[00:00:00] Speaker 02: and go on to the next case on the calendar. [00:00:03] Speaker 02: Thank you. [00:00:06] Speaker 02: The next case is Toll versus Bowser, 24-5862. [00:00:37] Speaker 01: Good morning, Your Honors, and may it please the court, Julie Vandiver, on behalf of Benjamin Toll. [00:00:42] Speaker 01: I hope to reserve two minutes of my time for rebuttal. [00:00:45] Speaker 01: OK. [00:00:47] Speaker 01: The central issue in this appeal is when the double jeopardy ineffectiveness claim was procedurally defaulted in state court. [00:00:57] Speaker 01: And Mr. Toll asserts in this appeal that that [00:01:02] Speaker 01: default happened at the initial stage of post-conviction review and that the district court erred in finding that the default happened later when the claim was not included in a petition for review to the Oregon Supreme Court. [00:01:16] Speaker 01: And if the court agrees with Mr. Toll on that threshold question, then the next question's really also fall in his favor, which is what is the basis of the Court of Appeals' opinion? [00:01:29] Speaker 01: which under ILST is that it was, we look through to that procedural ruling from the PCR court and also on the merits, the district court's alternative merits question, which if the court agrees on that initial question, then the district court incorrectly applied that EDPA standard to this claim. [00:01:51] Speaker 01: So how should we read that transcript? [00:01:54] Speaker 01: Are you talking about the PCR oral argument transcript? [00:01:58] Speaker 01: Yep. [00:01:58] Speaker 01: Sure. [00:01:58] Speaker 01: So there's a great amount of emphasis on the district court, in the district court opinion on whether or not the trial attorney, or the PCR trial attorney abandoned the claim. [00:02:11] Speaker 01: And so I want to answer your question. [00:02:13] Speaker 01: I think he definitely did agree with the state's attorney. [00:02:18] Speaker 01: He did not try to advance the claim. [00:02:20] Speaker 01: But I also want to urge the court that it's irrelevant what he did at that oral argument, because the defect that the court applied in its written opinion is that there weren't attachments as required by the state rule. [00:02:37] Speaker 01: filed to support that claim and that the claim was deficiently pled in that there were not arguments made about what the trial attorney could have said in making the double jeopardy claim or the double jeopardy objection at trial. [00:02:57] Speaker 02: So setting aside that I'm not sure what attachments there would be in a double jeopardy argument. [00:03:02] Speaker 01: Yeah. [00:03:02] Speaker 02: Just setting that aside for a second. [00:03:04] Speaker 02: I'm looking at or trying to figure out [00:03:06] Speaker 02: what your position is and what we should decide about what the court actually relied upon. [00:03:10] Speaker 02: Because the state advanced both arguments, right? [00:03:13] Speaker 02: Yes. [00:03:14] Speaker 02: I am not sure I understand your question. [00:03:16] Speaker 02: Well, the state advanced both arguments. [00:03:18] Speaker 02: They said that there was a problem with the attachment rule. [00:03:21] Speaker 02: And they said, oh, and by the way, you could also look at the merit. [00:03:24] Speaker 01: I got you. [00:03:25] Speaker 01: And I want to first address your question. [00:03:28] Speaker 02: Am I remembering this correctly? [00:03:30] Speaker 02: The state definitely threw them both out there and said in the alternative. [00:03:35] Speaker 02: I think, granted the state's motion on record and directed the state to draft the order. [00:03:44] Speaker 02: The state drafted the order and got to choose the basis on what? [00:03:50] Speaker 02: Well, the court had ruled on record, and the state was memorializing that order, right? [00:03:55] Speaker 02: That ruling? [00:03:56] Speaker 01: The court had ruled, but the court's ruling was exceedingly general on the record. [00:04:02] Speaker 01: It says, I'm convinced by your argument. [00:04:04] Speaker 01: I think we read it the same way. [00:04:05] Speaker 02: But I don't want to take up too much of your time on this point, because we've pored over this. [00:04:09] Speaker 02: I'm trying to figure out why you think we should [00:04:13] Speaker 02: The court said both things. [00:04:16] Speaker 02: My reader recently offered up both rationales in the alternative by the state, and the court ruled in favor of the state. [00:04:22] Speaker 02: Why should we rule the way you want us to rule on this transcript? [00:04:27] Speaker 01: Yes. [00:04:28] Speaker 01: So I think that the written opinion very clearly is based on procedural grounds. [00:04:37] Speaker 01: And there's two Ninth Circuit opinions that find that the procedural rules invoked by that opinion, one, [00:04:43] Speaker 01: In the paragraph two of that opinion is a pleading deficit. [00:04:48] Speaker 01: They didn't plead ultimate facts. [00:04:50] Speaker 01: And the later ones are violation of the attachment requirement. [00:04:55] Speaker 01: So regarding the pleading standards, this court in McGuigan versus Hall said that that is a procedural ruling. [00:05:02] Speaker 01: And as far as the attachment ruling, the court said in Erickson versus Courtney that that is a procedural ruling. [00:05:14] Speaker 01: When you look at Oregon state procedure, and this is DAT versus Hill, it says that in post-conviction review, there is a requirement that an opinion have a clear statement of the reason for the judgment. [00:05:27] Speaker 01: If the court is reaching a merits issue on a federal constitutional issue, it needs to say that I am reaching a federal constitutional issue. [00:05:37] Speaker 01: This opinion does not say that, and like you mentioned, was drafted by the state's attorney. [00:05:44] Speaker 01: They got to choose their basis, and they chose a procedural basis [00:05:49] Speaker 01: I don't want to speculate about why they did it, but by doing so, there was at least a thought that that would deprive later merits review in federal court. [00:06:01] Speaker 01: And I do want to address your question about what attachments could have been supplied, because I think it's a really important issue. [00:06:09] Speaker 01: And the first trial transcript was never produced before habeas. [00:06:18] Speaker 01: So I think we asked for a hearing on cause and prejudice in the district court, and that would be a factual issue. [00:06:27] Speaker 01: But it seems likely that this attorney did not know what was said in the first trial, the PCR attorney. [00:06:35] Speaker 01: And those would have been these critical statements that the prosecutor said about, [00:06:41] Speaker 01: You know, if you find that he committed arson, if you find that he committed murder, then you're going to absolutely find yes on the physical injury enhancement factor, because he did more than that. [00:06:55] Speaker 01: He killed him. [00:06:58] Speaker 01: So that first trial would have been the critical attachment to include, to support this double jeopardy claim. [00:07:08] Speaker 01: You mean the transcript? [00:07:09] Speaker 01: Yes. [00:07:09] Speaker 01: Yes, thank you. [00:07:10] Speaker 01: Yeah. [00:07:12] Speaker 01: And as far as whether the attorney if you look at the oral argument the attorney said I didn't file a response to the motion for judgment on the pleadings and Said I agree with the state's attorney. [00:07:28] Speaker 01: I've not been able to find any support for it and and then he [00:07:33] Speaker 01: includes this sort of description of the claim and then concludes that statement with, and that's why we agree. [00:07:42] Speaker 01: He says we don't agree on the other claim. [00:07:47] Speaker 01: And if you look at the state's attorney's argument, to your point, Your Honor, about the PCR court sort of generally endorsing the arguments of the state's attorney, if you look at the PCR oral argument, the state is really [00:08:05] Speaker 01: honing in at that oral argument on the lack of facts and the lack of arguments in support of this double jeopardy claim and saying it's unfair, we kind of don't know how to address it because there's just not, they haven't done what they're supposed to do in order to put the claim in front of the court. [00:08:25] Speaker 01: So I think that's really the basis for the state's argument and the court's endorsement [00:08:34] Speaker 01: And under Oregon law, we have to look at the written opinion controlling. [00:08:39] Speaker 02: I do. [00:08:40] Speaker 02: Yeah, thank you. [00:08:41] Speaker 01: You bet. [00:08:46] Speaker 00: May it please the court and counsel, Jordan Silk for the state. [00:08:52] Speaker 00: The written judgment in this case and the arguments, I think the substance of the argument, it's messy. [00:09:01] Speaker 00: Conceited like the way that this came up in the post-conviction course but this I would I think it's analogous to a Basis for moving to dismiss a claim when there's over when you could say that any motion to dismiss for failure to state a claim is procedural but sometimes the Clint the the fact that's missing as a pleading matter is a [00:09:21] Speaker 00: the determinative fact for the purposes of the substance of the claim. [00:09:25] Speaker 02: That's not how I read the transcript. [00:09:27] Speaker 02: I read the transcript of the state to be making one argument and then saying, oh, by the way, in the alternative, you could treat this as a summary judgment ruling because they don't have evidence. [00:09:34] Speaker 00: Right. [00:09:35] Speaker 00: Well, and I think that's fair. [00:09:36] Speaker 00: But then when the judgment comes in and says there's nothing alleged that says what argument would be made to substantiate this double jeopardy claim, I think that's [00:09:48] Speaker 00: phrased in a procedural manner, but the way that it's talked about in the briefing and the way that it comes through is ultimately saying ultimately you haven't identified any argument for why this has been necessarily decided against you, which is the merits or necessarily decided by the first jury. [00:10:10] Speaker 00: And that is the ultimate merits question. [00:10:15] Speaker 00: And I think that the reason why that's the straightforward answer to this case is because the ash test talks about whether a jury could have grounded their decision on a different basis than the decision that is for which preclusive effect is sought could have grounded on that basis means that a certain. [00:10:36] Speaker 00: necessity, which is consistent with general claim preclusion principles, that if it's possible that unless you can show that it necessarily was decided, then double jeopardy isn't a bar. [00:10:48] Speaker 02: What if we decide that the trial court, PCR court's ruling was ambiguous? [00:10:54] Speaker 00: Well, I think the first course I would suggest is to set aside the procedural ruling and reach the merits of the claim. [00:11:01] Speaker 02: What authority do you have? [00:11:03] Speaker 02: We have controlling authority, do we not, about what we do if we decide that the state court's ruling was ambiguous? [00:11:11] Speaker 00: Well, I think the state court's ruling was ambiguous with respect to the procedural default. [00:11:17] Speaker 00: I mean, in terms of whether my argument's correct, that the substance of what the court was ordering was really this. [00:11:23] Speaker 00: You can't marshal any support for an argument of why your first jury necessary decided this question. [00:11:29] Speaker 00: If that's ambiguous, I think that's still independent from the alternative ruling that essentially, yes, which was, I think, adopted orally at the PCR hearing. [00:11:39] Speaker 02: I think we're miscommunicating. [00:11:42] Speaker 02: Has the state-sided authority for what rule attaches if we decide that the state PCR court's ruling, which may have been alternative, if we decide that is ambiguous, what's the legal consequence of that? [00:11:55] Speaker 00: I actually don't know the answer to that question as I stand here. [00:11:59] Speaker 02: Thank you. [00:12:00] Speaker 02: I'm not sure if there's other questions. [00:12:02] Speaker 02: No, okay. [00:12:07] Speaker 00: The Erickson case, so the incorporation by reference issue, I wanted to address the Asbil case. [00:12:12] Speaker 00: I mean, I think the Asbil and Soderstrom are getting at this idea that [00:12:16] Speaker 00: A PCR court can't just say for all the reasons stated in the superintendent's trial memo, you know, claim denied. [00:12:23] Speaker 00: But they leave room for the idea of the record and the specific arguments providing that clarity that was absent. [00:12:32] Speaker 00: And the Erickson case is more of like the Bowen type case that we talked about earlier where they, you know, that's a procedural ruling when you fail to allege a claim and then you try and press it later at the PCR trial. [00:12:43] Speaker 00: This is a different situation because we're talking about, you know, a claim that was raised and whether it was actually pressed on the merits and decided on the merits. [00:12:52] Speaker 00: So it's a different situation than the sort of clear Bowen procedural default situation. [00:13:03] Speaker 00: I think those were the main points I wanted to make. [00:13:06] Speaker 00: The court has any other questions? [00:13:08] Speaker 02: Ask this court to affirm. [00:13:17] Speaker 01: I wanted to address the question of whether it was treated like summary judgment. [00:13:25] Speaker 01: encourage the court that even if the court was applying a summary judgment standard, it's not necessarily a merits determination. [00:13:32] Speaker 01: And so the paragraph five, which of the PCR opinion, which is on ER 43, says there's no genuine issue of material fact that petitioner has been unable to provide supporting documentation. [00:13:49] Speaker 01: This is a reference to the attachment rule. [00:13:52] Speaker 01: And the next paragraph is because petitioner has failed to support his claim, which is again a reference to the attachment rule. [00:14:02] Speaker 01: I do not think that this is an ambiguous opinion. [00:14:06] Speaker 01: This opinion is identifying procedural defects based on really clear Oregon law that you have to attach documents in support of your claims. [00:14:20] Speaker 01: And that's how, if we look back to the district court when this case first got to habeas, [00:14:25] Speaker 01: That's how the state was characterizing the dismissal of this claim, is that it was dismissed because of failure to abide by the attachment requirement, and that position only changed once Mr. Toll invoked the Martinez exception. [00:14:39] Speaker 01: So I certainly think that under Oregon law, which says that the basis of the opinion, PCR opinion has to be a clear statement that this can be read as clearly invoking procedural rules. [00:14:57] Speaker 01: And as Dat says, the reason for that is so the federal court to determine its jurisdiction. [00:15:03] Speaker 01: And I really disagree that Aspil and Soderstrom allow the court to incorporate by reference a party's arguments. [00:15:11] Speaker 01: They say the exact opposite. [00:15:14] Speaker 01: So just urge the court to find that the default happened at the initial stage of post-conviction review and remand to the district court for a Martinez determination. [00:15:26] Speaker 01: Thank you. [00:15:26] Speaker 01: Thank you both for your argument.