[00:00:02] Speaker 03: That puts us to the third case set for argument today, Grant versus Swarthout, case number 22-55291. [00:00:10] Speaker 03: Good morning, Your Honors. [00:00:23] Speaker 05: Tony Faramani on behalf of Mr. Grant. [00:00:27] Speaker 03: Your Honor, if I... Can I ask you to pause for just a second? [00:00:30] Speaker 03: Yes, absolutely, Your Honor. [00:00:31] Speaker 03: I just want to make sure Council is fully prepared. [00:00:37] Speaker 05: May I begin, Your Honor? [00:00:39] Speaker 03: Okay, go ahead. [00:00:40] Speaker 03: Yes. [00:00:41] Speaker 05: Your Honor, if I may, I'm going to start with the questions that the Court posed in the order, beginning with the first question, which is, how do we construe the California Supreme Court's [00:00:54] Speaker 05: summary denial here. [00:00:55] Speaker 05: And the short answer to that is, Your Honor, you construed it as a merits determination. [00:01:00] Speaker 05: It was determined on the merits that there is nothing to the contrary that we can see from the one line order that would point to any procedural default. [00:01:10] Speaker 03: As I understand it, I mean, I think you're right about that. [00:01:12] Speaker 03: And well, I guess we'll hear from the government on this, but I want to make sure I understand your point. [00:01:19] Speaker 03: If it's a summary [00:01:21] Speaker 03: denial, then we are to assume that it's a merits-based denial, right? [00:01:28] Speaker 05: Yes, you are. [00:01:29] Speaker 03: You presume it. [00:01:30] Speaker 03: And it's the government's burden to show that it would not be a merits-based denial. [00:01:34] Speaker 05: It could be either the government's or the petitioner, because the petitioner can sometimes overcome the merits determination and rest it on a procedural ground. [00:01:44] Speaker 05: Then the adjudicated on the merits requirement under 2254 would not be applicable anymore. [00:01:51] Speaker 05: So you don't even go to ETPA anymore. [00:01:53] Speaker 05: So there are circumstances that's under Johnson versus Williams. [00:01:56] Speaker 03: Is it true that the government, and maybe this is not uncommon, but did the government not file a brief in the Supreme Court [00:02:03] Speaker 05: They do not. [00:02:03] Speaker 05: I mean, it is not uncommon, Your Honor. [00:02:05] Speaker 05: It happens unless the California Supreme Court issues an order to show college. [00:02:09] Speaker 03: Okay, so the normal course is, and that's what I wondered, so the normal course is you wouldn't file it unless a request was made. [00:02:17] Speaker 03: But that is one way you could overcome it to look at whether it's procedural is by looking at the arguments that the government made. [00:02:23] Speaker 05: Yeah, that's correct, Your Honor. [00:02:24] Speaker 03: We can't do that here. [00:02:25] Speaker 03: We cannot do that here. [00:02:26] Speaker 03: So then we could look at the representations that the government made here, but it seems like all the representations are [00:02:32] Speaker 03: that this is a merits-based determination. [00:02:35] Speaker 05: That's correct. [00:02:37] Speaker 05: That would be merits-based. [00:02:39] Speaker 05: And whether or not it was an unreasonable merits-determination, then you have the 2254D1 and D2, which is in this particular case, as [00:02:49] Speaker 05: in many other cases, if you will, Your Honor, they are somewhat connected to one another. [00:02:54] Speaker 05: So if you make a marriage determination by making factual determinations, credibility determinations, you're violating both 2254D1 and 2254D2. [00:03:06] Speaker 05: So they are connected to one another, even though we don't have any indication as to what the actual reasoning was. [00:03:15] Speaker 05: But what we can do, Your Honor, is look at the hypothetical reasonings. [00:03:18] Speaker 05: What could have persuaded the California Supreme Court to deny this petition based on the two claims that we brought in front of it? [00:03:25] Speaker 05: And I think if you look at every single hypothetical here, the answer is really, really straightforward. [00:03:32] Speaker 05: They had to assume, the framework is they had to assume the allegations, just the allegations itself. [00:03:38] Speaker 05: Forget about Jose Newman's [00:03:41] Speaker 05: Decoration just let's put that as a just the allegations itself. [00:03:45] Speaker 05: If they assume that to be true, then we know that the elements one and two both in a Brady and they're not who violation are met. [00:03:52] Speaker 05: So we go to materiality. [00:03:53] Speaker 05: Yes. [00:03:54] Speaker 04: So I guess that my question goes to that. [00:03:57] Speaker 04: Why did they have to assume that to be true? [00:03:58] Speaker 04: Why couldn't they have said, you know, we have a state law rule that claims in a habeas petition must be supported by some evidence and that evidence must be non-hearsay and you have presented only hearsay. [00:04:17] Speaker 04: And so we find that there is no factual basis to support any of the claims that you're making. [00:04:26] Speaker 04: Why isn't that the reasoning they could have used? [00:04:30] Speaker 05: There are two reasons, because number one, we know from case law, the Supreme Court California case law that says all you need is allegations. [00:04:39] Speaker 05: They can be supported by documentary evidence, but they don't have to. [00:04:43] Speaker 05: So if you have an allegation, for instance, that this particular witness was given benefits, and layman, we use his name, [00:04:52] Speaker 05: He was given benefits. [00:04:54] Speaker 05: And that's all you had. [00:04:55] Speaker 05: You had that one night and you always filed the petition on the penalty of perjury. [00:05:00] Speaker 05: That allegation itself has to be true. [00:05:02] Speaker 05: How you found that out is flushed out through a hearing. [00:05:06] Speaker 05: And that's what the California Supreme Court has outlined. [00:05:09] Speaker 05: So let's even look at the evidence here for a moment. [00:05:13] Speaker 05: Is it hearsay? [00:05:14] Speaker 05: He's saying what Lehmann said. [00:05:18] Speaker 05: Newman, who was sitting in the room at the time with me, actually, he's saying what Lehmann repeated to him, which would be against his penal interest. [00:05:28] Speaker 04: Well, go ahead. [00:05:31] Speaker 04: So I think that's evidence code 1230, right? [00:05:36] Speaker 04: But that requires that the declarant be unavailable as a witness. [00:05:40] Speaker 04: Is there any showing that Lehman is unavailable here? [00:05:44] Speaker 05: Well, that would be a showing that would be made at the hearing if the court will remand this back for an evidentiary hearing. [00:05:52] Speaker 05: And Lehman, who, by the way, is in prison at this particular time, he's in prison on another offense. [00:06:00] Speaker 05: He says he doesn't want to testify. [00:06:01] Speaker 05: He comes in, says I take my fifth amendment, he's unavailable. [00:06:04] Speaker 05: Then we put Newman on the stand. [00:06:08] Speaker 05: Newman can easily repeat what under California case law and under California evidence code [00:06:15] Speaker 05: Newington repeat what Lehman told him, and that would not be hearsay because it would be an inconsistent statement, an exception to the hearsay. [00:06:24] Speaker 05: And under California law, it doesn't have to be a sworn statement, unlike federal law. [00:06:29] Speaker 05: And secondly, it would be a statement against penal interest, and he would be unavailable. [00:06:33] Speaker 05: Why would he be unavailable? [00:06:35] Speaker 05: Because he would take his fifth amendment right. [00:06:37] Speaker 05: Or he would otherwise not show up. [00:06:38] Speaker 05: There was subpoena, and he would refuse to testify. [00:06:41] Speaker 05: Then he would be unavailable. [00:06:42] Speaker 04: But your first line position, I take it, is that you didn't need to submit a declaration at all, hearsay or non. [00:06:50] Speaker 04: All you needed to do was make allegations. [00:06:53] Speaker 05: Correct. [00:06:54] Speaker 05: On the penalty of perjury, which is required in the foreign petitions that you file, either in the California Supreme Court or in the federal courts. [00:07:01] Speaker 04: And do you have, what can you point us to in California law? [00:07:07] Speaker 04: Is there a case or a statute that tells us that? [00:07:09] Speaker 05: There's the Penholster case that talks about it. [00:07:11] Speaker 05: There's a whole bunch of line of cases that are cited in the brief, and I can certainly bring those out to your honor. [00:07:19] Speaker 05: They talk about, in order for you to do a determination under 2254D1, you do what California courts do, which is we assume the allegations to be true. [00:07:29] Speaker 05: We start with that premise. [00:07:31] Speaker 05: as long as they're not conclusory. [00:07:34] Speaker 05: So you can't come in and say, I was denied my Sixth Amendment right to effective assistance of counsel. [00:07:39] Speaker 05: You can't do that. [00:07:40] Speaker 05: That would be conclusory. [00:07:42] Speaker 05: But if you give specific facts and say, the cause of death here was questionable, I had a pathologist who could have testified to X, Y, and Z, [00:07:53] Speaker 05: But you don't have to have a declaration from a pathologist. [00:07:56] Speaker 05: Sometimes you can and sometimes you will if you're appointed counsel or if you have hired counsel, but sitting in prison. [00:08:03] Speaker 05: And all you got is just allegations that would be flushed out at the federal court. [00:08:10] Speaker 05: So for instance, in that particular scenario, Your Honor, there would be a petition filed with the allegations in the California Supreme Court. [00:08:17] Speaker 05: The California Supreme Court can look at those allegations and determine whether or not they would, if assumed to be true, they would give rise to a violation. [00:08:27] Speaker 05: including the materiality standard of it. [00:08:29] Speaker 05: And then the California Supreme Court would issue an order to show cause, or would send it back ordinarily to the trial court to do the issue to show cause. [00:08:41] Speaker 03: I mean, I guess this is interesting, because the California courts have other case law that says, look, hearsay doesn't enter into this. [00:08:51] Speaker 03: We don't consider hearsay evidence for this. [00:08:54] Speaker 03: Why can't we assume that that's what the California Supreme Court did here? [00:09:01] Speaker 03: They looked at this and said it's not enough. [00:09:02] Speaker 03: I guess you're arguing that the California Supreme Court would be precluded under federal law from doing that. [00:09:08] Speaker 05: Not under federal law, you're under their own laws. [00:09:10] Speaker 05: Because what we're doing is, when we're looking at 2254D1, when we're doing that analysis in federal courts, we do what the California Supreme Court has instructed, which is we assume the allegations to be true. [00:09:24] Speaker 05: So this whole thing about the hearsay statement, it's a red herring, frankly. [00:09:29] Speaker 05: It means nothing, because all you need is just allegations. [00:09:33] Speaker 05: I mean, that is absolutely a clear statement of the law in California. [00:09:39] Speaker 05: All you need is allegations supported, if available, by documentary evidence. [00:09:45] Speaker 03: Thank you. [00:09:46] Speaker 03: I got to admit, I missed this, if this was in your brief. [00:09:51] Speaker 03: Pen holster? [00:09:52] Speaker 05: Pinholster cites people versus Duval, and I have it, if I may, Your Honor. [00:09:59] Speaker 02: Pinholster is a U.S. [00:10:00] Speaker 02: Supreme Court case. [00:10:01] Speaker 05: Yes, Your Honor, Pinholster. [00:10:02] Speaker 05: So Pinholster says that where the California Supreme Court doesn't order to show cause, then they have determined that the allegations do not make out a prima facie case. [00:10:18] Speaker 05: A prima facie case is all we need to get through to an order of show cause. [00:10:27] Speaker 05: In this case, even the state and the district court, they're all admitting, or they're all pretty much concede that the first two elements [00:10:35] Speaker 05: are satisfied, which is a non-disclosure and favorable part of the evidence, because they're assuming that the California Supreme Court did its job by assuming the allegations to be true. [00:10:50] Speaker 05: And the only ground that they're saying that they didn't rely on. [00:10:53] Speaker 03: Your position is that the California Supreme Court cannot jump the gun on the hearsay analysis [00:11:01] Speaker 03: as long as the allegations are there, they have to issue an order to show cause. [00:11:05] Speaker 05: They don't have to, Your Honor, because materiality, for instance. [00:11:10] Speaker 03: So the materiality is more of an evil. [00:11:15] Speaker 03: If we said, so that leaves us, you're saying the only question before us is [00:11:20] Speaker 03: Assuming the facts here are true, you have to ignore hearsay. [00:11:25] Speaker 03: You think hearsay, I guess that's what you said. [00:11:27] Speaker 03: It's a red herring. [00:11:28] Speaker 03: We shouldn't even be discussing it. [00:11:30] Speaker 05: We shouldn't even be discussing it. [00:11:31] Speaker 03: Because if we assume that what hearsay, what Lehmann said, or what Newman said to Lehmann said, we have to determine whether that's material. [00:11:41] Speaker 03: And that's the only question before us. [00:11:42] Speaker 05: Yes. [00:11:42] Speaker 05: Assume that to be true. [00:11:44] Speaker 05: Then in light of the evidence that was presented at trial, [00:11:49] Speaker 04: I don't want to cut this off. [00:11:56] Speaker 04: If you were to prevail here, is it your view that you would get an evidentiary hearing in the district court? [00:12:04] Speaker 05: I think in this circumstance, you would get an evidentiary in the district court to flush out the facts. [00:12:08] Speaker 04: And the bar on hearings in 2254E, in your view, would not—what's your— It's not my view. [00:12:19] Speaker 05: Under the case law, it would not apply because Mr. Grant asked for an evidentiary hearing in the California Supreme Court. [00:12:27] Speaker 05: That's all you need under case law. [00:12:29] Speaker 02: Had he not done that, then what's the remedy? [00:12:32] Speaker 02: If he had done, he hadn't asked for a hearing. [00:12:35] Speaker 05: If he had not asked for a hearing, then there is the Horton versus a male case from the Ninth Circuit that says even if you don't ask for a hearing, [00:12:43] Speaker 05: If the California Supreme Court doesn't order, or the California court doesn't issue an order to show cause, you never had an opportunity to have a hearing. [00:12:50] Speaker 05: So therefore, you're not at fault under 2254E. [00:12:56] Speaker 02: So- Still hearing, every- You'll still be hearing. [00:12:58] Speaker 05: So the remedy would be, Your Honor, to answer your question directly, Your Honor, the remedy would be that you would send it back to the district court to do an evidentiary hearing- The federal district court. [00:13:08] Speaker 05: Pardon me? [00:13:08] Speaker 03: The federal district court. [00:13:10] Speaker 03: You want the federal district court to do an evidentiary hearing on hearsay? [00:13:15] Speaker 05: do not to do an evidentiary hearing to have subpoenaed subpoenaed layman have them sit over here in front of the judge and see if it's true. [00:13:23] Speaker 03: But to determine what, yeah, I mean if they get layman then that's fine. [00:13:26] Speaker 03: If they don't get layman then we got the hearsay problem. [00:13:28] Speaker 05: We got the hearsay problem which we can show. [00:13:30] Speaker 03: But that's all going to happen in federal, in your view, that's all going to happen in federal court. [00:13:34] Speaker 03: The federal court's going to rule under federal rules? [00:13:38] Speaker 05: under federal rules. [00:13:39] Speaker 03: Whether it's hearsay. [00:13:40] Speaker 05: Yes, because the federal rules would apply at the time. [00:13:44] Speaker 03: So what California rules on hearsay are really aren't, that's crazy to me because the whole petition was filed in the California Supreme Court and yet now we're saying California rules on hearsay. [00:13:56] Speaker 03: It could be hearsay under [00:13:58] Speaker 03: California law, but not federal law. [00:14:00] Speaker 03: I don't know. [00:14:00] Speaker 03: Right. [00:14:01] Speaker 05: I mean, it could be hearsay or both, but you have to go through the elements on availability and the indicial reality. [00:14:07] Speaker 03: I don't want to cut this off, but if you want to preserve- I would really appreciate it, Your Honor. [00:14:11] Speaker 03: Yes. [00:14:11] Speaker 03: Yes. [00:14:12] Speaker 03: For rebuttal. [00:14:13] Speaker 05: Thank you, Your Honor. [00:14:13] Speaker 05: Yeah. [00:14:19] Speaker 01: Good morning. [00:14:20] Speaker 01: May it please the court? [00:14:21] Speaker 01: Alana Butler on behalf of Respondent. [00:14:23] Speaker 01: It seems that we're all in agreement that the Cal [00:14:26] Speaker 01: California Supreme Court's denial was a merits determination. [00:14:29] Speaker 01: So once we come to that agreement, the question is, what do we make of that? [00:14:33] Speaker 01: And the next step is for this court to figure out, OK, well, what bases could the California Supreme Court have relied upon in denying this petition and finding that it didn't make a prima facie case for relief? [00:14:48] Speaker 01: And there are two ways. [00:14:49] Speaker 01: And it seems that the court is most interested in the hearsay issue. [00:14:52] Speaker 01: So I'll address that one first. [00:14:54] Speaker 01: So in California, it is not just merely pleading that would get you to the next step with habeas. [00:15:03] Speaker 01: A habeas petitioner also has to provide reasonably available documentary evidence. [00:15:10] Speaker 01: And in this case, Mr. Grant has failed to do so. [00:15:14] Speaker 01: We have a declaration from Mr. Newman. [00:15:17] Speaker 01: They met with Mr. Lehman on three different occasions. [00:15:20] Speaker 01: And yet, we have a completely hearsay declaration that says that, [00:15:24] Speaker 01: there was a deal that this is what the prosecutor offered me. [00:15:29] Speaker 01: And that simply doesn't fall within any exception to the hearsay rule. [00:15:33] Speaker 01: It's not a declaration against interest, because as the court noted, there was no showing that Mr. Lehman was unavailable when he was actually making the statement to the investigator. [00:15:43] Speaker 01: And then it also couldn't be a prior inconsistent statement, because under California law, a prior inconsistent statement needs to be confronted to somebody in court. [00:15:53] Speaker 01: So Mr. Lehman would have to be on the stand and then be confronted. [00:15:57] Speaker 01: with that statement. [00:15:59] Speaker 04: Your friend on the other side said, and I think maybe you just disagree. [00:16:04] Speaker 04: So tell me, do you just disagree about this? [00:16:07] Speaker 04: His view of California law is that you just file the petition, and you have a verification of the allegations in the petition, and that's all you need to do to make a prima facie case. [00:16:18] Speaker 04: But you're saying that state law requires more than that. [00:16:22] Speaker 01: Yeah, I do respectfully disagree with that position. [00:16:26] Speaker 03: Can you point us to some cases on this? [00:16:28] Speaker 01: Sure. [00:16:28] Speaker 01: The main case that talks about the habeas corpus requirements is People versus Duvall. [00:16:33] Speaker 03: OK. [00:16:33] Speaker 03: So you're looking at the same case, at least. [00:16:37] Speaker 01: We have to start somewhere. [00:16:39] Speaker 01: Yeah, yeah, yeah. [00:16:39] Speaker 01: So People versus Duvall talks about both of these two things. [00:16:43] Speaker 01: It talks about alleging things and then providing reasonable documentary evidence. [00:16:49] Speaker 01: Now, if you have an unrepresented petitioner who can I connect? [00:16:55] Speaker 03: not to reopen the can of worms on merits versus procedural, but just hypothetically, if we assumed that the California Supreme Court said this was procedurally not enough, why wouldn't that make this a procedural determination? [00:17:13] Speaker 03: I guess in this case, we can't go there because it's not an issue, but I think that was sort of entering into some confusion in my thinking of the case. [00:17:21] Speaker 01: Understandably, but I think under California, it is the petitioner's burden to make a prima facie case. [00:17:28] Speaker 01: In doing so, he has to allege facts and provide evidence. [00:17:32] Speaker 01: When he fails to provide the evidence to support that prima facie case, that is a merits determination that's not procedural. [00:17:40] Speaker 01: So I think that that goes. [00:17:42] Speaker 03: Regardless of whether it was a technical, like, I mean, some would have to be procedural, like say he missed a deadline or something like that. [00:17:48] Speaker 03: That would be procedural. [00:17:50] Speaker 03: Like say he had this stuff, but he missed the deadline. [00:17:52] Speaker 03: That would be procedural. [00:17:53] Speaker 03: But if you look at it and you say, we're going to get rid of this on procedural grounds, like hearsay or something else, that doesn't turn it into procedural. [00:18:01] Speaker 03: That's still a merits-based decision. [00:18:03] Speaker 01: Yeah, I don't see this as procedural. [00:18:04] Speaker 01: It's evidentiary in nature. [00:18:06] Speaker 01: So I think one of the cases that I cited in my brief is really helpful on this point. [00:18:11] Speaker 01: It's a Madras case. [00:18:13] Speaker 01: And I didn't go into it in any depth, but I think it just bears a little bit of attention. [00:18:18] Speaker 01: So in Madras, we had a petition that was filed with, [00:18:22] Speaker 01: an unsworn statement from a trial attorney saying, you know, the petitioner told me about this particular character witness. [00:18:29] Speaker 01: He provided me with a phone number and I didn't contact him. [00:18:34] Speaker 01: And then they also provided a declaration from appellate counsel. [00:18:38] Speaker 01: stating that, I spoke to this character witness. [00:18:42] Speaker 01: This character witness said that this person was truthful. [00:18:46] Speaker 01: He was a wonderful employee. [00:18:48] Speaker 01: I would hire him again. [00:18:49] Speaker 01: So we have those two things. [00:18:51] Speaker 01: And ultimately, the court in Madras said, you didn't make a prima facie case to support the claim because the unsworn statement from the attorney [00:19:02] Speaker 01: That was hearsay, or they didn't even put it quite in terms of hearsay, but that wasn't subject to a perjury assessment. [00:19:10] Speaker 01: And the same thing with the appellate counsel's declaration. [00:19:14] Speaker 01: You can't base that on somebody else's statement, because it's a statement itself that is trying to support the claim. [00:19:20] Speaker 01: So I think that by comparison, that's something that's very helpful. [00:19:24] Speaker 01: And in these cases that talk about these particular limitations, they all cite back to a case from 1890 [00:19:32] Speaker 01: saying that these things have to be based on penalty of perjury. [00:19:39] Speaker 03: Let's presume that this was an affidavit signed by layman. [00:19:44] Speaker 03: Yes. [00:19:44] Speaker 03: Totally different case? [00:19:46] Speaker 01: A totally different case in terms of that justification to deny relief. [00:19:52] Speaker 01: But it would still remain that a prima facie case had not been made with materiality. [00:19:59] Speaker 01: So the argument, if Lehman's declaration had been provided. [00:20:03] Speaker 03: What's your argument for that? [00:20:04] Speaker 03: Because I got to be honest. [00:20:05] Speaker 03: I'm grappling with how if Lehman's testimony were admissible, it does seem to trigger materiality. [00:20:15] Speaker 03: Like, if Lehman came in and said, I lied on the stand, the government knew I lied on the stand, Lehman's a big chunk of the testimony here. [00:20:24] Speaker 01: Lehman is definitely the cornerstone of the case. [00:20:26] Speaker 03: But you still think that you have materiality arguments, even if we were to consider Lehman's? [00:20:32] Speaker 01: Absolutely. [00:20:33] Speaker 03: And can you go through those briefly? [00:20:34] Speaker 01: Yes. [00:20:35] Speaker 01: So when we look at Lehman's testimony, he indicated on a number of occasions that he was concerned that he was going to be charged in the instant case. [00:20:45] Speaker 03: So you're saying but that really goes to that he didn't actually he didn't actually lie. [00:20:51] Speaker 01: I think it goes towards both things because if we kind of I kind of hesitant to bring up a Venn diagram here. [00:20:58] Speaker 03: Let me let me back up sir. [00:21:00] Speaker 03: Do you think layman. [00:21:02] Speaker 03: I know it's hard to say because we're talking about a hypothetical declaration from layman. [00:21:06] Speaker 03: Do you think of layman said the things that Newman puts in his affidavit that that would show perjury? [00:21:14] Speaker 03: I mean, I know he can't be charged with perjury, but would that show that that that there was perjury from his statements on the stand? [00:21:22] Speaker 01: I'm not sure. [00:21:23] Speaker 01: I don't think that the facts of this case, when it comes to the deal, are a little bit opaque. [00:21:32] Speaker 01: You have the prosecutor saying, there's been no deal, there's been no deal. [00:21:35] Speaker 01: And that may very well have been true. [00:21:39] Speaker 03: But then- It was 90% of a deal, but we didn't formalize it until a week later. [00:21:43] Speaker 03: Which, and that would be- Would not technically be perjury. [00:21:47] Speaker 01: Exactly. [00:21:47] Speaker 01: But I think when we're looking at the materiality of it, we have to look towards, you know, if there was any reasonable likelihood that the result could have been different had this evidence not been, you know, either suppressed or falsified. [00:22:04] Speaker 01: And the reason why it couldn't have been different is because how layman actually testified. [00:22:09] Speaker 01: The whole point of, [00:22:11] Speaker 01: You know, why it's so important of having somebody's agreements with the government on the record is to show their interest in the case. [00:22:21] Speaker 01: And his interest in the outcome of this case was more than amply explored during the trial. [00:22:28] Speaker 01: So that's why it's the position that there isn't materiality here. [00:22:32] Speaker 01: So as I was saying, he expressed concern that he would be charged in the case, right? [00:22:37] Speaker 01: So he has an interest. [00:22:38] Speaker 01: in his testimony. [00:22:41] Speaker 01: He had asked for special favors, so he was seeking special treatment, but according to him, he hadn't received it yet. [00:22:49] Speaker 01: He said he was hoping if the prosecution secured a conviction, they would look favorably upon him. [00:22:55] Speaker 03: So again, this is showing that he has... But their argument is all those statements were false because he knew he already had [00:23:05] Speaker 03: agreement and so he's making it seem like his testimony is more voluntary when and I thought we had case law in the Ninth Circuit that said look you put on you put a if the government puts a witness on the stand and the and and the witness lies and the government knows that which would be the assumption based on or it would be an inferable assumption based on [00:23:28] Speaker 03: if layman testified the way he did this newman's affid declaration reads, um, would, I mean, wouldn't we be bound by ninth circuit law to say, look, that the government didn't stop him knowing that he lied. [00:23:43] Speaker 03: And that's a, that is a nepoey problem. [00:23:46] Speaker 01: It may be a nepoey problem, but there's still that extra prong of nepoey that the defense still needs to show materiality. [00:23:53] Speaker 01: So, [00:23:54] Speaker 03: I thought Napui sort of said, I thought there was a difference between Napui and Brady. [00:24:00] Speaker 01: There is. [00:24:00] Speaker 03: And I thought Napui basically said like, [00:24:03] Speaker 03: Yes, there's a technical standard for materiality, but let's be clear, whenever the government puts on a witness who lies, it meets it. [00:24:12] Speaker 03: Well, if they're key to the case, and I don't think anybody's arguing that he's key to the case. [00:24:17] Speaker 01: I mean, it seems as if that's almost getting a bit close to a reversible per se argument. [00:24:23] Speaker 03: Well, I'm afraid that our case law reads that way. [00:24:25] Speaker 03: I mean, I'm not sure I agree with it, but I think that's how I read our case law. [00:24:29] Speaker 01: I personally don't. [00:24:32] Speaker 01: What Napuhi says is you have to look at the nature of the false evidence, the importance of the witness to the prosecution's case, which we completely can see that Lehman was a very important witness here, and whether or not the evidence was cumulative. [00:24:45] Speaker 01: And it's the state's position that the evidence was largely cumulative, because you have layman saying, I'm testifying to get a favor. [00:24:56] Speaker 01: He knows that his case wouldn't be dismissed, and he could forget about probation. [00:25:01] Speaker 01: I mean, there's one particularly important passage that I think is helpful. [00:25:07] Speaker 01: So counsel's asking, you're testifying as a concerned citizen. [00:25:11] Speaker 01: He says, no, I'm testifying to get a favor. [00:25:15] Speaker 01: like you said the first time, but I know I'm not going to get it dismissed. [00:25:19] Speaker 01: And then he said, you know, the dismissal's too much. [00:25:22] Speaker 01: And then counsel asked, you're testifying to get a favor. [00:25:24] Speaker 01: You're hoping that somewhere down the line, you'll get a benefit out of it, correct? [00:25:29] Speaker 01: And he says, yes. [00:25:30] Speaker 01: And I think what's interesting, too, is if you look at the counsel's closing argument, [00:25:35] Speaker 01: I mean, he really capitalizes on layman's incentive. [00:25:40] Speaker 01: So we have an incentive either way, whether he's hoping to get a deal, which in some ways the hope to get a deal could seem to have even more of an incentive than actually having one [00:25:53] Speaker 01: in your pocket so if you I would encourage the court to if you're struggling with that to take a look at counsel's argument because this was something that was before the jury and because it was before the jury that answers the question could [00:26:10] Speaker 01: this have led to a different result and in my mind the answer is no. [00:26:15] Speaker 03: Can you point me or us to a Napuhi case involving alleged perjury of a key witness in a case where we have said there's no materiality? [00:26:30] Speaker 01: That would be probably going beyond my expansive knowledge. [00:26:35] Speaker 01: OK. [00:26:35] Speaker 03: I understand that that might be a point blank question. [00:26:37] Speaker 03: But if you find one, the 28-J letter might not be bad. [00:26:43] Speaker 02: OK. [00:26:43] Speaker 02: I will do that. [00:26:45] Speaker 02: Why doesn't Jackson address this issue? [00:26:48] Speaker 02: I mean, I think Jackson is a new Pooey claim. [00:26:51] Speaker 02: and that case tells us that essentially that there is materiality when you have a circumstance like this. [00:27:01] Speaker 01: I think every circumstance is different because he actually talks about his expectations. [00:27:08] Speaker 01: I think what the courts are very concerned about is if you have a witness that has an incentive to testify favorably for the prosecution and that incentive [00:27:18] Speaker 01: is not just close to counsel, but is also hidden from the jury, that's something that's very troubling. [00:27:25] Speaker 01: In this case, and maybe this is the rare case that we find no materiality, but in this case, we have a witness that's saying over and over, I'm really worried about being charged in the instant case. [00:27:39] Speaker 01: I'm hoping to get a favor. [00:27:41] Speaker 01: So it's not as if this was something that the jury wasn't aware of and had [00:27:47] Speaker 01: some deal been disclosed, when you look at his statements and what he said that the deal was, there's really not that much of a difference. [00:27:57] Speaker 01: So unless the court has any other questions. [00:28:00] Speaker 04: I do have a question about the- Yes. [00:28:01] Speaker 04: Just going back to the point that you started with. [00:28:03] Speaker 04: So if we agree with you that under state law the failure to support the petition with non-hearsay affidavits is a barrier or it means that no prima facie case was created, why? [00:28:21] Speaker 04: We could conceptualize that as application of a state procedural rule that means the claim is defaulted or alternatively as on the merits determination that because the claim was not supported by adequate evidence, it lacks a factual basis. [00:28:41] Speaker 04: You're saying we should think of it in the latter terms, and if you could just explain why. [00:28:47] Speaker 01: Well, it's just like any other evidentiary showing. [00:28:50] Speaker 01: So if somebody has a burden of proof in a habeas case, it's to show a prima facie case entitling to relief by providing reasonably documentary evidence. [00:29:03] Speaker 01: And when you don't carry that burden to show the underlying fact of the case, [00:29:10] Speaker 01: then that is something that would be a merits determination. [00:29:13] Speaker 01: And I just also wanted to point out somewhat to your question as well, that if the court did find upon that, when looking at under the umbrella of 22, sorry, yeah, 2254D, that decision couldn't be an unreasonable application of Supreme Court precedent or an unreasonable determination of fact. [00:29:33] Speaker 01: That's simply the application of state laws to habeas. [00:29:36] Speaker 01: So even if we were to maybe disagree, [00:29:39] Speaker 01: you know, with the court's decision on that ground, could they have found that way, it still doesn't fall under the exceptions to the real litigation bar. [00:29:48] Speaker 01: But to your honor's point, that is a merits determination because he just has not met his factual burden. [00:29:57] Speaker 03: So, I'm sorry, one final question. [00:30:00] Speaker 03: In your view, I mean, opposing counsel is arguing, we don't, hearsay is a red herring. [00:30:07] Speaker 03: Your view, I think, is the opposite, that we actually have to assume that that's what the Supreme Court, California Supreme Court looked at, and we should be analyzing whether that was an unreasonable application. [00:30:20] Speaker 01: I think that that's one of the bases that it could have made its decision, yes. [00:30:24] Speaker 03: All right, thank you. [00:30:25] Speaker 01: Thank you very much. [00:30:32] Speaker 05: I'm gonna, if I may, I wanna point you to a case from this circuit. [00:30:36] Speaker 05: It's Kennedy versus Adams. [00:30:38] Speaker 05: Very, very awful case on this question. [00:30:41] Speaker 05: And that would be 706, F3rd. [00:30:44] Speaker 03: On which question? [00:30:45] Speaker 05: On the question of hearsay and all these allegations that we're talking about, whether the allegations are false or not. [00:30:49] Speaker 05: Okay, go ahead, give us the case. [00:30:53] Speaker 05: Yes, Your Honor, 706, F3rd, 1148, 2013 case. [00:30:57] Speaker 05: It's an ineffective assisted council case arising from a 2254 petition. [00:31:02] Speaker 05: and it answers the exact questions that Your Honor is asking. [00:31:07] Speaker 05: And one of the things I wanted to point out, Your Honor, in the brief itself, in the opening brief, if you look at the pages, 46. [00:31:16] Speaker 03: The problem, look, maybe that case is right or not, but it seems like we've got a threshold question, which is, what does California require? [00:31:23] Speaker 03: Yes. [00:31:24] Speaker 03: And you think, oh, this case addresses it. [00:31:26] Speaker 05: Yes, Your Honor. [00:31:27] Speaker 05: And we're talking about just the Colin versus Penn holster, [00:31:31] Speaker 05: in footnote 12, it says, [00:31:35] Speaker 05: Under California, the California Supreme Court summary denial of a habeas petition on the merits reflects that court's determination that the claims made in the petition do not state a prima facie case entirely in petition of relief. [00:31:47] Speaker 05: It appears that the court generally assumes the allegation in the petition to be true, but does not accept wholly conclusive allegations. [00:31:55] Speaker 05: People versus Duval. [00:31:56] Speaker 05: And we'll also review the record of the trial to assess the merits of the claim. [00:32:01] Speaker 05: People versus Duval, you go there, it's the same exact thing. [00:32:04] Speaker 05: We assume the allegations to be true. [00:32:06] Speaker 04: But it says more than that, though, right? [00:32:09] Speaker 04: I mean, it says that, but then it also says that the petition must include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [00:32:21] Speaker 04: Which we did. [00:32:22] Speaker 04: Well, but you included a hearsay. [00:32:27] Speaker 04: You included a declaration, but not a declaration [00:32:31] Speaker 04: that is admissible on the point that you were trying to establish. [00:32:34] Speaker 05: Your Honor, but as a matter of practicality and theory, how is a prisoner, even with a point of cancel, how is a prisoner able to get anything more than that? [00:32:47] Speaker 05: We try to get a declaration from Lehman the fourth time that we went to prison, and he declined. [00:32:53] Speaker 03: He didn't show up. [00:32:55] Speaker 03: Doesn't that sort of tell us something? [00:32:57] Speaker 03: I mean, that's the whole purpose of a hearsay. [00:33:00] Speaker 05: that tells us that he's afraid to come in and put it in writing and say, but he's not afraid, he was not afraid at all to come out and say three separate occasions. [00:33:09] Speaker 03: But this is why we have to hear it say exception. [00:33:11] Speaker 03: Anyway, okay, I get your point. [00:33:14] Speaker 03: I mean, you understand the flip side. [00:33:15] Speaker 03: I understand. [00:33:16] Speaker 03: We're opening up the door based on, I mean, I'm not doubting your investigatory [00:33:22] Speaker 03: on behalf of your client, the work that went into this, but we got a two-page declaration that says a whole bunch of stuff. [00:33:29] Speaker 03: And documentary evidence. [00:33:30] Speaker 03: What's that? [00:33:31] Speaker 03: And documentary evidence. [00:33:32] Speaker 03: Well, okay, fair, but really this all comes down, in my view at least, this all comes down to the Newman Declaration, really. [00:33:39] Speaker 03: And if this is enough, it seems to open a pretty wide door to habeas. [00:33:46] Speaker 05: And it does, Joanna, because it isn't just [00:33:49] Speaker 05: simple allegations. [00:33:51] Speaker 05: There is something in the record that we're not asking in this kind of circumstance, Your Honor. [00:33:57] Speaker 03: All you're asking for is a hearing. [00:33:58] Speaker 05: Yes. [00:33:59] Speaker 05: We're not asking to grant the habeas. [00:34:01] Speaker 05: We need to understand if what the layman says, a judge would need to make that determination. [00:34:05] Speaker 05: Okay. [00:34:06] Speaker 05: Yes, sir. [00:34:07] Speaker 03: All right. [00:34:07] Speaker 03: Thank you. [00:34:09] Speaker 03: You know what? [00:34:09] Speaker 03: The court's going to take a five minute recess. [00:34:12] Speaker 03: Thank you, Your Honor. [00:34:13] Speaker 03: The case is now submitted.