[00:00:00] Speaker 02:
and go on to the next case on the calendar. Thank you.

[00:00:06] Speaker 02:
The next case is Toll v. 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. I hope to reserve two minutes of my time for rebuttal. 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. And Mr. Toll asserts in this appeal that that 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. And if the court agrees with Mr. Toll on that threshold question, then the next questions really also fall in his favor, which is what is the basis of the Court of Appeals opinion 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 the 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? Yep. Sure. So there's a great amount of emphasis in the district court opinion on whether or not the PCR trial attorney abandoned the claim. And so I want to answer your question. I think he definitely did agree with the state's attorney. He did not try to advance the claim. 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, just setting that aside for a second, I'm looking at or trying to figure out what the what your position is and what we should decide about what the court actually relied upon, because the state advanced both arguments, right?

[00:03:13] Speaker 02:
Yes. I'm not sure I understand your question. Well, the state advanced both arguments. They said that there was a problem with the attachment rule, and they said, oh, and by the way, you could also look at the merit.

[00:03:24] Speaker 01:
I got you. And I want to first address your... Am I remembering this correctly?

[00:03:30] Speaker 02:
The state definitely threw them both out there and said in the alternative. Then the...

[00:03:36] Speaker 02:
judge I think granted the state's motion on record and directed the state to draft the order The state drafted the order and got to choose the basis on what... Well, the court had ruled on record, and the state was memorializing that order, right? That ruling?

[00:03:56] Speaker 01:
The court had ruled, but the court's ruling was exceedingly general on the record. It says, I'm convinced by your arguments.

[00:04:04] Speaker 02:
I think we read it the same way, but I don't want to take up too much of your time on this point because we've poured over this. 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. Why should we rule the way you want us to rule on this transcript?

[00:04:27] Speaker 01:
Yes. So I think that the written opinion very clearly is based on procedural grounds. And there's two Ninth Circuit opinions that find that the procedural rules invoked by that opinion, one, In the paragraph two of that opinion is a pleading deficit. They didn't plead ultimate facts. And the later ones are violation of the attachment requirement. So regarding the pleading standards, this court in McGuigan v. Hall said that that is a procedural ruling.

[00:05:03] Speaker 01:
And as far as the attachment ruling, the court said in Erickson v. Courtney that that is a procedural ruling. When you look at Oregon state procedure, and this is Datt v. 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. 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.

[00:05:38] Speaker 01:
This opinion does not say that, and like you mentioned, was drafted by the state's attorney. They got to choose their basis, and they chose a procedural basis based 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. And the first trial transcript was never produced before habeas. So I think we asked for a hearing on cause and prejudice in the district court, and that would be a factual issue, but it seems likely that this attorney did not know what was said in the first trial, the PCR attorney, and those would have been these critical statements that the prosecutor said about 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. You mean the transcript? Yes. Yes, thank you. Yeah. Yeah.

[00:07:13] 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. I've not been able to find any support for it. And then he you know, includes this sort of description of the claim and then concludes that statement with, and that's why we agree. 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 so I think that's really the basis for the state's argument and the court's endorsement And under Oregon law, we have to look at the written opinion controlling.

[00:08:39] Speaker 02:
You wanted to resume in two minutes. I do. 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. concede it like the way that this came up in the post-conviction course, but this, 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 fact that's missing as a pleading matter is 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. I read the transcript for 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. Well, and I think that's fair. 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 Phrased in, yes, 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, you know, 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, right?

[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 necessity, which is consistent with general claim preclusion principles, that if it's possible, 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?

[00:10:53] 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? 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. I mean, in terms of whether my arguments correct that the substance of what the court was ordering was really this, you can't marshal any support for an argument of why your first jury necessary decided this question. 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.

[00:11:40] Speaker 02:
I think we're miscommunicating. Has the state cited 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 suppose, I mean, I actually don't know the answer to that question as I stand here.

[00:11:58] Speaker 02:
All right. Thank you. I'm not sure if there's other questions.

[00:12:02] Speaker 00:
No, okay. So the incorporation by reference issue, I wanted to address the Asbill case. I mean, I think Asbill and Soderstrom are getting at this idea that A PCR court can't just say, for all the reasons stated in the superintendent's trial memo, claim denied. 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 that's a procedural ruling when you fail to allege a claim and then you try and press it later at the PCR trial. 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. 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.

[00:13:05] Speaker 02:
All right.

[00:13:06] Speaker 00:
The court has any other questions? No. Ask this court to affirm.

[00:13:09] Speaker 02:
Thank you.

[00:13:17] Speaker 01:
I wanted to address the question of whether it was treated like summary judgment, and encourage the court that even if the court was applying a summary judgment standard, it's not necessarily a merits determination. 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. And the next paragraph is because petitioner has failed to support his claim, which is again a reference to the attachment rule. I do not think that this is an ambiguous opinion. 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, 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. 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. And I really disagree that Aspel and Soderstrom allow the court to incorporate by reference a party's arguments. They say the exact opposite. 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. Thank you both for your argument.