[00:00:00] Speaker 04: approach and proceed. [00:00:04] Speaker 02: Good morning, Your Honors. [00:00:05] Speaker 02: May it please the Court? [00:00:07] Speaker 02: Elizabeth Richardson-Royer, appearing on behalf of the appellant, Vanessa Rodriguez. [00:00:11] Speaker 02: I plan to reserve two minutes for rebuttal, but I will keep an eye on the clock. [00:00:14] Speaker 02: All right. [00:00:14] Speaker 02: Thank you, Counsel. [00:00:16] Speaker 02: This case highlights the challenges that pro se petitioners have navigating the complex and technical world of habeas in state and federal court. [00:00:24] Speaker 02: It's challenging even for our smart, motivated petitioners like Ms. [00:00:27] Speaker 02: Rodriguez. [00:00:28] Speaker 02: And as a result, the district court was presented with a record that was complicated, with evidence presented a bit here and a bit there. [00:00:35] Speaker 02: So one question and the first question that I intend to address this morning is whether the district court was under any obligation to consider the additional documents submitted with Ms. [00:00:45] Speaker 02: Rodriguez's motion to expand the record. [00:00:46] Speaker 01: Can you make clear to me what's in that set of documents? [00:00:50] Speaker 01: Are some of them things that were never even submitted in the [00:00:55] Speaker 01: the comparable motion in the state post-conviction proceedings, and then some of them are a subset of that. [00:01:02] Speaker 01: What exactly are we dealing with? [00:01:04] Speaker 02: Yes. [00:01:05] Speaker 02: I would be glad to do that, and I have a chart. [00:01:08] Speaker 02: So the documents that were presented in state court and federal court are the event chronology, the supplemental report of Officer Schneider, the supplemental report of Officer Brady, and the interview by trial counsel of Detective Barber. [00:01:25] Speaker 02: There was one document that was only submitted in state court, which we don't have in the record, and that was an affidavit of Ms. [00:01:31] Speaker 02: Rodriguez. [00:01:32] Speaker 02: We don't have that document. [00:01:33] Speaker 02: And then the documents that were only submitted in federal court are the supplemental report of Officer Schrage, the interview by trial counsel of Officer Schrage, and the interview by trial counsel of Officer Brady. [00:01:51] Speaker 02: This morning, I am going to argue yes, that the district court should have considered at least all of the evidence that was before the state court in trying to assess whether the state court... Why isn't it barred under E2 under McLaughlin? [00:02:07] Speaker 02: It's not barred under E2 because, and this goes to the 28J letter that I filed a few days ago, because Ms. [00:02:14] Speaker 02: Rodriguez attempted to develop the record in state court. [00:02:17] Speaker 02: She requested [00:02:18] Speaker 02: evidence year development and an evidence year hearing. [00:02:21] Speaker 01: Rodney, the court held, you know, he asked for counsel to do an investigation and was shut down at the beginning. [00:02:29] Speaker 01: Here the state court rejected the evidence presented as too late, not in accordance with state procedural rules. [00:02:38] Speaker 01: And McLaughlin says that a state court [00:02:42] Speaker 01: failure to follow procedural rules in the state court for presenting new evidence is fault for purposes of E2. [00:02:48] Speaker 01: So this, why isn't this governed by McLaughlin rather than Rodney? [00:02:52] Speaker 02: Well, I think one issue that occurred in the state court proceedings was that she had counsel appointed and that counsel essentially said there are no issues here, which as a habeas lawyer I find remarkable. [00:03:05] Speaker 02: So she was on her own and she did submit these documents [00:03:08] Speaker 02: at a later date than would have been optimal. [00:03:11] Speaker 02: But the state court, it's my position that the state court did consider these documents. [00:03:15] Speaker 02: So at ER 41, the court says the court will accept defendants understanding of her description, interpretation of the portion of her conversation dealing with Yandy. [00:03:23] Speaker 02: The court accepts that based on the new documents. [00:03:26] Speaker 01: I thought the better reading of it was that they were alternative holdings, that there was a procedural default in presenting this material, but that [00:03:37] Speaker 01: in the alternative considering the material that doesn't make a difference. [00:03:40] Speaker 01: Do you think that's a fair reading or you disagree with it? [00:03:42] Speaker 02: I think that's a fair reading. [00:03:44] Speaker 02: I do think that the court, you know, initially said we don't have to consider this at all. [00:03:49] Speaker 02: But then the court did consider it and held that it didn't matter. [00:03:52] Speaker 02: And I think that when the district court is looking at the state court's decision, it should have considered at least all of the evidence that the state court was considering and making factual determinations about. [00:04:03] Speaker 02: So the state court said, you know, [00:04:06] Speaker 02: at ER 43 at footnote 5, the court relies on the interview with Detective Barber, which was one of the new documents submitted, to dismiss the allegation that he had threatened to take her children away. [00:04:18] Speaker 01: The record is clear here. [00:04:20] Speaker 01: The district court did not do alternative rulings similar to what the state court had done. [00:04:25] Speaker 02: That's correct. [00:04:26] Speaker 02: The district court just refused to consider the motion or denied the motion to expand the record and so considered [00:04:33] Speaker 02: only the evidence that was before the state court initially, which is the trial transcripts and the second interview of Mr. Rodriguez with Detective Barber. [00:04:43] Speaker 02: I will say that even if the district court properly denied the motion to expand the record, that state court's decision was still unreasonable under D2, even based on the initial record before that court, because the allegations and the evidence before the court at that point warranted an evidentiary hearing [00:05:00] Speaker 02: And so the state court's fact finding was deficient when the court refused to hold one, even on that record. [00:05:06] Speaker 02: So there should have been a hearing on whether or not she was in custody during the first interview with Officer Brady. [00:05:14] Speaker 02: Barber's testimony at trial made clear that the officers were continuously with both Rodriguez and Cordova, that Cordova wasn't free to leave, that Rodriguez was sitting with an officer on the bench when Barber arrived. [00:05:26] Speaker 02: There should have also been a hearing on Detective Barber's threats [00:05:30] Speaker 02: remove Mr. Rodriguez's daughter and have CPS seize that child. [00:05:36] Speaker 00: Why counsel do you maintain there should have been a hearing? [00:05:39] Speaker 02: Because Mr. Rodriguez submitted a verified petition in which she alleged that Detective Barber had threatened her and that as a result of that threat she gave the second interview such that her waiver of her Fifth Amendment right against self-incrimination was no longer valid. [00:05:56] Speaker 02: There is also evidence in... Before you move to that [00:05:59] Speaker 00: Why would the federal habeas court not simply defer to what the state court found in that regard on all those matters? [00:06:08] Speaker 02: Because the state court, given the record before it, to the extent it found that Detective Barber didn't threaten her, that's an unreasonable determination of fact based on the record, including the interview of Mr. Rodriguez by Detective Barber, where she repeatedly begs him not to take her child. [00:06:27] Speaker 02: It's also unreasonable because [00:06:29] Speaker 02: an evidentiary hearing was warranted. [00:06:31] Speaker 02: And so when the state court refused to engage in the fact-finding process that was necessary based on the allegations and the transcript of that interview that was submitted initially, it brings its decision under D2 as unreasonable in terms of the process. [00:06:46] Speaker 00: I could be mistaken. [00:06:47] Speaker 00: I've never thought of the unreasonableness inquiry as being a procedural inquiry as opposed to a substantive merits inquiry. [00:06:54] Speaker 02: In this circuit, it is and it has [00:06:57] Speaker 02: Courts have repeatedly held, and I've cited some of them in the opening brief, Taylor v. Maddox, Nunes. [00:07:03] Speaker 02: There's a Velasquez unpublished case where the court said that given the allegations in the petition, the state court's refusal to hold an evidentiary hearing means that its decision was rested on unreasonable determinations of facts. [00:07:16] Speaker 02: So there is a process component to it in this circuit. [00:07:20] Speaker 02: Unless the court has other questions, at this moment, I will reserve the remainder of my time for rebuttal. [00:07:25] Speaker 02: All right, thank you, counsel. [00:07:26] Speaker 04: We'll hear from the state. [00:07:34] Speaker 03: May it please the court, Rebecca Jones from the attorney general's office for Arizona for the respondent appellee. [00:07:39] Speaker 04: Could you please speak up a little? [00:07:41] Speaker 04: I'm having some difficulty hearing you. [00:07:44] Speaker 04: Absolutely, Judge. [00:07:45] Speaker 03: Unless the court has any questions to start with, I'll start with issue one. [00:07:49] Speaker 03: Um, in this case, the record should not have been expanded by the district court and, uh, they did not abuse their discretion in failing to expand the record because the state court procedural requirements had not been met. [00:08:02] Speaker 03: I do want to clarify, uh, when you spoke to appellant's council about what documents were where and when, uh, what was submitted in her motion for rehearing were excerpts from the interview with, uh, Barbara. [00:08:19] Speaker 03: And what was submitted in the district court motion to expand was the entirety of the transcript. [00:08:24] Speaker 03: So that is a slight difference, I just wanted to clarify. [00:08:28] Speaker 04: Are all of these documents part of the state court record in your view? [00:08:32] Speaker 04: No. [00:08:33] Speaker 04: Which, if any, were part of the state court record? [00:08:37] Speaker 03: I don't believe that any of them were part of the state court record because they were not admitted as part of the trial or the pretrial process. [00:08:48] Speaker 01: best reading of the state court rulings, both the post-conviction and the Court of Appeals decision, is that they relied on alternative grounds, that there was a procedural default in the presentation of this evidence, but that in the alternative, considering it, it wouldn't have made a difference. [00:09:07] Speaker 01: Yes, I do. [00:09:08] Speaker 01: Okay. [00:09:09] Speaker 01: And you agree that the district court did not do that? [00:09:13] Speaker 01: I do agree. [00:09:14] Speaker 04: So if the state court made the alternative ruling, is it fair to say that the state court considered those documents then? [00:09:22] Speaker 03: I don't think it is because they didn't, it wasn't, we considered them and they don't matter and also they weren't properly presented. [00:09:29] Speaker 03: It was they weren't properly presented, but even if they had been, they wouldn't matter. [00:09:34] Speaker 04: Well, how could the court say that they wouldn't matter if it didn't consider them? [00:09:39] Speaker 03: Because I think they, their analysis could well have stopped after they weren't properly committed. [00:09:45] Speaker 04: Yeah, but that's not what the alternative ruling said. [00:09:48] Speaker 04: The alternative ruling said it wouldn't have made a difference. [00:09:52] Speaker 04: And how can that determination be made without knowing what was in them? [00:09:58] Speaker 03: I think that's a fair question, Judge. [00:10:00] Speaker 03: I think that we don't know from the state court rulings whether they read and considered the additional documentation or whether they made that finding of even if [00:10:14] Speaker 03: we take all of this as true, it wouldn't have changed the decision because the decision was valid. [00:10:19] Speaker 04: If those documents were considered in accordance with the alternative ruling, would they be part of the state record at that point? [00:10:27] Speaker 03: Yes, the ones that were presented at the state court level I think would be at that point. [00:10:31] Speaker 03: Thank you. [00:10:33] Speaker 03: I also think it's important to note that although Ms. [00:10:39] Speaker 03: Rodriguez's initial PCR petition was denied in the state court, [00:10:43] Speaker 03: Uh, after her counsel filed the notice of no colorable claims, she did file a pro se petition. [00:10:51] Speaker 03: And at that point she could well have attached those documents, which were in existence, except perhaps for the affidavit of truth, uh, at the time of the initial, her initial pro se petition. [00:11:05] Speaker 04: Let me ask you this. [00:11:06] Speaker 04: If the district court had considered those documents in your view, would it have changed the outcome? [00:11:12] Speaker 04: No. [00:11:13] Speaker 03: And I'm happy to discuss why. [00:11:15] Speaker 03: So again, the standard is abuse of discretion. [00:11:21] Speaker 03: And the state's position is that the district court did not abuse its discretion because the motion to suppress and the motion to expand and the motion to reconsider would have been futile. [00:11:34] Speaker 03: In this case, there was a motion to suppress pretrial filed regarding Rodriguez's statements. [00:11:44] Speaker 03: There is a double presumption under EDPA of deferential to the council's actions at the trial court level. [00:11:55] Speaker 03: I don't think it's reasonable to find that Rodriguez was in custody for her interview with Officer Brady. [00:12:01] Speaker 03: He was not at the hospital for this incident. [00:12:04] Speaker 03: He started investigating the incident, but the circumstances, not a specific person. [00:12:09] Speaker 03: Rodriguez was not a suspect. [00:12:12] Speaker 03: Brady did not know that a woman was alleged to be involved. [00:12:16] Speaker 03: There is no objective factor suggesting that Rodriguez was not free to just walk away back to the waiting room. [00:12:23] Speaker 03: And a subjective look at it does not satisfy the requirements. [00:12:29] Speaker 03: Her arguments just don't make sense. [00:12:32] Speaker 03: She argues that she was known to the police. [00:12:34] Speaker 03: Well, that's her opinion of having been known to the police. [00:12:37] Speaker 03: It's subjective. [00:12:38] Speaker 03: She argues that Barbara, Detective Barbara thought that her co-defendant was in a gang. [00:12:42] Speaker 03: Well, that's her opinion of what Barbara thought that's subjective. [00:12:46] Speaker 03: She argues that she was under police guard and arguably that's an objective factor, but that's based on the materials that weren't part of the record and so can't be considered. [00:12:56] Speaker 03: Even if she was quote unquote under guard, I don't think that's the level of formal arrest triggering a Miranda advisement. [00:13:05] Speaker 03: And then Brady left the hospital before detectives arrived. [00:13:08] Speaker 03: So we know that Brady and Barbara weren't in communication. [00:13:11] Speaker 03: In Ms. [00:13:13] Speaker 03: Rodriguez's challenge to the state court denial of her PCR, it doesn't talk about Barbara, but since the state court addressed it, I will address it factually. [00:13:22] Speaker 01: Well, what we are presented with here, it's interesting because it's kind of a reconfiguration of what was in the state court. [00:13:30] Speaker 01: In the state court, it was, you know, the custody issue for Miranda purposes in the interview with Brady. [00:13:36] Speaker 01: And then it was kind of the Edwards issue, invocation of counsel with respect to the interview with Barber. [00:13:44] Speaker 01: But here, the second part of that's been repackaged as a Missouri v. Cybert, you know, two-step issue. [00:13:52] Speaker 01: Um, is the state, I didn't see that the state asserted any kind of procedural default against that argument. [00:13:58] Speaker 01: So have you, you've waived any procedural default to the presentation of a Cybert claim? [00:14:05] Speaker 01: Yes, Judge. [00:14:07] Speaker 01: Okay. [00:14:07] Speaker 01: I believe that's true. [00:14:08] Speaker 01: But that would mean we'd review the cyber claim de novo, but it presents an interesting issue because your brief points out the first portion of the cyber claim is the first issue. [00:14:22] Speaker 01: Yes. [00:14:23] Speaker 01: Which is exhausted and is reviewed for EDPA deference. [00:14:26] Speaker 01: Yes. [00:14:26] Speaker 01: Where does that leave us in terms of the standard review of the cyber issue and its component of the [00:14:35] Speaker 01: the Brady Miranda issue? [00:14:38] Speaker 03: I think it's a great question, Judge, and if I knew the answer, I would be someplace other than where I am right now. [00:14:47] Speaker 03: I think that it's an issue for the court to determine where that leaves the standard of review. [00:14:52] Speaker 03: I think, you know, it's a bifurcated process by nature of, as Your Honor pointed out, the first part of that question being [00:15:03] Speaker 03: the first issue raised in the habeas petition. [00:15:07] Speaker 01: Am I right that you cannot do a cyberclaim without a predicate first-step Miranda violation? [00:15:16] Speaker 01: So the cyberclaim is a hundred percent dependent on the success of the Miranda custody during the Officer Brady interview. [00:15:23] Speaker 01: I believe that you are correct, Judge. [00:15:26] Speaker 03: However, when we talk about the Miranda [00:15:31] Speaker 03: issue with regards to Detective Barber, there is no evidence to support Rodriguez's allegations of coercion. [00:15:39] Speaker 03: She already knew she was going to jail. [00:15:41] Speaker 03: There was no unambiguous invocation. [00:15:44] Speaker 03: Barber responded appropriately to clarify whether she was invoking her right to counsel. [00:15:50] Speaker 03: And her story doesn't make sense. [00:15:53] Speaker 03: If Barber had threatened her child, it doesn't make sense that she would not have told trial counsel about that. [00:15:59] Speaker 03: It does not make sense that that wouldn't have been a part of that pretrial suppression hearing. [00:16:06] Speaker 03: Additionally, there is no evidence in the record to support that there was any kind of intentional two-step process to subvert the Miranda requirements. [00:16:15] Speaker 03: And because the evidence does not support a finding that her statements were in violation of Miranda, the mere fact [00:16:27] Speaker 03: that her statements hurt her and were prejudicial does not render counsel ineffective. [00:16:32] Speaker 03: Therefore, the district court had no obligation to hold an evidentiary hearing because her claims did not meet the standard of presenting facts which, if true, probably would have changed the verdict. [00:16:44] Speaker 03: And there was other evidence to support conviction. [00:16:48] Speaker 03: And if the court has no further questions, I respectfully ask that this court deny relief. [00:16:55] Speaker 04: It appears not. [00:16:55] Speaker 04: Thank you, counsel. [00:17:04] Speaker 02: I want to begin with Judge Collins' question about the standard of review for the two-step claim. [00:17:10] Speaker 02: I think the best analogy would be a Strickland claim where the state court only reached one of the two prongs of Strickland. [00:17:17] Speaker 02: So if the court, for example, only reached the deficient performance prong, then this court would review that determination under EDPA and then would review the prejudice determination de novo. [00:17:28] Speaker 02: And there is precedent for that. [00:17:31] Speaker 02: And I think that's the right approach here. [00:17:33] Speaker 01: Then you would agree that [00:17:34] Speaker 01: So you agree that you have to win on the custody Miranda issue for the interview with Officer Brady in order as a predicate to then making the cyber claim. [00:17:47] Speaker 01: You agree with that? [00:17:49] Speaker 01: That's correct. [00:17:50] Speaker 01: Okay. [00:17:50] Speaker 01: So, and then you agree that even when it's viewed through the lens of a component of the cyber claim, that custody issue, which was addressed by the state court, is still reviewed deferentially under EDPA. [00:18:05] Speaker 02: I would, slight modification, I would agree that EDPA applies- It's subject to your arguments that EDPA doesn't apply in the first place to the straight argument. [00:18:14] Speaker 02: Exactly. [00:18:15] Speaker 02: Okay. [00:18:15] Speaker 02: So we would have to satisfy D2. [00:18:18] Speaker 02: We didn't raise a D1 argument here. [00:18:19] Speaker 02: We have to satisfy D2 for that first component. [00:18:22] Speaker 02: Then this court reviews the second component to no vote. [00:18:24] Speaker 01: Let me rephrase my question. [00:18:27] Speaker 01: Nothing about how we handle the interview about whether she was in custody during the interview with Brady. [00:18:34] Speaker 01: and whether she was entitled to Miranda warnings. [00:18:38] Speaker 01: Nothing about our review of that issue depends on whether we're looking at as the straight Miranda claim or as a component of the cyber claim. [00:18:46] Speaker 01: Is that a fair statement? [00:18:47] Speaker 02: I would agree with that. [00:18:49] Speaker 02: And I think, you know, I've set forth the arguments for why I believe that the state court's decision is unreasonable such that the court should be entitled to review the whole thing de novo. [00:19:01] Speaker 02: And I just wanted to [00:19:04] Speaker 02: touch upon the arguments under de novo review. [00:19:08] Speaker 02: So I just wanted to talk about the evidence that if the district court had performed de novo review, I wanted to talk about the evidence that was just before the district court, including all of the documents submitted in the motion to expand the record. [00:19:21] Speaker 02: Because I think if you look at all of that evidence, you cannot maintain that she was not in custody. [00:19:27] Speaker 02: There was a series of guards for more than six hours standing with her in November [00:19:34] Speaker 02: outside when she was barely clothed, you know, there's an allegation in one of her documents that a female guard would come to escort her to the restroom. [00:19:46] Speaker 02: I don't think there's any credible reading of those documents that suggests that an objective person would feel that she was free to leave. [00:19:54] Speaker 04: Thank you, counsel. [00:19:55] Speaker 02: Thank you. [00:19:56] Speaker 04: Thank you to both counsel for your helpful arguments. [00:19:58] Speaker 04: The case just argued is submitted for decision by the court.