[00:00:15] Speaker 00:
Joinder can be so prejudicial as to violate due process.

[00:00:20] Speaker 00:
However, there is a conflict both within this circuit and with other circuits as to whether there is clearly established federal law recognizing that principle for habeas cases under EDPA.

[00:00:31] Speaker 00:
If there is clearly established federal law, then according to the lower court, Mr. Reimer should be granted habeas relief because failure to sever charges and defendants in his case was so prejudicial that it violated his right to due process and a fair trial.

[00:00:48] Speaker 00:
In Collins, this court held the relevant language in Lane was merely dicta.

[00:00:54] Speaker 00:
But Collins did not overrule Davis, which was an earlier published Edpic case

[00:00:59] Speaker 00:
recognizing that failure to sever can violate due process and warrant habeas relief.

[00:01:05] Speaker 00:
This panel should follow the earlier case of Davis.

[00:01:08] Speaker 04:
Are we free to?

[00:01:10] Speaker 00:
Yes, your honor.

[00:01:10] Speaker 04:
Well, I know that you think so.

[00:01:13] Speaker 04:
I'm just trying to figure out why.

[00:01:14] Speaker 04:
The earlier case didn't grant habeas relief, did it?

[00:01:20] Speaker 00:
No, for lack of prejudice.

[00:01:22] Speaker 04:
Right.

[00:01:24] Speaker 04:
And now we have a case in Collins which says, rather squarely, that the Supreme Court case that you rely on is not clearly established law.

[00:01:37] Speaker 04:
Are we as a three-judge panel free to disregard that?

[00:01:41] Speaker 00:
Yes, Your Honor.

[00:01:42] Speaker 00:
And in fact, Collins, which was also a three-judge panel, did not overrule Davis.

[00:01:46] Speaker 04:
Well, but see, I guess my point is it didn't overrule Davis because Davis didn't grant relief.

[00:01:53] Speaker 04:
There's a statement in Davis, but Davis at the end doesn't grant relief.

[00:01:56] Speaker 04:
So I'm not sure why Davis is a holding that there is clearly established Supreme Court law on this point, but rather also just dictum.

[00:02:08] Speaker 00:
It's because, Your Honor, while

[00:02:10] Speaker 00:
Relief was not granted in Davis.

[00:02:12] Speaker 00:
Davis still recognized that it could be granted if the level of prejudice were sufficient.

[00:02:17] Speaker 00:
And it was also an epic case.

[00:02:18] Speaker 00:
It was not reviewed de novo.

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And because Davis was an earlier case, it is controlling.

[00:02:24] Speaker 00:
Collins did not even address Davis.

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It simply disregarded it.

[00:02:28] Speaker 00:
And just a few years ago, in a dissenting opinion, Judge Merguia in Cook said he would grant habeas relief, and that was also an epic case.

[00:02:36] Speaker 00:
saying that he thought the prejudice did rise to that level and cited both Davis and Collins.

[00:02:43] Speaker 00:
Excuse me, Davis and Lane, I apologize.

[00:02:46] Speaker 00:
Additionally, if you look at the language in Lane, it was not dicta, it was never dicta, which is what several other circuits have recognized.

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In Lane, the court was analyzing what level of prejudice is necessary to grant misjoinder relief under the rules of criminal procedure.

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However,

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In doing that analysis, the court pointed out that the error was raised under the rules of criminal procedure and not the Constitution.

[00:03:14] Speaker 00:
when it dropped the footnote that we have been citing.

[00:03:16] Speaker 03:
But Ms.

[00:03:17] Speaker 03:
Kirshner, the footnote doesn't have any citation to anything else.

[00:03:20] Speaker 03:
It just talks about the Fifth Amendment right to a fair trial.

[00:03:23] Speaker 03:
So if we believe that Lane is dicta, and at least narrow definition of dicta, it seems like it might be, what's the earlier authority that we should be looking to that clearly establishes a right against mis-joinder?

[00:03:41] Speaker 00:
I would say that the footnote, while it didn't cite anything, recognized that virtually all of the circuit courts had already recognized this principle for at least a decade.

[00:03:51] Speaker 00:
going back to the Fifth Circuit's holding in Tribbitt in 1976.

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That case had then been cited by numerous circuit courts for the same proposition that Ms.

[00:04:01] Speaker 00:
Joinder.

[00:04:01] Speaker 04:
But now you went back a little bit.

[00:04:03] Speaker 04:
We're at Edpoland, and we're looking for clearly established Supreme Court law.

[00:04:08] Speaker 04:
So let's assume that, as Judge Johnstone says, the footnote in Lane is just dictum.

[00:04:17] Speaker 04:
Where's your clearly established Supreme Court law?

[00:04:20] Speaker 00:
The clearly established Supreme Court law is Lane, Your Honor.

[00:04:23] Speaker 00:
The footnote in Lane was recognizing a well-accepted principle within the federal judiciary.

[00:04:29] Speaker 04:
So I understand your argument.

[00:04:30] Speaker 04:
Your argument is it has to be Lane that's your clearly established Supreme Court law, right?

[00:04:35] Speaker 00:
And later, Zafira, with regards to Joinder of Defendants.

[00:04:39] Speaker 00:
But yes, Lane is the primary case.

[00:04:41] Speaker 04:
So now I get to sort of the second part of the clearly established analysis.

[00:04:46] Speaker 04:
Is Lane just a statement?

[00:04:48] Speaker 04:
of general principle, and if it is, where's your clearly established Supreme Court case that's close enough to this one?

[00:04:56] Speaker 00:
It's not just a statement of general principle.

[00:04:58] Speaker 00:
If you read Lane, Lane did an in-depth analysis about prejudice and recognizing that different levels of prejudice apply to the same problem raised in different ways.

[00:05:09] Speaker 00:
So whether the error was structural versus harmless error, and if it was harmless error,

[00:05:14] Speaker 00:
Was it to be analyzed under Chapman or under Codeus?

[00:05:17] Speaker 04:
Well, but I'm still looking for a case where the facts are at least somewhere close to this one, where the United States Supreme Court has granted relief on the basis of mis-joinder.

[00:05:28] Speaker 04:
Is there one?

[00:05:29] Speaker 00:
No, Your Honor.

[00:05:30] Speaker 00:
The only case I can point you to is Lane and the subsequent circuits that have recognized Lane to be clearly established federal law.

[00:05:36] Speaker 04:
Yeah, but even, I'm so, but you do, I guess there's a two-step analysis.

[00:05:41] Speaker 04:
First, one is there clearly established law and some general principle.

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And then second is there clearly established law in a case relatively analogous to this one.

[00:05:51] Speaker 04:
And all your cases for that are circuit cases, are they not?

[00:05:55] Speaker 00:
Yes, Your Honor.

[00:05:56] Speaker 00:
I would also point out

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uh, just as an interesting point of fact, uh, that the concept that clearly established federal law is established only by holdings and not dicta is from Williams v. Taylor.

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And several years after that case was decided, Justice Stevens in occurring opinion pointed out that the language that everyone likes to cite in Williams v. Taylor was itself dicta.

[00:06:21] Speaker 00:
The ed pistachio does not distinguish between holdings and dictate just says clearly established federal law.

[00:06:28] Speaker 00:
So even if the language in lane is dicta and I submit that it isn't as has been recognized by several other circuits.

[00:06:36] Speaker 00:
It's still clearly established federal law.

[00:06:38] Speaker 00:
Because the language in the footnote and in Lane in general recognized that mis-joinder can violate due process.

[00:06:46] Speaker 00:
And that's why there's different levels of prejudice.

[00:06:48] Speaker 00:
I apologize.

[00:06:48] Speaker 01:
The court in Collins recognized that Lane did not establish a constitutional standard binding on states regarding requiring severance.

[00:06:56] Speaker 01:
How can that be clearly established federal law?

[00:07:00] Speaker 00:
For the reasons I just stated, Your Honor, which is that

[00:07:03] Speaker 00:
Lane was recognizing a well-established principle that had existed in the federal judiciary for over a decade, because even if the language was dicta, which it wasn't because it was essential to the prejudice analysis that was conducted in Lane.

[00:07:19] Speaker 01:
But more recently, Collins says Lane didn't establish a standard binding on states.

[00:07:28] Speaker 01:
Were they wrong in Collins?

[00:07:29] Speaker 00:
They were wronging Collins, Your Honor, and they did not overrule Davis, which was an earlier case that is controlling.

[00:07:35] Speaker 00:
Collins disregarded Lane entirely, and as Judge Merguia pointed out in his dissenting opinion, he would have followed, oh, I apologize, Your Honor.

[00:07:45] Speaker 04:
If she weren't Chief Judge, I wouldn't say it, but I don't want her to hear this and think I didn't say something.

[00:07:50] Speaker 00:
Thank you, Your Honor, I apologize.

[00:07:52] Speaker 00:
Monday morning arguments.

[00:07:54] Speaker 00:
But as Judge Merguia pointed out in her dissent in Cook, she would have followed Lane and Davis, as well as other prior EDPA cases that had been

[00:08:05] Speaker 00:
unquestionably held by this court to recognize that due process can be violated when prejudice from mis-joinder rises to a high enough level.

[00:08:15] Speaker 00:
And as the judge in this case recognized, there's nothing that one could think of that would be more prejudicial under the facts of this case.

[00:08:24] Speaker 00:
And I would like to reserve the rest of my time for a bottle of this.

[00:08:27] Speaker 00:
All right.

[00:08:27] Speaker 03:
Yes, thanks, Ms.

[00:08:28] Speaker 03:
Krischer.

[00:08:28] Speaker 00:
Thank you, Your Honors.

[00:08:30] Speaker 03:
Mr. Johnson.

[00:08:46] Speaker 02:
Good morning, Your Honors, and may it please the court, Matthew Johnson, Senior Deputy Attorney General for the State of Nevada, representing the respondents, appellees in this matter.

[00:08:53] Speaker 02:
Your Honors, for almost 14 years, the law in this circuit has been that the footnote eight in Lane is dicta, and that Zafiro and Lane do not establish a standard that's binding on the courts.

[00:09:04] Speaker 02:
This court has affirmed the validity of Collins in 13 other Ninth Circuit decisions, seven involving charges, and five involving co-defendants.

[00:09:13] Speaker 03:
Mr. Johnson, does that matter at all that Lane involved charges, Collins only involved defendants?

[00:09:22] Speaker 03:
So are we kind of, as Ms.

[00:09:23] Speaker 03:
Kirschner suggested, are we reading too much into what might be dicta from Collins?

[00:09:29] Speaker 02:
I don't think so, Your Honor, and that's precisely why I tracked down every one I could find.

[00:09:34] Speaker 02:
The Ninth Circuit has said it in seven other misjoinder of charges cases, affirmed that Collins stands for the principle that it's not clearly established for both misjoinder of defendants and charges cases.

[00:09:48] Speaker 03:
Which of those are published?

[00:09:50] Speaker 02:
I think it's only one, Your Honor.

[00:09:54] Speaker 02:
The only published case involving charges is Walden v. Shin, Your Honor.

[00:10:05] Speaker 02:
That was a charges case where they cited Collins for that proposition.

[00:10:08] Speaker 02:
That's 990 F3rd 1183, and it occurs at Pinsight 1196.

[00:10:14] Speaker 02:
It's a 2021 case.

[00:10:16] Speaker 03:
Thank you.

[00:10:17] Speaker 04:
So is it your position that federal habeas relief would be unavailable

[00:10:25] Speaker 04:
under any circumstances in a misjoinder case?

[00:10:30] Speaker 04:
My position would be that... No, so assume the worst possible misjoinder of charges and defendants.

[00:10:38] Speaker 04:
A defendant, two entirely different crimes, not related to each other, both for charges and defendants.

[00:10:47] Speaker 04:
Under that circumstance, is it your position that a district court would be powerless to grant habeas relief?

[00:10:55] Speaker 02:
A district court would not be able to find under EDPA that there's the state appellate court had unreasonably applied.

[00:11:06] Speaker 04:
The answer to my question is yes.

[00:11:07] Speaker 02:
Yes, Your Honor.

[00:11:08] Speaker 02:
A federal district court, yes.

[00:11:10] Speaker 04:
No matter how outrageous the joinder of charges or defendants, your position is that a federal district court could not grant 2250 for habeas release.

[00:11:20] Speaker 02:
Yes, Your Honor, that's the whole point of EDPA, is the comity that's granted to appellate courts.

[00:11:26] Speaker 02:
And in this case, it was clear that the Nevada Supreme Court spent a long time on this.

[00:11:30] Speaker 02:
The case here is a published case specifically addressing abuse and neglect statute.

[00:11:36] Speaker 02:
They spent a long time looking at this issue.

[00:11:38] Speaker 02:
It's established the state law on how to apply severance in child abuse cases, and it's been the law for quite some time now.

[00:11:47] Speaker 02:
But in this case, even if Zafiro and Lane were clearly established federal law, the Nevada Supreme Court did not unreasonably apply that federal law.

[00:11:56] Speaker 02:
The federal district court

[00:11:58] Speaker 02:
made two mistakes in their analysis on whether it was an unreasonable application or clearly established federal law.

[00:12:04] Speaker 02:
First, they made the mistake in determining that it was not cross admissible.

[00:12:09] Speaker 02:
And second, they said that the Nevada Supreme Court was required by Lane and Zafiro to do the equivalent of a 403 analysis under the federal rules of evidence.

[00:12:20] Speaker 02:
And neither of those principles

[00:12:22] Speaker 02:
Well, first of all, the second principle is not clearly established.

[00:12:24] Speaker 02:
It's not in lane or dicta, but the federal district court used that principle to say that it was an unreasonable application of federal law.

[00:12:32] Speaker 02:
But let me start with the first one, unless this court has more questions about clearly established.

[00:12:36] Speaker 03:
Well, I guess a general question about the framework here.

[00:12:40] Speaker 03:
As I took the district court, and I think the briefs have followed this, the district court

[00:12:45] Speaker 03:
is asks the unreasonable question before the clearly established question.

[00:12:50] Speaker 03:
And I guess I'm not sure how that works.

[00:12:53] Speaker 03:
How do we know if something is unreasonably applied before we know whether it's clearly established?

[00:12:59] Speaker 02:
I noticed that as well, Your Honor, that it's an unusual analysis, having done this for quite some time, to see the federal court kind of reverse the question.

[00:13:08] Speaker 02:
Usually a federal court will first try to identify what they clearly established federal law and then determine whether that was unreasonably applied.

[00:13:15] Speaker 02:
In this case, what the federal district court did is it looked at all of the Ninth Circuit precedent

[00:13:19] Speaker 02:
and the U.S.

[00:13:21] Speaker 02:
Supreme Court cases and said, does it unreasonably apply any of those principles?

[00:13:25] Speaker 02:
In fact, much of its holding did not rely on the U.S.

[00:13:28] Speaker 02:
Supreme Court.

[00:13:29] Speaker 02:
It relied on a Ninth Circuit case in Bean, which was a pre-EDPA case that was not the correct analysis.

[00:13:37] Speaker 02:
But in this case, there was even a bigger mistake here, Your Honor.

[00:13:40] Speaker 02:
They misunderstood what the intent elements and what was required to be proved in the prosecution's case.

[00:13:44] Speaker 04:
Well, let me ask you about that, because this was an involuntary murder charge, was it not?

[00:13:51] Speaker 02:
No, Your Honor, it was a second-degree murder charge.

[00:13:54] Speaker 04:
But he was convicted on the involuntary.

[00:13:56] Speaker 02:
That's correct.

[00:13:57] Speaker 02:
But the charge was second degree murder, which includes malice and also felony murder based on the child abuse.

[00:14:02] Speaker 04:
You'd agree as to the manslaughter charge, it doesn't matter.

[00:14:08] Speaker 04:
The intent, in other words, if you're putting in the evidence to show intent, it wouldn't be relevant on the manslaughter charge.

[00:14:14] Speaker 02:
Not for involuntary manslaughter.

[00:14:16] Speaker 02:
I agree with you there, Your Honor.

[00:14:17] Speaker 04:
But it was, you think it was relevant on the charge for which he was not convicted.

[00:14:20] Speaker 02:
Oh, certainly.

[00:14:21] Speaker 02:
And that's why I think the federal district court misunderstood what the elements that were required to be proved.

[00:14:26] Speaker 04:
See, I thought your better argument might have been that even if it was irrelevant on second degree murder, he was acquitted of it, so he wasn't prejudiced by the introduction of it.

[00:14:37] Speaker 02:
That is, and if I misunderstood your question, Your Honor, yes, I thought you were asking specifically about involuntary manslaughter, so I apologize if I misunderstood your question.

[00:14:46] Speaker 02:
Certainly, malice is one of the intent elements that was required to be proved for secondary murder.

[00:14:51] Speaker 02:
and the intent element for child abuse and neglect, the felony.

[00:14:55] Speaker 02:
And that had two requirements, Your Honor.

[00:14:57] Speaker 02:
Two of the elements there required the state to prove the absence of accident.

[00:15:02] Speaker 02:
And that's the reason that the court found cross admissibility.

[00:15:06] Speaker 02:
First on willfulness, there was a requirement that

[00:15:09] Speaker 02:
you prove that the act or omission was not done accidentally.

[00:15:13] Speaker 02:
That was one of the elements.

[00:15:14] Speaker 02:
Second, to prove neglect.

[00:15:16] Speaker 02:
You had to prove that if there was physical or mental injury, it was of a non-accidental nature.

[00:15:21] Speaker 02:
Yet the federal district court astonishingly said that wasn't one of the intent elements to be proved.

[00:15:26] Speaker 02:
And therefore, the other acts analysis where they said one of the reasons that it was relevant was to prove the absence of mistake or accident

[00:15:39] Speaker 02:
was irrelevant and that can't be the case because two of the elements required the prosecution under one of the two theories to prove the absence of mistake or accident.

[00:15:50] Speaker 02:
That's the first reason that it was cross admissible and that the Nevada Supreme Court's analysis was correct.

[00:15:56] Speaker 02:
The second mistake the federal district court made was that they held the Nevada Supreme Court

[00:16:01] Speaker 02:
and faulted them for not doing a sufficient 403 analysis.

[00:16:06] Speaker 02:
In other words, demonstrate that the probative value was not substantially outweighed by the danger of unfair prejudice.

[00:16:12] Speaker 02:
There is nowhere in Lane or Zafiro that stands for that principle.

[00:16:16] Speaker 02:
In fact, it says the opposite.

[00:16:17] Speaker 02:
Lane applies the katiakos, I may have mispronounced that, standard for non-constitutional error finding actual prejudice.

[00:16:26] Speaker 02:
That's a completely different analysis than a 403 analysis.

[00:16:29] Speaker 02:
Courts have already said that a 403 analysis is a non-constitutional error, yet the federal district court applied that standard and then said, Nevada Supreme Court, you unreasonably applied this because you didn't explicitly, in your opinion, do a 403 analysis.

[00:16:46] Speaker 02:
That can't be an unreasonable application of clearly established federal law, even if Lane and Zafiro, their actual holdings, are clearly established.

[00:16:54] Speaker 03:
On the mis-joinder of defendants, I think you argue that the co-defendants' defenses were not mutually inconsistent.

[00:17:07] Speaker 02:
Yes, Your Honor.

[00:17:07] Speaker 02:
How is that?

[00:17:08] Speaker 02:
Yes.

[00:17:09] Speaker 02:
So there's two defenses.

[00:17:10] Speaker 02:
First, the husband, Mr. Reimer, who's the petitioner here.

[00:17:14] Speaker 02:
His defense was that he didn't know about it, that he thought the mother was taking care of it, and because he didn't have knowledge of what was going on, he wasn't liable for the crime.

[00:17:25] Speaker 02:
The mother's defense was that she was too weak and frail, and her kids were the ones that usually took care of the child.

[00:17:33] Speaker 02:
So the father essentially blamed the mother, the mother blamed the children, and then when they were both upstairs in their room sleeping while the kid was dying in the car, they said, well, we thought the kids were taking care of it.

[00:17:46] Speaker 02:
They're not mutually exclusive because the jury could have accepted both defenses and said, yes, these children

[00:17:51] Speaker 02:
were the usual caretakers for the child and they were reasonable, it could have been a mistake, a reasonable mistake for them to rely on their children to make sure they knew where the disabled child was and know he wasn't in the car for 17 hours dying.

[00:18:05] Speaker 02:
So yes, they're not mutually exclusive.

[00:18:11] Speaker 02:
The last thing with the 40 seconds I have, Your Honor,

[00:18:16] Speaker 02:
In footnote 10, I'd note that the court makes a really unusual statement where they say that any time the Nevada Supreme Court cites a federal case or other state's law to support their decision, that allows the federal district court to second guess a state court decision based on state evidence and second guess it.

[00:18:37] Speaker 02:
And that's never been the law in this circuit as far as or by the Nevada Supreme Court.

[00:18:41] Speaker 02:
And the footnote 10 is very concerning.

[00:18:43] Speaker 02:
It's the first time I've seen it in a federal district court decision, and it would upend federal habeas review if that's the proper way to analyze these EDPA cases.

[00:18:52] Speaker 02:
Thank you, Your Honor.

[00:18:53] Speaker 03:
Thank you, Mr. Johnson.

[00:18:56] Speaker 03:
Ms.

[00:18:57] Speaker 03:
Kirschner.

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

[00:19:02] Speaker 00:
Just a few quick points.

[00:19:04] Speaker 00:
First, I would like to point out that this court's published decision in Walden miscites Davis.

[00:19:12] Speaker 00:
It essentially says that Collins applies when doing an EDPA analysis, but Davis applies when doing a de novo analysis.

[00:19:19] Speaker 00:
And that simply doesn't make sense because Davis was not a de novo case.

[00:19:23] Speaker 00:
It was an EDPA case.

[00:19:24] Speaker 00:
So there is a conflict there.

[00:19:26] Speaker 00:
And I note that no petition for rehearing or en banc hearing was ever sought in Walden.

[00:19:32] Speaker 00:
But there is a concern with that case.

[00:19:35] Speaker 04:
And you might well seek one here if you don't prevail.

[00:19:38] Speaker 00:
yes because again there is this conflict not just within the circus but with other circuits and it's worth doing that analysis and particularly in a case like this where the Joinder resulted

[00:19:50] Speaker 00:
in so much prejudice.

[00:19:52] Speaker 00:
And I would ask this panel to read not just the state's closing argument, but their rebuttal argument, where essentially the prosecutor stood up and said, it seems like Colleen Reimer is more culpable.

[00:20:04] Speaker 00:
She's the one who left the child in the car.

[00:20:06] Speaker 00:
She's the one that went downstairs and inquired about the kid, but didn't really look around.

[00:20:10] Speaker 00:
She's the one who went back out later in the day, but happened to take a different car everything seems like it points to Colleen and yet this is what the prosecutor said it feels like Stanley deserves it worse and the prosecutor went on to point out all the ways in which

[00:20:26] Speaker 00:
He was a bad father.

[00:20:27] Speaker 04:
And by the way, the habeas in this case doesn't claim prosecutorial misconduct, at least the one in front of us.

[00:20:35] Speaker 04:
Correct.

[00:20:36] Speaker 04:
Because at least three judges on the lot of Supreme Court thought there was prosecutorial misconduct.

[00:20:41] Speaker 00:
Yes, Your Honor.

[00:20:42] Speaker 04:
But that's not an issue in front of us.

[00:20:44] Speaker 00:
No, we did not raise that as an uncertified claim.

[00:20:47] Speaker 00:
But go back and look at that argument by the state, because it shows that they were arguing improper propensity evidence, and that was the point

[00:20:55] Speaker 00:
of the joiner in this case.

[00:20:57] Speaker 00:
Thank you, Your Honors.

[00:20:59] Speaker 03:
Thank you, Ms.

[00:21:00] Speaker 03:
Kirshner.

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

[00:21:01] Speaker 03:
The case is submitted.