[00:00:01] Speaker 04:
Council for Mr. Walker do you want to approach great.

[00:00:10] Speaker 01:
All right.

[00:00:10] Speaker 01:
Good morning and may it please the court Pablo Amazon for Thomas Walker and all aims to reserve 2 minutes for a bottle very well.

[00:00:17] Speaker 01:
So before turning to the focus order, I just wanted to very briefly emphasize that although Ferretta says that a defendant's lack of legal training is not relevant to his right to proceed pro se, the State Court of Appeal here nevertheless viewed Mr. Walker's lack of legal training as a relevant factor for it to consider in affirming the denial of his request.

[00:00:39] Speaker 01:
So on that ground alone, basically that the state court reached a conclusion contrary to Ferretta on a question of law.

[00:00:46] Speaker 02:
Is your position that the court can never consider the relevancy of the fact that you've got a defendant who's facing multiple trials and sophisticated DNA evidence that's not a factor that the court can consider even if it's not the controlling factor?

[00:01:05] Speaker 01:
So they can consider his lack of legal training specifically.

[00:01:10] Speaker 02:
I would say they could potentially consider, you know, how complex the case is, but not his ability to, you know... The problem with your client was that he was accused of having committed a number of break-ins, sexual assaults, and so on, but he didn't even know what the charges were.

[00:01:30] Speaker 02:
He couldn't tell the judge what the charges were that he was facing in, what, three different cases?

[00:01:35] Speaker 01:
No I mean I would argue that he did know when when in the colloquy with the court the court was really getting at specifics that they're like okay basically tell me the fact by fact.

[00:01:46] Speaker 02:
To determine whether or not he was prepared to go to trial in a short period of time that's how I understood the purpose of the colloquy.

[00:01:53] Speaker 02:
Am I wrong?

[00:01:54] Speaker 01:
Well, I mean, the court also asked, you know, are you going to be prepared to adequately cross-examine a DNA expert?

[00:02:02] Speaker 01:
And then ultimately, when Mr. Walker does say, you know, I will be ready and prepared to start trial, the court answers, you know, no, I don't believe you.

[00:02:10] Speaker 01:
I don't believe that's right.

[00:02:11] Speaker 02:
Well, that's a factual determination, is it not, to which we have to give deference unless it's clear error?

[00:02:17] Speaker 01:
Well, again, I would say if

[00:02:20] Speaker 01:
The underlying assumption there is that the court is viewing the reason why he won't be ready is because of his lack of legal training, or here, his lack of ability to handle a DNA case.

[00:02:30] Speaker 01:
That itself is improper.

[00:02:32] Speaker 01:
So that the court cannot consider.

[00:02:34] Speaker 02:
Well, I agree with you if that was the only reason.

[00:02:37] Speaker 01:
Sure.

[00:02:38] Speaker 02:
My reading of the transcript was that that was one of the factors that the Court of Appeals looked to in order to determine whether or not it was a knowing and voluntary waiver under Ferretta and whether it was time.

[00:02:53] Speaker 01:
Sure, so I would say even in the consideration of whether it's timely, they just can't consider his lack of legal training.

[00:03:00] Speaker 02:
At all?

[00:03:01] Speaker 01:
At all.

[00:03:02] Speaker 01:
Because if that's the case, then almost any defendant would never really have the ability to exercise his rights of secrecy.

[00:03:08] Speaker 01:
I agree with the reading of the law.

[00:03:09] Speaker 01:
Sure, sure.

[00:03:10] Speaker 02:
I would like to have you address the subject of the focus order.

[00:03:15] Speaker 01:
Sure, sure.

[00:03:16] Speaker 01:
So, you know, turning to the focus order.

[00:03:18] Speaker 01:
For nearly 30 years now, this court has read for RETA as clearly establishing that a request made weeks before trial is timely.

[00:03:27] Speaker 01:
And obviously in Moore and Tamplin, we know that that encompasses a request made 14 days before trial.

[00:03:33] Speaker 01:
And I know that there's an issue pointed out in the state's answering brief.

[00:03:38] Speaker 01:
when they note that potentially Williams v. Taylor poses some issue with Moore.

[00:03:44] Speaker 01:
I would say just to quickly answer the focus order, Moore and Tamplin are still good law.

[00:03:50] Speaker 01:
The only issue with Moore is really that footnote three where it talks about, you know, they got it wrong at that point.

[00:03:55] Speaker 01:
They viewed the contrary to language from 2250-41 as only applying to questions of law.

[00:04:02] Speaker 01:
And then subsequently in Williams v. Taylor, the Supreme Court clarified that no, it also covers mixed questions of law and fact.

[00:04:10] Speaker 01:
But if we look at the actual analysis that Moore did, it was completely in line with the methodology analyzed in Williams v. Taylor, where they basically looked at the facts.

[00:04:26] Speaker 02:
So it's a mixed question of law and fact, but isn't it heavily fact driven?

[00:04:32] Speaker 01:
For the timeliness, no.

[00:04:34] Speaker 01:
So basically, what Moore did is it looked at the two cases.

[00:04:39] Speaker 01:
It said, in both cases, it's knowing, intelligent, unequivocal.

[00:04:43] Speaker 01:
And then we know that in both cases, the request was made weeks before trial.

[00:04:48] Speaker 01:
And in that sense, it was identical.

[00:04:50] Speaker 02:
That's the lack of clarity in FERETA itself, is it not?

[00:04:56] Speaker 02:
It's what constitutes a timely request.

[00:05:00] Speaker 01:
Sure.

[00:05:00] Speaker 02:
So I mean in- Moore didn't answer that question.

[00:05:03] Speaker 01:
Indirectly it sort of what said if it's made several weeks before trial, but but we're arguing here over days right 14 15 or 16 mm-hmm So I would say you know infrared as they did mention you know here, mr. Ferretta made his request weeks before trial And there's no dispute that it was doing an intelligent, and then they say under these circumstances You would concede that a request made a week before trial would not be time

[00:05:29] Speaker 01:
I would say it's not clearly established that that would be untimely.

[00:05:33] Speaker 01:
So I guess a different way to look at it, we don't know when something becomes untimely.

[00:05:37] Speaker 01:
You know, whether it be five days before, one day before a day of trial.

[00:05:41] Speaker 01:
I would argue that, yeah, states or the state courts do have discretion in terms of developing some kind of test to determine whether it's timely.

[00:05:49] Speaker 01:
But when it's weeks before, you know, uh-huh.

[00:05:53] Speaker 01:
Yeah, I mean, I would read it as, you know, weeks is in the plural.

[00:05:57] Speaker 01:
To me, that would mean two or more.

[00:05:59] Speaker 01:
If we're really going to try to fine tune that, I think.

[00:06:05] Speaker 02:
Well, we're splitting hairs here.

[00:06:07] Speaker 02:
That's the problem with the cases that we're going to interpret.

[00:06:11] Speaker 01:
And I think, just thinking policy-wise, I think the practical ramifications of viewing Ferretta's Weeks Before language so narrowly,

[00:06:23] Speaker 01:
Like practically speaking then a lot of defendants are really never going to have the right to proceed per se because I think for the most part you know these requests are made when they get closer to trial.

[00:06:34] Speaker 01:
They have some disagreement with their council you know they feel much more confident representing themselves at that point and for whatever reason they can't get rid of the council.

[00:06:42] Speaker 01:
And so then they're like, well, if it's me who's going to be serving time in jail or in prison, I'd rather make the call.

[00:06:50] Speaker 01:
And so to me, to then say, oh, is weeks actually mean like three weeks or like four weeks or whatever, just really cuts against the actual right itself.

[00:07:01] Speaker 01:
And I think, again, for almost 30 years, this court has consistently read, as weeks before is timely.

[00:07:09] Speaker 01:
And, you know, and more in Tamplin, it was 14 days or more before.

[00:07:12] Speaker 04:
Let me ask you about Tamplin, because I'm going to anticipate what they're going to argue.

[00:07:17] Speaker 04:
And I'm not going to hold you to 10 minutes.

[00:07:18] Speaker 04:
I'm going to give a little more time.

[00:07:19] Speaker 01:
Thank you.

[00:07:20] Speaker 04:
So in Tamplin, there's a lot of even assuming this and assuming that.

[00:07:26] Speaker 04:
If I was going to read Tamplin the way I think they're going to want us to read Tamplin, the narrowest reading of Tamplin is that it's de novo review and that Mr. Tamplin was basically his own lawyer for months before the request was made.

[00:07:38] Speaker 04:
And they're going to say that's very different than this case because this case is Edpo review and there wasn't this situation where he was representing himself for months before the request was made.

[00:07:48] Speaker 04:
What's your response to their anticipated reading of Tamplin?

[00:07:52] Speaker 01:
I mean my response is that whether or not he was representing himself before that the actual request was considered made Is there irrelevant under ferretta well on the ninth circuit certainly didn't think it was irrelevant they spent Several paragraphs on that very point mm-hmm, so if it's irrelevant why was why was it in the opinion?

[00:08:11] Speaker 01:
I mean I think for them they were trying to make a

[00:08:15] Speaker 01:
Conceivably they were saying that this poses a somewhat different case where it was relevant.

[00:08:19] Speaker 04:
Yeah Yeah, explain to me why it's relevant.

[00:08:21] Speaker 04:
Why does it not differentiate?

[00:08:24] Speaker 01:
That case from your case sure so they do positively cite to more and obviously in more we know that You know it wasn't a situation where he was representing himself all the way until you know he officially makes his request so to them ultimately

[00:08:38] Speaker 01:
what they did get to is like looking more our circuit has already held that a request made you know in that case it was sixteen days before but weeks before is timely and ultimately when it came down to the timeliness issue itself assuming it was under at the review the court found that okay here in in our case no tamplin made his request fourteen days before so were essentially balanced by more and and and finding that that was so your view is that tamplin effectively

[00:09:07] Speaker 04:
Endorsed more and that we can decide this case based on more Correct yes, okay, so even with all the detours that Tamplin takes you're saying there's still a straight road through to more Yeah, and and and again like almost every other case we sites in the briefs where I sat in the reply brief

[00:09:25] Speaker 01:
Positively cites more and like Marshall v. Taylor and all subsequent cases so I mean that's been the view of this circuit for almost 30 years now and Unless the court has any other questions all reserve.

[00:09:37] Speaker 00:
I just have oh sure I'm going back to the weeks before you know I understand the idea that weeks before Could be understood to be two weeks because weeks is plural the minimum is two and

[00:09:48] Speaker 00:
But it can't just be a possible interpretation.

[00:09:53] Speaker 00:
Doesn't have to be clearly established.

[00:09:56] Speaker 00:
So can something be ambiguous and clearly established?

[00:10:02] Speaker 01:
I would say under Marshall v. Rogers, circuits are free to determine what's been clearly established.

[00:10:09] Speaker 01:
And from more than on, this circuit at least has read weeks before as meaning two weeks or more.

[00:10:18] Speaker 01:
Ultimately, at the end of the day, if the Supreme Court wants to say something different, they can.

[00:10:24] Speaker 01:
But under the law of the circuit that we're required to follow, weeks before does equal two weeks or more.

[00:10:31] Speaker 04:
I'll give you two minutes.

[00:10:33] Speaker 04:
Thank you, counsel.

[00:10:42] Speaker 03:
May it please the court, Deputy Attorney General Amanda Lloyd for respondent appellee.

[00:10:47] Speaker 03:
As this court concluded in Marshall Stenson and Clark, Ferretta established a general timeliness standard and did not define when a self-representation request becomes untimely or define the precise contours of the timeliness element.

[00:11:01] Speaker 03:
Under EDPA, this court may only look to Supreme Court decisions to determine what constitutes clearly established federal law.

[00:11:09] Speaker 03:
EDPA also requires that pre-existing Supreme Court authorities squarely address the issue at hand and provide a clear answer.

[00:11:18] Speaker 03:
The Florida decision does not provide us with a clear answer about the timeliness of a self-representation request.

[00:11:25] Speaker 03:
At most,

[00:11:26] Speaker 03:
It discusses that the request in Ferretta made well before the date of trial and weeks before trial was timely, quote, under these circumstances, meaning that the court looked directly at the circumstances, facts and circumstances in the Ferretta case to determine if it was timely.

[00:11:42] Speaker 03:
It did not create a bright line rule, as counsel is suggesting, of 14 days.

[00:11:47] Speaker 03:
While an appellate panel may look to its decisions to see if the Supreme Court has clearly established a rule, it may not broaden or further refine a rule that the Supreme Court has not announced.

[00:12:00] Speaker 03:
Focusing on the focus letter of Moore and Tamplin, Moore was governed by pre-EDPA law.

[00:12:06] Speaker 03:
It was not subject to EDPA deference, and it was partially overturned later by Williams v. Taylor.

[00:12:12] Speaker 03:
Additionally, Tamplin was decided de novo, also without giving EDPA deference to the state courts, finding that there was no state court decision on the merits on untimeliness in that case.

[00:12:27] Speaker 03:
Because Moore and Tamplin were not decided under EDPA, this court should follow Marshall, Stenson, and Clark in finding that Ferretta established only a general timeliness standard.

[00:12:37] Speaker 04:
So let me ask you, because if I were you, I'd be saying exactly the same thing.

[00:12:41] Speaker 04:
It makes total sense to me.

[00:12:43] Speaker 04:
But there is some language in Tamplin that is very helpful to the other side.

[00:12:48] Speaker 04:
So when they invoke Moore,

[00:12:53] Speaker 04:
If you're us and you want us to write something in your favor, how do we write it consistent with Tamplin?

[00:13:00] Speaker 03:
Well, again, Tamplin is a de novo case.

[00:13:01] Speaker 03:
It didn't give up a deference.

[00:13:03] Speaker 03:
And in this case.

[00:13:03] Speaker 04:
But it doesn't mean the court does say we're not going to give deference.

[00:13:07] Speaker 04:
But even if we did, we would still come out in the same way.

[00:13:12] Speaker 03:
And again, I would go back to the fact that the Supreme Court has not clearly established the parameters of the general timeliness requirement.

[00:13:22] Speaker 03:
So under EDPA, habeas relief is not available unless a state court error was obvious and indisputable.

[00:13:29] Speaker 03:
And given the general timeliness discussion in Florida and the facts that it applied under these circumstances, there is no state court decision.

[00:13:36] Speaker 03:
There is no obvious or indisputable error, especially in this case, where below we have both the magistrate and district court disagreeing over this exact issue.

[00:13:48] Speaker 03:
That shows that there is no obvious or indisputable error.

[00:13:51] Speaker 04:
Let me ask you this so in Tamplin page 1089 It writes the court wrote the following But even if the state habeas court had relied on untimeliness and even if we were to give ed put deference We would interpret Ferretta as we did in more That is we would conclude that the state habeas court reached a result clearly contrary to Ferretta That's the language you're opposing counsels relying on How do we get around that we get around that by looking to the?

[00:14:20] Speaker 03:
Marshall, Stinson, and Clark were after, just recently in 2023, Clark stated, in the absence of clear Supreme Court precedent defining when a Florida request becomes untimely, the California State Court is free to determine that issue under California's reasonable time standard.

[00:14:37] Speaker 03:
It cited Marshall also and said that although Florida established a timing element, there is no Supreme Court case directly establishing when a request is timely.

[00:14:51] Speaker 03:
So I think we get there by what Edpa requires federal courts to do, which is to only to look to whether the state courts issued a decision contrary to or unreasonably replied clearly established federal law.

[00:15:08] Speaker 03:
And as all the courts agree, Ferreta is the only United States Supreme Court case

[00:15:12] Speaker 03:
that can be considered clearly established federal law on the timeliness issue.

[00:15:17] Speaker 04:
I'm with you on that.

[00:15:18] Speaker 04:
I mean, I agree.

[00:15:18] Speaker 04:
If we had a clean slate, I agree with you.

[00:15:21] Speaker 04:
Right?

[00:15:22] Speaker 04:
If we have a clean slate, I agree with you.

[00:15:24] Speaker 04:
The problem is, for your side, is Tamplin has language in there that is contrary to what you're saying.

[00:15:30] Speaker 04:
And so we're trying to say, is there a way to

[00:15:34] Speaker 04:
Essentially disregard tamplin even though it's a decision of our court that we're stuck with Everything you look everything you're saying to me makes sense.

[00:15:41] Speaker 04:
It's just tamplin Tamplin is not consistent with that at least as I read it.

[00:15:45] Speaker 04:
So help me help.

[00:15:46] Speaker 04:
That's why we think that's why we issued the focus order to help us Help me understand how we can say what you want to say which I said makes sense to me but when tamplin says what it's the paragraph I just read in tamplin I

[00:16:01] Speaker 04:
And look, you didn't cause this.

[00:16:02] Speaker 04:
I'm not saying you created this mess.

[00:16:04] Speaker 04:
I want to be clear about that.

[00:16:05] Speaker 04:
We're looking for help.

[00:16:07] Speaker 04:
But you inherited the mess, and we've got to deal with it.

[00:16:10] Speaker 03:
Right.

[00:16:10] Speaker 04:
You love the mess.

[00:16:11] Speaker 03:
You've got to deal with the mess.

[00:16:12] Speaker 04:
So how do we deal with the mess?

[00:16:15] Speaker 03:
I'm sorry.

[00:16:17] Speaker 03:
I'm looking for that specific.

[00:16:19] Speaker 03:
Can you point me to that language one more time?

[00:16:20] Speaker 03:
Yeah, sure.

[00:16:20] Speaker 04:
I think it's on 1089 of the case.

[00:16:23] Speaker 04:
And I'll pull it up here for a second.

[00:16:26] Speaker 04:
Maybe in a future generation, we'll have a big screen.

[00:16:28] Speaker 04:
I could put it on the screen for you.

[00:16:29] Speaker 04:
It'd be a lot easier.

[00:16:31] Speaker 04:
But the passage is on page 1089.

[00:16:33] Speaker 04:
It says, even if the state habeas court have relied on untimeliness, and even if we were to give Ed pedeference, we would interpret Ferretta as we did in Moore.

[00:16:43] Speaker 04:
That is, we would conclude that the state habeas court reached a result clearly contrary to Ferretta.

[00:16:49] Speaker 04:
And then it cites Marshall.

[00:16:51] Speaker 04:
So the question is, is that what do we do with that language?

[00:16:57] Speaker 03:
Again, it's going back to Moore, which is a pre-EDPA case.

[00:17:03] Speaker 03:
So the court made an error by relying on a pre-EDPA case.

[00:17:08] Speaker 03:
Actually, it was de novo, so it could have looked to circuit authority for its decision, but this case is not.

[00:17:15] Speaker 03:
So it's confusing because of the EDPA shield.

[00:17:20] Speaker 04:
I guess what I'm saying is that it may be that it's wrong.

[00:17:23] Speaker 04:
I may agree with you that it's wrong.

[00:17:27] Speaker 04:
We're stuck with it.

[00:17:29] Speaker 04:
So the response can't be Tamplin is wrong.

[00:17:33] Speaker 04:
It has to be Tamplin doesn't control, and here's why.

[00:17:36] Speaker 04:
And that's what I'm trying to get at.

[00:17:37] Speaker 04:
Why doesn't Tamplin control?

[00:17:38] Speaker 03:
Our position is that Tamplin does not control because it's a de novo case.

[00:17:41] Speaker 03:
And anything else post that is dicta.

[00:17:44] Speaker 03:
It is not necessary to the court's decision once it decided.

[00:17:47] Speaker 03:
the issue based on de novo law that was the end of the issue and given that and given that more was a pre-adput case this court should look to its other authorities including Marshall Stenson and Clark to get to the general timeliness standards.

[00:18:02] Speaker 02:
So you're suggesting that the Tamplin panel reached out to decide an issue that was not necessary once it had decided that on de novo review it was untimely?

[00:18:13] Speaker 03:
Yes.

[00:18:18] Speaker 03:
Given the lack of Supreme Court authority squarely addressing when a self-representation request may be deemed untimely, the California Supreme Court established a standard requiring a Florida request to be made a reasonable amount of time before trial, and the California Court of Appeal reasonably applied that standard.

[00:18:35] Speaker 03:
It's important to note that Florida

[00:18:38] Speaker 03:
Ferretto faced a single count of grand theft as compared to the numerous serious charges Walker was facing spread amongst two trials for which he would receive multiple life terms.

[00:18:51] Speaker 03:
The request made by Ferretta was also made the day after charges were filed, whereas here we have Walker waiting four years to make his request.

[00:19:02] Speaker 03:
And also during discussions with the judge, he said he had not received all of the discovery and he would try to be ready.

[00:19:10] Speaker 03:
Given all of these factors and the significant differences between the cases and the fact that the United States Supreme Court clearly decided Ferretta based under these circumstances, which were present in that case,

[00:19:22] Speaker 03:
this court should defer to the state court's determination, which was not contrary to any Supreme Court law.

[00:19:32] Speaker 03:
Unless the court has any questions.

[00:19:36] Speaker 04:
All right.

[00:19:36] Speaker 04:
Thank you, counsel.

[00:19:45] Speaker 01:
So just really quickly, you know, Moore and Tamplin are binding law on this court.

[00:19:51] Speaker 02:
Can you address that last point that she made?

[00:19:55] Speaker 02:
resonate with my reading of Tamplin, there really was no reason for the panel to reach out and decide that issue.

[00:20:04] Speaker 02:
We sometimes, when we're drafting these opinions, refer to them as a double-barreled approach.

[00:20:10] Speaker 02:
And this is the second shot of the double-barreled shotgun.

[00:20:17] Speaker 02:
But the question is, is that dicta, or is it necessary to the holding of the court?

[00:20:21] Speaker 01:
I would so to back up a little in that case the state was arguing that it was untimely So in a way that I believe this the the court did properly address that question But ultimately I mean what they're doing is they're explaining what the clearly established law is you know regardless of how they come out on the question I do believe that you know hold or it's not dicta when it's basically explaining that

[00:20:46] Speaker 01:
This is how our circuit reads the law.

[00:20:49] Speaker 01:
And that's still valid.

[00:20:50] Speaker 02:
So your position has to be that two or more weeks constitutes weeks before trial.

[00:20:57] Speaker 01:
Sure.

[00:20:57] Speaker 01:
And I mean, also, I mean, it's not just Tamplin, right?

[00:20:59] Speaker 01:
We also have Moore versus Calderon that says that as well.

[00:21:03] Speaker 01:
And I know counsel mentioned that that was a pre-advocate case.

[00:21:08] Speaker 01:
A little more background there.

[00:21:10] Speaker 01:
The habeas case there was pending when ETPA was enacted.

[00:21:14] Speaker 01:
So there was this open question as to whether or not ETPA applied retroactively to those cases.

[00:21:19] Speaker 01:
So at that point in time, it was really necessary for the court to also address, you know, under at the deference, how would we come out?

[00:21:26] Speaker 01:
And, you know, obviously they came out the way we're arguing this circuit has read for 30 years, that weeks before equals two or more weeks.

[00:21:34] Speaker 01:
Tamplin essentially, you know, supported that by positively siding to Moore.

[00:21:39] Speaker 01:
And I see no reason why this court should not follow the precedent set forth in Moore and Tamplin.

[00:21:47] Speaker 04:
All right, thank you very much, counsel.

[00:21:48] Speaker 04:
I want to thank both of you for your briefing and your argument in this interesting case.

[00:21:51] Speaker 04:
This matter is submitted, and we'll call the final case for today.