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

[00:00:01] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
Your honors might please the court.

[00:00:03] Speaker 04:
My name is Molly Carlin.

[00:00:05] Speaker 04:
I'm an assistant federal public defender in the District of Arizona and I represent Mr Tony Powell and I'd like to reserve two minutes.

[00:00:12] Speaker 03:
OK, you have a soft voice so get close to the mic and keep your voice up there.

[00:00:17] Speaker 03:
Thank you.

[00:00:18] Speaker 04:
Thank you.

[00:00:20] Speaker 04:
Now, Mr. Powell stands potentially alone among petitioners who filed 2255 motions that were dismissed on procedural grounds.

[00:00:29] Speaker 04:
That's because those other petitioners can file in the sentencing court a motion for relief under 60B.

[00:00:36] Speaker 04:
And if certain conditions materialize, presumably those motions will be granted.

[00:00:41] Speaker 04:
And if they're not, they can appeal from those denials.

[00:00:44] Speaker 04:
Mr. Powell uniquely has no such remedy.

[00:00:47] Speaker 01:
He has no.

[00:00:48] Speaker 01:
You have a very short amount of time.

[00:00:50] Speaker 01:
So I'd like to jump in with a question that I have.

[00:00:55] Speaker 01:
The law has changed and the intervening decisions demonstrate that there was error.

[00:01:04] Speaker 01:
And my question to you is whether

[00:01:08] Speaker 01:
Petitioner intends to ask permission in Texas now to file a Rule 60B motion because of the change in the law.

[00:01:18] Speaker 04:
I don't think the change in the law has any bearing on... Excise that from the question.

[00:01:24] Speaker 01:
Does he intend to ask permission to file a Rule 60B motion in Texas

[00:01:31] Speaker 04:
No, Your Honor, and the reason for that is if he filed a motion for leave to file a 60B motion in Texas, under the court's existing order, the clerk will administratively docket that motion and sanction him.

[00:01:46] Speaker 03:
Well, but okay, the district- Go ahead, I'm sorry.

[00:01:49] Speaker 01:
That isn't how it's been administered, it seems to me.

[00:01:51] Speaker 01:
It's essentially a pre-filing order.

[00:01:53] Speaker 01:
We have a lot of those in this court as well, where people, in order to file something, have to meet a threshold of potential

[00:02:02] Speaker 01:
viability because they'll file you know something every week for four years that and but when something does appear to have potential that permission is given and it seems to me that that in fact is what has been happening there

[00:02:21] Speaker 01:
And I will ask opposing counsel whether they would be willing to support such a motion because of the clear legal errors that were committed that we now know were clear legal errors.

[00:02:38] Speaker 02:
So I guess the question is, if this were to be held in advance for you to try to see if you can file in Texas, is that something that Mr. Powell would

[00:02:49] Speaker 02:
pursue and then you could always come back if that's not accepted there.

[00:02:54] Speaker 04:
Your Honor, I don't think that's relevant or appropriate because this court either has or the district court below either has 2241 jurisdiction or it does not.

[00:03:06] Speaker 03:
Well, except any time an Article III judge asks you something and you tell them that's not relevant, they always probably thought it was relevant.

[00:03:14] Speaker 03:
So maybe why don't you give that a go?

[00:03:17] Speaker 01:
It's relevant because if he can get relief in Texas, we're not needed.

[00:03:22] Speaker 01:
And so it seems to me that it's at least relevant for that purpose.

[00:03:29] Speaker 01:
I mean, the ultimate goal, it seems to me, is getting something for your client and not worrying about where it happens or under what statutory rubric it happens.

[00:03:42] Speaker 04:
Well, I have two responses to that, Your Honor.

[00:03:44] Speaker 04:
One, if he does file in Texas, there is a chance that he will be sanctioned, and he should not have to file under risk of sanctions.

[00:03:57] Speaker 03:
But after the district court issued its Catch-22 sanction, didn't Powell file a motion for leave to file a certificate of appealability to the Fifth Circuit, which the Fifth Circuit granted?

[00:04:10] Speaker 03:
So doesn't that show that he can actually seek relief in the sentencing court?

[00:04:17] Speaker 03:
No, Your Honor.

[00:04:18] Speaker 03:
Well, am I wrong?

[00:04:19] Speaker 03:
Did I misstate the facts there?

[00:04:22] Speaker 03:
Didn't they grant him a certificate of appealability?

[00:04:25] Speaker 04:
You're talking about from the district court's order?

[00:04:29] Speaker 03:
I believe you're talking about from the district court's catch-22 order?

[00:04:34] Speaker 03:
Well, but after.

[00:04:35] Speaker 03:
that happened, he did successfully file something.

[00:04:39] Speaker 03:
And you're saying it's impossible for him to file anything.

[00:04:42] Speaker 03:
So I'm pushing back on you on that.

[00:04:45] Speaker 03:
And so doesn't that actually show that he can seek relief?

[00:04:51] Speaker 04:
I don't think so, Your Honor, because I think filing a notice of appealability

[00:04:58] Speaker 04:
think any court would allow a certificate of appeal ability, a motion for certificate of appeal ability from a court's order.

[00:05:07] Speaker 04:
And then what the Fifth Circuit did was it then doubled down and said, basically, we are upholding this order, and you may not file.

[00:05:17] Speaker 04:
It just narrowed it to collateral attacks only.

[00:05:20] Speaker 03:
Did he ever pay the sanctions?

[00:05:22] Speaker 04:
Um, my understanding is that, uh, and what's in the record is that he, his looks like his sister paid or tried to pay the sanctions.

[00:05:30] Speaker 04:
And then the court didn't recognize that when he tried to file again and it said, you haven't paid the sanction.

[00:05:36] Speaker 02:
Um, so, uh, isn't the only thing that's been filed is a first step act request.

[00:05:41] Speaker 02:
And that was allowed because the fifth circuit sanctions says that you just can't file anything attacking the validity of your conviction or your sentence.

[00:05:50] Speaker 04:
That's correct.

[00:05:51] Speaker 04:
He was able to file a first act motion and I believe a compassionate release motion.

[00:05:55] Speaker 02:
They were kind of garbled in terms of... But he hasn't been allowed to file anything since he was sanctioned $300 by the Fifth Circuit.

[00:06:04] Speaker 02:
He hasn't been allowed to file anything that attacks the validity of his conviction or sentence, correct?

[00:06:08] Speaker 04:
Correct.

[00:06:09] Speaker 04:
That's right.

[00:06:11] Speaker 04:
with respect to whether the case should be abated, state-invaded to allow him to file something in the Fifth Circuit, not only would he risk sanctions, but there's also the problem that he, the standard here is not can he, is he definitely precluded from filing.

[00:06:35] Speaker 04:
No, the standard is whether it might be impracticable.

[00:06:39] Speaker 04:
The state doesn't appear to dispute that he might be precluded from filing.

[00:06:44] Speaker 04:
The state says, well, we don't concede that he's definitely precluded from filing anything.

[00:06:48] Speaker 04:
But it might be impracticable for him to file, certainly because he might be sanctioned.

[00:06:54] Speaker 04:
It's certainly impracticable, if not impossible, for him to pay the $300 sanction.

[00:07:01] Speaker 02:
So if we have to find diligence after Holland, Maples, Gonzales were decided, and Mr. Powell did not file a Rule 60 motion, how do we do that?

[00:07:15] Speaker 04:
So Mr. Powell did file multiple Rule 60 motions from the district court's denial of his 2255.

[00:07:24] Speaker 04:
And it was, in fact, the repeated filing of the Rule 60B motions that is what led the court to issue its Catch-22 order.

[00:07:34] Speaker 04:
And the Catch-22 order is what distinguishes-

[00:07:37] Speaker 02:
I'm talking about the time period after Holland and Maples.

[00:07:43] Speaker 02:
So Maples is decided by the Supreme Court on January 18 of 2012.

[00:07:48] Speaker 02:
Mr. Powell files his 2241 petition December 18, 2014.

[00:07:52] Speaker 02:
Tell me about that time period there and why it would be diligent.

[00:07:59] Speaker 04:
Well, that would still be a collateral attack on his conviction.

[00:08:02] Speaker 04:
The court didn't say, well, there's an exception where you can file a collateral attack or a 60B motion if the law has changed.

[00:08:09] Speaker 04:
He's still precluded from filing.

[00:08:14] Speaker 03:
But this isn't about whether you win.

[00:08:16] Speaker 03:
It's about whether he can file the 60B.

[00:08:19] Speaker 03:
And if he can file the 60B,

[00:08:21] Speaker 03:
then he's got to file it in the court where it should be unless it's impracticable.

[00:08:25] Speaker 03:
Otherwise, you can't just pick your jurisdiction, right?

[00:08:28] Speaker 03:
True, Your Honor, but I think that standard is very important.

[00:08:31] Speaker 04:
The district court below has jurisdiction if it is impracticable, if it might, not even is, according to the language of Jones, if it might be impracticable.

[00:08:42] Speaker 04:
Here, the state doesn't even dispute that it might be impracticable.

[00:08:46] Speaker 04:
Well, let's hear from this state if you want to save some time for rebuttal.

[00:08:49] Speaker 02:
Actually, can I ask one more question, please?

[00:08:51] Speaker 02:
Oh, OK, if you have a question.

[00:08:51] Speaker 02:
OK.

[00:08:51] Speaker 02:
So let's say we assume there's tolling up until the time that Mr. Powell's attorney told him that the Supreme Court had denied his cert petition.

[00:09:04] Speaker 02:
more than one year from when Mr. Powell learned that information from his attorney and when he filed his first petition.

[00:09:12] Speaker 02:
So help us explain how we would find that there should be tolling during that window that exceeds the one-year time period.

[00:09:21] Speaker 04:
So first, I want to point out that diligence only goes to 60B.

[00:09:25] Speaker 04:
And under the Supreme Court's decision in Jones, under a 2241 petition, he actually wouldn't have to satisfy 60B, because if you're filing under 2241, it's not subject to any of the strictures of 2255.

[00:09:40] Speaker 04:
And so I don't think you actually have to get to 60B.

[00:09:44] Speaker 04:
Particularly because under Jones, it rejected the idea of a substantive legal threshold test to 2241.

[00:09:52] Speaker 04:
Is the court unavailable?

[00:09:54] Speaker 04:
Yes.

[00:09:55] Speaker 04:
Therefore, you can file under 2241.

[00:09:58] Speaker 04:
I know it seems counterintuitive, but that's what Jones said.

[00:10:01] Speaker 04:
However, with respect to the diligence, six months, so he learned that the EDPA clock had expired.

[00:10:09] Speaker 04:
Five months later, he filed what he called a motion for writ of error.

[00:10:13] Speaker 04:
In that motion, he said, I wanted to file a 2255, but I can't because I'm out of time.

[00:10:18] Speaker 04:
And here's what happened.

[00:10:19] Speaker 04:
My lawyer didn't tell me that cert was denied.

[00:10:22] Speaker 04:
And he kept filing letters to the court saying, but I still want to try to file a 2255.

[00:10:27] Speaker 04:
Please, can I have my transcripts?

[00:10:29] Speaker 02:
He was diligent in trying to obtain his trial transcripts, which his lawyer did not convey and give to him, even though he requested it.

[00:10:38] Speaker 04:
Right, absolutely.

[00:10:39] Speaker 04:
There was a back and forth where his lawyer said go to the court, the court said go to your lawyer, his lawyer said go to the clerk, the clerk said, I can't give it to you unless you tell me exactly which pages you want.

[00:10:47] Speaker 04:
He said, I can't tell you which pages I want on one of the transcripts.

[00:10:50] Speaker 04:
So he was diligent and then ultimately filed it as soon as he got the transcripts.

[00:10:55] Speaker 03:
Is your question answered?

[00:10:56] Speaker 03:
Yes, thank you.

[00:10:57] Speaker 03:
All right.

[00:10:57] Speaker 03:
So I'll give you two minutes for rebuttal.

[00:10:59] Speaker 03:
I appreciate it.

[00:11:00] Speaker 03:
Thank you.

[00:11:07] Speaker 03:
Good morning.

[00:11:08] Speaker 00:
Good morning, Your Honors.

[00:11:09] Speaker 00:
Terry Criss for the government.

[00:11:10] Speaker 00:
May it please the court?

[00:11:11] Speaker 00:
This case is squarely controlled by Jones v. Hendricks.

[00:11:14] Speaker 00:
Jones stands for the public.

[00:11:15] Speaker 01:
Council, I'm going to ask you, I'm sorry to interrupt again, but time is short.

[00:11:24] Speaker 01:
Mr. Powell was right about the law, as we know from Holland and Maples, and he had really not very good legal counsel.

[00:11:38] Speaker 01:
So I want to ask you, if he were to go back to Texas and seek to file a Rule 60B motion now, would you be willing to join in or support a motion for permission to file such a motion?

[00:11:59] Speaker 00:
No, Your Honor, our position is that a 60B would be untimely at this point.

[00:12:04] Speaker 00:
Changes in the law do not allow you to file a 60B in perpetuity.

[00:12:09] Speaker 00:
At some point, the conviction becomes final and the 2255 order becomes final.

[00:12:14] Speaker 00:
Otherwise, every time there's a change in the law of a time bar, every petitioner from a 2255 would be able to file a new claim.

[00:12:22] Speaker 03:
So this isn't about whether he wins the 60B.

[00:12:25] Speaker 03:
It's whether he can file the 60B.

[00:12:28] Speaker 03:
So it seems to me you're jumping ahead and saying why he loses on the 60B.

[00:12:34] Speaker 03:
Would you be willing to let him file it, since in view of Gonzales, you can see that the Western District and the Fifth District were wrong in construing his 60B as 2255 successive petitions.

[00:12:51] Speaker 03:
So just let him file.

[00:12:53] Speaker 03:
That doesn't mean he wins.

[00:12:56] Speaker 03:
It's like, okay, it just seems that we're trying to figure out this, and your friend on the other side says he can't be anywhere, but it's got to be in Arizona, and you're saying, well, we're not going to let him file a 60B, and he can't be here.

[00:13:19] Speaker 03:
There have been changes in the law.

[00:13:21] Speaker 03:
There have been things that have gone on.

[00:13:24] Speaker 03:
Judge Graber's just saying, would you concede that he could file it and have it litigated so he's in the right venue?

[00:13:31] Speaker 00:
Our position is that a 60B would be procedurally barred.

[00:13:34] Speaker 00:
He can attempt to file it and argue that procedural bar isn't in place, but our position is

[00:13:38] Speaker 02:
Set aside the timeliness issue.

[00:13:41] Speaker 02:
Would you concede on the merits that Mr. Paul 60B would not be futile now in light of Gonzales, Holland, and Maples?

[00:13:48] Speaker 02:
Set aside any timeliness issue on the merits.

[00:13:52] Speaker 00:
On the merits, no, he wouldn't concede that either.

[00:13:55] Speaker 00:
He would have to prove that, in fact, the attorney error occurred and that it rose to the level that Holland recognized.

[00:14:02] Speaker 00:
But we aren't here to collaterally attack the collateral attack.

[00:14:07] Speaker 00:
The question under Jones is whether procedural bars are the reason he isn't able to file his claim in the sentencing court, and Jones holds that procedural bars are not.

[00:14:15] Speaker 00:
a way to trigger the savings clause.

[00:14:18] Speaker 00:
And although the procedural bars in that case are about 2255 motions, it's equally true that a procedural bar to reopen a 2255 through Rule 60B would also not make the remedy inadequate or ineffective under the savings clause.

[00:14:32] Speaker 00:
So the reason why I'm discussing procedural bar is because that's what Jones talks about.

[00:14:37] Speaker 03:
The reason he can't go- Well, counsel, what about if he can't pay the $400?

[00:14:40] Speaker 03:
Those haven't been paid.

[00:14:41] Speaker 03:
Doesn't that mean it's impossible for him to file in the Western District of Texas?

[00:14:45] Speaker 00:
No, I'm not convinced that that order is preventing anything here, really, because what the Fifth Circuit said is he can't challenge his conviction in sentence.

[00:14:55] Speaker 00:
What he apparently wants to do is to challenge the 2255 motion, which isn't a violation of the Fifth Circuit's

[00:15:02] Speaker 00:
order.

[00:15:03] Speaker 00:
He wants to file a 60B not to add new claims because that would be a success of 2255 in its own right.

[00:15:09] Speaker 00:
He apparently wants to file a 2255 to challenge the original dismissal for time bar.

[00:15:14] Speaker 00:
That's not an attack on the conviction and sentence.

[00:15:17] Speaker 00:
I'm not sure that would even violate the Fifth Circuit's order.

[00:15:19] Speaker 02:
Okay, so you concede he's not able to file any motion attacking his conviction or sentence, correct?

[00:15:24] Speaker 02:
The validity, based on the Fifth Circuit ruling.

[00:15:27] Speaker 00:
That's what the Fifth Circuit ruling says, if he hasn't paid the filing and he doesn't seek prior leave of the court.

[00:15:31] Speaker 00:
The order actually says he doesn't have to pay the filing if he seeks leave of the court, which he has to do anyway under the normal... But I guess you're putting us in... It's the catch-22.

[00:15:40] Speaker 03:
If you say he can't file in Texas, then don't we say we...

[00:15:44] Speaker 03:
It's impossible and impracticable.

[00:15:47] Speaker 03:
If that's what I'm hearing out of your argument, and if that's the case, then you lose.

[00:15:52] Speaker 03:
Then he can file here.

[00:15:54] Speaker 00:
Well, no, that's the holding in Jones.

[00:15:56] Speaker 00:
Jones says that the fact that you aren't able to comply with procedure and file in the sentencing court doesn't give you the right to file a 2241 in the district of confinement.

[00:16:05] Speaker 00:
It means you can't file at all.

[00:16:07] Speaker 02:
But you have him in a loop, right?

[00:16:08] Speaker 02:
You're quoting the Fifth Circuit saying that he could file a motion attacking the validity or conviction of his sentence until the sanction has been paid in full unless he first obtains leave of the district court, right?

[00:16:21] Speaker 02:
And then the district court

[00:16:22] Speaker 02:
I'm going to quote it, the court understands that obtaining leave of court requires a filing and that the clerk has been instructed to refuse any further filings.

[00:16:31] Speaker 02:
Accordingly, the court suggests that move and obtain a copy of Catch 22 written by Joseph Heller.

[00:16:38] Speaker 02:
That's the district court's order.

[00:16:40] Speaker 00:
Right, but then it was modified by the Fifth Circuit.

[00:16:43] Speaker 00:
So the Fifth Circuit order is the one in place now.

[00:16:45] Speaker 02:
The Fifth Circuit order says you have to get leave of the district court, and the district court says you're not going to get leave from me.

[00:16:50] Speaker 02:
Read Catch 22 by Joseph Heller.

[00:16:54] Speaker 02:
You're putting him in this sort of infinite loop.

[00:16:56] Speaker 00:
Well, no, because he has filed things in the district court since then.

[00:16:59] Speaker 02:
But not attacking the validity of his conviction or sentence, correct?

[00:17:03] Speaker 00:
Correct.

[00:17:03] Speaker 00:
But that's not what the Fifth Circuit's order says.

[00:17:05] Speaker 00:
The Fifth Circuit was a blanket, don't file anything.

[00:17:07] Speaker 00:
If that's what was in place today, he wouldn't be able to file anything.

[00:17:10] Speaker 00:
The fact that he was able to file... This is what it says.

[00:17:13] Speaker 02:
Let me quote from the Fifth Circuit.

[00:17:14] Speaker 02:
Powell is prohibited from filing any pleadings in the district court or this court concerning the validity of his conviction or sentence until the sanction has been paid in full unless he first obtains leave of the court in which he seeks to file such challenge.

[00:17:28] Speaker 00:
Yes, that's what the Fifth Circuit said.

[00:17:30] Speaker 00:
That's not what the district court said though.

[00:17:32] Speaker 00:
So our position is that the district court's order is not fully in effect.

[00:17:36] Speaker 00:
What's in effect is the Fifth Circuit's order.

[00:17:38] Speaker 00:
But again, that's not what Jones talks about with the savings clause anyway.

[00:17:43] Speaker 00:
When Jones talks about whether the remedial vehicle is inadequate or effective to test the conviction, it's something more categorical about whether the court even exists.

[00:17:54] Speaker 00:
The impractical language in Jones is also very narrow.

[00:17:57] Speaker 00:
If you look at footnote two, basically, it's talking about a situation before the highway system existed where it was just really, really difficult to move prisoners from one state to another.

[00:18:08] Speaker 00:
Jones questions whether that even matters anymore.

[00:18:12] Speaker 00:
Ultimately, the point Jones is making is that almost all challenges have to be brought in the sentencing court, and only in incredibly rare circumstances will we move them to the District of Confinement through a 2241.

[00:18:23] Speaker 00:
The other problem is, even if a 60B were successful, the best he could do is have his original 2255 from 2001 reinstated, which doesn't include any of the claims he wants to bring now anyway.

[00:18:36] Speaker 00:
So it's not the case that his inability to file a Rule 60B is the reason he can't file his substantive claims that he's presented in the 2241.

[00:18:44] Speaker 00:
So according to your analysis, what is the right answer for this court?

[00:18:48] Speaker 00:
To dismiss for lack of subject matter jurisdiction according to Jones v. Hendricks.

[00:18:53] Speaker 00:
Jones v. Hendricks holds that procedural bars do not allow a filing through 2241.

[00:18:58] Speaker 00:
And the fact that the petitioner was unable to comply with the procedural rules means that the case is over.

[00:19:05] Speaker 00:
And that apparently, according to Jones, is the result Congress wanted.

[00:19:08] Speaker 00:
Congress, through EDPA, wanted to limit the kinds of cases that could be brought in the District of Confinement.

[00:19:14] Speaker 00:
And therefore, cases had to be brought in the sentencing court.

[00:19:18] Speaker 00:
Here, he's had multiple opportunities to file 2255s, file 60Bs.

[00:19:24] Speaker 00:
None of them included the claims he wants to bring now in this 2241 petition, but he did challenge the timeliness ruling from this report.

[00:19:32] Speaker 03:
So are you, but if our view, if hypothetically we thought that the reason that is because he can, it's not impossible or impractical for him to file a 60B motion.

[00:19:47] Speaker 03:
You think that's wrong.

[00:19:49] Speaker 00:
If he could file a 60B motion, then the savings clause wouldn't be triggered for that reason as well, because he would have an opportunity to file in the sentencing court.

[00:19:57] Speaker 00:
Either he can file in the sentencing court because he can, or he can't file in the sentencing court because he's procedurally barred from doing so.

[00:20:03] Speaker 00:
But both of those have the same result here, which is no jurisdiction for the 2241.

[00:20:10] Speaker 00:
The final point I'll make is that Jones makes the point that the adequacy of the remedial vehicle is what's at issue, not whether a particular court had the correct decision.

[00:20:23] Speaker 00:
This court isn't collaterally attacking, or the petition rather, is not collaterally attacking

[00:20:28] Speaker 00:
whether that time bar ruling was right.

[00:20:30] Speaker 00:
This court essentially doesn't look through the time bar ruling.

[00:20:33] Speaker 00:
The fact is, he was time barred in his 2255.

[00:20:36] Speaker 00:
Adding any new claims to that 2255 would be a success of 2255, even if they're closed

[00:20:43] Speaker 00:
in the language of Rule 60B.

[00:20:45] Speaker 00:
And a Rule 60B challenging the dismissal of the 2255 would be time barred because he has waited 20 years to file that claim.

[00:20:54] Speaker 00:
Just because Hall and was decided in 2012 doesn't mean he couldn't have argued that earlier.

[00:20:58] Speaker 00:
Claims are unavailable just because the controlling laws against us.

[00:21:01] Speaker 00:
Jones makes that point too when it overruled this court's previous test about unobstructed procedural shots.

[00:21:06] Speaker 00:
So is that why you lose on the merits or is that why you can't file?

[00:21:10] Speaker 00:
That's why his 60B is time barred, and that's why the savings clause doesn't apply, because it's not an inadequate or an effective remedy to test the conviction.

[00:21:20] Speaker 00:
Therefore, there's no subject matter jurisdiction, and this court should affirm the district court's dismissal.

[00:21:24] Speaker 00:
Thank you.

[00:21:26] Speaker 03:
Do either of my colleagues have any questions?

[00:21:27] Speaker 03:
No, thank you.

[00:21:35] Speaker 04:
Your Honors, the 60B remedy is an exception to finality.

[00:21:39] Speaker 04:
It's the opposite of Jones because Congress wanted claims to be adjudicated on the merits as long as the petitioner followed the rules.

[00:21:47] Speaker 04:
This is a challenge to the remedial vehicle because it's whether he can get a motion for leave or a 60B motion into the hands of the district court to read it and to adjudicate it on the merits.

[00:22:00] Speaker 04:
And the district court, the sentencing court has said, I am not going to read it.

[00:22:04] Speaker 04:
I'm instructing the clerk to put it in a folder so I can never see it.

[00:22:08] Speaker 04:
I want to clarify just what we're looking for on remand.

[00:22:14] Speaker 04:
Our preferred outcome is for the court to say, yes, the custodial court has jurisdiction under 2241.

[00:22:20] Speaker 04:
Therefore, according to Jones, there are no restrictions on this petition.

[00:22:25] Speaker 04:
I know that seems counterintuitive, but that's what Jones says.

[00:22:27] Speaker 04:
Because the court is unavailable, under 2241, we can assert any claims we want.

[00:22:33] Speaker 04:
If there is some sort of threshold test that he does have to show that under 60B he would prevail, I don't think that is allowable under Jones.

[00:22:41] Speaker 04:
But if that were the case, we would ask the court to find that he does satisfy 60B, because the state has really waived any argument otherwise by really relegating its short answer to a footnote, or remand to the district court to decide whether he has satisfied 60B.

[00:23:01] Speaker 04:
in that event decide whether he just has to meet the 60B threshold to then bring a 2241 petition, which I think would be the

[00:23:13] Speaker 04:
Second right outcome, in which case he can bring any claims because it is 2241 and not actually a 60B motion.

[00:23:23] Speaker 04:
Or then the third outcome would be he can only bring 60B claims in the district court.

[00:23:29] Speaker 04:
But I think the right outcome according to Jones is if the sentencing court is unavailable, which it is here, then 2241 controls.

[00:23:38] Speaker 04:
He can bring any claims.

[00:23:40] Speaker 04:
The district court has jurisdiction.

[00:23:41] Speaker 04:
And so we'd ask this court to reverse and rule that the district court below.

[00:23:47] Speaker 04:
has jurisdiction.

[00:23:49] Speaker 04:
Thank you both for your argument.

[00:23:50] Speaker 02:
One quick clarifying question.

[00:23:51] Speaker 02:
When you mentioned waiver, are you referring to footnote eight in the government's brief where they don't address Gonzales, Holland, or Maples, and they just make the time bar argument?

[00:24:00] Speaker 02:
Or what are you referring to?

[00:24:01] Speaker 04:
I apologize that I don't have the brief in front of me, so I can't name the exact footnote.

[00:24:05] Speaker 04:
But it's the long footnote near the very end where they say, and by the way, he doesn't have strong grounds to reopen under 60B anyway.

[00:24:13] Speaker 04:
The cases they said, I know there are Alexander and Clark.

[00:24:16] Speaker 04:
That's what I'm referring to.

[00:24:19] Speaker 02:
They just address the time bar.

[00:24:20] Speaker 02:
They don't address the merits.

[00:24:22] Speaker 02:
Right.

[00:24:22] Speaker 02:
And that's what you're saying is a waiver.

[00:24:24] Speaker 04:
Yes, I think they've waived that.

[00:24:25] Speaker 04:
We've briefed it in detail.

[00:24:26] Speaker 03:
Thank you.

[00:24:28] Speaker 03:
This matter will stand submitted.