[00:00:10] Speaker 04:
You may proceed.

[00:00:12] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
The honors may please the court.

[00:00:14] Speaker 02:
Brad Keizerman on behalf of Mr. IAIL.

[00:00:18] Speaker 02:
The Court of Appeal made three unreasonable determinations under EDPA.

[00:00:23] Speaker 02:
It unreasonably determined that the request was made on the day of trial as opposed to when the Florida request was filed with the court.

[00:00:34] Speaker 02:
It unreasonably determined that the request was made for purposes of delay

[00:00:39] Speaker 02:
even though Ayala had objected multiple times to continuances and, on the day of trial, elected against receiving new counsel, which would have resulted in a six-month delay.

[00:00:54] Speaker 02:
And third, the Court of Appeal

[00:00:56] Speaker 02:
unreasonably determined that Ayala's prior conduct could have been a reason to deny the Florida request, which is contrary to Illinois v. Allen, which requires that a warning be given after self-representation has begun.

[00:01:15] Speaker 02:
It's our position that the timeliness issue by itself even forecloses the need to consider the other two issues.

[00:01:26] Speaker 02:
that because Mr. Ayala made a timely request three weeks before trial began, which is consistent with Ferretta, that that was all that needed to be determined and that the trial court's denial, therefore, of his request on the day of trial was error.

[00:01:51] Speaker 02:
Ferretta makes clear that a request made weeks before trial is timely.

[00:01:56] Speaker 02:
And under Houston VLAC 487 US 266, a filing is complete when delivered to and received by the clerk or court official.

[00:02:12] Speaker 02:
The record is clear here.

[00:02:14] Speaker 02:
The minute order shows that Mr. Ayala's request was received into the court file

[00:02:22] Speaker 02:
January 29th, three weeks before the trial court held a hearing on the request, which was the day of trial.

[00:02:33] Speaker 02:
Houston VLAC also stands for the prison mailbox rule, which provides that when an inmate delivers a document to a prison guard or official, that that constitutes the filing date.

[00:02:49] Speaker 02:
Here, Ms.

[00:02:50] Speaker 02:
Ayala delivered his request to the bailiff, who then turned it into the court.

[00:02:56] Speaker 02:
So even if the bailiff had not provided it to the court under Houston v. Lack, US Supreme Court authority, that request would still have been considered filed three weeks before the hearing on the Ferretta request.

[00:03:11] Speaker 02:
But not only did the bailiff receive it, but the bailiff did submit it to the court.

[00:03:16] Speaker 02:
The clerk received it.

[00:03:17] Speaker 02:
so the court was in full receipt of the request three weeks before trial.

[00:03:27] Speaker 02:
Regarding the unreasonable determination of intent to delay, again, I will note that Ayala repeatedly objected to the continuances, refused to waive time at multiple hearings prior to the

[00:03:44] Speaker 02:
date of the trial indicating that he wanted to move to trial immediately.

[00:03:48] Speaker 02:
When offered a six-month delay, in addition to receiving new counsel, he declined that request because he was so intent on proceeding to trial.

[00:04:00] Speaker 02:
And even trial counsel noted Ayala's frustrations with the delays in proceeding to the second trial.

[00:04:08] Speaker 02:
And that's on 2 ER 158 to 159.

[00:04:14] Speaker 02:
And then lastly, there was an unreasonable determination of obstructionist conduct.

[00:04:21] Speaker 02:
Ferretta cites that, quote, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.

[00:04:34] Speaker 02:
It does not provide for a court to deny self-representation at the outset before any warnings have been given or anything of that nature.

[00:04:45] Speaker 02:
Here, Mr. Ayala was not self-representing.

[00:04:50] Speaker 02:
And while there were some prior contact, most of which occurred actually outside of the courtroom, which we also argue is irrelevant, there had been no compliance with Illinois v. Allen that there was a warning and then a subsequent violation.

[00:05:09] Speaker 02:
Unless the court has any further questions, I will reserve.

[00:05:12] Speaker 04:
All right.

[00:05:13] Speaker 04:
Thank you.

[00:05:14] Speaker 02:
Thank you.

[00:05:32] Speaker 01:
Good morning, Your Honors, and may it please the Court, Deputy Attorney General Jonathan Krauss on behalf of Respondent.

[00:05:39] Speaker 01:
I think it is worth noting here that before Petitioner brought this claim or brought this case to federal court, there was no dispute about one fundamental truth about this case, and that is that Petitioner's Ferretta request was untimely because he did not present that request to the trial judge until the day of trial, as Ferretta makes clear is required.

[00:05:56] Speaker 04:
Is there a change in judges between assigned judges between January

[00:06:02] Speaker 04:
And January 29 and February 19?

[00:06:12] Speaker 01:
Yes, there was a new judge on the first day of trial, which was on the 19th.

[00:06:15] Speaker 04:
So is the role that you have to present it to the same, the judge who's going to hear the trial?

[00:06:22] Speaker 04:
I mean, how could he have known who to present it to?

[00:06:26] Speaker 04:
January 29 was,

[00:06:31] Speaker 04:
Scheduled as a trial date right so it's the argument that it was scheduled as a trial date And that's when he made it so therefore that's on the eve of trial or that it depends on You know when a new judge is assigned to do the trial then you take that date when that judge gets it Well your honor it ultimately doesn't really matter in this case which judge the fact that there was a new judge in the 19th That's true

[00:06:59] Speaker 01:
The important point under Ferretta purposes, because that is the controlling law in this area, is that there was no request made to any trial judge until February 19th.

[00:07:08] Speaker 04:
But he filed it on January 29th, or he handed it to the bailiff.

[00:07:12] Speaker 01:
And that's an important distinction.

[00:07:14] Speaker 01:
He did not present this.

[00:07:15] Speaker 01:
And again, Ferretta makes very clear.

[00:07:16] Speaker 01:
Ferretta doesn't say a lot about the time in this requirement.

[00:07:18] Speaker 01:
What it does say is clear.

[00:07:20] Speaker 04:
The request must be made to the trial judge, and this is not simply a formula stick thing or about, you know, if there's a change in trial judge, I mean, he was making it to the judge that was supposed to do the trial.

[00:07:31] Speaker 01:
But I think the important point, your honor, is he didn't actually make that request.

[00:07:34] Speaker 01:
You're right, your honor.

[00:07:35] Speaker 01:
Had he made that request, let's say, orally, like happened in the Tamplin case that he relies upon,

[00:07:40] Speaker 01:
to that judge on January 29th, then we wouldn't be talking about this.

[00:07:43] Speaker 00:
Can't we infer that the court received the request on January 29th given that his request was noted in the minute entry dated January 29th?

[00:07:51] Speaker 01:
No, Your Honor.

[00:07:52] Speaker 01:
We can't infer that.

[00:07:53] Speaker 01:
And we certainly know that what he did here was that he filled out the waiver form, again, as the record says.

[00:07:58] Speaker 01:
It doesn't say a lot about it.

[00:07:58] Speaker 01:
It does say that he filled it out off the record outside of the presence of the court and the attorneys, handed to the bailiff.

[00:08:04] Speaker 01:
And yes, apparently it was put into the file on that day.

[00:08:07] Speaker 01:
That was not a filing as far as California law is concerned, but as the district court pointed out, that determination of whether it was filed or the mailbox rule discussion that counsel's bringing up is really irrelevant here.

[00:08:17] Speaker 01:
What matters is that when it, the only question that matters under Ferretta is when it was presented to the trial judge.

[00:08:24] Speaker 01:
And it was not presented to the trial judge as the court of appeal and the district court ultimately agreed, was not presented to the trial judge until the day of trial.

[00:08:32] Speaker 01:
That was the first and only time that

[00:08:34] Speaker 01:
The trial judge, whatever trial judge it would have happened to be, would have had a chance to evaluate that claim.

[00:08:39] Speaker 01:
I think it's important to highlight here as well that Ferretta is not self-executing, it's not automatic.

[00:08:43] Speaker 01:
There's a reason why we have this requirement.

[00:08:45] Speaker 01:
There's a reason why Ferretta, the Supreme Court case, made that clear.

[00:08:49] Speaker 03:
Counsel, I wanted to get really quickly some clarification here.

[00:08:52] Speaker 03:
So he hands it to the bailiff if he had been able to file it with the clerk's office.

[00:08:58] Speaker 03:
Is that different?

[00:08:59] Speaker 03:
Or are you saying no?

[00:09:01] Speaker 03:
He literally has to, in open court, say, Your Honor, I am requesting Ferretta.

[00:09:06] Speaker 03:
I don't want, you know, counsel representing me.

[00:09:09] Speaker 01:
That could be a different circumstance, had he filed it as a written motion, a notice motion, that had put the court and the attorneys on alert, as it were, that this was filed.

[00:09:18] Speaker 01:
Certainly that could be a different scenario.

[00:09:19] Speaker 01:
That's not what happened here.

[00:09:21] Speaker 01:
I think what's important to note here is that this is, admittedly, it's kind of an unusual circumstance, factually.

[00:09:26] Speaker 01:
I don't think this sort of thing happens all the time.

[00:09:29] Speaker 01:
But the more important point for our purposes here is that this is not a circumstance that was contemplated by Ferretta, which again made clear the request must be made to the trial judge.

[00:09:37] Speaker 01:
And given that this is outside of the bounds of Ferretta, what petitioners asking this court to do essentially is to extend the clear language of Ferretta to a circumstance that Ferretta never contemplated.

[00:09:47] Speaker 01:
And because Ferretta never contemplated that circumstance.

[00:09:50] Speaker 04:
Isn't it the state's fault that the judges switched and so

[00:09:55] Speaker 04:
The bailiff didn't hand it to that judge because there's now going to be a different judge.

[00:10:01] Speaker 01:
Your Honor, I don't think that's the issue in terms of which judge was presiding.

[00:10:04] Speaker 04:
Really, it bothers me because I know how the state courts operate and I do know the state trial courts and I do know, I mean, this wasn't in the record, I just inferred and I was right, that it was a different judge.

[00:10:18] Speaker 04:
So, you know, it seems like the state,

[00:10:24] Speaker 04:
Oh, we didn't receive the superior court.

[00:10:29] Speaker 04:
We didn't receive the Ferretta request on time because that was a different judge and now we've changed the judge.

[00:10:35] Speaker 04:
It seems to me we should be evaluating whether January 29 was untimely or not.

[00:10:43] Speaker 04:
It's not like when because by operation of the state's superior court flawed system, the judge actually shows up to try the case.

[00:10:53] Speaker 01:
Well, Your Honor, again, I think the important point to highlight here is that Your Honor is bringing up issues of, I think, fairness and what's

[00:10:59] Speaker 01:
right and just for this petition, and I understand that.

[00:11:04] Speaker 01:
But again, the important point is under Ferretta, it doesn't matter which judge it was, it doesn't really matter ultimately, and there hasn't been a claim made by opposing counsel that the issue is that there was a new judge on February 19th and was on January 29th.

[00:11:16] Speaker 01:
The issue is that what he did here was not making a filing, it was not making an oral assertion, had he simply said at the conclusion of that hearing,

[00:11:24] Speaker 01:
as the petitioner did in the Tamplin case that was decided by this circuit, I would like to represent myself.

[00:11:30] Speaker 01:
Had he said that, even though the judge was a different judge than ultimately tried the case, I don't think there would be any dispute here that that would have been a request made to the trial judge.

[00:11:38] Speaker 01:
What he did here was not making an oral request, which would have been the best.

[00:11:42] Speaker 01:
It was certainly something he was aware that he could do.

[00:11:45] Speaker 01:
Nor was it a written motion, which also would have been most likely acceptable in this case.

[00:11:49] Speaker 01:
What he did was do something that is totally outside of the bounds of how the court system works.

[00:11:54] Speaker 01:
And it's certainly entirely reasonable for us to assume, I think, that petitioner understood that when he placed that file or re-handed it to the bailiff, which is apparently what happened here, he probably understood or reasonably understood

[00:12:06] Speaker 01:
that that request would be considered on the next court date.

[00:12:09] Speaker 01:
Because the way that Superior Courts work is that once everyone has gone from the room, nobody's going to be looking at that file, absent written motion that would alert the attorneys and the court.

[00:12:19] Speaker 01:
So nobody was going to be considering that until the next date.

[00:12:22] Speaker 01:
And I think the other important point I want to make here is that, and I said this earlier, but there was no dispute about this below.

[00:12:28] Speaker 01:
The Superior Court understood that this was an untimely request.

[00:12:31] Speaker 01:
Petitioner never said,

[00:12:33] Speaker 01:
on February 19th, you know, Your Honor, you're treating this as untimely, but I made this two or three weeks ago.

[00:12:38] Speaker 01:
He never said that.

[00:12:39] Speaker 01:
This was, in fact, an argument that when he made his arguments in the appellate courts, California Court of Appeal and Supreme Court, he presupposed the untimely nature of this request because he argued instead that there was an abuse of discretion under the state law, which he talks about again here.

[00:12:54] Speaker 01:
Those only come into play.

[00:12:56] Speaker 01:
They only matter at all.

[00:12:57] Speaker 01:
They're only relevant at all in the case of an untimely request.

[00:13:00] Speaker 01:
It is only now in federal court, in the district court and now here, that Petitioner has changed the argument somewhat, to say not that there was an abuse of discretion, likely because that's a non-cognizable claim and can't be considered here.

[00:13:11] Speaker 01:
But instead he frames it as a timeliness argument that he never made before.

[00:13:15] Speaker 01:
Because everybody, and I mean everybody, Petitioner himself, his attorney, the courts, the prosecutor, everybody understood what this was, which was an untimely request.

[00:13:25] Speaker 01:
Why?

[00:13:26] Speaker 01:
Because it was not considered by the trial judge

[00:13:28] Speaker 01:
until February 19th.

[00:13:30] Speaker 01:
That was the first and only time a trial judge, no matter which trial judge it was, had a chance to consider the request.

[00:13:37] Speaker 01:
Because again, these requests are not automatic.

[00:13:38] Speaker 01:
They don't have to be granted, even if timely.

[00:13:41] Speaker 01:
They have to determine if they're knowing involuntary and things like this.

[00:13:45] Speaker 01:
And that's the first and only time the court had an opportunity to do that.

[00:13:48] Speaker 01:
And the other point I want to make is that even if this had been an untimely request, he still could have had it granted under the state law Wynnum factor.

[00:13:56] Speaker 01:
So it's not like

[00:13:58] Speaker 01:
this court would be saying, well, it's untimely, and he's out of luck, and that's unfair to him.

[00:14:02] Speaker 01:
It still could have been granted, despite the fact that it was untimely under state court law, which I know doesn't concern the court here.

[00:14:08] Speaker 01:
But that, I think, is the important issue.

[00:14:10] Speaker 01:
Petitioner had the opportunity to make this request to the trial judge.

[00:14:13] Speaker 01:
He didn't do that.

[00:14:14] Speaker 01:
What he did here was unusual, but it's not something that is contemplated by Ferretta.

[00:14:18] Speaker 01:
And because it is outside of the realm of the Four Corners of Ferretta, the Court of Appeals' conclusion that this was untimely could not be.

[00:14:26] Speaker 01:
possibly be an unreasonable application of Ferretta.

[00:14:31] Speaker 01:
If there are no other questions, I'm prepared to submit.

[00:14:34] Speaker 04:
Thank you.

[00:14:35] Speaker 01:
Thank you.

[00:14:44] Speaker 02:
Hi.

[00:14:44] Speaker 02:
Thank you.

[00:14:45] Speaker 02:
I have a few points I do want to respond to.

[00:14:47] Speaker 02:
First, opposing counsel never addresses the fact that there is

[00:14:57] Speaker 02:
U.S.

[00:14:57] Speaker 02:
Supreme Court authority on what constitutes a filing and on the prison mailbox rule, both of which support a finding that the request was made on January 29th.

[00:15:09] Speaker 02:
They try to make some distinction between a court clerk and the court itself.

[00:15:14] Speaker 02:
I'm not aware of any case law that supports that distinction.

[00:15:18] Speaker 02:
You know, even a lawyer can't just stroll into

[00:15:20] Speaker 02:
a judge's chambers and make a request or submit a filing.

[00:15:23] Speaker 02:
The court clerk is the intermediary.

[00:15:25] Speaker 02:
And, you know, certainly for an inmate, that is, you know, there's a much greater distance between the ability to actually make a request directly to a judge.

[00:15:36] Speaker 02:
The clerk is the only way to really do that off the record.

[00:15:39] Speaker 00:
But how do we bridge that gap to conclude that the judge received the request?

[00:15:45] Speaker 00:
And I asked the question to your friend on the other side about inferring.

[00:15:49] Speaker 00:
But, I mean, that still requires an inference where Ferretta requires the judge to know of the request.

[00:15:57] Speaker 00:
So how can we bridge that gap here?

[00:16:00] Speaker 02:
You know, one, I think we can infer that the Ferretta request is significant enough.

[00:16:08] Speaker 02:
competence communication between the clerk and the judge that that Requests would be relayed to we can infer that with this case going to trial that the judge would have been reviewing that and seeing what was Had been filed and what was happening with the case?

[00:16:26] Speaker 02:
but it but again this distinction between the court clerk and the court is just a

[00:16:32] Speaker 02:
not supported by the case law.

[00:16:34] Speaker 02:
A filing is a filing with the court.

[00:16:37] Speaker 02:
And just like, you know, this other case law about prosecutors and law enforcement and knowledge is sort of imputed from one to the other, and similarly here I would say knowledge has to be imputed to the judge once that filing is made with the court.

[00:16:54] Speaker 02:
The defendant has no other option.

[00:16:56] Speaker 02:
And we can even hypothesize an instance where maybe a defendant mails a Florida request months before a hearing.

[00:17:05] Speaker 02:
But then the judge just sits on it, and there's no hearing on it until right before trial.

[00:17:12] Speaker 02:
To allow that to be declared untimely seems to really undermine the Florida right itself.

[00:17:22] Speaker 02:
You know, and also one notes that the filing was made, the present counsel said otherwise, but I've cited in my briefing in the reply brief that the filing was also made in compliance with California law and that it was a proper filing under California law.

[00:17:44] Speaker 02:
Posing Council makes references to the Superior Court finding it untimely, the request untimely, the Superior Court never makes that finding, that's a finding that is made by the Court of Appeal.

[00:17:57] Speaker 02:
Essentially what happened is,

[00:17:59] Speaker 02:
The, you know, Mr. Ayala argued that the trial court erred in denying his fraudulent request.

[00:18:04] Speaker 02:
And then the Court of Appeal made all of these its own conclusions about what the trial court could have found or with the timeliness made its own determination of untimeliness and used that.

[00:18:19] Speaker 02:
But Mr. Ayala actually relied on, and this is on 1ER33,

[00:18:27] Speaker 02:
uh... he relied on people be white and the court of appeals said well actually people be white doesn't apply here because you know we find that this was untimely and people be white dealt with the time the request so the fact that mister i yellow relied on people be white shows that there was no uh... presumption of untimeliness uh... he was arguing that it was a time the request that the uh...

[00:18:52] Speaker 02:
court denied by essentially demanding readiness immediately and then ultimately denying.

[00:19:01] Speaker 02:
So the director is cleared.

[00:19:05] Speaker 02:
This was handed to the bailiff.

[00:19:06] Speaker 02:
This was placed in the court file, the court file of the trial judge on that date.

[00:19:12] Speaker 02:
It was received into the court.

[00:19:14] Speaker 02:
You know that complies with the US Supreme Court authority It complies with California Court authority that this was a proper filing a proper request and again We're dealing with an incarcerated defendant who's trying to represent himself And this was his only means of making that request at that particular time that he decided to represent himself to the judge Unless there are any further questions.

[00:19:37] Speaker 02:
I will submit

[00:19:38] Speaker 04:
Okay, thank you counsel.

[00:19:39] Speaker 04:
Thank you Ayala Bruce's arias is submitted this session is adjourned For today, thank you All rise This court for this