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Please be seated.

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Thank you.

[00:00:06] Speaker 02:
Good morning and welcome.

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We will cover two matters of housekeeping first before we hear our first argued case.

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The case of United States versus Cabral and the case of United States versus Stottinger Jr.

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are submitted.

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The first case for argument today is United States versus Hood and I believe

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my say in this is it adult is up first she out others you okay good morning vernal we fall on behalf of the appellant Aaron hood the issue in this case is a very simple one as whether or not the district court should have held the

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an evidentiary hearing on Mr. Hood's request to withdraw his plea due to ineffective assistance of counsel.

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He argued that his will essentially was overborn, that counsel coerced him into pleading guilty, took advantage of his bipolar disorder, his pain from the catheter, his anxiety, and that he was sobbing

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He also said that counsel told him that he was guilty.

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Nobody would ever win a trial like this, and he should plead guilty.

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Now, I understand we have an appeal waiver.

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And I think the government is correct that a straight ineffective assistance of counsel claim would probably not be viable given this appeal waiver.

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But what we have here is a claim that his plea was involuntary.

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And if the plea is involuntary, then the waiver, I think, is also involuntary.

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And I'm not talking about the plea colloquy.

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I think the Rule 11 plea colloquy was fine.

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There's no problem with that.

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But what Mr. Hood was saying was events that took place outside the courtroom.

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Ms.

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Wayfield?

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I'm sorry.

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Can you hear me now?

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Yes.

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He can bring a 2255 proceeding, can't he, on an ineffective assistance of counsel?

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That's what the plea agreement allows for, right?

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That's correct.

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But I think in this particular case, and I think the government agrees with this in their brief, that if we're talking about an involuntary plea,

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that the lawyer coerced him into pleading guilty.

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It's not simply a question of, you know, he failed to advise me of this or that and the other.

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I think that that involuntariness allegation can take it outside the waiver.

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Is there any case that says that... Let me ask you this.

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I found it interesting your argument that you argue that the district court was required to conduct an evidentiary hearing.

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It's just discretionary.

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Isn't it just discretionary with the district court judge whether the court decides to conduct an evidentiary hearing?

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It can.

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The judge can.

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Or it could just decide it on the papers.

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There were affidavits submitted, weren't there?

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Well, frequently.

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But what we have in this particular case is neither side got a declaration or a letter or a statement from the trial counsel.

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Well, whose burden was it to get the declaration?

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Whose burden was it to get the declaration?

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That is not in the record.

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No, I'm asking you, as a matter of law, whose burden was it to get an affidavit from his former counsel?

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I believe so, because we have no

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It's basically a one-sided allegation.

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And let me just say frequently.

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Can I ask you, what are the specific allegations that would have plausibly motivated a reasonable person to withdraw his guilty plea?

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Are there specifics?

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If I look at ER 87, they seem quite general.

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What was it specifically that would have motivated?

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Well, Mr. Hood, he specifically stated in his letters and so on that

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that his trial counsel told him he was guilty.

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He could not possibly win the trial.

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He should plead guilty.

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Nobody would ever win a case like this.

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And that he said that his lawyer took advantage of the fact that he was hysterical.

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He was sobbing.

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He was in great deal of pain from the catheter.

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and that you know he has a bipolar disorder and all of that is um... that that's all well and good I guess what I'm confused about is what is your position it seemed to me you started out in your opening brief of acknowledging the validity of the appellate waiver then you changed to say that the appellate waiver was not

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enforceable because it was not voluntary.

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And then you said it was not correct because there was no evidentiary hearing.

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So which is it?

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If any?

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All three.

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All three?

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All three.

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Don't we have to take into account what your brief asks for?

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It's all mixed up, isn't it?

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No, because if you look at the brief, we argue that there should have been an evidentiary hearing.

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The defendant asked for an evidentiary hearing.

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The brief also says that he does say that his will was overborn, the details in which Mr. Hood.

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But counsel, you're familiar with the Penholster case?

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Yes.

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OK, then on what basis?

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If I could just make one other point.

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If I could just make one other point.

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Let me ask the question first, then you can make the point.

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Normally, when you have an ineffective assistance of counsel claim, the prosecution would obtain a limited waiver of the attorney-client privilege

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and get a statement from the defense attorney.

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And nobody did that in this case.

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So we don't know what Mr. Holt would say.

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Under Penn-Holster, didn't the Supreme Court make clear that a matter that was not heard in the state court, you cannot get an evidentiary hearing to introduce new evidence in the federal court?

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Isn't that what Penn-Holster tells us?

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but this is a direct criminal appeal.

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State court... Okay, so you're saying it doesn't apply because we don't have a habeas.

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I'm sorry, could you repeat that?

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You're saying it doesn't apply because it's not habeas, is that right?

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This is not a habeas.

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Okay, all right.

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So, in an evidentiary hearing would have been very brief, or barring that, there should have been some kind of a statement

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from Mr. Hope as to how he would respond to Mr. Hood's allegations.

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That's the issue here.

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What is your final position about what you're asking?

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Which of the three arguments are you making?

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You're saying all three apply, even though you said one was good, one was not?

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What should we look at?

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We should look at the fact that there's no statement from Mr. Hope.

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That's in the opening brief.

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We should look at the fact that Mr. Hood alleges that he was coerced by his trial counsel outside of the presence of the courtroom.

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That's in the opening brief.

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We should look at the fact that there should have been some kind of an evidentiary hearing in this particular case, and it would not have taken very long.

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And for that reason,

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The case would be remanded for a hearing to find out what Mr. Hope would say.

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Do you want to save any of your time for rebuttal?

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Please, I would like to do that.

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Can I just ask one quick question?

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In your opening brief, you say the plea colloquy was fairly thorough.

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Do you have a different position now or?

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No.

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So you are conceding that it was fairly thorough.

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Yes, I am.

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My position is, is that what Mr. Hood was saying, it's things that took place outside of the courtroom that the judge did not see.

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I'm not arguing that the Rule 11 colloquy was insufficient.

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Okay.

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Ms.

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Navarro.

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May it please the court.

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Good morning, Your Honors.

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Margaret Navarro, and I represent the United States in this matter.

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In both his motion before the district court and in his opening brief, in no uncertain terms, the defendant claims ineffective assistance of counsel and asserts that the district court was required to hold evidentiary hearing prior to denying the withdrawal of his motion for guilty, excuse me, prior to the denial of his motion to withdraw the guilty plea.

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And these claims are barred by the appellate waiver.

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It wasn't until after the government's answering brief was filed

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that the defendant realizes the defectiveness of his claim and asserts for the first time that his plea was involuntary.

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And so it's the government's position that he has weighed this claim and this court should reject his belated attempts to recast his argument.

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What case says that he can't appeal and in an appeal challenge the district court's decision not to have an evidentiary hearing based on the appellate waiver?

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The appellate waiver bars him raising the motion to withdraw his plea.

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Right, but what about his claim that the court should have held an evidentiary hearing?

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It's the district court's discretion to hold an evidentiary hearing, and in this case, I do not believe that the district court abused its discretion.

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I think if we look to the record, he agreed to this plea knowingly and voluntarily as a defendant

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agreed, concedes the rule 11 colloquy was sufficient, was very thorough.

[00:10:18] Speaker 01:
The court asked.

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But if you look at that colloquy, he says he's, the court says you're grimacing, he says he's in discomfort.

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Aren't there enough red flags there that he was not willingly and intentionally doing this?

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He says, what do I have to do in order to, you know, how do I answer that?

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Does that determine I can still plead?

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The court says, I don't think you're sincere about wanting to change your plea.

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Yes, Your Honor.

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And I don't believe so in this case, because this district court was particularly familiar with this defendant, the types of claims that he was making.

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He had made these claims throughout the entirety of the proceedings, and in fact, continued to make them all the way through up to sentencing.

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I think at this time, the district court noted that he had had five defense attorneys.

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The district court itself had presided over numerous hearings on motions for substitute counsel motions, jury selection and the trial on this matter, as well as the guilty plea and then subsequent motions for new counsel.

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And what I think is particularly important in this case is when the district court issued its ruling on the motion to withdraw the guilty plea, the district court had already had two closed session hearings with Mr. Hoke, the attorney, and Mr. Hood, the defendant.

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Approximately one month before the trial in this matter, Mr. Hood asked that his attorney withdraw his counsel, and there was a closed session hearing on the motion to withdraw before the district court.

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And then one month after his guilty plea, he filed another motion to withdraw his counsel, at which time the district court held another closed session hearing

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between Attorney Hoke and the defendant.

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Ms.

[00:12:05] Speaker 03:
Namar, you didn't really answer Judge Koh's question about the legal issue that she raised with you.

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I'm sorry, Your Honor.

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You didn't really answer Judge Koh's question.

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I'm sorry, there's a lot of feedback.

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I don't know what's wrong here.

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There's a lot of feedback.

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Yeah, there's something wrong here.

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How's that?

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Can you hear me better?

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Yes, that's better.

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OK.

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You might check with the other judges as well.

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Just a little loud.

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OK.

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I was going to say, you didn't really answer Judge Coe's question about whether or not, what's the best case that says that the district court wasn't required to hold a hearing in these kinds of circumstances.

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Oh, I'm sorry, Your Honor.

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So I wanted to ask you, is your argument that the appellate waiver applies to his motion to vacate, and the issue of whether or not the district court had an obligation to conduct any kind of hearing, whether, evidentiary hearing, it's subsumed within that?

[00:13:27] Speaker 03:
Motion?

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A specific case, I think United States versus Erlenborn, specifically holds it as a defendant's burden to show that an evidentiary hearing would have affected the outcome of the case.

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And I don't think that he has done that here at all.

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Does that answer?

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Well, yes and no.

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So he did try to show that he

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You know, he was quite distraught at the time, and the judge seemed to sense that, because she, on several occasions, said, maybe we shouldn't go forward, and she's threatened to go forward with the trial.

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The jurors were just waiting outside, or had not come in yet.

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Correct?

[00:14:13] Speaker 04:
Yes, Your Honor, this was on the second day of the trial, actually.

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So we had already gone through jury selection, opening statements, and we were beginning to present evidence when the plea took place.

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And this defendant had had numerous medical issues that this court was fully aware of, the district court was fully aware of leading up to the trial, had moved to continue the trial, which was denied.

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Let me ask you this.

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If we were to agree with you that the appellate waiver applies here, the motion to vacate, does that end, we don't have to answer the question of whether or not he had a right to a hearing?

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I agree.

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I believe so.

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And I think the defendant, he's not without a remedy.

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He can still bring an ineffective assistance of counsel claim on a 2255 habeas.

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And I believe that that's the proper avenue.

[00:15:05] Speaker 03:
OK.

[00:15:06] Speaker 03:
Thank you.

[00:15:07] Speaker 04:
Yes.

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Do your honors have any other questions?

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Any other questions?

[00:15:10] Speaker 02:
I think not.

[00:15:11] Speaker 04:
Very well.

[00:15:12] Speaker 02:
Thank you.

[00:15:12] Speaker 04:
I'll cede my time.

[00:15:14] Speaker 02:
All right.

[00:15:15] Speaker 02:
Let's hear again from the public.

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Very briefly.

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The government's saying that, you know, keep changing argument, but that's not correct.

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If you look at page 19 of the opening brief, they specifically say, you know, we're talking about his ailments and what the court was aware.

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And I said, these ailments may well have led to his will being overborn, even if he was not competent.

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And in the reply brief, a reply brief is responding to the government's arguments.

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That's what you're supposed to do in a reply brief.

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Can we go back to page 19?

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So, in any event, it's always, based upon everything that he said, it's very clear that he was saying his will was overborn and counsel outside of the court will coerced him.

[00:16:04] Speaker 01:
But page 19 is where you say the plea colloquy was fairly thorough.

[00:16:08] Speaker 01:
Yes, I'm not contesting.

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And in proceeding attacking the plea, we have to treat all statements made during that guilty plea as carrying a strong

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presumption of veracity.

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So how do we overcome that presumption here?

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Because we have certain statements that Mr. Hood made in his motion to withdraw the plea about things that his lawyer said to him.

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uh... outside of the courtroom you know uh... you're guilty you know nobody ever and wins a case like this you need to plead guilty in the fact that mister hood was sobbing hysterically those are things that the judge did not see i mean she may have suspected something and i just want to say you know i was a federal public defender many years ago having uh... tried to get many different recalcitrant defendants to plead guilty knowing that it's the in their best interest

[00:17:06] Speaker 00:
They're not interested in doing it.

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It's oftentimes, you know, it's like pulling teeth sometimes.

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So we just don't know what really happened outside of the courtroom.

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And that's the reason that the court should have heard what Mr. Hoak had to say.

[00:17:21] Speaker 00:
Very well.

[00:17:22] Speaker 02:
Other questions by either of my colleagues?

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With that, I'll submit.

[00:17:25] Speaker 02:
No, thank you.

[00:17:26] Speaker 02:
I think not.

[00:17:26] Speaker 02:
Thanks to both counsel for the argument.

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The case just argued is submitted.