[00:00:00] Speaker 02:
Take that case under advisement.

[00:00:02] Speaker 02:
The next case on the calendar is United States versus Anderson 24-2385.

[00:00:30] Speaker 01:
Thank you, and may it please the court.

[00:00:33] Speaker 01:
Craig Durham, appearing on behalf of Patrick Anderson, the appellant.

[00:00:37] Speaker 01:
I would like to reserve three minutes for a bottle, if I could.

[00:00:42] Speaker 01:
So as the court knows, this is an appeal from a summary dismissal of a Section 2255 motion without an evidentiary hearing.

[00:00:52] Speaker 01:
And the sole issue before this court is whether the district court abused its discretion in not having that hearing.

[00:00:59] Speaker 01:
The law is clear from both the United States Supreme Court and this court that when a defendant alleges that he told his counsel to appeal, and his counsel on the other hand denies that, whether or not there is an appellate waiver in a plea agreement, that creates a factual dispute on a constitutional issue that unless there is other evidence in the record

[00:01:27] Speaker 01:
that conclusively shows that the movement is entitled to no relief, that requires an evidentiary hearing.

[00:01:35] Speaker 02:
So you're referring to Sandoval?

[00:01:37] Speaker 01:
Right.

[00:01:38] Speaker 01:
Sandoval and, yes, and Garza versus Idaho, the U.S.

[00:01:43] Speaker 01:
Supreme Court.

[00:01:43] Speaker 02:
And the district court seemed well aware of that?

[00:01:46] Speaker 01:
Yes.

[00:01:47] Speaker 02:
All right.

[00:01:48] Speaker 02:
And so the district court made a determination that a hearing wasn't necessary, eyes open, and his rationale was?

[00:01:54] Speaker 01:
Well, he had a couple of rationales.

[00:01:56] Speaker 01:
One was that he thought it would be, frankly, a waste of time.

[00:02:00] Speaker 02:
Well, he said he had these affidavits.

[00:02:02] Speaker 02:
And if they came in, I think he used the word parrot.

[00:02:04] Speaker 02:
They're going to parrot back.

[00:02:05] Speaker 02:
So I guess you could summarize by saying waste of time.

[00:02:08] Speaker 02:
He's a very busy trial court judge.

[00:02:09] Speaker 01:
Of course, yes.

[00:02:10] Speaker 02:
So he thought that, that he already had the take from both of the declarants.

[00:02:16] Speaker 02:
And there was another reason?

[00:02:19] Speaker 01:
Well, the other reason.

[00:02:19] Speaker 01:
So yes, he thought he had what they were going to say.

[00:02:23] Speaker 01:
And the appellate waiver in the plea agreement, he believed at the end of the day that this court would uphold that waiver.

[00:02:30] Speaker 01:
And so even if we go back and we have this hearing, it's an exercise in futility, because at some point down the road, this court, the Ninth Circuit, is going to say, you can't appeal.

[00:02:41] Speaker 02:
So doesn't your position have to be that you recognize, and your position is that Sandoval versus Lopez is controlling, and the district court knew that, and that

[00:02:52] Speaker 02:
Your position, I understand, is that the district court didn't have what he needed in the record to obviate the need for hearing.

[00:02:57] Speaker 01:
Yes.

[00:02:57] Speaker 02:
What's your best shot at that, please?

[00:02:59] Speaker 01:
So I think you can't assess credibility based on these affidavits.

[00:03:03] Speaker 01:
Now, on the one hand, you have the movement saying, this is what I told my attorney.

[00:03:07] Speaker 01:
You have the attorney saying, actually, what he says is, I don't recall that, but here's what I normally do.

[00:03:12] Speaker 01:
Here's what we talked about.

[00:03:14] Speaker 02:
And I think he said he had checked with co-counsel, too.

[00:03:17] Speaker 01:
Yes.

[00:03:17] Speaker 01:
He discussed with co-counsel.

[00:03:18] Speaker 01:
They talked about the waiver, specifically.

[00:03:21] Speaker 01:
with the client.

[00:03:23] Speaker 04:
That was also in the affidavit.

[00:03:25] Speaker 01:
Correct.

[00:03:25] Speaker 01:
That was in trial counsel's affidavit.

[00:03:28] Speaker 01:
The problem is, and there's case law, it may even be Sandoval that says this, that ordinarily you cannot determine credibility on the basis of affidavits.

[00:03:37] Speaker 01:
And so that's why you have the hearing is so that you can examine.

[00:03:41] Speaker 04:
Isn't, I think, to put a finer point on that, you can't necessarily determine the credibility if you have conflicting affidavits.

[00:03:50] Speaker 04:
Right.

[00:03:51] Speaker 04:
So here, there are conflicting statements.

[00:03:55] Speaker 04:
And the question is, what else is there to then determine the credibility of these two statements to ultimately conclude whether or not a hearing is necessary?

[00:04:08] Speaker 01:
Yes.

[00:04:08] Speaker 01:
I think that's correct, Your Honor.

[00:04:10] Speaker 01:
I put a little bit of a different spin on that, which is if you don't have anything else that would conclusively disprove what the

[00:04:19] Speaker 01:
Petitioner of the movement is saying you have to have a hearing That's the law and the reason why that's the law of getting back to your question your honor is because you can't assess Credibility based on just what someone says in an affidavit.

[00:04:34] Speaker 01:
That's why we have cross-examination That's why we have examination.

[00:04:36] Speaker 04:
How do we fit watts into this framework?

[00:04:40] Speaker 01:
Excellent question so I think watts is the case that you know it's the exception that proves the rule and

[00:04:48] Speaker 01:
So I'm not going to stand here and say you can never determine credibility based just on the record, because clearly you can, but you have to have additional evidence in the record that makes

[00:05:01] Speaker 01:
petitioners claim patently false.

[00:05:06] Speaker 01:
In Watts, what happened is the petitioner comes forward in a 2255 and he says, oh by the way I know the facts of Watts and I know that factually it's distinguishable from the case that we have because the record was

[00:05:23] Speaker 04:
Quite robust and there was much more there, so I understand that but we don't have a case in the circuit that really reconciles Sandoval Lopez's rule absolute statement of having an evidentiary hearing and then watts I don't think it can and you know we have a

[00:05:44] Speaker 04:
Espinosa, Chacon, Palomares.

[00:05:46] Speaker 04:
We have these other cases that talk about supplementing the record.

[00:05:48] Speaker 04:
So do we need something that sort of explains that you can satisfy Sandoval-Lopez without having an evidentiary hearing, as Watts, I think, presumes?

[00:06:02] Speaker 01:
Yes.

[00:06:02] Speaker 01:
And I think it can be reconciled.

[00:06:05] Speaker 01:
And it's reconciled in Watts itself.

[00:06:07] Speaker 01:
And again, you just go back to the basic principle, which is if the documentary record that has been expanded

[00:06:13] Speaker 01:
includes affidavits, could include correspondence, letters, whatever, if that conclusively disproves the credibility of what this petitioner is saying, you don't have to have a hearing.

[00:06:24] Speaker 01:
And that's Watts.

[00:06:26] Speaker 01:
Because in Watts, there were many opportunities where that individual should have spoken up and say, hey, I had this secret deal with the government, and you sentenced me to life in prison.

[00:06:36] Speaker 01:
And this court said, that is just impossible to believe.

[00:06:41] Speaker 01:
My suggestion here is you can't make that same determination on this record, because you don't have those same other factors.

[00:06:50] Speaker 01:
And what the district court relied on, primarily, was counsel's affidavit.

[00:06:55] Speaker 02:
Well, can I just stop you there?

[00:06:57] Speaker 02:
You keep saying that there was conflicting affidavits here.

[00:07:00] Speaker 02:
I think there's one affidavit that says something happened, and the other affidavit from defense counsel saying, I don't recall.

[00:07:07] Speaker 01:
Well, I think that's even better for me.

[00:07:09] Speaker 02:
But it is different.

[00:07:11] Speaker 02:
And so I think it's a different scenario than competing affidavits, which would definitely call into question the need for credibility determination.

[00:07:19] Speaker 02:
This is a little different.

[00:07:20] Speaker 02:
So could you speak to the facts here?

[00:07:22] Speaker 01:
Sure.

[00:07:23] Speaker 01:
I mean, if counsel says I don't recall, he's not denying.

[00:07:25] Speaker 01:
I mean, I could say, well, he's not even denying that my client did tell me to appeal.

[00:07:30] Speaker 01:
He's just saying I don't remember.

[00:07:34] Speaker 01:
I think that's even a stronger reason why you'd want to have an evidentiary hearing, to have the petitioner come in, have the counsel come in, examine them, cross-examine them, and determine who's telling the truth.

[00:07:45] Speaker 02:
But what if the district court thought it wasn't a matter of truthfulness?

[00:07:49] Speaker 02:
This is what I'm trying to engage.

[00:07:51] Speaker 02:
What the district court told us is that if they come in, they'll just parrot.

[00:07:54] Speaker 02:
And I think that works on the defense lawyer side, because the defense lawyer said that he checked with his co-counsel and they just didn't remember this.

[00:08:02] Speaker 01:
I think what's critical in this case is whether the petitioner is telling the truth, whether he said to his attorney, I want you to appeal.

[00:08:09] Speaker 02:
But the credibility goes one way is what I'm trying to get at.

[00:08:11] Speaker 02:
I don't see it as a competing.

[00:08:13] Speaker 01:
And that's fair.

[00:08:13] Speaker 01:
And that's fair.

[00:08:14] Speaker 01:
And that's fair.

[00:08:15] Speaker 01:
And if the court wants to say, I assume counsel will come in and basically just say what he said in his affidavit.

[00:08:21] Speaker 01:
But we need to see this petitioner and assess his credibility in person to determine if he's telling the truth.

[00:08:26] Speaker 01:
Because if he is, it's a constitutional claim.

[00:08:29] Speaker 02:
You wanted to reserve three minutes, and you currently have two.

[00:08:32] Speaker 01:
Yes, absolutely.

[00:08:33] Speaker 01:
I want to reserve that time.

[00:08:34] Speaker 01:
Thank you.

[00:08:35] Speaker 02:
You bet.

[00:08:38] Speaker 00:
Good morning, Your Honors.

[00:08:39] Speaker 00:
May it please the court, Chris Booker, representing the United States.

[00:08:42] Speaker 00:
The record is sufficient to conclusively determine that the defendant did not request that his counsel file an appeal.

[00:08:50] Speaker 00:
And the court can, and the district court can and did in this case, assess credibility based upon the record it had before it, which was sufficient to make that determination.

[00:09:01] Speaker 00:
We have multiple cases where credibility can be determined by a court without an in-person evidentiary hearing.

[00:09:07] Speaker 00:
Watts is the example discussed.

[00:09:10] Speaker 04:
Do you agree that Watts is factually distinguishable based on the robust nature of the record in that case?

[00:09:18] Speaker 04:
Would you agree with that?

[00:09:19] Speaker 00:
I would agree that those facts are different.

[00:09:22] Speaker 04:
OK, so what other case can you cite, too, for the proposition that you can satisfy the Sandoval-Opes rule without holding an evidentiary hearing?

[00:09:31] Speaker 00:
Esparza and Shaw both stand for that proposition.

[00:09:34] Speaker 02:
Esparza ultimately didn't... I couldn't understand what you just said.

[00:09:38] Speaker 00:
Excuse me.

[00:09:38] Speaker 00:
Esparza and the Shaw case, both would.

[00:09:41] Speaker 02:
If you could slow down a touch, it might be easier.

[00:09:44] Speaker 03:
Thank you, Your Honor.

[00:09:45] Speaker 03:
Could you please tell me what in the record convinces you that it is conclusive that we don't have to have a hearing in order to determine credibility?

[00:09:56] Speaker 03:
What facts are you relying upon?

[00:09:59] Speaker 03:
Would you do that?

[00:10:00] Speaker 00:
The most key facts.

[00:10:01] Speaker 00:
I would say your honor are the defendant's counsels 2250 well first of all the record is defendants 2255 memorandum and also counsels affidavit Which I think is what about the maybe go into some level of detail instead of just?

[00:10:18] Speaker 04:
Citing to the document right to answer judge Bayes question what in those documents conclusively establishes?

[00:10:26] Speaker 00:
The defense counsel in those documents said he had multiple conversations with his client about the right to an appeal or to request an appeal, and the fact that by entering a change of plea, that he would be waiving those rights to appeal and entering in a plea agreement with the government.

[00:10:42] Speaker 00:
So those facts.

[00:10:44] Speaker 04:
So you're talking about entering into the plea.

[00:10:48] Speaker 04:
We're asking questions about the request to file an appeal.

[00:10:52] Speaker 00:
Right.

[00:10:53] Speaker 00:
Council in the in the in the affidavit specifically stated that he was never requested to file an appeal flat out or did he say I do not recall.

[00:11:08] Speaker 03:
He said that to me please read it to me what do you say.

[00:11:21] Speaker 00:
And I'm looking at excerpts of record 37 through 44, which is counsel's affidavit regarding his representation of the defendant, communications with him.

[00:11:40] Speaker 00:
And in that affidavit, he states, had Mr. Anderson, I'm looking at excerpts of record.

[00:11:45] Speaker 03:
What paragraph are you reading from?

[00:11:47] Speaker 00:
Excerpts of record, page 40, Your Honor.

[00:11:48] Speaker 03:
40, all right.

[00:11:53] Speaker 00:
And looking at Purim E, it states, had Mr. Anderson requested that I file an appeal before or after his sentencing, then I would have reminded him of the waivers and discussed them further as needed.

[00:12:08] Speaker 00:
And if he had nonetheless insisted I file an appeal after the judgment was entered, then consistent with our practice, I would have filed a notice of appeal on the theory that the waivers were somehow invalid, as my office has done on rare occasions.

[00:12:21] Speaker 00:
Had he been

[00:12:23] Speaker 00:
expressly requested a file on appeal, he would have.

[00:12:27] Speaker 00:
And that just didn't happen here.

[00:12:28] Speaker 02:
Now you are asking us to assume the trial court made a credibility determination, if you read it the way you're reading it, between conflicting affidavits.

[00:12:40] Speaker 02:
This seems to make your position tougher.

[00:12:44] Speaker 02:
Because you're wanting us to rule that the declaration would have conclusively established that the request was not made.

[00:12:54] Speaker 04:
Right.

[00:12:55] Speaker 04:
Can you turn to the previous page, which is ER 39 at 6A, where the affidavit states, neither I nor my co-counsel have any recollection of such a request.

[00:13:09] Speaker 04:
What do you make of that statement?

[00:13:10] Speaker 04:
Which seems pretty clear to me that the state

[00:13:14] Speaker 04:
That the affidavit is saying that he doesn't recall whether or not a specific request to file an appeal was made I I think I would characterize that differently is he is he says he doesn't remember or he doesn't Have a recollection of whether an appeal was filed and then when you read into them you think that we read that to say that he doesn't recall whether an appeal was filed when it says neither I nor my co-counsel have any recollection of such a request and

[00:13:42] Speaker 02:
Just bear in mind, if I could, I hope this is a friendly amendment to your question.

[00:13:47] Speaker 02:
This paragraph starts with Mr. Anderson asserts he requested that I appeal.

[00:13:51] Speaker 02:
And then it goes on to this with a sentence that Judge Assai is calling your attention to.

[00:13:55] Speaker 02:
Neither I nor Markel Council have any recollection of such a request.

[00:13:58] Speaker 02:
Right.

[00:14:00] Speaker 02:
He doesn't recall.

[00:14:03] Speaker 02:
Let me just put it this way.

[00:14:04] Speaker 02:
I read that to say they don't remember, as opposed to a denial.

[00:14:08] Speaker 02:
I'm not sure it matters a whole lot, but if we're directly competing affidavits, it seems to me that's much tougher for the government.

[00:14:15] Speaker 02:
But let's say, just if you would, as a hypothetical, assume that I think this says that the lawyer couldn't remember, and the co-counsel couldn't remember, and the district court was faced with that.

[00:14:31] Speaker 02:
the 225 app by five petitioners app or movements application that said he did make such a request my question for you then is that I think the district court would be making credibility determination at least as to Mr. Anderson but whether that was truthful yes okay so how does let's just if we just look at one side of the communication what's your best argument that the district court was free to make that determination without

[00:15:00] Speaker 02:
hearing, please.

[00:15:01] Speaker 02:
This is Judge Baia's question.

[00:15:03] Speaker 02:
What is it in the record that allowed the court to decide that this was not truthful?

[00:15:10] Speaker 02:
Mr. Anderson was not truthful.

[00:15:12] Speaker 00:
It is, and I understand the court's view of this.

[00:15:15] Speaker 00:
I think when you read the affidavit by counsel, had an appeal been requested, he would have filed it.

[00:15:22] Speaker 00:
And that's what he says.

[00:15:24] Speaker 02:
Well, okay.

[00:15:25] Speaker 02:
So please engage in the question.

[00:15:27] Speaker 02:
I read this differently, but just assume that I do.

[00:15:30] Speaker 02:
The more pertinent question, I think, is Judge Baez, which is, no matter how you read the lawyers' declaration, how is it that the judge wouldn't have had to at least decide the credibility of Mr. Anderson?

[00:15:44] Speaker 02:
How did this record allow the judge to do that without a hearing?

[00:15:46] Speaker 02:
Because this judge knew about the rule that he was looking at, and he decided he didn't need a hearing.

[00:15:52] Speaker 02:
What's the best defense of that, please?

[00:15:56] Speaker 00:
Beyond the affidavit, Your Honor, I think it's also just the credibility that can be determined based upon other relevant factors the court can consider.

[00:16:04] Speaker 02:
The credibility of Mr. Anderson?

[00:16:06] Speaker 00:
Yes.

[00:16:07] Speaker 02:
Like what?

[00:16:09] Speaker 00:
The fact that he signed a plea agreement, waiving his right to... Okay, so here's the problem.

[00:16:17] Speaker 02:
Sandoval specifically speaks to that scenario, right?

[00:16:21] Speaker 02:
It says, if a defendant, even one who has expressly waived his right to appeal,

[00:16:25] Speaker 02:
filed a habeas petition after sentencing and judgment claiming he ordered his attorney to appeal, which seems to be this case.

[00:16:33] Speaker 02:
And it says two things can happen.

[00:16:36] Speaker 02:
And one of them is not what happened here.

[00:16:37] Speaker 02:
That's the problem.

[00:16:39] Speaker 02:
This is what defense counsel is pointing out.

[00:16:42] Speaker 02:
Mr. Anderson's lawyer is calling to our attention.

[00:16:45] Speaker 02:
And I'm interested to see what the justification is for one of these two things not happening here.

[00:16:52] Speaker 00:
And Your Honor, I mean the two things being the

[00:16:55] Speaker 00:
The request for an appeal.

[00:16:57] Speaker 02:
What the court said is that the court can hold an evidentiary hearing to decide whether the allegations are true, or the court can basically vacate the judgment and give the guy a chance to go forward and appeal.

[00:17:10] Speaker 02:
I am paraphrasing.

[00:17:11] Speaker 02:
The Supreme Court said that much more professionally.

[00:17:13] Speaker 02:
But neither of those two things happened here.

[00:17:16] Speaker 02:
So what's the best justification?

[00:17:17] Speaker 02:
This is permissible, please.

[00:17:21] Speaker 00:
The best justification, Your Honor, is the court having looked at the entirety of the record.

[00:17:26] Speaker 00:
the procedural posture of the case, the plea agreement, the counsel's affidavit, the 2255 memorandum.

[00:17:34] Speaker 04:
So the trouble I'm having with your continuously going back to the plea agreement as the basis or a factor that the court can look at is it would that exception would swallow the rule of Sandoval Lopez as Judge Kristen indicated the Supreme Court in that particular case talked about the fact that there is

[00:17:52] Speaker 04:
a plea agreement that includes the waiver.

[00:17:55] Speaker 04:
And so how would what you're arguing here not make it so that in every case where there is a plea agreement, it would allow the court, without having an evidentiary hearing, conclude that the defendant is not credible?

[00:18:11] Speaker 00:
And here, Your Honor, that's true that a plea agreement alone does not negate the right to an appeal if the defendant wants it.

[00:18:21] Speaker 00:
But I would just again go through the entirety of the record, the counsel's affidavit.

[00:18:29] Speaker 00:
I think it is a clear... Okay, so let's go through each and every one of these things.

[00:18:34] Speaker 04:
We have the 2255 statement.

[00:18:36] Speaker 04:
Okay, it says that I think in multiple places that Anderson discussed what trial counsel has desired to appeal.

[00:18:44] Speaker 04:
As of this day, no appeal has been filed.

[00:18:46] Speaker 04:
After the suppression motion was denied, movement requested trial counsel to appeal decision.

[00:18:50] Speaker 04:
As of this day, no appeal has been filed.

[00:18:51] Speaker 04:
So you would agree with me that at least with respect to this statement, there are statements from the defendant that he requested an appeal, correct?

[00:18:59] Speaker 00:
Yes.

[00:19:00] Speaker 00:
OK.

[00:19:00] Speaker 00:
As to after the suppression hearing, but not after the sentencing.

[00:19:06] Speaker 04:
OK.

[00:19:06] Speaker 04:
It says after the sentencing hearing, Anderson discussed with trial counsel his desire to appeal.

[00:19:10] Speaker 04:
As of this day, no appeal has been filed.

[00:19:12] Speaker 04:
So you're taking issue with the word discussed as opposed to requested.

[00:19:14] Speaker 04:
Yes.

[00:19:15] Speaker 04:
So then we look at what else?

[00:19:18] Speaker 04:
The affidavit from the lawyer that states he doesn't recall whether or not a request was made, correct?

[00:19:26] Speaker 00:
Your Honor, I read the affidavit different.

[00:19:29] Speaker 00:
I read the affidavit as he discussed with counsel the appeal that was part of the plea negotiations.

[00:19:36] Speaker 04:
I'm just trying to understand what the totality of the evidence is that you continue to refer to that the court should consider.

[00:19:43] Speaker 04:
So I understand that you and I

[00:19:45] Speaker 04:
might disagree on how to read these particular statements, but the three things that you're talking about here that give the district court sufficient information to determine credibility is the 2255 statement, the affidavit of counsel, and the fact that there was a plea agreement.

[00:20:00] Speaker 04:
Is that it?

[00:20:01] Speaker 04:
Is there anything else?

[00:20:03] Speaker 00:
Your Honor, also the entire posture or the procedural history of the case.

[00:20:07] Speaker 00:
I mean, also the fact that when he entered his change of plea, he was instructed on all the things that he was waiving as part of that change of plea.

[00:20:17] Speaker 00:
But yes, those are the facts that the court had to rely on here.

[00:20:19] Speaker 00:
And I think clearly the court just didn't believe the defendant.

[00:20:23] Speaker 04:
Do you have a case that talks about sort of the court's consideration of the change of plea or the admonishment that he's given at the time of a plea agreement as a factor to consider credibility?

[00:20:33] Speaker 04:
Determination of satisfying sandoval lopez's evidentiary hearing requirement No, no, no, I don't your honor But you're considerably over time do you want to wrap up?

[00:20:45] Speaker 00:
Your honor we would just ask the court from the district court's decision.

[00:20:49] Speaker 00:
Thank you.

[00:20:50] Speaker 01:
Thank you Council you served a little over reserved a little over two minutes Just to kind of take us a step back and sort of the big picture here I

[00:21:03] Speaker 01:
I'm going to say I'm sympathetic to the district court's concerns about are we going to have to take time and resources to resolve this issue.

[00:21:11] Speaker 01:
That can be frustrating for sure, but at the end of the day, you know, that's what due process is.

[00:21:18] Speaker 04:
Council, I want to take you back to a question that I asked you in your opening statement that I'm interested in sorting out, which is, you know, I hear what you're saying.

[00:21:29] Speaker 04:
I also understand the district court's position here.

[00:21:33] Speaker 04:
that this is perhaps futile by bringing the parties in and hearing exactly what he's heard.

[00:21:39] Speaker 04:
So if you were to write the rule or the opinion in this case to articulate when Sandoval Lopez's standard is satisfied, perhaps this case the facts are clear that it's not, and so there should be an evidentiary hearing.

[00:21:55] Speaker 04:
And so maybe this isn't the case to do it.

[00:21:57] Speaker 04:
But I'm interested to know when

[00:22:01] Speaker 04:
Can the court, what is the test for when a court doesn't have to hold an evidentiary hearing and instead do something more like what happened in Watts?

[00:22:11] Speaker 01:
And, Your Honor, I don't mean to repeat myself, but I think the best we can do is we can say, if on the expanded record, it conclusively shows that the petitioner is not entitled to relieve, which I think you can infer conclusively shows that he lacks credibility.

[00:22:31] Speaker 01:
It's that word conclusively.

[00:22:33] Speaker 01:
That's in the rules.

[00:22:35] Speaker 01:
That's the test.

[00:22:36] Speaker 01:
And I don't know that we can drill down any more specific than that.

[00:22:39] Speaker 01:
But I do think that it's workable, and it's been applied in Watts to say, yeah, we've got enough here that this guy's just.

[00:22:47] Speaker 04:
The problem for me is that Watts was decided before San Faldo passed.

[00:22:50] Speaker 01:
Yes.

[00:22:51] Speaker 04:
And so there really isn't anything that ties these things together.

[00:22:55] Speaker 01:
Yes.

[00:22:55] Speaker 01:
And also before Garza versus Idaho, in which the US Supreme Court says, even when there's these waivers,

[00:23:01] Speaker 01:
Some defendants will still want to appeal.

[00:23:03] Speaker 01:
And it doesn't automatically mean that they're lying about it when they said they do.

[00:23:09] Speaker 01:
So I understand that.

[00:23:10] Speaker 01:
And I wish I could give the court something more specific.

[00:23:14] Speaker 01:
But I think we can rely on the rule.

[00:23:16] Speaker 01:
And we can say that this didn't meet that standard here.

[00:23:20] Speaker 01:
And so with that in mind, we'd ask that you remand to the district court.

[00:23:25] Speaker 01:
Thank you.

[00:23:26] Speaker 02:
Thank you both for your argument.