[00:00:05] Speaker 03:
Good morning, Your Honors, and may it please the court, Justin Baravesh, on behalf of Teresa Torricella, the appellant, and if I could reserve two minutes for rebuttal?

[00:00:14] Speaker 00:
Yes. Watch your clock.

[00:00:16] Speaker 03:
Thank you.

[00:00:19] Speaker 03:
I'd like to spend my time this morning focusing on our argument that the district court erred by concluding that a claim based upon an alleged error in the prima facie determination of resentencing under California Penal Code Section 1172.6 is not cognizable on federal habeas. So first, I'll address respondents' assertion regarding timeliness, and then I'll discuss the actual cognizability of the claim.

[00:00:44] Speaker 03:
Judge Crawford, in her report and recommendation, spent a full paragraph explaining why my client's claim is timely under EDPA, and that can be found on pages 30 to 31 of the excerpts of record.

[00:00:57] Speaker 03:
More specifically, Judge Crawford noted that my client's judgment became final on December 14th of 2021, and that my client filed her petition on October 14th of the following year. For these reasons, she concluded, quote, if the petition were not subject to dismissal for failure to state a claim, it would be timely under the EDPA.

[00:01:14] Speaker 03:
There's no reason to depart from this sound conclusion by the magistrate judge. Indeed, when respondent was given the opportunity either to object to the report and recommendation or to file a reply to appellant's objections, Respondent did not do so. Yet, in the present appeal, respondent spends several pages in the answering brief attempting to now argue that the limitations period has expired. But again, there's no purpose for departing from the well-reasoned conclusions by Judge Crawford, and my client's claim, in fact, is timely.

[00:01:45] Speaker 03:
If there's no questions on that, I'll briefly touch on the cognizability of the claim.

[00:01:51] Speaker 00:
Yes, please move on.

[00:01:55] Speaker 03:
So as this panel has seen from the briefing, the core disagreement between the parties is whether and when an error in the state post-conviction review is cognizable on federal habeas. Our position is that the law is very clear on this point.

[00:02:08] Speaker 03:
Franzen versus Brinkman, which was cited by a respondent in its brief, and Clayton versus Beiter, which we rely on, can be read harmoniously together. Taken together, these authorities stand for the well-established principle that state adjudications of state law are in fact cognizable on federal habeas where they implicate federal due process.

[00:02:28] Speaker 03:
I won't belabor the point because I think we lay it out fairly well in the briefing, but, you know, a resentencing determination under Section 1172.6 inherently requires a petitioner to show that the prosecution could not presently prove beyond a reasonable doubt that they could be currently convicted of murder. That's precisely the type of federal due process challenge that the Clayton Court discussed. You know, this is not some adjudication of some state substantive right that's wholly unrelated to the federal constitution. And for this reason, our position as our respondent is incorrect and that the district court erred.

[00:03:00] Speaker 02:
So, counsel, let me jump in here because I have a couple questions for you. First, I understand your client received commutation of some kind?

[00:03:09] Speaker 03:
No, she's been paroled.

[00:03:10] Speaker 02:
Paroled. That's what I meant. I apologize. I mean, she's been paroled. So in light of that, and I have a couple follow-up questions. I just want to make sure procedurally I understand where we are in this case. So she's out of custody. So what relief are you seeking now?

[00:03:26] Speaker 03:
So the relief that we're seeking is that she'd be given an evidentiary hearing.

[00:03:33] Speaker 02:
But what's the end game? What are you trying to get? I understand the evidentiary hearing is the vehicle, but what are you trying to – she got paroled, so it's not like she's trying to get out of jail anymore. So what is it you're looking to – what are you looking for the Superior Court to do in this case?

[00:03:50] Speaker 03:
Sure. The ultimate goal would be to have the conviction reversed. I mean, even though she's been paroled, that parole still holds a – that's a lifetime parole because she was given a lifetime.

[00:04:02] Speaker 02:
Okay. That was my question. So you want to basically – you're trying to have the conviction completely overturned, or would it be knocked down to something else?

[00:04:12] Speaker 03:
Probably completely overturned. That would be the ultimate end goal here.

[00:04:16] Speaker 02:
All right. So let me – So now I have the more factual question in this case. So we have an opinion from the California Court of Appeal saying that the conduct in this case does not qualify under the California statute because basically, if you look at the factual basis and the guilty plea, she admitted to aiding and abetting in a murder and that the California statute, that's still murder. Aiding and abetting murder is still murder in California despite the passage of the statute. What is your response to the argument that in light of that finding, this case is effectively over because there's no question that the recent California legislation would not apply in this case.

[00:05:02] Speaker 03:
Sure. I think my client still has a right to have Judge Anello or the magistrate judge in this case determine whether or not that determination by the California Court of Appeal was – violated her due process rights. We didn't even get to that question because Judge Crawford and Judge Anello determined that in light of the authorities they cite, there's no cognizable federal habeas.

[00:05:30] Speaker 02:
No, fair enough. I'm just trying to understand what would this hearing do? Because we have a factual basis, and your client did get parole, and I would not want your client to put herself in jeopardy of losing parole by saying she didn't do what I assume she admitted to doing to get parole. So I'm trying to understand. We have a hearing before Judge Anello. The government puts in the factual basis where she says, I'm not going to go through them all, but you know what I'm talking about in the factual basis.

[00:06:00] Speaker 02:
What would the hearing accomplish?

[00:06:05] Speaker 03:
I think I understand Your Honor's question. That's a fair point. Our argument is still that the violation in this case was that she never received the hearing in the first place. As far as what would the hearing accomplish, I mean, I think it would give her the opportunity to perhaps more fully explain her side of the factual basis. I completely understand.

[00:06:26] Speaker 00:
But she pleaded guilty, right? And she admitted to certain facts when she pleaded guilty. Does she want to change that testimony?

[00:06:38] Speaker 03:
That's my understanding is that that would be what would have to be sort of fleshed out at the hearing.

[00:06:45] Speaker 02:
But couldn't that jeopardize her parole if she did that?

[00:06:49] Speaker 03:
I'm not intimately familiar with the terms of her parole, but I don't think testifying contrary to how you testified before the Board of Parole hearings would jeopardize it.

[00:07:01] Speaker 02:
I would just say, counsel, I'm not a criminal defense lawyer, but I have done criminal defense work. I would just be very careful having your client go in under oath saying something contrary to what she would have submitted at a parole hearing because the parole conceivably – could be revoked.

[00:07:17] Speaker 02:
Anyway, just be careful.

[00:07:19] Speaker 00:
She could end up in a worse situation.

[00:07:28] Speaker 03:
I certainly appreciate this panel's concerns.

[00:07:35] Speaker 00:
You said your argument academically.

[00:07:40] Speaker 00:
I also happen to think that Your argument is contrary to the plea colloquy. I don't know what she said at the parole hearing, but, I mean, it's problematic.

[00:07:58] Speaker 00:
I understand what this resentencing was meant to do, but she's out of jail right now.

[00:08:06] Speaker 03:
Sure. And, again, I mean, you know, there's still collateral consequences which, you know, satisfy the custody requirements under EDPA. Obviously, at this This panel understands that.

[00:08:17] Speaker 03:
But, you know, it is still perhaps, as you said, Your Honor, an academic type of argument. But, you know, for the reasons we discussed, it is our position that the district court erred. I see that I have about a minute and 35 seconds.

[00:08:31] Speaker 00:
Why don't you hang on to it then, and we'll hear from the other side. We'll hear from the warden.

[00:08:48] Speaker 01:
May it please the court, Matthew Mulford on behalf of the warden.

[00:08:56] Speaker 01:
The certified question, is this resentencing hearing cognizable in federal court? We disagree. The answer is no. Place to look for that is the jurisdictional statute for federal habeas corpus on a state prisoner, 28 UIC 2254A. There's two requirements that are missing here.

[00:09:17] Speaker 01:
CUSTODY LINKS TO A CLAIM AND A FEDERAL QUESTION.

[00:09:24] Speaker 01:
CUSTODY, YOU JUDGE YOUR QUESTIONS ABOUT PAROLE AND WHAT HAPPENS NEXT, THIS IS A COMPLICATED ISSUE, BUT THERE IS NO CUSTODY REGARDING 2019 ON THE CLAIM THAT THEY'RE SAYING IS NOW TIMELY BECAUSE IT'S SO FAR REMOVED FROM THE ORIGINAL CASE.

[00:09:43] Speaker 01:
SHE'S NOT IN CUSTODY ON THAT.

[00:09:46] Speaker 01:
to change her custody regarding that claim, but she was unsuccessful. And the fact that there is no custody from 2019 on the denial of a re-hearing case means that there's nothing for a federal court to do. And so to judge your questions about parole and what will happen, it's conceivable that if you're on six steps in the future, she undoes her criminal conviction, then she removes the lifetime parole. That might be enough. to avoid mootness and to change these things.

[00:10:18] Speaker 01:
I suspect it is, but there's no real reason to get there because on day one in federal court, she has no claim that was linked to custody. And the second part of the problem, the jurisdictional argument, is that her claim is one of state law. She's saying the state courts misapplied a state procedure that's got nothing to do with a federal constitutional right.

[00:10:41] Speaker 01:
Most of those Bill of Rights that are... regarding trial things that happened a long time ago, which she weighed when she pled guilty. A couple of them deal with direct appeals. You have the right to counsel on direct appeal through the Equal Protection Clause. I'm not aware of any. I've never seen one that has anything to do with the resentencing or anything that is a collateral post-judgment, post-appeal thing that happens in state court.

[00:11:10] Speaker 01:
Even if it was a trial-related right, in state court. The Supreme Court in Rivera versus Illinois said that state law errors are remedied by state law and they do not raise federal questions.

[00:11:28] Speaker 01:
And that's the answer. So she says, are my due process rights? No, she's asking for the state courts to properly apply state law.

[00:11:37] Speaker 01:
And that's not a federal question, never has been. Franzen case from this court, It fairly neatly circumscribes all of this discussion. It says if you've got a state law post-conviction, I think that's the phrase of that very short opinion. We think that means collateral.

[00:12:00] Speaker 01:
If you've got a state court claim, even when you raise a federal due process challenge, it is not cognizable. We think that encompasses all rehearing claims.

[00:12:13] Speaker 01:
Supreme Court, the Supreme Court really hasn't talked about resentencing much, but it has done so in the context of the federal statute of limitations. This case is called Wall v. Coley.

[00:12:23] Speaker 01:
Wall says, a Rhode Island, Wall talks about a Rhode Island case. The Rhode Island resentencing case at issue in Wall is not a direct appeal. It is not a change in finality. It is not a new fact. It is a collateral proceeding.

[00:12:44] Speaker 01:
holds the statute of limitation if the statute has not already run it doesn't affect anything else and unless there are questions we'll ask that you affirm the judgment of the district court you want to speak to the merits at all she was properly denied relief under state rules is that is that the merits you're asking about i mean is she guilty of murder is she actually guilty of

[00:13:13] Speaker 00:
felony murder. I mean, not felony murder, but like aiding and abetting murder.

[00:13:19] Speaker 01:
Yes.

[00:13:20] Speaker 01:
She was in the car. She admitted being in the car while holding, I think it was a shotgun. It was certainly a firearm.

[00:13:28] Speaker 01:
While her co-defendant drove the victim out to a very remote location and she didn't pull the trigger, but the other guy did. And she said, yeah, I would have done it too.

[00:13:41] Speaker 02:
And my understanding is that she also told the co-defendant about the money and about maybe taking them out to Mission Valley where there are no people there.

[00:13:50] Speaker 01:
Yes, that was part of the plan. That's what she admitted in front of a trial judge. The original habeas corpus from the federal court, 2009, I can't remember the dates. They went through all that again and said, yep, that's what happened. She is responsible today for a 1985 murder of Everybody that's looked at it has said that. Most recently, California Court of Appeal.

[00:14:20] Speaker 00:
Okay. We'll give your friend on the other side a couple minutes for rebuttal.

[00:14:29] Speaker 03:
Thank you, Your Honor. Just very briefly. On page 11 of our reply brief, we go through the law that talks about an individual who's, you know, paroled still being in custody for purposes of EDPA. I've never heard of it being specific to a judgment or specific to a new sort of triggering event as far as, you know, the statute of limitations is concerned or as far as EDPA is concerned, which is what the respondent appears to be arguing.

[00:15:03] Speaker 03:
So, I mean, she is in custody for purposes of EDPA.

[00:15:08] Speaker 03:
As far as counsel's arguments about state application of state law, I mean, this is sort of the age-old habeas dispute where, you know, a petitioner alleges something went wrong in their state trial that violated due process or violated or was, you know, contrary to clearly established federal law.

[00:15:25] Speaker 03:
In this case, you know, counsel talked about Franzen or, yes, Franzen, you know, this court's opinion. In addition to the language cited by a respondent, Franzen also states, and I have it right here on page one of the opinion, quote, a habeas petition must allege the petitioner's detention violates the constitution of federal statute or treaty. That's what we have here. We have my client alleging that the state process violated her due process rights because that inherently, that process inherently requires the government to prove beyond a reasonable doubt that she could presently be convicted of murder.

[00:16:03] Speaker 03:
That is precisely the situation that Franzen and all the other cases that we talked to. And unless this panel has any further questions, we will submit.

[00:16:11] Speaker 00:
All right. Thank you, counsel. Tarasalas versus, I guess, Kaur is submitted. In the next case, Zhao versus Blanch has also been submitted and will take