[00:00:02] Speaker 02: United States. [00:00:07] Speaker 04: Morning and welcome. [00:00:13] Speaker 04: Right of Council would please come forward. [00:00:16] Speaker 04: Calling the case of Witter versus Rubart. [00:00:23] Speaker 03: Good morning, Your Honors. [00:00:25] Speaker 03: May it please the court. [00:00:26] Speaker 03: Stacey Newman on behalf of Appellant William Witter. [00:00:28] Speaker 03: If I may, I'd like to reserve 10 minutes for rebuttal. [00:00:32] Speaker 03: The issue in this case is whether the federal district court aired and dismissing Mr. Witter's federal habeas petition as second or successive. [00:00:41] Speaker 03: Because the judgment challenged was issued to replace a judgment that was invalid under state law, the judgment is intervening for the purposes of habeas. [00:00:50] Speaker 03: The petition challenging that judgment therefore for the first time is not second or successive. [00:00:56] Speaker 03: A straightforward application of federal statutes, Supreme Court authority, and this court's authority should result in a reversal and a remand to allow Mr. Whitter's petition to move forward. [00:01:07] Speaker 03: Beginning with the Supreme Court authority, in Magwood v. Patterson, the Supreme Court held that EDFA's prohibition on second or successive petitions does not apply if the petitioner is challenging an intervening judgment. [00:01:19] Speaker 03: Justice Thomas, in writing for the majority, held that this is the case even if it allows a habeas petitioner to raise the exact same claims multiple times. [00:01:28] Speaker 03: And since Magwood, this court has developed its own tests for judging whether a judgment is intervening. [00:01:34] Speaker 03: And that test, as articulated in Gonzales v. Sherman, is very simple. [00:01:38] Speaker 03: Does the new judgment of conviction replace an invalid judgment of conviction with a valid one, as determined by the laws of the state issuing the judgment? [00:01:47] Speaker 03: This rule applies regardless of whether the change in judgment impacts the length of custody. [00:01:52] Speaker 03: In fact, this court has held the judgment to be intervening even when it is exactly the same as a judgment that was previously challenged, and that was in Smith v Williams. [00:02:02] Speaker 03: And Gonzales v Sherman in footnote five. [00:02:05] Speaker 03: This court also said the change need not be major and it need not be substantive. [00:02:10] Speaker 03: So when looking to Whitter's judgments in the laws of Nevada, it's clear that Whitter's new judgment is intervening. [00:02:16] Speaker 03: That's because Nevada state law is very clear that restitution must be set in a certain amount. [00:02:23] Speaker 03: The Nevada Supreme Court has held that district courts must do this. [00:02:26] Speaker 03: They do not have discretion not to do this. [00:02:29] Speaker 03: And they've referred to setting restitution in some certain as a, quote, weighty matter that happened in Whitter's own case. [00:02:35] Speaker 03: And they've also called it a, quote, integral part of the sentence. [00:02:38] Speaker 03: And that is from Whitehead v. State. [00:02:42] Speaker 03: The Nevada Supreme Court takes it so seriously that it has even reversed on this era Sue Esponte when neither party briefed the issue. [00:02:51] Speaker 01: They've also a citation for that. [00:02:53] Speaker 03: Yes, that is in Washington v state. [00:02:57] Speaker 03: And then in another case, Lahti v state, they even held that they lacked jurisdiction to hear an appeal from a judgment that had an uncertain sum of restitution. [00:03:06] Speaker 03: So in turning now to Witter's case, his previous judgments of conviction had a amount of restitution, quote, to be determined in the future. [00:03:14] Speaker 03: That was clearly invalid under the Nevada case law just discussed. [00:03:20] Speaker 03: And in Witter's own case, the Nevada Supreme Court held that Witter had the ability to appeal the third amendment judgment of conviction, and it reiterated its commitment to that restitution jurisprudence, and it rejected the state's attempts to call this change inconsequential. [00:03:35] Speaker 03: So here now winter is challenging a judgment that has the restitution set in some certain that is a valid judgment under Nevada law. [00:03:44] Speaker 03: It replaced a judgment that was invalid under Nevada law, and so it is intervening under this court's case law. [00:03:51] Speaker 03: Your Honor, I'd be happy to talk about any other areas you have questions of but we really believe it's quite straightforward. [00:03:57] Speaker 04: I have a question for you. [00:03:59] Speaker 04: One of the arguments that you make is that Section 2254 is an entirely different statute than [00:04:06] Speaker 04: 2244 but my question is 2244 incorporates 2254 so it says a claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed so that's the language of 2244 but then 2254 [00:04:29] Speaker 04: says that the courts can entertain an application for writ of corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the constitution or laws or treaties of the United States. [00:04:44] Speaker 04: So help us think through that incorporation of 2254 into 2244. [00:04:55] Speaker 03: Absolutely, Your Honor. [00:04:56] Speaker 03: So yes, these statutes are informed by each other. [00:04:59] Speaker 03: 2254A governs what is cognizable in a 2254 petition and also imposes what the Supreme Court has called a status requirement, meaning that a petitioner can only file a 2254 petition under that statute if they are being held pursuant to a judgment of a state court. [00:05:17] Speaker 03: So that's really looking at whether this is the right petition as opposed to a 2255 petition for a federal petitioner. [00:05:23] Speaker 03: So 2254A looks at is this person in state custody and is this therefore the correct petition they should be bringing? [00:05:30] Speaker 03: And are they challenging the constitutionality? [00:05:35] Speaker 03: Are they bringing a cognizable claim? [00:05:37] Speaker 03: Then when we move over to 2244B, the question becomes which judgment? [00:05:42] Speaker 03: If we've established that the petitioner is under state custody, now we're looking at which judgment is being challenged and is it the first challenge to that judgment they are being held under custody of? [00:05:52] Speaker 04: So if we look at Magwood, it says a 2254 petition seeks invalidation of the judgment authorizing the prisoners confinement. [00:06:01] Speaker 04: And Mr. Witter is being held in custody pursuant to a sentence prior to the third amended judgment. [00:06:10] Speaker 04: So how do we, how should we think about that? [00:06:13] Speaker 03: So because the Nevada Supreme court affirmed that third amendment judgment of conviction, Mr. Witter is currently being held under that judgment of conviction. [00:06:23] Speaker 04: But if I look through the language of many of these cases, they do focus on the custodial [00:06:36] Speaker 04: I'll just read from Turner. [00:06:38] Speaker 04: The amended judgment removes an invalid basis for incarceration and provides a new and valid intervening judgment to which a defendant is held in custody. [00:06:47] Speaker 04: Or Gonzales, under Magwood, the relevant sentence is the one pursuant to which the defendant is held in custody. [00:06:52] Speaker 04: Alteration of custody credits, which changes the duration and legality of sentence, is the alteration that constitutes a new and intervening judgment. [00:06:59] Speaker 04: You know, similar in Smith v. Williams, the only relevant judgment for a habeas application is one pursuant to which a prisoner may be incarcerated. [00:07:06] Speaker 04: and concluding that that was the holding in Magwood and in Bailey v Hill, we held that restitution is not part of custody, so there's no jurisdiction over restitution challenge under 2254A. [00:07:17] Speaker 04: So there seems to be a lot of law saying, I guess, supporting the government's position, except I think Colbert then supports your position because Colbert [00:07:30] Speaker 04: sort of cabins all of those cases and says, no, what's not dispositive is whether the judgment is the judgment pursuant to which the petitioners in custody is just whether an invalid judgment was replaced by a valid one. [00:07:46] Speaker 04: So do you think you need Colbert to sort of cabin these other Ninth Circuit cases? [00:07:52] Speaker 03: I don't think we need Colbert, but I think it shows that the test versus Gonzales, as Your Honor said, does not hinge [00:07:59] Speaker 03: on the type of change per se. [00:08:02] Speaker 03: What really matters is giving respect to the state courts to decide what makes a judgment valid under their own state laws. [00:08:08] Speaker 03: So regardless of whether that's restitution or time served credits, or even so much as vacating account, all of those could be changes that a state court could recognize impact the validity of the judgments within its own jurisdiction. [00:08:23] Speaker 01: If Nevada hadn't amended the judgment in this case, [00:08:29] Speaker 01: Would Witter have an argument that he was being held in custody unlawfully under an invalid judgment under Nevada law? [00:08:36] Speaker 01: Like if the restitution was indeterminate, would he be able to argue like you can't hold me in custody because you don't have a valid judgment against me? [00:08:47] Speaker 03: I think that might be possible, Your Honor, because of Colbert v. Haynes. [00:08:51] Speaker 03: In that case, the state courts did not enter something called an amendment judgment of conviction. [00:08:57] Speaker 03: It was actually an order reflecting the change. [00:08:59] Speaker 03: But this court nevertheless applied the test under Gonzalez and treated it as if it were a judgment. [00:09:05] Speaker 03: Certainly, it's very indicative of Mr. Whitter's position that the state court did enter a judgment of conviction. [00:09:10] Speaker 03: They titled it a new judgment of conviction. [00:09:13] Speaker 03: The Nevada Supreme Court rejected the state's attempt to dismiss the appeal for lack of jurisdiction. [00:09:17] Speaker 03: and ultimately affirmed that third amendment judgment of conviction, which goes back to our position that that is the judgment that Mr. Whitter is being currently held under. [00:09:25] Speaker 03: And because his current federal habeas petition is the first one attacking that judgment, the petition was erroneously dismissed as second or successive. [00:09:35] Speaker 04: If we find that the petition is not second or successive, what do we do with the currently state appeals? [00:09:41] Speaker 04: Do they get dismissed as moot or? [00:09:45] Speaker 03: So if Mr. Witter were to get a reversal and go back to federal court, we would proceed on this petition. [00:09:51] Speaker 03: If this court were to affirm, we would move to lift the stay and the other Ninth Circuit appeals, because that would be tantamount to recognition that those are the appeals he should be proceeding under. [00:10:00] Speaker 04: Oh, wait, I'm sorry. [00:10:03] Speaker 04: I didn't understand that. [00:10:05] Speaker 04: So then you would want the litigation of those appeals, the currently state appeals. [00:10:11] Speaker 04: Is that correct? [00:10:12] Speaker 03: Correct, Your Honor. [00:10:12] Speaker 03: So if this court were to hold that the district court was correct in dismissing the petition as second or successive, we would move to lift those stays in the currently state night circuit cases. [00:10:21] Speaker 04: Litigate those. [00:10:22] Speaker 04: But why wouldn't you allow him or want him to just raise those claims in his new petition? [00:10:30] Speaker 04: Well, Your Honor. [00:10:30] Speaker 04: And then let the district court decide which claims can go forward or not. [00:10:35] Speaker 03: Perhaps I'm not understanding so if the petition is dismissed a second or successive then we would have no further recourse, and we would proceed with the stage. [00:10:44] Speaker 04: Well that the state appeals are on the 2011 second amended petition. [00:10:51] Speaker 04: But what we would be finding if we do this is not a second or successive petition would be the 2020 2020 petition. [00:10:59] Speaker 04: So that's what's being allowed to go forward. [00:11:02] Speaker 04: Does that make any sense? [00:11:03] Speaker 04: So I guess I don't understand you. [00:11:05] Speaker 04: If you got permission to go forward on the 2020 petition, you're saying, oh, we don't want to litigate that we want you now to go back and litigate. [00:11:13] Speaker 04: the 2011 second amended petition. [00:11:16] Speaker 04: I think I misunderstood. [00:11:18] Speaker 03: I may have misunderstood you. [00:11:19] Speaker 03: I'm sure it's me. [00:11:20] Speaker 03: If we are allowed to proceed on the 2020 petition, we would litigate that and close out the stays in the other cases before this court. [00:11:28] Speaker 03: We would just seek to withdraw. [00:11:29] Speaker 04: When you say close out, I guess I'm unclear. [00:11:31] Speaker 04: When you say lift the stays, then you're saying this panel would have to then decide those state appeals or you're saying you would then have those denied as moot and you're going to move forward on the 2020 petition? [00:11:42] Speaker 03: The latter, Your Honor, and I'm sorry for any confusion I may have caused. [00:11:45] Speaker 03: If Mr. Witter proceeds on the 2020 petition, we would not proceed on the other state cases before this court. [00:11:52] Speaker 02: Would they be dismissed or you use the word withdraw? [00:11:55] Speaker 02: You would withdraw those petitions? [00:11:57] Speaker 03: Yes, Your Honor, on the basis that they are moot because we are now moving forward with the first petition attacking the judgment under which Mr. Witter is currently in custody. [00:12:04] Speaker 02: Judge Coe's question is who's responsible for taking action on that? [00:12:09] Speaker 02: Who determines those to be moot and dismisses them? [00:12:13] Speaker 03: I think if your honors were to reverse and remand and say that Mr. Witter can proceed on the current federal petition, we would just take that order, file something in those other night circuit cases to with to close them out, withdraw them, whatever language we need to use in recognition that they are now moot. [00:12:34] Speaker 04: All right, so this panel would then not rule on them. [00:12:37] Speaker 04: You file a motion first. [00:12:38] Speaker 04: Is that that's your position? [00:12:40] Speaker 03: Yes, Your Honor, and in I believe it was the order authorizing the certificate of appeal ability that already contemplates updates in those cases within 14 days of this court's mandate. [00:13:01] Speaker 03: Again, happy to discuss any other areas, but we believe the test order in Gonzales should prevail as evidenced by Colbert v. Haynes. [00:13:08] Speaker 03: A straightforward application of this court's precedent coupled with respect given to Nevada courts to say what makes a judgment valid under its own state laws show that Mr. Whitter's petition is not second or successive. [00:13:19] Speaker 02: Does it matter that the Nevada Supreme Court said at ER 481 and your opposing counsel cites to this in their brief, [00:13:27] Speaker 02: that the scope of the appeal is limited to the issues arising from the amendment. [00:13:32] Speaker 02: Are we bound by the Nevada Supreme Court? [00:13:36] Speaker 03: No, Your Honor, because the Nevada Supreme Court's decisions that the state points to have to deal with finality. [00:13:42] Speaker 03: And in Colbert v Haynes, or sorry, not Colbert v Haynes and Gonzales v Sherman, this court specifically reversed a district court who held that finality was key in determining whether a judgment was intervening. [00:13:53] Speaker 03: This court said that is not the relevant inquiry. [00:13:55] Speaker 03: It should not read Wensel so narrowly. [00:13:57] Speaker 03: So what the Nevada Supreme Court said about that finality, it might be relevant to say the statute of limitations under 2255F. [00:14:04] Speaker 03: It's not relevant for this court's 2244B second or successive analysis. [00:14:22] Speaker 03: So your honors, with that I would, if there's no other questions, I would just yield the remainder of my time. [00:14:27] Speaker 03: Again, we just ask that the district court reverse the, or this court reverse the district courts dismissal of this petition. [00:14:33] Speaker 04: You're yielding your whole time or you want to reserve it for rebuttal? [00:14:36] Speaker 04: Sorry, reserve for rebuttal. [00:14:38] Speaker 04: All right, that's fine. [00:14:39] Speaker 04: Thank you. [00:14:40] Speaker 04: Thank you. [00:14:46] Speaker 04: Mr. Connor? [00:15:02] Speaker 00: May it please the court, Jeffrey Connor, on behalf of the respondents. [00:15:06] Speaker 00: I'd like to start this morning with addressing the Colbert case. [00:15:11] Speaker 00: Actually, I think when you look at that case, it's actually a very straightforward application of Gonzalez, because what happened there is that this court looked at state law and determined that there was no error in the judgment. [00:15:24] Speaker 00: And so there was no need for the court to decide whether or not that [00:15:27] Speaker 00: judgment itself provided a valid basis for custody or not, because there's no error for the court to even consider as to whether it rendered the judgment invalid for purposes of custody. [00:15:37] Speaker 00: And so I don't think that Colbert is actually in conflict with Gonzalez or Turner. [00:15:44] Speaker 00: And when you look, but when you look at Gonzalez and Turner, those cases are very clear. [00:15:48] Speaker 00: They provide a limiting principle for this court's cases, the test for deciding when a judgment is new, [00:15:56] Speaker 00: And it's grounded in core doctrinal habeas principles. [00:16:00] Speaker 00: It's limited to what's the purpose of the habeas petition is to challenge the validity of custody. [00:16:08] Speaker 00: And so nothing in the judgment has changed. [00:16:13] Speaker 00: There's not a new judgment here. [00:16:15] Speaker 00: And I think that's true. [00:16:17] Speaker 00: So when we look at Gonzalez, I think Gonzalez really sets up a two-part test. [00:16:21] Speaker 00: The first part is that you have to decide whether or not there's an error. [00:16:24] Speaker 00: the judgment or not. [00:16:25] Speaker 00: And then you have to go to the state law to understand what's the impact of that error on the validity of the judgment. [00:16:34] Speaker 00: And I would actually disagree with my friend that any of the Nevada cases actually suggest that there's an invalidity of the judgment by having a non-final or an indeterminate restitution award in the judgment. [00:16:50] Speaker 00: When you look at [00:16:51] Speaker 00: Whitehead versus state, the Nevada Supreme Court characterizes that the original judgment in that case as an intermediate judgment. [00:16:59] Speaker 00: It doesn't say that the judgment was invalid, doesn't say that Mr. Whitter couldn't have been held, or in that case, Mr. Whitehead couldn't be held in custody while the restitution issue was being settled. [00:17:14] Speaker 00: by the court. [00:17:15] Speaker 00: There's not an invalidity to the basis for custody under the judgment. [00:17:21] Speaker 00: And that's important. [00:17:22] Speaker 00: I think Your Honor's question about how 2254 ties into this and how 2254 is incorporated into the statute, that's also how [00:17:35] Speaker 00: In Magwood, the court reached the determination about using the word, challenging the judgment, because judgment, the word judgment doesn't appear in 2244 at all. [00:17:49] Speaker 00: How the court got to the point of looking at the judgment pursuant to which the petitioner was in confinement or in custody [00:18:01] Speaker 00: is looking at the word application and recognizing that the purpose of the application is to challenge the judgment and the purpose of challenging the judgment and habeas is limited to challenging the length or duration of confinement. [00:18:15] Speaker 00: And that's why it was appropriate for the district court here to recognize that [00:18:21] Speaker 00: the issue of restitution bears no relationship to Mr. Withers with Mr. Withers custody under the judgment. [00:18:29] Speaker 00: And because even though there was an error in the judgment, it didn't impact his custody. [00:18:34] Speaker 00: And that's the sole scope of this court's review. [00:18:38] Speaker 01: How do you square that there with the cases that you know saying there's an amended judgment the amended judgment doesn't actually change, you know, the length or duration of custody. [00:18:50] Speaker 01: And the courts have said, you know, you can still challenge. [00:18:55] Speaker 01: We're not going to call this the second or successive petition, even though [00:19:00] Speaker 01: you are challenging parts of the judgment that weren't changed, parts of the custodial sentence that weren't changed by the amended judgment and even issues that you raised before. [00:19:09] Speaker 00: Every case where this court has found that there was a new intervening judgment involved the petitioner receiving some sort of relief related to a conviction or sentence. [00:19:25] Speaker 00: And that resulted in the entry of a new judgment. [00:19:29] Speaker 01: Well, Magwood itself, they reimposed the death penalty. [00:19:33] Speaker 00: Correct. [00:19:34] Speaker 01: So what was the custodial relief that they received in the new judgment? [00:19:40] Speaker 00: Well, in the context of [00:19:43] Speaker 00: looking at a death sentence, it's the terms of the punishment that are being addressed. [00:19:49] Speaker 00: So they're challenging the validity of the sentence there. [00:19:51] Speaker 00: And so it is an entirely new sentence because he went through an entirely new sentencing proceeding. [00:19:56] Speaker 00: That ties right into this, the Supreme Court's case in Burton v. Stewart and lots of other court cases where, and this court has recognized the same thing, that the sentence is the judgment. [00:20:10] Speaker 00: So when you look at this, the purpose of federal habeas is challenging the validity of either the convictions or the sentences. [00:20:21] Speaker 01: I understand that. [00:20:23] Speaker 01: But in Magwood, they [00:20:26] Speaker 01: but a new sentence, but the sentence, well, they got a new sentencing hearing, but the sentence that was imposed by the new judgment was exactly the same as the prior one, right? [00:20:39] Speaker 01: So there was no change in the length or duration of custody. [00:20:44] Speaker 01: And the court still said, this is a new judgment. [00:20:48] Speaker 00: Because he'd received relief and there was an entirely new proceeding that led to the entry of a new sentence. [00:20:55] Speaker 01: Well, is it the process of the sentencing hearing that you're saying distinguishes this case from Magwood? [00:21:02] Speaker 01: And why would that be? [00:21:04] Speaker 00: Well, I mean, it comes back to he's challenging. [00:21:09] Speaker 00: the sentence itself. [00:21:10] Speaker 00: And that's why Magwood very clearly left open the question of whether or not he could challenge unchanged parts of the judgment. [00:21:18] Speaker 00: So Magwood doesn't address that question. [00:21:20] Speaker 00: This court has addressed that question in Wentzel and beyond. [00:21:25] Speaker 01: Well, the restitution order is part of Mr. Whitter's sentence, isn't that? [00:21:30] Speaker 00: The New Ashburn Court has, yes, said that restitution is a component of sentencing. [00:21:36] Speaker 00: but it doesn't affect the validity of his confinement under the judgment. [00:21:42] Speaker 00: And that is what's core to habeas is focusing on whether or not the judgment provides a valid basis for custody. [00:21:49] Speaker 00: That's exactly what this court said in Gonzalez and repeated in Turner. [00:21:54] Speaker 00: In those cases, they were addressing pre-sentence credit and as [00:22:00] Speaker 00: It was very clear in Gonzales that the California Supreme Court had said a judgment that doesn't provide the appropriate amount of sentence credits is invalid. [00:22:10] Speaker 01: Right, but there we have state law saying that a judgment that has the indeterminate restitution order is invalid. [00:22:17] Speaker 00: Doesn't say it's invalid. [00:22:18] Speaker 00: It says it's error, but it doesn't doesn't say that the judgment is invalid for purposes of holding Mr. Wittering. [00:22:24] Speaker 01: You have authority saying that there's a meaningful difference between those terms in state law. [00:22:29] Speaker 00: I don't, other than to rely on this court's test of what telling the federal courts, what's the important question for looking at the state law to determine whether the judgment is valid or not. [00:22:44] Speaker 00: This court has instructed to focus on whether or not the judgment provides a valid basis for custody. [00:22:51] Speaker 04: I actually tend to agree with your interpretation of Gonzales and Turner, but Colbert doesn't. [00:23:02] Speaker 04: I agree with you there's language in Gonzales that says the invalid or valid distinction has to be related to the judgment pursuant to which the defendant is incarcerated. [00:23:19] Speaker 04: Colbert actually cuts that language off and says, no, the only dispositive issue is whether invalid judgment was replaced with a valid one. [00:23:28] Speaker 04: And that is the most recent published Ninth Circuit decision that we have to follow. [00:23:32] Speaker 04: So I guess I'm, you know, even if I agree with you on Gonzalez and Turner, I just think that Colbert [00:23:44] Speaker 04: I'm looking at Gonzales, the amendment removed an invalid basis for incarcerating Gonzales. [00:23:51] Speaker 04: I agree with you the language in Gonzales is all about the relevant sentence under Magwood is the one pursuant to which an individual is held in custody. [00:24:00] Speaker 04: I agree with you there's a lot of language in Gonzales, Turner, Smith, Bailey, but Colbert is the most recent Ninth Circuit decision. [00:24:10] Speaker 04: cuts it off at invalid basis. [00:24:13] Speaker 04: So what do we do with that? [00:24:14] Speaker 00: Understood, Your Honor. [00:24:15] Speaker 00: One, I would just point the court to the fact that what the court did there was look at Washington law. [00:24:23] Speaker 00: to decide whether it rendered the judgment invalid or not. [00:24:25] Speaker 00: It determined that there was no error that would render the judgment invalid. [00:24:29] Speaker 00: So that was the end of it. [00:24:31] Speaker 00: And it didn't need to engage in that analysis of, if we have an error in the judgment, but that error doesn't affect custody, what do we do with it? [00:24:39] Speaker 00: So I don't think Colbert addresses the question, but Your Honor, this court's- I'm sorry to interrupt you, but if I look at Colbert, right? [00:24:47] Speaker 04: When it cites Gonzalez, it just says, replace an invalid sentence with a valid one. [00:24:52] Speaker 04: And it just sort of, [00:24:54] Speaker 04: cuts the quote right it cuts off the part where I agree with you and Gonzales, it says. [00:24:58] Speaker 04: You know invalid basis for incarceration, but Colbert doesn't do that and I and I think Colbert would be controlling here. [00:25:09] Speaker 00: Well, to answer your question, Colbert's not controlling then. [00:25:14] Speaker 00: What this court's case law establishes is if there is an irreconcilable conflict between two circuit precedents, you, Sue, respond to have to call for an en banc review. [00:25:26] Speaker 04: But I guess I don't think you're saying that Colbert is in conflict or not in conflict. [00:25:32] Speaker 04: I find there's a way to harmonize it, right? [00:25:37] Speaker 04: Colbert wasn't dealing with a custodial issue and just didn't find the custodial aspect was dispositive and didn't include it as part of its analysis. [00:25:49] Speaker 00: So I don't think Colbert can narrow a ninth circuit holding. [00:25:54] Speaker 00: If this court said in Gonzales that that's the state of the law in the ninth circuit. [00:26:02] Speaker 01: Well, Gonzales just didn't confront this issue. [00:26:04] Speaker 01: So I don't think it's controlling one way or the other. [00:26:07] Speaker 01: I don't think you can lift words out of Gonzalez and say that set a controlling rule for this situation. [00:26:13] Speaker 01: That's why we're here. [00:26:14] Speaker 00: I won't know. [00:26:14] Speaker 00: I think it is the controlling rule because that was the reason why there was a new judgment in Gonzalez was because of the fact that the failure to give him the appropriate sent time credits meant he would be serving a sentence longer than he was supposed to be that he could be sentenced to under state law. [00:26:32] Speaker 01: And so that was the reason why it was an intervening judgment or had no reason to consider what would happen if there was an amended judgment that affected a non-constitutional part of the sentence. [00:26:40] Speaker 01: Right. [00:26:40] Speaker 01: So I think there's [00:26:42] Speaker 01: So I just don't think the court was considering this situation. [00:26:45] Speaker 04: And what about Wenzel, right? [00:26:47] Speaker 04: You can't cut the restitution from, you know, the judgment has to be one unit and you can't, you know, slice and dice the components of that unit, which it seems like you're doing and saying, okay, well, let's just look at the custody, you know, and bifurcate that from restitution. [00:27:04] Speaker 04: But that seems in conflict with Wenzel, doesn't it? [00:27:06] Speaker 00: I don't think it's in conflict, Wenzel, because there's a consistency there that it's all focused on the purpose of looking at the judgment for purposes of why the petitioner is in custody. [00:27:18] Speaker 00: All of those cases focus on challenging the judgment that provides the basis for custody. [00:27:24] Speaker 01: But we don't have multiple judgments here, right? [00:27:27] Speaker 01: We don't have a judgment for custody and a judgment for restitution or multiple sentences. [00:27:31] Speaker 01: We have one judgment. [00:27:33] Speaker 01: issues a sentence with a custodial component and a restitution component. [00:27:38] Speaker 01: The error was with respect to the restitution component, but under Nevada law, that judgment could not stand. [00:27:47] Speaker 01: It had to be amended to be valid. [00:27:50] Speaker 01: I understand you're saying they didn't use the word valid, but [00:27:54] Speaker 01: And they said there was an error and it had to be corrected by the issuance of an amended judgment. [00:28:00] Speaker 01: So again, I think we have one judgment, a new one now that has a custodial component and a restitution component. [00:28:07] Speaker 01: And then we have case law saying, we don't slice and dice. [00:28:09] Speaker 01: We don't look, it's a new judgment. [00:28:12] Speaker 01: So for purposes of this rule under Magwood, it's new. [00:28:17] Speaker 00: I think where I disagree with your honor is looking at, especially in Turner, [00:28:24] Speaker 00: this court recognized that not every error in a judgment renders it invalid for purposes of holding that person in custody. [00:28:33] Speaker 01: We look to state law. [00:28:34] Speaker 00: And that's why when in in Magwood, the Supreme Court looked to 2254 and defining what second or successive meant in [00:28:47] Speaker 00: construing the terms of 2244 and focused on looking at the judgment that is authorizing the petitioners confinement. [00:28:58] Speaker 00: So that's why what the district court did here and focusing on the fact that [00:29:04] Speaker 00: Restitution, as this court recognized in Bailey v. Hill, is something that's not cognizable under 2254A because it has nothing to do with custody, has nothing to do with the judgment that authorizes Mr. Whitter's confinement. [00:29:22] Speaker 01: Isn't the third amendment just means the judgment that is authorizing Mr. Widder's custody right now? [00:29:28] Speaker 00: It is, but it's like that's it. [00:29:32] Speaker 00: It's not a new intervening judgment for purposes of what this court has said and how you apply the second or successive petition bar under 2244 B. And so that's I mean, it all comes back to [00:29:49] Speaker 00: Yes, there was an error in the judgment, but this court's case law directs the district court to look at state law to determine what's the impact of that error on the validity of confinement, because that is the core of habeas review, is looking at the validity of confinement. [00:30:06] Speaker 00: And there's a change to the judgment that has nothing to do with what this court can review on habeas review. [00:30:13] Speaker 00: Why would that be a new judgment for purposes of habeas review? [00:30:18] Speaker 00: That doesn't make sense. [00:30:23] Speaker 00: So that's, I mean, that's the core thing here is that habeas, the Supreme Court in Magwood focused on 2254A to inform its understanding of how to apply 2244 and focusing on the word application, because the application challenges the judgment authorizing the petitioner's confinement. [00:30:47] Speaker 00: And when the judgment includes none, cause there's lots of States have different things in judgments of conviction, especially in Nevada, you get court fees and you know, DNA, there's like a DNA analysis fee that has to be paid in Nevada. [00:31:02] Speaker 00: I've had a case where the petitioner had multiple convictions. [00:31:06] Speaker 00: And so he got double charged for the DNA analysis fee and the trial court realized we shouldn't have double charged him for that. [00:31:13] Speaker 00: and removed the DNA analysis fee. [00:31:16] Speaker 00: And he tried to argue that that was a change in the judgment that allowed him to file an entirely new habeas petition after we'd gone years of litigating his petition. [00:31:28] Speaker 00: But the district court in that case agreed with me and said, no, this is not a change to the validity of his custody under the judge. [00:31:37] Speaker 00: And I think that's the right outcome there. [00:31:39] Speaker 00: This court denied a COA in that case [00:31:41] Speaker 00: the cases, Bo Pachele, it's not discussed in the briefing, so I can provide that to the court if it's interested in that. [00:31:48] Speaker 00: But when there are things in the judgment that bear no relationship to the validity of the petitioner's custody, a change to that doesn't render that a new and intervening judgment. [00:32:02] Speaker 00: And I think why I can comfortably say that also, Your Honor, that just the fact that there is an amended judgment, [00:32:09] Speaker 00: disagree again with my friend's representation of what this court setting Gonzalez Court clearly recognized that a scrivener's error is the correction of a of a typo that results in an amended judgment wouldn't be a new intervening judgment. [00:32:25] Speaker 00: And the reason for that, though, more than a scrivener's error. [00:32:28] Speaker 01: So we're in a different. [00:32:29] Speaker 00: Understood. [00:32:30] Speaker 00: But I'm just saying that just because there's an entry of a new judgment that corrects something doesn't mean it's an it's the new intervening judgment. [00:32:36] Speaker 00: Right. [00:32:37] Speaker 00: And like that was your question for me is that it's the third amended judgment. [00:32:40] Speaker 00: Right. [00:32:41] Speaker 00: If this had just been changed because Mr. Witter's name was was misspelled by accident, like. [00:32:47] Speaker 01: So under Nevada law, when there's a scrivener's error, do they actually issue a third amendment? [00:32:54] Speaker 00: Yes. [00:32:54] Speaker 00: I think that the statute for that is actually cited in the Whitter opinion. [00:32:58] Speaker 00: I can't recall what it is off the top of my head. [00:33:01] Speaker 00: But the state court can, or it might be in the Whitehead case. [00:33:05] Speaker 00: But there is a state statute that allows for correction of an error of a scrivener's type at any point in time. [00:33:16] Speaker 01: Well, that was not my question. [00:33:18] Speaker 01: My question is what happens when they find it's governor's error? [00:33:20] Speaker 01: Do they actually officially enter an amended judgment? [00:33:25] Speaker 00: That's my understanding is that the court would would enter an amended judgment that that corrects the problem in the judgment. [00:33:30] Speaker 04: But in all that language, it's understood that the scrivener's error doesn't render the judgment invalid. [00:33:37] Speaker 04: And so what we have here is a little different. [00:33:39] Speaker 04: We have a legally invalid judgment. [00:33:42] Speaker 04: And your example of a misspelling somewhere of Mr. Whitter's name wouldn't render that judgment legally invalid, would it? [00:33:50] Speaker 00: So I agree with your honor there that it wouldn't render it legally invalid. [00:33:55] Speaker 00: But I also disagree with the premise [00:33:59] Speaker 00: the Undefined Restitution Award rendered the judgment invalid. [00:34:03] Speaker 00: The Nevada Supreme Court did not say that. [00:34:06] Speaker 00: In Whitehead v. State, it specifically referred to the prior judgments that had the Undefined Restitution Award in it as an intermediate judgment. [00:34:15] Speaker 00: It did not say that the judgment was invalid. [00:34:22] Speaker 00: And that ties right into what the Nevada Supreme Court ultimately said in the slate. [00:34:28] Speaker 01: Disagree with your reading of Whitehead, excuse me. [00:34:32] Speaker 01: And if we read Whitehead as rendering the type of restitution error that I see here, rendering the prior judgment invalid, then is the application of Magwood straightforward? [00:34:46] Speaker 00: I don't think so, because I don't think it renders his custody under the judgment invalid. [00:34:52] Speaker 00: So I think that's the distinction here. [00:34:54] Speaker 01: Even if under Nevada law, this type of restitution error makes the judgment invalid, you would still say, because it didn't affect custody, you would say that it's not. [00:35:11] Speaker 00: That's how I interpret it, Gonzalez. [00:35:14] Speaker 00: The error and the invalidity of the judgment having to do with the basis for custody. [00:35:20] Speaker 00: And so what I was going to come back to was the reference to footnote five in this court's decision in Gonzalez, where it talks about the entry of an amended judgment. [00:35:29] Speaker 00: I think that's a nuance of California law. [00:35:31] Speaker 00: If you look closely at Gonzalez, Gonzalez talks about the difference between the judgment and the abstractive judgment under California law. [00:35:41] Speaker 00: In the Scrivener's error is a correction of the abstractive judgment, which is not the judgment. [00:35:46] Speaker 00: And so in California, when there's an amended judgment, [00:35:50] Speaker 00: It's the judgment is the court's oral pronouncement of sentence. [00:35:54] Speaker 00: So if there was an error when the court orally pronounced the sentence, that's the amendment to the judgment in California. [00:36:00] Speaker 00: And I think that's what this court was referring to in footnote five when it talked about whether there's an amended judgment or not, like the difference there. [00:36:10] Speaker 00: I think that that's a nuance of California law that that doesn't apply to Nevada. [00:36:20] Speaker 04: The district court was not persuaded. [00:36:23] Speaker 04: That the Nevada Supreme Court's decision relating to the finality of the 1995 judgment was determinative. [00:36:33] Speaker 04: You want to. [00:36:34] Speaker 04: Address why the Nevada Supreme Court? [00:36:39] Speaker 04: Your your estoppel argument. [00:36:43] Speaker 00: The estoppel argument. [00:36:46] Speaker 04: Yeah, your point that the Nevada Supreme Court previously held that Witter was a stop from treating his prior judgment of conviction with an indeterminate restitution provision as a final judgment only to change later. [00:36:57] Speaker 00: I think that just demonstrates the recognition that the Nevada Supreme Court is recognizing that restitution is distinct from the custodial components of the judgment in this case. [00:37:11] Speaker 00: They're recognizing that [00:37:13] Speaker 00: he couldn't go back and challenge his conviction. [00:37:16] Speaker 00: Again, he'd already had an opportunity to do that. [00:37:18] Speaker 00: He'd filed a direct appeal and he'd filed three state habeas petitions that all challenged his convictions and sentences under that judgment. [00:37:27] Speaker 04: But the district court below found that that Mr. Witter also persuasively argues that the Supreme Court of Nevada's decision relating to the finality of his 1995 judgment is not determinative of the issue presented here. [00:37:39] Speaker 04: Well, I think that ER 22 [00:37:43] Speaker 00: If I recall right, that's from when the court was ruling on its order to show cause. [00:37:53] Speaker 04: That's correct. [00:37:54] Speaker 04: It's from the order of finding cause and scheduling further proceedings. [00:37:57] Speaker 04: But in the final order, it certainly doesn't rely on at all the Nevada Supreme Court decision. [00:38:04] Speaker 04: So it didn't find it persuasive in the OSC, and then it doesn't rely on it at all in its ruling. [00:38:12] Speaker 00: That's one point where I would. [00:38:15] Speaker 00: I don't think that the district court error. [00:38:17] Speaker 00: I think for me it's just a it's sort of a semantics issue where he, especially in ruling on the the 59 E motion, the district court suggested that he didn't need to look at state law at all. [00:38:33] Speaker 00: I think that's that's not quite right. [00:38:35] Speaker 00: I think what it what it was is that he what he needed to look at state law for was. [00:38:40] Speaker 00: whether or not the change to the judgment impacted the validity of confinement under the judgment. [00:38:46] Speaker 00: And so that just wraps back into my core point here that this court's cases identify a limiting principle grounded in doctrinal habeas principles, that the application that's at issue is challenging the validity of confinement under the judgment. [00:39:05] Speaker 00: And there has been no showing that there was anything invalid about [00:39:11] Speaker 00: Mr. Whitter's confinement under the judgment. [00:39:13] Speaker 00: And for that reason, the district court was right to determine that this was a second or successive petition challenging the same judgment that Mr. Whitter had already previously challenged in his prior 2001 petition. [00:39:30] Speaker 04: If we were to find that the petition is not a second or successive one, what happens with the state appeals? [00:39:39] Speaker 04: And then do we ask, you know, send it, remand it back for the district court to determine what claims, if any, proceed. [00:39:46] Speaker 00: Well, that's a, it's an interesting question that I'm not, I'm not a hundred percent sure about that because I mean, I would think that if you, if you determine that, that this is a, there's a new intervening judgment under Magwood that he can assert this petition without having to satisfy the, the successive petition bar, then that would render those [00:40:08] Speaker 00: those other appeals moot, and he would have to withdraw that prior petition because it's challenging a different judgment that he's no longer in custody under. [00:40:17] Speaker 00: And then he would have to proceed under the existing petition, the 2020 petition in the district court. [00:40:27] Speaker 00: I mean, that to me just brings me to another logical inconsistency with this. [00:40:35] Speaker 04: And I want you to raise that. [00:40:38] Speaker 04: But can I ask you just a housekeeping question? [00:40:40] Speaker 04: If that were the case, then would this panel deny those state appeals as moot or you wait for a motion from Mr. Witter? [00:40:49] Speaker 04: What's the logistics? [00:40:51] Speaker 00: I think Ms. [00:40:52] Speaker 00: Newman's correct that the orders staying those cases require updates from this [00:40:58] Speaker 00: case because there's separate cases. [00:41:01] Speaker 00: I don't know that that case has been assigned to this panel for determination. [00:41:05] Speaker 00: So I think that that it would have to be a separate process. [00:41:09] Speaker 04: Okay, thank you. [00:41:09] Speaker 04: Can you go to your point? [00:41:10] Speaker 00: But I just it just strikes me as very odd here to think that that suddenly all of the work that we did in that that that case is moot. [00:41:20] Speaker 00: Whereas if Mr. Witter had appealed and had won in that case, would the state have been able to come back and say that [00:41:26] Speaker 00: Mr. Witter's petition is challenging the wrong judgment. [00:41:31] Speaker 00: I don't I don't think this court would accept me coming here with an argument saying this is a new judgment because the Nevada the District Court in Nevada got rid of this restitution award and it rendered the judgment that Mr. Witter succeeded in challenging. [00:41:45] Speaker 00: It renders that all moot because there's a new judgment and he has to go through the whole process again now. [00:41:57] Speaker 00: The court doesn't have any further questions. [00:41:59] Speaker 00: I'll submit and just ask that the court affirm the district court's judgment. [00:42:04] Speaker 04: Any further questions? [00:42:06] Speaker 04: Okay, no, thank you. [00:42:14] Speaker 03: Ron, there's just a few points on rebuttal. [00:42:17] Speaker 03: First, I agree with my colleague that the sentence is the judgment. [00:42:21] Speaker 03: There's no disagreement there. [00:42:23] Speaker 03: And as your honors have noted, the judgment does not get sliced and diced into components. [00:42:28] Speaker 03: Under Wensel v. Nevin, this court was very clear that the judgment is to be treated as one judgment. [00:42:34] Speaker 03: And this is really important because restitution is part of the sentence under Nevada law. [00:42:38] Speaker 03: It might be different with other states, but Nevada has said time and time again, restitution is a part of the sentence. [00:42:44] Speaker 03: It's therefore part of the judgment. [00:42:48] Speaker 03: In turning to my colleague's statements that the Nevada Supreme Court never used terms like invalid or valid, that makes sense because that is the federal test. [00:42:59] Speaker 03: The federal test is looking at whether the judgment was invalid. [00:43:03] Speaker 03: And in Turner v. Baker, this court set forth a very clear analysis of how you can judge whether a change made something invalid. [00:43:12] Speaker 03: And in Turner, this court really found two things key. [00:43:15] Speaker 03: One, that the Nevada Supreme Court repeatedly reversed for that type of error, and two, that the Nevada Supreme Court held that the statutory scheme did not allow for that kind of error. [00:43:27] Speaker 03: The exact same is true here. [00:43:29] Speaker 03: The Nevada Supreme Court has reversed many times when confronted with this error, and it has held that the statutory scheme simply does not allow for this type of error. [00:43:39] Speaker 03: So I think that analysis in Turner v. Baker really shows that this change was an intervening one. [00:43:45] Speaker 03: In turning to statements about Colbert, I agree there's no conflict between Gonzalez and Colbert. [00:43:52] Speaker 03: I think it just again, confronted a new situation and applied that exact same test from Gonzalez. [00:43:59] Speaker 03: And dress Whitehead, please. [00:44:01] Speaker 03: Why have you state the Nevada Supreme Court case? [00:44:03] Speaker 03: Yes, yes, that was the case that said that restitution is an integral part of the sentence. [00:44:08] Speaker 03: And it reversed for that reason. [00:44:10] Speaker 03: So again, that just goes back to our point that under Nevada law, this is the type of error that renders a judgment invalid. [00:44:17] Speaker 03: It's very different from the statements about, you know, DNA testing fees. [00:44:21] Speaker 03: There is not a long line of Nevada cases discussing that that is an error, warranty, reversal, or that the statutes don't contemplate for that to happen. [00:44:29] Speaker 04: But what about Mr. Connor's argument about, you know, intermediate judgment versus final judgment based on Whitehead? [00:44:36] Speaker 03: I think here, Your Honor, because there was a third amendment, judgment of conviction entered by the trial court and then affirmed by the Nevada Supreme Court on appeal, I think it's even clearer here that Mr. Whitter is being held pursuant to a new judgment. [00:44:49] Speaker 03: And then again, just when we're looking at those Nevada case laws, it's clear that the previous judgments were invalid. [00:44:54] Speaker 03: So now we have this new emergence of an intervening judgment. [00:44:58] Speaker 01: So I understand your argument about Turner rebaker is that even though. [00:45:02] Speaker 01: In Whitehead, the state Supreme Court didn't use the word invalid. [00:45:07] Speaker 01: That's because they weren't thinking about federal law. [00:45:11] Speaker 01: And that under Turner rebaker were supposed to look at the Nevada case law and say, are they treating this error as the type of one? [00:45:18] Speaker 01: that they must reverse under and that is prohibited by statute. [00:45:24] Speaker 01: And you're saying even though they didn't use the word invalid and they in Whitehead under the Turner v. Baker test, we would treat this type of error as one that when it's corrected in the amended judgment as one that creates a new judgment. [00:45:43] Speaker 01: Is that, I understood your argument about Turner v Baker as to be the response to the language in Whitehead. [00:45:51] Speaker 01: Yes, Your Honor, that's absolutely right. [00:45:52] Speaker 01: That's the correct framework and we think- I'm looking at Whitehead and I mean, they do distinguish the restitution error from a Scrivener's error. [00:46:01] Speaker 01: So that to me seems to very clearly take it out of the Scrivener's error box. [00:46:10] Speaker 01: And they seem to be holding that [00:46:12] Speaker 01: because the judgment wasn't final with as so long as the restitution component was indefinite, it didn't trigger the one-year time bar. [00:46:27] Speaker 01: I guess there's some question in my mind about whether that's a significant difference between it [00:46:38] Speaker 01: sort of just non-final judgment versus an invalid judgment, but at the same time, they seem to think it's a significant enough error that it's not going to trigger the time bar. [00:46:48] Speaker 01: It's just a little bit of like fitting a square peg into a round hole between the state law and the federal law here. [00:46:57] Speaker 03: Right, your honor. [00:46:58] Speaker 03: And you know, state courts aren't thinking ahead to, you know, will this be called valid or invalid under a federal test? [00:47:03] Speaker 03: Because that is the federal test. [00:47:05] Speaker 03: However, it is informed with federalism comedy respects for what the state courts have to say about what makes the judgment valid under their own state law. [00:47:13] Speaker 03: I think in looking at the line of Nevada cases on this, they've held quite clearly that it is an error. [00:47:18] Speaker 03: It must be corrected and that the statutory scheme simply does not allow for this type of error. [00:47:23] Speaker 04: Can I just, this language though does give me some some pause I'm looking at Mr withers 2019 Nevada Supreme Court decision says this court consider the question of finality when a judgment of conviction includes an indeterminate restitution provision in Whitehead there this court held that a judgment of conviction that imposed restitution in an uncertain amount was not final. [00:47:46] Speaker 04: and therefore did not start the clock on the one-year period under NRS 34.726 for filing a post-conviction habeas petition. [00:47:53] Speaker 04: A year later in Slate v. State, this court similarly held that it lacked jurisdiction over an appeal from a judgment that imposed restitution in an indeterminate amount because the judgment was not final. [00:48:04] Speaker 04: Did we have any concern about that language? [00:48:07] Speaker 03: No, Your Honor, because the Nevada Supreme Court was just recognizing a separate basis for appeal ability than it did in Whitehead because that was a guilty plea. [00:48:15] Speaker 03: And in Mr. Witter's case, he was a jury convicted. [00:48:19] Speaker 03: And again, I just go back to Gonzales v. Sherman, which explicitly said that finality is not the same question as second or successive. [00:48:28] Speaker 03: Because there, the district court found that because Gonzalez's previous judgment was final, then that meant that a new judgment couldn't be intervening because the previous judgment was final. [00:48:37] Speaker 03: And this court in Gonzalez rejected that framework and applied the test that we're asking this court to apply today. [00:48:44] Speaker 04: Let me ask, do you think there'll be some, you know, there's, you know, certainly language and Ninth Circuit decisions where judges are concerned about, you know, the spirit also of this Section 2244, you know, supposed to prevent this, you know, [00:49:04] Speaker 04: the success of litigation. [00:49:06] Speaker 04: And if you read the Supreme Court decision from Nevada, it says, you know, Mr. Witter treated the 1995 judgment of conviction as final for more than two decades, litigating a direct appeal and various post conviction proceedings in state and federal court. [00:49:24] Speaker 04: He does not get to change course now. [00:49:28] Speaker 04: That's why they limited the scope of what he could appeal to just the amendment. [00:49:37] Speaker 04: How do you address concerns that a lot of judges have that there needs to be some finality in these proceedings? [00:49:46] Speaker 04: Why should he be allowed to change course after two decades of a significant amount of state and federal litigation on that judgment, which is, you know, I'm, you know, from looking at what was challenged in the 2011 petition and the current 2020 petition. [00:50:06] Speaker 04: It's all about issues. [00:50:12] Speaker 04: that he previously had an opportunity to litigate, it certainly has nothing to do with the restitution. [00:50:17] Speaker 03: Yeah, a couple of responses to that, Your Honor. [00:50:20] Speaker 03: This court has never imposed any kind of, say, diligence or temporal requirement on the petitioner. [00:50:26] Speaker 03: And I think that's reflected in Magwood, because the dissent in Magwood brings up many concerns about fairness. [00:50:33] Speaker 03: The dissent takes issue with the fact that a petitioner could raise the same claims that they already raised. [00:50:38] Speaker 03: The dissent takes issue that a petitioner could prevail perhaps on issue a and then come back and challenge something on issue B that wasn't related at all. [00:50:46] Speaker 03: But ultimately that did not carry the day and the majority rejected that and it did so based on respect for Congress's ability to write the statutes how they want to write and respect for how the statues are written and held that a clear application of those statutes. [00:50:59] Speaker 03: compel that results. [00:51:01] Speaker 03: So that happened in 2010. [00:51:03] Speaker 03: The statute has not been amended. [00:51:04] Speaker 03: So although there might be these concerns, I think those concerns were addressed in large part in Magwood and they just did not carry the day. [00:51:15] Speaker 03: I just wanted to touch on the restitution question again about this idea that because challenges to restitution are not cognizable in federal habeas petitions, that means this change was not intervening. [00:51:29] Speaker 03: I would just say that that blends those two lines of case law from 2254A and 2244B in a way that Colbert specifically did not. [00:51:39] Speaker 03: Colbert did not make a distinction between those that and did not hold that that was just positive. [00:51:44] Speaker 03: And I do think that that is very instructive in this court's analysis. [00:51:51] Speaker 01: I mean, I certainly think if you had been challenging attempting to challenge the indefinite restitution order in a federal habeas petition that would not have sounded habeas that much is clear. [00:52:05] Speaker 01: It seems to me a different question, though, is whether when he did successfully challenge the restitution portion of his judgment and got a new one, whether that, for the purposes of this rule, is a new judgment. [00:52:20] Speaker 01: It does seem to me those are need to be, or are under the statute, distinct questions. [00:52:27] Speaker 03: Yes, your honor. [00:52:27] Speaker 03: And they are contained in different statutes. [00:52:29] Speaker 03: And this court has never blended them in that way, even when expressly presented with a question about restitution. [00:52:35] Speaker 03: So I think that's very instructive for this court. [00:52:40] Speaker 01: And he is challenging the validity of his custodial, of his custody. [00:52:47] Speaker 01: So this petition still sounds in habeas if it's considered to be not second or successive is a different question. [00:52:56] Speaker 03: Right, Your Honor. [00:52:57] Speaker 03: And all the claims in Mr. Whitter's petition do that. [00:52:59] Speaker 03: There are no challenges to the restitution. [00:53:01] Speaker 03: So yes, there is a difference between cognizability and whether a petition is second or successive. [00:53:06] Speaker 03: Absolutely. [00:53:06] Speaker 03: That's all for me, unless the court has any other questions. [00:53:15] Speaker 03: Questions, Judge? [00:53:17] Speaker 04: No. [00:53:17] Speaker 04: All right. [00:53:17] Speaker 04: Thank you very much. [00:53:18] Speaker 04: And thank you to both counsel. [00:53:19] Speaker 04: This was a really helpful argument. [00:53:21] Speaker 04: And we are adjourned. [00:53:22] Speaker 04: This case is submitted. [00:53:25] Speaker 02: All right. [00:53:43] Speaker 02: for this session stands adjourned.