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

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

[00:00:02] Speaker 01:
Given that I thought yesterday's task was going to be an easy one and it turned out to be so difficult, today's task seems positively Herculean.

[00:00:10] Speaker 01:
I've researched the panel member's background in 2254 cases and didn't find really anything for a habeas petitioner to be encouraged by.

[00:00:21] Speaker 01:
My task today seems to be to convince Your Honors that the malfunction in the state system in this case is far more extreme than in the vast majority of 2254 cases and that the need for correction is that much greater.

[00:00:37] Speaker 01:
The facts have to be unique.

[00:00:41] Speaker 01:
I would imagine they're unique in Your Honor's experience.

[00:00:44] Speaker 01:
The defense put on a substantial third-party culpability defense, and you have a guy, that third party, who's confessed to others to the murder that my client is convicted of.

[00:00:57] Speaker 01:
And the part that hurts the most is he confessed to a confidential informant employed by law enforcement for years, and his handlers informed

[00:01:10] Speaker 01:
the state superior court in the habeas proceeding, that he had never given unreliable information ever.

[00:01:19] Speaker 01:
And so there's a state court finding that in this lone instance where he's reported this confession, that was the only time in his history of being an informant that he lied.

[00:01:30] Speaker 01:
Also unique, this third party immerses himself in a cold creek

[00:01:35] Speaker 01:
in the immediate aftermath of the murder on a cold night, and he is also admittedly threw the keys to his car that's parked near the murder scene into a field in the immediate aftermath of the murder.

[00:01:51] Speaker 02:
Well, counsel, let me ask you this, because as you readily acknowledge, now you're facing a double burden, so to speak, right?

[00:01:58] Speaker 02:
These conflicting pieces of evidence were all presented at trial.

[00:02:03] Speaker 02:
Now there's been a conviction, and you face the AEDPA hurdle at this point.

[00:02:08] Speaker 02:
So what errors can get you past those hurdles?

[00:02:12] Speaker 01:
Yes, Your Honor.

[00:02:13] Speaker 01:
I'll just slightly correct, Your Honor.

[00:02:15] Speaker 01:
The information regarding the confidential informant confession was not presented to the jury.

[00:02:20] Speaker 01:
That came to light after the trial was concluded.

[00:02:25] Speaker 01:
And that was presented in the post-conviction habeas

[00:02:29] Speaker 01:
state post-conviction.

[00:02:31] Speaker 04:
But that issue is not before us.

[00:02:33] Speaker 04:
There's nothing about that issue that's before us, right?

[00:02:36] Speaker 01:
Well, there is because one of the issues is whether a fundamental miscarriage of justice took place in this case in order to excuse trial counsel's failure to object to the prosecutorial misconduct in closing.

[00:02:50] Speaker 04:
Would that only be here if we expanded the COA?

[00:02:53] Speaker 01:
I wish the court would expand the COI, but no.

[00:02:56] Speaker 04:
But you didn't ask for that.

[00:02:58] Speaker 04:
You didn't brief that in your opening brief, right?

[00:03:00] Speaker 01:
I asked for it in my opening brief.

[00:03:03] Speaker 01:
I admit that I didn't brief the uncertified issues because there wasn't enough room.

[00:03:07] Speaker 04:
Before you go on, let me just add something here to Judge Nguyen's question.

[00:03:12] Speaker 04:
I'm looking at page 26 of the Court of Appeals order, maybe ER 127, but sometimes these numbers confuse me, where the Court of Appeals said,

[00:03:24] Speaker 04:
The evidence that defendant was the person who shot Officer Fontana was very strong, notwithstanding defendant's testimony that he was not the shooter.

[00:03:35] Speaker 04:
So on a lot of your arguments, you need to convince us that under EDPA, no reasonable jurist could have that view, right?

[00:03:45] Speaker 01:
Yes, that's the standard, sure.

[00:03:48] Speaker 01:
But of course, the Court of Appeal didn't even mention, let alone marshal, all of the evidence regarding the third party's culpability that I detailed in several pages of my opening brief.

[00:04:01] Speaker 01:
None of that got mentioned.

[00:04:02] Speaker 01:
And the jury was out for eight days.

[00:04:04] Speaker 01:
I keep emphasizing this point.

[00:04:06] Speaker 01:
It was a single issue case.

[00:04:08] Speaker 01:
Who killed the officer?

[00:04:10] Speaker 01:
And the jury was out for eight days discussing it.

[00:04:13] Speaker 01:
Clearly an indicia of the closeness of the case.

[00:04:16] Speaker 01:
Don't forget that the district court characterized the defense as quote unquote substantial.

[00:04:21] Speaker 01:
So it's not as if the evidence was overwhelming against my client.

[00:04:27] Speaker 01:
So I'd like to start in addressing the court's questions with the NAPU claim.

[00:04:32] Speaker 01:
because that seems to be the most straightforward and my time is limited.

[00:04:37] Speaker 01:
So all courts agree that a prosecutor has a quote unquote fundamental obligation once one of his or her witnesses testifies that he or she doesn't have a plea deal.

[00:04:48] Speaker 01:
with the government to determine whether that is so.

[00:04:51] Speaker 01:
Well, in this case, the prosecutor didn't have to do any determining because the plea deal was with him.

[00:04:58] Speaker 01:
So when his witness denied that there was a plea deal and he sat there on his hands, just as the district court found, the...

[00:05:09] Speaker 04:
Even if I were to get past any sort of EDPA issues and whether there could have been a reason that the Supreme Court or the Court of Appeal could have rejected this, even if I were to get past all of that, I'm looking at 1910 of the excerpts of record and the STIP.

[00:05:31] Speaker 04:
The stip that was read to the jury was that Janelle was convicted in 2003 to the charge of accessory at the time she pled.

[00:05:40] Speaker 04:
It was agreed that her sentencing would be delayed.

[00:05:42] Speaker 04:
on to the conclusion of the prosecution against Deshaun Campbell for the murder of San Jose officer Jeffrey Fontana.

[00:05:49] Speaker 04:
Lane Learoff is the prosecutor.

[00:05:52] Speaker 04:
Why didn't that ameliorate any prejudice?

[00:05:55] Speaker 01:
Because, well, that was certainly one of the district court's positive justifications for the denial of the claim.

[00:06:01] Speaker 01:
But I read it right, right?

[00:06:02] Speaker 01:
Yes, yes, but that's a far cry from informing the jury that she had a deal with the prosecutor that if he deemed her testimony worthy of it, he was going to inform her sentencing judge about it.

[00:06:19] Speaker 01:
That's the key information, and the district court's reliance on that stipulation as a functional substitute for actually informing the jury that there was a plea deal.

[00:06:30] Speaker 01:
And don't forget, the NAPU standard is quite lenient for a defendant.

[00:06:36] Speaker 01:
Is there any reasonable possibility that the failure to correct the testimony could have affected the verdict?

[00:06:44] Speaker 01:
That's a very forgiving standard, and so to say

[00:06:47] Speaker 01:
that all reasonable jurors would take from that stipulation the inference that there was a plea deal is just, it's counterintuitive.

[00:07:00] Speaker 01:
I don't believe that that's accurate.

[00:07:02] Speaker 01:
And I'll also point out that the other reasons, the other positing by the district court was that, oh, defense counsel knew about it.

[00:07:10] Speaker 01:
That's in tension or in some tension with that stipulation because if they knew about it, why not just tell the jury there was a plea deal?

[00:07:20] Speaker 01:
Why go through this whole rigmarole of repeated postponements?

[00:07:25] Speaker 01:
How is the juror supposed to know what that means?

[00:07:28] Speaker 01:
I offered a couple of suggestions in my brief.

[00:07:31] Speaker 01:
They could have thought it was just done for the convenience of the

[00:07:34] Speaker 01:
court because she'd be out of prison and free to come in and testify.

[00:07:38] Speaker 01:
They could have concluded it was her own lawyer who was securing these continuances so that he could report the cooperation to the sentencing judge for the witness.

[00:07:52] Speaker 01:
And so it's not the only reasonable inference.

[00:07:55] Speaker 01:
And I would suggest, Your Honors, it's not even the most... It wouldn't occur to anybody, is my suggestion to the court.

[00:08:03] Speaker 03:
What is your view about the materiality of that witness's testimony and the fact that this was not revealed except through the stipulation?

[00:08:11] Speaker 01:
I'm glad you asked, Your Honor, because if you review the cases on materiality in the NAPU context, every single one of the indicia of materiality that courts look to to find material is present in this case.

[00:08:28] Speaker 01:
So number one,

[00:08:29] Speaker 01:
You have the prosecutorial reliance on the witness's testimony throughout his closing arguments, including spending the last few minutes of his rebuttal argument trying to convince the jury that he was telling the truth.

[00:08:43] Speaker 01:
Number two, you have the request of the jury during deliberations

[00:08:47] Speaker 01:
She was recorded in three separate statements, and they asked to listen to every single one of those three statements.

[00:08:54] Speaker 01:
And then in this case, the judge allowed the jurors to pose questions to the witnesses that the court would decide whether to ask or not, and there were numerous questions

[00:09:05] Speaker 01:
directed to the credibility of that witness.

[00:09:09] Speaker 01:
So all of those are present.

[00:09:11] Speaker 01:
But in addition to that, there's also the specifics of what she said, which went to the core of the case and the core of the theory of the defense, which was who killed the officer, whether it was her boyfriend or my client.

[00:09:27] Speaker 01:
So, for example, she said such things as she first learned of the murder not through that third party, her boyfriend, but through somebody else, and then she repeated it to that third party, and he appeared confused and baffled by it, meaning that was the first he had ever heard of the murder.

[00:09:47] Speaker 01:
And all of this corroborates the self, that's the issue I didn't get the COA on, but they introduced all of these self-exculpating testimonial out of court statements from this third party.

[00:10:01] Speaker 01:
So now she's the only witness, and he never testified, so she's the only witness in the courtroom who's corroborating what he said.

[00:10:08] Speaker 01:
So that's one example.

[00:10:12] Speaker 01:
She testified that he told her that the reason he immersed himself in the creek wasn't to wash off any gunpowder that was on his hands, but because he was afraid of the pursuers from the party.

[00:10:25] Speaker 01:
So that also corroborates his story.

[00:10:30] Speaker 01:
It was the same with the throwing of the keys into the field.

[00:10:34] Speaker 01:
He didn't do that because of the murder.

[00:10:35] Speaker 01:
He did it because he was worried about his hit and run that he had been involved in earlier.

[00:10:40] Speaker 01:
And then she adds that, oh, but that hit and run wasn't a motive for him to murder a police officer because he faced a three strikes life imprisonment.

[00:10:51] Speaker 01:
He never thought that.

[00:10:52] Speaker 01:
So all of these things are material.

[00:10:54] Speaker 01:
All of these are indicia of the great materiality.

[00:10:57] Speaker 01:
of everything.

[00:10:58] Speaker 01:
And I'll just add one point about materiality because the Glossop case, which was just from this past term in the Supreme Court where they affirmed the grant of habeas relief based on

[00:11:12] Speaker 01:
a NAPU era and I would encourage the court to read that case carefully because really all of the justifications the court gave for its decision in that case are the arguments I made in this one.

[00:11:23] Speaker 01:
But the one difference which is something that could be argued against this is that in that case

[00:11:32] Speaker 01:
The witness provided the only direct testimony in the case of the defendant's guilt.

[00:11:40] Speaker 01:
I just want to conclude right now and save a few minutes, but in Clements versus Madden, which this court decided in 2024, the site is 112F4 792 at 802, this is what this court said.

[00:11:55] Speaker 01:
Even if it may be the case, as the state argues,

[00:11:59] Speaker 01:
that the jury did not convict the defendant of aggravated kidnapping just because it heard that witness's testimony.

[00:12:05] Speaker 01:
That is not our inquiry.

[00:12:07] Speaker 01:
The standard for prejudice under NAPU does not require a finding that the conviction was just because or even primarily because of the false testimony.

[00:12:17] Speaker 01:
So that one distinction with gloss if I would suggest to the court should not be dispositive and I'll reserve the rest of my time.

[00:12:23] Speaker 02:
Thank you.

[00:12:35] Speaker 00:
Good morning, Your Honors.

[00:12:36] Speaker 00:
May it please the Court, Mary DeVisa for Appellee and Respondent.

[00:12:40] Speaker 00:
As the Court noted, none of these claims meet the EDPA standard for habeas relief.

[00:12:47] Speaker 00:
I will focus my time on the specific comments made by counsel.

[00:12:52] Speaker 00:
Specifically, it appears that NPU

[00:12:55] Speaker 00:
Unless the court first has questions about other issues.

[00:12:58] Speaker 04:
Let me ask you one question that may be entirely irrelevant and if it is I apologize and I couldn't find this in the record.

[00:13:08] Speaker 04:
The defendant testified that he was at the scene of the killing and that he gave the person he described as the killer of the gun, right?

[00:13:17] Speaker 04:
Yes, Your Honor.

[00:13:18] Speaker 04:
Was there ever any instruction to the trial jury about aiding and abetting liability based on the defendant's testimony?

[00:13:30] Speaker 00:
I don't believe so, Your Honor, but I'm unable at the moment to recall.

[00:13:35] Speaker 04:
That's fine.

[00:13:35] Speaker 04:
Thank you.

[00:13:36] Speaker 04:
Go ahead.

[00:13:36] Speaker 04:
Sorry for the interruption.

[00:13:37] Speaker 00:
OK, no.

[00:13:39] Speaker 00:
So I would like to focus on the Nappu claim that appellant spent some time on.

[00:13:48] Speaker 00:
Specifically, I would like to first point out that the jury was told, via a stipulation that was drafted by both defense counsel, one or both defense counsel, that Carter will receive a benefit at sentencing.

[00:14:01] Speaker 00:
So the jury was aware of this fact.

[00:14:04] Speaker 00:
Second, I would also like to point out that, as in Pana and in Glossop, Carter's testimony was not the centerpiece of the government's case.

[00:14:14] Speaker 00:
Now, counsel,

[00:14:17] Speaker 00:
talks at length about Clements, which he did cite in his reply brief.

[00:14:22] Speaker 00:
However, Clements was disapproved by this court in Catlin v. Broomfield.

[00:14:27] Speaker 00:
And there, the facts were squarely on point with the facts here, which is that this is not the only testimony.

[00:14:36] Speaker 00:
The jury was informed that the witness will receive a benefit.

[00:14:41] Speaker 00:
The testimony was not material, according to the court.

[00:14:44] Speaker 00:
because it was not crucial to the state's case.

[00:14:46] Speaker 00:
And that is exactly the case here.

[00:14:48] Speaker 00:
There is so much evidence of appellant's guilt that has nothing to do with what the third party's girlfriend testified to.

[00:15:00] Speaker 00:
The testimony of Carter with respect to whether or not she received a benefit here simply does not meet Nappu's standard.

[00:15:10] Speaker 00:
There's no reasonable likelihood that her testimony

[00:15:14] Speaker 00:
affected the judgment of the jury, her false testimony.

[00:15:19] Speaker 00:
The district court here correctly denied relief on all three claims.

[00:15:24] Speaker 00:
Unless the court has any questions, I would respectfully request this court to affirm its decision.

[00:15:31] Speaker 03:
How did the prosecutors racially charged comments to the jury portraying

[00:15:39] Speaker 03:
black people, the defendant in particular, his relationship with other members of the so-called Crips gang, the reference to Ebonics and perhaps his mental acuity challenges.

[00:15:58] Speaker 03:
Not distract the jury away from the evidence.

[00:16:03] Speaker 00:
Yes, Shradar.

[00:16:04] Speaker 00:
Of course, we all know racial comments have no place.

[00:16:08] Speaker 00:
at a trial, we do not condone those comments.

[00:16:12] Speaker 00:
However, given the weight of the evidence, the racial comments simply do not meet either the Darden or the Brecht test for obtaining federal habeas relief.

[00:16:23] Speaker 00:
There is so much evidence in this case that the petitioner appellant was the car on the scene.

[00:16:30] Speaker 00:
He was the car that was stopped.

[00:16:32] Speaker 00:
It was his weapon.

[00:16:33] Speaker 00:
The third party was 175 feet away.

[00:16:37] Speaker 00:
His car was 175 feet away.

[00:16:39] Speaker 00:
Appellant several times confessed to the murder, confessed to having a motive for the murder.

[00:16:45] Speaker 00:
I can't go back to prison.

[00:16:47] Speaker 00:
There are all these warrants against me.

[00:16:48] Speaker 00:
I can't do this.

[00:16:49] Speaker 00:
It is hard to believe that even were the jury

[00:16:59] Speaker 00:
Potentially swayed by these racial remarks that that would have substantially and injuriously impact the verdict and that is the burden here We are not here to sort of go back and delve into Credibility determinations or what the jury may have thought or how the jury may have felt about this even beside Ed pay issues.

[00:17:19] Speaker 04:
We're looking at the Darden standard, right director.

[00:17:21] Speaker ?:
I

[00:17:22] Speaker 00:
And, you know, if I may clarify, the Darden standard is the governing standard.

[00:17:26] Speaker 00:
There's no specialized, there's no Winship error asserted, there's no Griffin error asserted as we made clear in the briefings.

[00:17:34] Speaker 04:
And at least on my view from reading what's in Darden, and again, I echo that these comments shouldn't have been made.

[00:17:44] Speaker 04:
I think the Darden comments were far worse.

[00:17:48] Speaker 00:
The Darden comments... By the prosecutor.

[00:17:51] Speaker 00:
Is Your Honor referring to the claim of burden?

[00:17:55] Speaker 04:
No, I'm talking about the racial remarks that were the subject of the Darden case.

[00:18:02] Speaker 04:
Yes, Your Honor.

[00:18:03] Speaker 04:
That the majority of the Supreme Court found did not so infect the trial with unfairness as to make the resulting conviction a due process denial.

[00:18:12] Speaker 00:
Yes, Your Honor.

[00:18:14] Speaker 00:
And we agree.

[00:18:16] Speaker 00:
These comments had no place here, but these comments simply don't rise to the level of obtaining federal habeas relief at this stage of the proceedings.

[00:18:25] Speaker 00:
Unless this court has questions, I would respectfully request that the district court opinion denying federal habeas relief be affirmed.

[00:18:33] Speaker 02:
Thank you, counsel.

[00:18:33] Speaker 02:
Thank you, your honor.

[00:18:42] Speaker 01:
First addressing Judge Bennett's question, I don't believe an aiding and abetting instruction was given.

[00:18:47] Speaker 01:
The government never, you know, conceded an iota that the third party was even present, so there was no need for it to argue, and it didn't argue aiding and abetting.

[00:18:57] Speaker 04:
I assumed that.

[00:18:58] Speaker 04:
I assumed that if there had been an aiding and abetting instruction, it would have somewhere appeared in the record.

[00:19:04] Speaker 01:
Okay.

[00:19:05] Speaker 01:
My colleague keeps referring to so much evidence and the weight of evidence.

[00:19:10] Speaker 01:
that never takes into account that the jury was out for eight days.

[00:19:15] Speaker 01:
Something kept them out for eight days and, you know, there's a plethora of cases that look at the length of deliberations as an indicium of the closeness of a case.

[00:19:27] Speaker 01:
As far as the racism goes and the remarks in Darden were worse, I'll just say that racial bias is always a very powerful problem.

[00:19:39] Speaker 01:
And that's why courts, federal courts especially, have subjected them, excuse me, to exceptional scrutiny.

[00:19:48] Speaker 01:
And there's a bit of tension between that exceptional scrutiny and ed-bideference.

[00:19:53] Speaker 01:
But putting that aside, let's not forget that everybody in the courtroom was white.

[00:19:58] Speaker 01:
The judge, the prosecutor, every member of the jury.

[00:20:02] Speaker 01:
So when this race was injected into the proceedings by the

[00:20:07] Speaker 01:
by the prosecutor, and I'll just make clear that for absolutely no reason, you know, to introduce black boogeyman and an angry black man.

[00:20:17] Speaker 01:
And there's one comment as I... I think we all agree with that, counsel.

[00:20:21] Speaker 02:
The question is really prejudiced.

[00:20:22] Speaker 01:
Well, here's one thing I should have emphasized more in my briefs, but I didn't.

[00:20:26] Speaker 01:
His remark about community values, and if he had a... If my client's car wasn't found at the murder scene, then they would have had to rely on the community

[00:20:37] Speaker 01:
and he's not sure they would have gotten anywhere.

[00:20:40] Speaker 01:
He's essentially saying that African Americans in the community wouldn't have come forward to and haven't come forward to tell the truth.

[00:20:51] Speaker 04:
So, counsel, as Judge Nguyen said, I think we all and your friend agree that these comments shouldn't have been made and were wrongfully made.

[00:21:01] Speaker 04:
The standard in Darden

[00:21:04] Speaker 04:
is whether the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.

[00:21:12] Speaker 04:
You agree, right?

[00:21:13] Speaker 01:
I don't necessarily agree, Your Honor, because I argued that the decristoforo standard applies because the client's equal rights, his constitutional guarantee of equal rights was specifically violated

[00:21:26] Speaker 01:
And when there's a specific constitutional guarantee violated, courts afford, I can't remember the first, special care or something like that.

[00:21:36] Speaker 04:
Let's assume we were to disagree with you and define Darden binding.

[00:21:40] Speaker 04:
Can you meet the Darden standard given what the remarks were in Darden that the Supreme Court said didn't infect the trial?

[00:21:47] Speaker 01:
Well, I've made my best arguments of why I do meet that standard, regardless of my argument that it's the other standard that applies.

[00:21:54] Speaker 01:
And what more can I do?

[00:21:56] Speaker 01:
We don't know, obviously, of course, the jurors thought processes and whether they were affected by the racism, but there's a reason that the prosecutor injected the racism into the proceedings.

[00:22:08] Speaker 01:
He understood the case was close, and he was looking for every advantage he could get, and he thought that was one way to do it.

[00:22:15] Speaker 01:
So those are my responses.

[00:22:18] Speaker 01:
If there's no more questions, I'll submit.

[00:22:21] Speaker 02:
Thank you counsel for your argument both sides.

[00:22:23] Speaker 02:
The matter is submitted.