[00:00:01] Speaker 01:
Good morning, and welcome to the Ninth Circuit.

[00:00:04] Speaker 01:
Glad to be joined by my colleague, Judge McCune.

[00:00:06] Speaker 01:
And we are so glad to have the assistance for a couple of days this week from Judge Boggs, who has generously helped us meet our calendar.

[00:00:20] Speaker 01:
We have two arguments set today.

[00:00:23] Speaker 01:
We just ask you to pay attention to your time.

[00:00:26] Speaker 01:
I know one we have.

[00:00:29] Speaker 01:
Mr. Piven arguing by video.

[00:00:34] Speaker 01:
Let us know if you want to reserve time for rebuttal and just try and sum up as time's expiring and we'll go smoothly.

[00:00:42] Speaker 01:
We may take you over with our own questions, but we'll try and keep this within the time limits today.

[00:00:50] Speaker 01:
The first case is United States versus Wollum, case number 23-2231.

[00:00:57] Speaker 01:
and we'll hear from Mr. Peevan.

[00:01:01] Speaker 03:
Thank you, Your Honor.

[00:01:03] Speaker 03:
Good morning.

[00:01:04] Speaker 03:
My name is Roger Peevan and I represent Mr. Daniel Woollam.

[00:01:12] Speaker 03:
I would ask that I have five minutes reserved for rebuttal, please, Your Honor.

[00:01:19] Speaker 03:
Sure.

[00:01:20] Speaker 03:
Thank you very much.

[00:01:22] Speaker 03:
Daniel Wollum is a 57-year-old man with no prior convictions until this matter who is serving a 19.5-year sentence of which he has done approximately seven and has approximately 10 more years to serve.

[00:01:45] Speaker 03:
As I said, this is his only felony conviction.

[00:01:48] Speaker 03:
This sentence, as a first offender, was the high end of the guidelines and a nonviolent drug offense, drug offenses in this case.

[00:02:04] Speaker 03:
Mr. Woollam was represented at the time of sentencing by an individual, Mr. Orr,

[00:02:13] Speaker 03:
who was not appointed by the court to represent him, who had no membership.

[00:02:20] Speaker 01:
So Mr. Wollum consented to representation by him, correct?

[00:02:27] Speaker 01:
By Mr. Orr.

[00:02:29] Speaker 03:
I would say that that consent was not valid.

[00:02:33] Speaker 03:
And I would say that that's part of my argument.

[00:02:37] Speaker 03:
I can respond to that now.

[00:02:42] Speaker 01:
Yeah, that's what I want to know.

[00:02:43] Speaker 01:
Why is his consent not enough to sort of waive this argument?

[00:02:50] Speaker 03:
I would say that he didn't knowingly and intelligently consent.

[00:02:57] Speaker 03:
Therefore, it is not.

[00:03:01] Speaker 03:
He was not informed.

[00:03:03] Speaker 03:
He had never met Mr. Orr before.

[00:03:07] Speaker 03:
He was sitting at council table waiting for the judges to come out.

[00:03:12] Speaker 03:
He did not know that Mr. Orr was not a member of the CJA panel.

[00:03:17] Speaker 03:
He did not know anything about what Mr. Orr had done in preparation.

[00:03:26] Speaker 03:
The consent was not knowing.

[00:03:29] Speaker 03:
The court did not know Mr. Orr had never met him, asked no questions as to why Mr. Johnson, his court appointed lawyer, was not there, had abandoned the sentencing hearing, and did not know

[00:03:51] Speaker 03:
through any experience how these matters worked.

[00:03:54] Speaker 00:
May I ask you one thing that I'm concerned about in this appeal?

[00:03:59] Speaker 00:
Of course, everything was affirmed on direct appeal.

[00:04:05] Speaker 00:
But how is it that a CJA plan all of a sudden turns into some kind of mandatory requirement?

[00:04:14] Speaker 03:
Well, I would answer that by saying that it was a

[00:04:18] Speaker 03:
The CJA plan in the Eastern District of Washington did mandatorily, by the use of the word shall, mandatorily require that lawyers representing Mr. Woollam be members of the panel and shall have the requisite knowledge and experience to take that obligation.

[00:04:43] Speaker 03:
There is an exception.

[00:04:45] Speaker 01:
Is the position that he wasn't

[00:04:49] Speaker 01:
So let's say that the district court made a procedural error by not putting him on.

[00:04:55] Speaker 01:
I guess you put him pro hoc on the CJA panel.

[00:04:59] Speaker 01:
Is there an argument that he never could have done that here or never?

[00:05:03] Speaker 01:
He could have done that.

[00:05:04] Speaker 01:
But I mean, that's what I'm wondering.

[00:05:06] Speaker 01:
Is this a procedural error by the district court, in your opinion, or is this a substantive error?

[00:05:11] Speaker 01:
Because had he inquired as to his qualifications, he never would have appointed him to the CJA.

[00:05:20] Speaker 03:
Your honor, in exceptional circumstances, our CJA rules say they can.

[00:05:30] Speaker 03:
The court can appoint a lawyer on a pro hoc BHA.

[00:05:34] Speaker 01:
Well, I didn't read it as exceptional circumstances.

[00:05:39] Speaker 01:
I guess that's kind of part of what I'm asking.

[00:05:42] Speaker 01:
But it just says when the district judge presiding over the case determines

[00:05:49] Speaker 01:
It doesn't, I mean, in the interest of justice, judicial economy, or continuing representation, is your position that had he done that analysis, he would not have appointed Mr. Orr Prohokvichay?

[00:06:04] Speaker 03:
Yes.

[00:06:05] Speaker 03:
Because the rules in the CJA plan says that the lawyer seeking to represent has to have

[00:06:17] Speaker 03:
the same qualifications with experienced training and knowledge that would be required to be on the panel itself.

[00:06:29] Speaker 03:
Had that occurred and a number of other things, had they occurred by the judge asking questions, we may not be here on this issue.

[00:06:40] Speaker 00:
It's kind of a curious procedural setup because we have

[00:06:45] Speaker 00:
Everything has been affirmed substantively by the Ninth Circuit.

[00:06:50] Speaker 00:
Now you're saying there is this challenge to the gentleman who is not on the CJA panel.

[00:06:58] Speaker 00:
So is the relief you seek is that there would be a resentencing with a new CJA attorney?

[00:07:07] Speaker 03:
Yes.

[00:07:10] Speaker 03:
Or a new attorney would have hired a CJA.

[00:07:13] Speaker 00:
Right, either.

[00:07:14] Speaker 00:
And in doing that, what would be the impact of the Ninth Circuit's decision on the substantive appeal?

[00:07:22] Speaker 03:
Well, we have alleged in this petition that he received ineffective assistance from his appellate lawyer, because that wasn't brought up.

[00:07:37] Speaker 03:
The only thing the appellate lawyer brought up was that there was ineffective assistance, which is something that is improperly brought before the Ninth Circuit.

[00:07:47] Speaker 00:
Well, that brings to the next question, then.

[00:07:51] Speaker 00:
Let's assume, I know you have your two or three challenges under ineffective assistance at counsel, but let's assume those are not successful.

[00:08:01] Speaker 00:
Would you still have a procedural claim

[00:08:05] Speaker 00:
with respect to the CJA counsel, and what would it net in the end?

[00:08:09] Speaker 00:
I'm just trying to play it out if it were to come back to the district court.

[00:08:14] Speaker 03:
Well, if I understand your question, Your Honor, what we are asking, let's leave it simply to the issue of sentencing.

[00:08:24] Speaker 03:
If, in fact, there was error by ineffective assistance,

[00:08:29] Speaker 03:
and or the claim of not being a member of the panel, then it would go back to the court for sentencing.

[00:08:38] Speaker 00:
My hypothetical was let's assume that the ineffective assistance of counsel as part of your habeas is not successful, that it fails.

[00:08:51] Speaker 03:
Well, my argument would be a little stronger on the ineffective assistance at the appellate level, because these matters were never before the appellate court on the direct appeal.

[00:09:04] Speaker 03:
And I don't think it should bar that procedure.

[00:09:08] Speaker 01:
I mean, at the end of the day, what's the prejudice here?

[00:09:11] Speaker 01:
I mean, can you identify an argument that would have been, as Judge McCune points out,

[00:09:17] Speaker 01:
You know, none of the arguments ended up being successful.

[00:09:20] Speaker 01:
So it's not exactly like there was an error, at least, that was identified below.

[00:09:25] Speaker 01:
So what, in your opinion, would a CJA attorney have done that Mr. Orr didn't do that would have changed the outcome here?

[00:09:40] Speaker 03:
Well, I would probably include Mr. Johnson as well, because he

[00:09:47] Speaker 03:
Was the CJ appointed lawyer, but what would Let me let me go back and say at the beginning of the sentencing hearing the judge said that He had not yet made up his mind as to sentence In my opinion if it were to go what happened was that there was no Because of his inexperience.

[00:10:14] Speaker 03:
Mr. Orra did not

[00:10:16] Speaker 03:
understand that in setting the after the mandatory minimum 10 years and it's and the finding of what the guidelines were he did not understand that obstruction was already included in the guideline sentence and it was not a reason for going above it

[00:10:41] Speaker 01:
uh... and that that's one very gets into your ineffective assistance you raise it in the effective ineffective assistance of counsel so if we say that wasn't ineffective assistance of counsel i guess i'm still left with i don't know these claims seem to rise or fall together they're they're they're very entwined together but the denial i would suggest of one uh... aspect of it does not

[00:11:10] Speaker 03:
carry over and say there was no ineffective assistance and therefore denial of due process as a result.

[00:11:18] Speaker 03:
It's our opinion that it is the CJA issue stands apart from the ineffective assistance.

[00:11:27] Speaker 03:
It is intertwined with it, but the decision could be made without ineffective assistance.

[00:11:34] Speaker 04:
So is your argument that the defendant here could have rejected the counsel because he was not on the CJA panel?

[00:11:46] Speaker 04:
Yes.

[00:11:48] Speaker 04:
But instead, let's assume he had that right.

[00:11:51] Speaker 04:
Maybe he wasn't informed of it, but he chose to say, I have talked to him, and I accept him as counsel.

[00:11:59] Speaker 04:
Did he not?

[00:12:01] Speaker 04:
Or Mr. Orr said, we have talked.

[00:12:03] Speaker 04:
Uh, Woolham did not dispute that and, and agreed that he would have him as counsel.

[00:12:10] Speaker 03:
They had talked, but when you put that in the context of the events, they had talked in the limited minutes between when Mr. Uh, Woolham was brought into the courtroom, um, and sitting at council table with everybody around, such as the prosecutor and so forth.

[00:12:30] Speaker 03:
Um,

[00:12:31] Speaker 03:
that isn't what I would call a conversation between a lawyer and his client.

[00:12:38] Speaker 03:
Mr. Willam had no idea who Mr. Ora was.

[00:12:41] Speaker 03:
They had never talked prior to that.

[00:12:43] Speaker 03:
He had never been in court before.

[00:12:47] Speaker 03:
He was not informed by the court why Mr. Johnson wasn't there, why Mr. Ora was, who he was, and a defendant in a

[00:13:01] Speaker 03:
fair and fundamentally fair hearing should know who he's consenting to have represented at a critical stage of this proceedings where the high end was set, which was a significant difference between approximately 15 years and approximately 20 years.

[00:13:24] Speaker 03:
And his consent simply wasn't based on any knowledge of the circumstances going around.

[00:13:30] Speaker 03:
in this matter at that time.

[00:13:34] Speaker 01:
Do you want to reserve?

[00:13:35] Speaker 01:
I know you'd ask for five minutes, unless there's other questions.

[00:13:40] Speaker 01:
What do you want to reserve for rebuttal?

[00:13:42] Speaker 01:
You have two and a half minutes left.

[00:13:45] Speaker 03:
Two and a half minutes, I guess, or five minutes is what I asked for at the beginning.

[00:13:49] Speaker 01:
Well, we'll give you two and a half, so.

[00:13:52] Speaker 01:
Two and a half is fine.

[00:13:52] Speaker 01:
You'll be just fine.

[00:13:53] Speaker 01:
Thank you.

[00:13:54] Speaker 01:
Thank you, sir.

[00:14:08] Speaker 02:
Good morning, Your Honors.

[00:14:09] Speaker 02:
David Herzog for the United States.

[00:14:11] Speaker 02:
May it please the court?

[00:14:14] Speaker 02:
The court is correct about the prejudice aspect to this, and in this case, the court has more knowledge than it usually does because Judge Bastion, who would have been the person resentencing if the case were to be sent down,

[00:14:26] Speaker 02:
said, and this is at ER 11, no other action would have resulted in a more favorable sentence for the defendant.

[00:14:32] Speaker 02:
So the court, sometimes the court does not know.

[00:14:34] Speaker 02:
It has to predict whether or not it would be a different result on remand.

[00:14:39] Speaker 02:
But here the court knows that.

[00:14:41] Speaker 02:
Judge Bastion presided not only over the trial and the sentencing, but a fully contested evidentiary hearing on these issues and said, look, I mean, essentially Clarence Darrow couldn't have helped this guy.

[00:14:54] Speaker 02:
neither Mr. Johnson nor Mr. Orr's representation would have changed the outcome.

[00:15:00] Speaker 01:
But that analysis, I guess, is the same for both claims here, both the CJA and the ineffective assistance of counsel.

[00:15:07] Speaker 01:
Meaning, if we did find that there was an effective assistance of counsel, would that necessarily mean that there was a CJA violation?

[00:15:18] Speaker 01:
It seems like it

[00:15:20] Speaker 01:
It doesn't necessarily mean that because you could theoretically we could find ineffective assistance and counsel but still go back and say either it was just waiver or it is just isn't a mandatory right.

[00:15:35] Speaker 02:
I think your honor is exactly correct.

[00:15:36] Speaker 02:
I do think they are in that sense disparate.

[00:15:38] Speaker 02:
One is a due process right.

[00:15:40] Speaker 02:
One is the Sixth Amendment effectiveness of counsel right.

[00:15:42] Speaker 02:
So with regard to just the argument that there is a mandatory liberty interest in the CJA panel appointment, I think the question for the court is articulated in... Are there other examples where we have recognized constitutional rights to counsel that go beyond the Sixth Amendment?

[00:16:04] Speaker 01:
I don't think so, Your Honor.

[00:16:06] Speaker 01:
The government's position is that... The Sixth Amendment encompasses the right to counsel.

[00:16:10] Speaker 01:
I mean, what if this were mandatory and you set up this whole construct

[00:16:17] Speaker 01:
you know, could, I guess you could still do it and say it was a violation of a statute, but that wouldn't necessarily mean that it was a violation of the due process clause, because it would be odd to interpret the due process clause to grant more rights than the Sixth Amendment.

[00:16:33] Speaker 02:
Yes, Your Honor.

[00:16:33] Speaker 02:
I think the last thing the Court said is right on point.

[00:16:36] Speaker 02:
The Sixth Amendment is the protection of the defendant's right to counsel.

[00:16:40] Speaker 02:
It is enforced through Strickland.

[00:16:42] Speaker 00:
But is that not, in effect, a floor?

[00:16:45] Speaker 00:
There could be additional rights.

[00:16:48] Speaker 00:
Correct.

[00:16:49] Speaker 00:
And if one had a mandatory procedure by statute, for example, that could go above and beyond the Sixth Amendment, no?

[00:16:59] Speaker 02:
Yes.

[00:16:59] Speaker 02:
I think that is correct, Your Honor.

[00:17:00] Speaker 02:
So I do think the Court does need to grapple with the question, is there a liberty interest in the CJA panel appointment?

[00:17:08] Speaker 02:
Because that would still be able to be enforced.

[00:17:11] Speaker 02:
If it were a liberty interest, it could be enforced under the due process clause.

[00:17:15] Speaker 02:
I think that's correct.

[00:17:16] Speaker 02:
I think I do think that's true.

[00:17:17] Speaker 02:
And so I would turn the court to the Supreme Court's evaluation or the D.C.

[00:17:22] Speaker 02:
Circuit, at least courts evaluation of when is there a liberty interest?

[00:17:26] Speaker 02:
And here there are three course, three cases in the briefing that I think make the point.

[00:17:31] Speaker 02:
The first one is Thompson.

[00:17:33] Speaker 02:
The question is, does the law give the decision maker discretion?

[00:17:41] Speaker 02:
Is the discretion of the decision maker cabined?

[00:17:43] Speaker 02:
And here, and this is at ER 350, the court was referring to this earlier, this is the CJA panel plan.

[00:17:51] Speaker 02:
The judges have discretion to appoint someone who is not on the panel.

[00:17:55] Speaker 01:
for representation under those circumstances can you address this question i mean council opposing council had sort of said this is extraordinary to not is that true i don't know how this works in practice is it extraordinary or does this happen more i would assume this happens more often than he was alluding to but i don't know well i wouldn't necessarily

[00:18:19] Speaker 00:
join that point because in the regular course of things, the CJA attorney is the one who's present.

[00:18:27] Speaker 00:
This was a circumstance where he was unable to be present.

[00:18:31] Speaker 00:
So I don't think the sort of, if you want to call it the, you know, the accidental tourist attorney who's sitting there gets appointed.

[00:18:40] Speaker 00:
That's, I would assume in your experience, that's not the case.

[00:18:44] Speaker 02:
It certainly is.

[00:18:44] Speaker 02:
And I do practice in this district and I will say it is certainly the case that

[00:18:48] Speaker 02:
when counsel cannot be present, other counsel can cover as standing counsel.

[00:18:53] Speaker 02:
That happens all the time.

[00:18:54] Speaker 02:
That's all throughout the case law.

[00:18:55] Speaker 02:
With regard to this particular circumstance, I do think this one was extraordinary.

[00:19:00] Speaker 02:
Counsel's grandmother died immediately before the hearing and he could not be present.

[00:19:04] Speaker 02:
Also, as the court knows from the record,

[00:19:06] Speaker 02:
the Mr. Johnson, the CJA lawyer and Mr. Orr, the not yet CJA lawyer, both met and consulted with the family, which was their conduit to dealing with Mr. Wollum.

[00:19:16] Speaker 02:
I'm sorry, they both did what I did.

[00:19:17] Speaker 02:
Pardon me, Your Honor.

[00:19:18] Speaker 02:
They met with the family.

[00:19:19] Speaker 02:
They discussed with the family that Mr. Johnson's grandmother had died.

[00:19:24] Speaker 02:
Yeah, that he had a family circumstance that required him.

[00:19:27] Speaker 02:
And what Mr. Johnson said in the evidentiary hearing is, what I said was, you can have me later, or you can have Mr. Orr now.

[00:19:34] Speaker 02:
And the defense and the

[00:19:36] Speaker 02:
It's not clear from the record whether the defendant himself affirmatively said the words.

[00:19:40] Speaker 02:
Yes, I agree to that or whether his family represented that to the lawyers on his behalf.

[00:19:45] Speaker 02:
But the argument from the argument that the defendant didn't knowingly consent to Mr or that day, I think is belied by the record.

[00:19:52] Speaker 02:
There's not.

[00:19:53] Speaker 04:
There's not a problem that the judge was that the judge was insisting that the hearing go forward on this very day.

[00:19:59] Speaker 02:
Oh, that's correct, your honor.

[00:20:00] Speaker 02:
I think and I will say, certainly having been in front of Judge Bastien many times, if anyone had said, Judge, we need to put this over so Mr. Johnson can be here, whether the prosecutor or the defense, the defense family, he would have put it over.

[00:20:12] Speaker 02:
I mean, there's I don't think there's any question about that.

[00:20:14] Speaker 02:
But what's clear from the record is the defendant wanted to proceed.

[00:20:18] Speaker 02:
He wanted to get his sentencing over with and proceed to his appeal.

[00:20:22] Speaker 02:
And that's borne out in the evidentiary hearing.

[00:20:24] Speaker 02:
all of the counsel whom the court credited with being credible said, Mr. Johnson, Mr. Orbo said he wanted to go forward.

[00:20:30] Speaker 02:
And so I do think, I agree that was his consent to Mr. Orr, his status as a non-CJA appointed lawyer, that I think was unknowing.

[00:20:40] Speaker 02:
I don't think there's anything in the record that shows that Mr. Wollum knew that Mr. Orr was not on the panel.

[00:20:46] Speaker 01:
So did Judge Bastion didn't go through this process

[00:20:51] Speaker 01:
Because he, I mean, was there a suspicion that, look, Mr. Orr isn't going to satisfy these standards.

[00:20:59] Speaker 01:
Although, I mean, one of the standards is the interest of justice in judicial economy.

[00:21:04] Speaker 01:
Although, well, but then it also says, should possess such qualities as would qualify the attorney for admission.

[00:21:11] Speaker 01:
Would Mr. Orr have met that last standard or not?

[00:21:14] Speaker 02:
Yes, he would.

[00:21:15] Speaker 02:
And the court knows that from the evidentiary hearing, because at the evidentiary hearing, Mr. Orr told the court, here are my qualifications.

[00:21:22] Speaker 02:
And what they were, were that he had been a lawyer for four and a half years.

[00:21:31] Speaker 02:
He had been retained in federal court in the Eastern District.

[00:21:34] Speaker 02:
The record's clear on that.

[00:21:35] Speaker 02:
He had covered other CJA cases for Mr. Johnson.

[00:21:39] Speaker 02:
He had reviewed the file and he'd made, and then in practice,

[00:21:44] Speaker 02:
He made the same arguments Mr. Johnson made, but made them better.

[00:21:47] Speaker 02:
Uh, Mr. Johnson's 10 page sentencing.

[00:21:49] Speaker 01:
So why didn't the judge just go?

[00:21:51] Speaker 01:
I mean, wouldn't, we wouldn't be here, right?

[00:21:53] Speaker 01:
If at least on this issue, if the judge had just asked those questions at that time, I think your honor is correct on the consent issue.

[00:22:03] Speaker 02:
If the court had said to Mr. Orr, how long you've been practicing, have you ever done CJ work before?

[00:22:08] Speaker 02:
Have you ever stood in a federal sentencing before?

[00:22:10] Speaker 02:
and Mr. Johnson, Mr. Orr had answered those questions, then Mr. Woollam could have said, Judge, I insist on Mr. Johnson today.

[00:22:18] Speaker 02:
That is certainly true.

[00:22:19] Speaker 02:
And I think the judge would have had discretion to say, no, we're proceeding today because there is no mandatory right to CJA counsel because of the discretion involved.

[00:22:28] Speaker 02:
But so, yes, I agree in a perfect world, Judge Bastian would have stopped the hearing and said, Mr. Orr, please give me your qualifications.

[00:22:35] Speaker 02:
And then under the CJA plan, and again, this is ER,

[00:22:39] Speaker 02:
350 he could have done with the plan says specifically which is Admitted mr. Orr Prohok Vichay to the panel and appointed him on the spot to represent mr. Orr.

[00:22:49] Speaker 02:
He did half of that.

[00:22:50] Speaker 02:
He appointed him Essentially to represent mr. Wollum.

[00:22:53] Speaker 00:
Sorry, mr. Wollum in the in the hearing Well, I think I think the first start first line of argument that mr. Wollum's council makes is that the CJA is

[00:23:04] Speaker 00:
basically says, shall be selected from a panel of attorneys under the CJA process.

[00:23:12] Speaker 00:
And he's relying on that mandatory language.

[00:23:16] Speaker 00:
Let's assume that that created some due process, right?

[00:23:23] Speaker 00:
Where would you go from there?

[00:23:25] Speaker 02:
I think the court would have to look at the when is a mandatory

[00:23:30] Speaker 02:
liberty interests created by the statute.

[00:23:33] Speaker 02:
And the cases for that are Thompson, Valdez, and Doe.

[00:23:37] Speaker 02:
Doe, the D.C.

[00:23:37] Speaker 02:
Circuit case about 994N, the sentencing guidelines provision.

[00:23:42] Speaker 02:
That one also has mandatory language.

[00:23:43] Speaker 02:
All of them do.

[00:23:44] Speaker 02:
They all have the mandatory language, which is shall.

[00:23:46] Speaker 02:
In that one, it is the commission shall ensure that the general provisions of the guidelines are met.

[00:23:52] Speaker 02:
And the court said there is no mandatory interest there because the rest of the statute is essentially permissive, that there's it

[00:23:58] Speaker 02:
The language shall is in there.

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

[00:24:01] Speaker 00:
And then you pull the rug out from under it with all the exceptions.

[00:24:03] Speaker 00:
Or there's a lot of permissive conduct permitted.

[00:24:08] Speaker 02:
Yes, Your Honor.

[00:24:09] Speaker 02:
And in the heart there is the discretion of the decision maker.

[00:24:12] Speaker 02:
And that's Kentucky Corrections versus Thompson.

[00:24:14] Speaker 02:
Does the decision maker have discretion under the statute?

[00:24:17] Speaker 02:
And that's why in the Valdez case, which is the Alaska phone, the inmate shall have reasonable access to a phone.

[00:24:26] Speaker 02:
mandatory language shall, but then the reasonable access is enough discretion to say there is no liberty interest there because the defendant doesn't have a reasonable expectation that that will be enforced, that the reasonable conditions will be what he wants.

[00:24:42] Speaker 02:
And here, I think the equivalent would be that for Mr. Woollam, he did not have a reasonable expectation that

[00:24:50] Speaker 02:
under the extraordinary circumstances or interests of justice, if his lawyer had a family emergency, he didn't have a reasonable expectation that his lawyer would be CJA appointed rather than Strickland qualified.

[00:25:05] Speaker 02:
He did have a reasonable expectation of the Sixth Amendment right effective representation, but he did not have a reasonable expectation of the

[00:25:13] Speaker 02:
of the nicety, essentially, of the appointment to the panel.

[00:25:17] Speaker 02:
Because I do think the record reflects that Mr. Orr was qualified.

[00:25:20] Speaker 01:
Different if it had come out later that he wouldn't have been qualified as an attorney for admission to the CJA panel.

[00:25:32] Speaker 02:
I think Strickland would be the test.

[00:25:34] Speaker 02:
Did he give him effective representation?

[00:25:36] Speaker 02:
And here, I think the record makes very clear he did.

[00:25:38] Speaker 02:
So in that sense, it answers the question.

[00:25:42] Speaker 01:
Which comes back to no prejudice, basically.

[00:25:45] Speaker 02:
Essentially, it is no prejudice.

[00:25:46] Speaker 02:
And I think, and I would just submit to the court that one way to get to that analysis to look at Kentucky Corrections versus Thompson

[00:25:52] Speaker 02:
which says there's a two-step inquiry.

[00:25:54] Speaker 02:
One, is there a liberty interest?

[00:25:56] Speaker 02:
And two, what are the procedural, what is the process attendant to that deprivation?

[00:26:03] Speaker 02:
And here, the process is Strickland.

[00:26:05] Speaker 02:
So even under the liberty interest analysis in Thompson,

[00:26:10] Speaker 02:
The process attendant to the alleged deprivation of liberty interest is the right to effective counsel.

[00:26:16] Speaker 02:
And that's Strickland.

[00:26:17] Speaker 02:
So the government's position is there is no mandatory liberty interest.

[00:26:21] Speaker 02:
There's too much discretion in the statute.

[00:26:23] Speaker 02:
In this case, the court exercised that discretion in essentially an exigent circumstance of counsel having a death in the family.

[00:26:30] Speaker 02:
So there's no mandatory liberty interest.

[00:26:32] Speaker 02:
If there were mandatory liberty interests, the procedure attendant to the deprivation is Strickland.

[00:26:38] Speaker 02:
And overall, because Judge Bashin said, I would not have sentenced this man differently no matter what the lawyer said.

[00:26:44] Speaker 02:
There is no prejudice there.

[00:26:47] Speaker 02:
And the defendant can't win under Strickland.

[00:26:48] Speaker 04:
Isn't that last statement at least a little bit odd versus

[00:26:53] Speaker 04:
the judge apparently having said at the actual sentencing, well, I haven't made up my mind yet.

[00:27:00] Speaker 02:
Yeah.

[00:27:01] Speaker 02:
I'll say to the court, Judge Bastian says that at the beginning of every sentencing hearing.

[00:27:04] Speaker 02:
But he also said, I've read Mr. Johnson's papers.

[00:27:07] Speaker 02:
And I think there's some dispute over that raised by the defense.

[00:27:11] Speaker 02:
Mr. Johnson filed a 10-page sentencing position.

[00:27:13] Speaker 02:
At E.R.

[00:27:13] Speaker 02:
316, the court said, I've read the memo and the obstruction enhancement, which was the heart of the two point enhancement, that was in Mr. Johnson's papers.

[00:27:23] Speaker 02:
Essentially, the heart of his brief is he didn't perjure himself.

[00:27:26] Speaker 02:
Then Mr. Orr makes that same argument and goes further to argue unwarranted disparity, lack of criminal history, et cetera, and makes a pretty strong argument.

[00:27:36] Speaker 02:
The strongest argument could be made with the client that he had that 10 years was the right sentence.

[00:27:40] Speaker 02:
So he made the same exact argument, which was the mandatory minimum 10 years is appropriate.

[00:27:44] Speaker 02:
And so I would submit to the court Judge Bastion.

[00:27:48] Speaker 02:
I think like all good district judges goes into every sentencing with an open mind.

[00:27:53] Speaker 04:
But having read the end of it, he now knows that by the end of it, he wouldn't have changed his mind by the time he got to the evidentiary hearing, he was in a position to say that.

[00:28:01] Speaker 02:
And don't forget, your honor, this judge sat through this trial where and also Mr. Wollum in terms of the credibility determination admitted at the evidentiary hearing that he lied at trial.

[00:28:11] Speaker 02:
He took the stand and lied.

[00:28:12] Speaker 02:
So I think Judge Bastion was in a position to say what the lawyers are saying is credible, what the defendant is saying is not credible.

[00:28:18] Speaker 02:
And then by the end of the evidentiary hearing, then having a complete record before

[00:28:23] Speaker 02:
himself, he was in a position to say, nothing Mr. Orr would have done, even had he been appointed, would have changed the outcome here.

[00:28:32] Speaker 02:
And that's the prejudice prong.

[00:28:40] Speaker 02:
Unless the court has further questions, I think that's essentially the government's position.

[00:28:44] Speaker 02:
I'm happy to walk through the other ineffective assistance claims.

[00:28:47] Speaker 02:
I think they're deeply flawed as to both Mr. Hernandez with regard to the conflict and the plea negotiations, the defendant said, I wouldn't have taken the plea because I wasn't going to cooperate.

[00:28:56] Speaker 02:
So I think that is a way.

[00:28:57] Speaker 02:
And then for Mr. Whitaker on appeal, he has the ability as appellate counsel to winnow out bad issues.

[00:29:02] Speaker 02:
I think that's black letter law.

[00:29:05] Speaker 02:
In sum, the government's position is there was no liberty interest created by the CJA statute.

[00:29:11] Speaker 02:
There was enough discretion in the statute, and the judge exercised that discretion.

[00:29:15] Speaker 02:
Mr. Woollam did not have a reasonable expectation that he had to have a panel lawyer rather than a competent lawyer, and he did have a competent lawyer with no prejudice.

[00:29:24] Speaker 01:
Thank you.

[00:29:25] Speaker 01:
Thank you for your argument.

[00:29:26] Speaker 01:
We'll give you the time for rebuttal.

[00:29:37] Speaker 00:
Mr. Peevan, I don't think your microphone is on.

[00:29:44] Speaker 03:
Thank you.

[00:29:44] Speaker 03:
Can you hear me now?

[00:29:45] Speaker 03:
Yes.

[00:29:46] Speaker 03:
Yes.

[00:29:46] Speaker 03:
OK, thank you.

[00:29:49] Speaker 03:
When the government indicated that Mr. Orr would have met the qualifications because he had been in federal court before, that's not what the record is.

[00:29:58] Speaker 03:
At the time, Mr. Orr had never had a federal case, had never appeared in any federal matter.

[00:30:06] Speaker 03:
and there was nothing on the record to show he had any uh experience so as to the way wait wait wait the times that he stepped in for mr johnson all happened after this this was the first time he'd ever stepped in for mr johnson our position is that he there when you look on you know when when we looked for this information on the ecf he does not appear anywhere as attorney of record

[00:30:35] Speaker 03:
This idea of standing counsel pervades this entire case and it's simply not known what that means.

[00:30:44] Speaker 03:
As to the waiver of Mr. Woollam and the family and him saying it's okay in advance of the hearing, that's not what the record said either.

[00:30:57] Speaker 03:
Mr. Woollam wasn't asked, but

[00:31:03] Speaker 03:
what the lawyers for what Mr. Johnson, Mr. Orr said that the family said it's okay.

[00:31:11] Speaker 03:
And that's not a waiver by a family member speaking on behalf of Mr. Woollam.

[00:31:18] Speaker 03:
So that would not persuade as to whether or not he waived.

[00:31:25] Speaker 03:
It's an interesting question of prejudice as it was developed here because let's assume

[00:31:31] Speaker 03:
the court found that there was ineffective assistance.

[00:31:36] Speaker 03:
So you do under Strickland, you look to see if there is prejudice.

[00:31:40] Speaker 03:
But if we're going to say, well, the court at that time said that's the sentence that I think is fair,

[00:31:50] Speaker 03:
then even with the prejudice, this court cannot be asked to judge what a judge will do in the future with other circumstances.

[00:32:04] Speaker 03:
Otherwise, ineffective assistance means nothing.

[00:32:08] Speaker 03:
And on that point, if the CJA Act

[00:32:14] Speaker 03:
in our district doesn't mean that you have to be qualified.

[00:32:19] Speaker 03:
Any person, even a non-lawyer, if he's effective or she's effective, would not be an error.

[00:32:25] Speaker 03:
There's no recourse to it.

[00:32:27] Speaker 03:
We simply have no fundamental fairness in having a qualified lawyer handling the case.

[00:32:38] Speaker 03:
In a private situation, private hire, that not even comes up.

[00:32:42] Speaker 03:
But here,

[00:32:43] Speaker 03:
and the case laws in my brief that says it is mandatory and there is a mandatory

[00:32:52] Speaker 03:
result and I won't I don't have time to bring it up but that's in the brief in the case law where that does create the liberty interest that doesn't require showing prejudice and I would direct the court to that part of the brief and I've gone over my time yeah no thank you thank you to both counsel for your arguments in the case it's been helpful to the court and the case is now submitted