[00:00:00] Speaker 03:
All right, next case is 23-5069, White versus Graham.

[00:00:05] Speaker 03:
Ms.

[00:00:05] Speaker 03:
Crabb?

[00:00:07] Speaker 00:
Thank you, Your Honor.

[00:00:07] Speaker 00:
May it please the court?

[00:00:08] Speaker 00:
I'm Jennifer Crabb.

[00:00:09] Speaker 00:
On behalf of the warden with me at council table is Oklahoma Solicitor General Gary Gaskins.

[00:00:15] Speaker 00:
The Supreme Court has repeatedly described 28 Section 2254D as, quote, the only question that matters in a habeas case.

[00:00:25] Speaker 00:
And this court has said that it provides, quote, an unavoidable legal question we must ask and answer in every case.

[00:00:34] Speaker 00:
And there's no dispute that the burden of overcoming that AEDPA deference rests squarely with the petitioner.

[00:00:43] Speaker 00:
In this case, however, not only did petitioner not argue below that the Court of Criminal Appeals had declined to decide his Hicks claim on the merits,

[00:00:53] Speaker 00:
he actually argued that he could satisfy 2254D2, therefore, implicitly agreeing that A, DPA deference applies in this case.

[00:01:04] Speaker 00:
And yet, contrary to many of this court's decisions, the district court decided sui sponte to determine whether the Court of Criminal Appeals had reached the merits of the Hicks claim and held that it did not.

[00:01:18] Speaker 00:
In Meek,

[00:01:20] Speaker 00:
versus Martin, a very recent case by this court.

[00:01:22] Speaker 00:
This court said that it cannot make arguments for a party.

[00:01:26] Speaker 00:
In Hancock versus Trammell, exact situation here, it was a Hicks claim, and the petitioner claimed, exact except that the district court didn't raise this.

[00:01:36] Speaker 00:
The petitioner claimed for the first time in this court that the Court of Criminal Appeals had not reached his due process claim, the Hicks claim.

[00:01:45] Speaker 00:
And this court said that that claim was forfeited, that argument was forfeited because it had not been raised below.

[00:01:51] Speaker 00:
And then the petitioner had not sought plain error review.

[00:01:55] Speaker 00:
And so this court did not look at the question at all.

[00:01:58] Speaker 00:
In Williams versus Trammell, same thing.

[00:02:02] Speaker 00:
An argument that he had had two ineffective assistance of counsel claims.

[00:02:06] Speaker 00:
The Court of Criminal Appeals explicitly decided one of them, not the other.

[00:02:10] Speaker 00:
Williams did not claim.

[00:02:15] Speaker 00:
that 2254D did not apply.

[00:02:17] Speaker 00:
This court says that he offers no argument why the Johnson presumption should not apply, and therefore it does apply.

[00:02:25] Speaker 02:
Do you recall Judge Lucero's opinion of Smith v. Char?

[00:02:30] Speaker 00:
Yes, Your Honor.

[00:02:31] Speaker 02:
Could you address that?

[00:02:31] Speaker 02:
Why doesn't Smith v. Char allow Judge Egan to do what she did?

[00:02:36] Speaker 00:
Because it's a different context, Your Honor.

[00:02:38] Speaker 00:
In Smith versus Sharp, it was an Atkins claim, and there are three prongs, as this court knows, to an Atkins claim.

[00:02:45] Speaker 00:
And so in Smith, the court relied on Rompea versus Beard, and Wiggins versus Smith, two Supreme Court cases dealing with ineffective assistance of counsel claims, and the Strickland test has two prongs.

[00:02:58] Speaker 00:
And the Supreme Court said, before Richter was decided, said, when a state court decides

[00:03:06] Speaker 00:
either prejudice or deficient performance, but not the other prong of Strickland, our review of the prong they did not address is de novo.

[00:03:14] Speaker 00:
And that's what the court was following in Smith.

[00:03:18] Speaker 00:
And again, it's a multi-prong test.

[00:03:20] Speaker 00:
The court said that the court of criminal appeals had not reached, and I apologize, I can't remember which prong it was, but had not reached one of the prongs, and therefore gave that prong de novo review.

[00:03:31] Speaker 00:
That is a different question

[00:03:33] Speaker 00:
been whether the state court decided a federal claim on the merits at all, and that is controlled by Hancock.

[00:03:46] Speaker 00:
And then having Sue respond.

[00:03:47] Speaker 03:
If we do, even at the deference, here you have the Hicks claim is that basically the Court of Criminal Appeals has changed the

[00:04:04] Speaker 03:
rules on finality for this one particular defendant and ultimately that's a demonstration of arbitrary and capriciousness because the factual scenario here, which is certainly unusual, would you address why

[00:04:25] Speaker 03:
you know, this kind of class of one situation is not arbitrary and capricious?

[00:04:31] Speaker 00:
Of course.

[00:04:32] Speaker 00:
I would first argue, Your Honor, that petitioner did not below make any D1 argument, and that's dispositive of the question that you've just asked, but of course I will also address the merits of it, and that is that Hicks does not constitute clearly established law in this particular context.

[00:04:49] Speaker 00:
This court has noted, as has the Eighth Circuit, as I cited in my brief, that Hicks pertains to sentencing claims.

[00:04:57] Speaker 00:
This is obviously not a sentencing claim.

[00:04:59] Speaker 00:
And this court cannot construe Hicks at such a broad level of generality, as this court said in the unpublished decision in Mitchell, as to make it apply to any time that the state court does not, purportedly does not follow its own law.

[00:05:17] Speaker 00:
And so,

[00:05:19] Speaker 00:
Here, Hicks is just nothing, it's not remotely on point.

[00:05:21] Speaker 00:
That's what this court said in Cole, that's what this court said in Mitchell.

[00:05:26] Speaker 00:
If you want me to get into, we didn't argue, our only argument as to de novo application of Hicks is that this is purely a question of state law and that the Court of Criminal Appeals having decided that state law

[00:05:41] Speaker 00:
permitted the district court to reverse its order grant and post-conviction relief, that's the end of the matter, because this court cannot second-guess the Court of Criminal Appeals on matters of state law.

[00:05:54] Speaker 00:
Now, I can address what we didn't do in our brief, and I can address if you'd like me to, and I can do a 28-J if you'd like, would be, is this a substantive due process claim?

[00:06:04] Speaker 00:
Is it a procedural due process claim?

[00:06:05] Speaker 02:
What are the standards that apply?

[00:06:10] Speaker 02:
created more issues for us.

[00:06:13] Speaker 02:
Let me ask you about what if Judge Priddy had waited, let's say, 10 years instead of working when he did.

[00:06:25] Speaker 02:
Would that have triggered Hicks, created an obvious constitutional violation to deprive someone of their liberty when so much time had passed?

[00:06:40] Speaker 00:
There is still, Your Honor, no clearly established law on point.

[00:06:43] Speaker 00:
Now, it's possible Petitioner could try to raise a HEC claim, a 1983 claim under HEC where habeas is just not available.

[00:06:53] Speaker 00:
However, that's of course, Your Honor, no, it's not the facts here.

[00:06:58] Speaker 00:
It was done very promptly.

[00:07:01] Speaker 00:
Whether or not that could ever, the time period could be so long that due process would be violated is just an open question.

[00:07:09] Speaker 00:
But it's not one, and because it's an open question, it's not one of much, excuse me, habeas relief can be granted.

[00:07:20] Speaker 01:
Can I just ask a similar question?

[00:07:24] Speaker 01:
It's a time question again, but what if Matloff against Wallace hadn't been decided until several years after it was on April 1st?

[00:07:37] Speaker 01:
or several years after the April 8th order.

[00:07:42] Speaker 01:
Would that make a difference?

[00:07:45] Speaker 00:
It's a harder case, Your Honor, and the Court of Criminal Appeals grappled with that.

[00:07:53] Speaker 00:
I did the oral argument in the Niesbitt case.

[00:07:56] Speaker 00:
However, we have to presume that if the Court of Criminal Appeals were faced with a situation like that, that it would follow the Constitution, and it would reach the right result.

[00:08:08] Speaker 00:
And as I said, there is no here clearly established law.

[00:08:11] Speaker 00:
Now, would the court of criminal appeals have found a due process violation?

[00:08:16] Speaker 00:
I don't know.

[00:08:16] Speaker 00:
Maybe they would have.

[00:08:17] Speaker 00:
Maybe they wouldn't have.

[00:08:18] Speaker 00:
But certainly, there's no federal law that would have required them to do so.

[00:08:23] Speaker 02:
Can I get back to the 2254D1 issue?

[00:08:26] Speaker 02:
If we do hypothetically say that Ms.

[00:08:30] Speaker 02:
Graham did not waive

[00:08:33] Speaker 02:
you know, the argument for the double review to bypass 2250 4D1 and entertain Judge Egan's argument.

[00:08:44] Speaker 02:
What is wrong with her argument that here the presumption under Johnson had been rebutted because the Court of Criminal Appeals had identified the state claims and had rather conspicuously not identified Hicks or identified any

[00:09:03] Speaker 02:
a federal basis for the claim, which in her view, I think, differentiates our situation from cases like Fairchild, which you cited, or Pastel, in which

[00:09:17] Speaker 02:
almost like what you were arguing with regard to distinguishing Smith, where the courts have said that, well, if there's nothing that, you know, if it's just a summary order, then we're just going to assume that the state of federal court is adjudicating the merits of all of the claims, including the federal claims.

[00:09:36] Speaker 02:
But I haven't run across any cases that we have that have addressed really the rationale of Judge Egan for or against her rationale.

[00:09:45] Speaker 00:
Well, I think, Your Honor, that it's exactly what happened in Johnson versus Williams, which is that the petitioner presented a state law claim and a federal claim, and the state court expressly adjudicated only the state law claim and did not even mention the federal constitutional claim, as here, also as in Postell and Fairchild.

[00:10:09] Speaker 00:
And so, I think this is rarely on all fours with Johnson versus Williams,

[00:10:15] Speaker 00:
There are two reasons that Johnson controls here.

[00:10:18] Speaker 00:
The first is that in Johnson, the Supreme Court said Williams presumably knows her case better than anyone else, but she didn't argue that the state court did not decide this claim on merits.

[00:10:33] Speaker 00:
And that, excuse me, I'm just gonna grab some letters.

[00:10:43] Speaker 00:
So sorry, that makes,

[00:10:44] Speaker 00:
the thought that there was an oversight most improbable.

[00:10:48] Speaker 00:
The same is true here.

[00:10:49] Speaker 00:
Petitioner did not argue that the Court of Criminal Appeals did not decide his Hicks claim.

[00:10:54] Speaker 00:
He, like Williams, presumably knows his case better than anyone else.

[00:10:58] Speaker 00:
But he did not make that argument.

[00:11:00] Speaker 00:
And secondly, in Williams, it was, I believe, a jury instruction claim where the state law and the federal law claims were intertwined.

[00:11:09] Speaker 00:
The same is true here.

[00:11:11] Speaker 00:
In fact, the Hicks claim depends entirely

[00:11:14] Speaker 00:
on whether petitioner got everything to which she was entitled under state law.

[00:11:19] Speaker 00:
And so when the quarter criminal appeals decided that state law permitted the Tulsa County District Court to reinstate the judgment and sentence, it necessarily resolved the Hicks claim.

[00:11:35] Speaker 00:
And that's what the Supreme Court said in Johnson versus Williams.

[00:11:39] Speaker 00:
there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right, in which case the state court, quote, may regard its discussion of the state precedent as sufficient.

[00:11:54] Speaker 00:
And so it's for that reason that under Johnson versus Williams the presumption has not been rebutted.

[00:12:01] Speaker 01:
Could I ask you to look at this through the D2?

[00:12:03] Speaker 01:
Of course.

[00:12:07] Speaker 01:
Okay.

[00:12:07] Speaker 01:
Just to set this up, we have April 7, 2020, Aussie becomes final, mandate issues.

[00:12:17] Speaker 01:
April 8 is when the district court granted relief, vacated the judgment, released this grant.

[00:12:28] Speaker 01:
Next day, OCCA grants an emergency motion to recall the mandate.

[00:12:35] Speaker 01:
Then down the road, we have the OCCA opinion in this case.

[00:12:39] Speaker 01:
And my question is this.

[00:12:41] Speaker 01:
The OCCA said that the district court's April 8 order was unauthorized.

[00:12:56] Speaker 01:
Now, that can't be right on April 8.

[00:12:59] Speaker 01:
It wasn't unauthorized on April 8.

[00:13:02] Speaker 01:
So isn't that a mistake of fact, an unreasonable determination of fact by the OCCA?

[00:13:10] Speaker 00:
No, Your Honor, it's not.

[00:13:11] Speaker 00:
Because it was unauthorized by law because of Matloff, because McGirt cannot be applied retroactively.

[00:13:19] Speaker 01:
It didn't have anything to do... But that hadn't been decided yet.

[00:13:22] Speaker 00:
Correct.

[00:13:22] Speaker 00:
And same was true in the Matloff case itself, in which the court issued a writ, an extraordinary writ,

[00:13:28] Speaker 00:
finding that the order granting relief in that case was also unauthorized by law.

[00:13:33] Speaker 01:
And I would like to- Well, I'm not following.

[00:13:37] Speaker 01:
How can it be unauthorized by law under a case that hasn't been decided?

[00:13:42] Speaker 01:
I mean, on April 8, wasn't that a valid order on April 8?

[00:13:46] Speaker 01:
So one day situation, I get that.

[00:13:50] Speaker 01:
But what was wrong with it on April 8?

[00:13:53] Speaker 00:
As this court knows,

[00:13:56] Speaker 00:
The judges do not make law, they decide law.

[00:14:01] Speaker 00:
So McGirt was not supposed to be retroactive at any point, including on April 8th.

[00:14:07] Speaker 00:
Now, the Court of Criminal Appeals had not yet.

[00:14:09] Speaker 01:
Well, no, nobody had said that yet.

[00:14:12] Speaker 01:
Correct.

[00:14:12] Speaker 01:
And we have Bossy, which said just the opposite.

[00:14:15] Speaker 01:
The Court was just following Bossy on April 8th.

[00:14:20] Speaker 01:
How could that be unauthorized by law?

[00:14:22] Speaker 01:
It was authorized by Bossy.

[00:14:24] Speaker 00:
Yeah, well, Governor, I think, for one thing, I would say that that's a question of state law.

[00:14:27] Speaker 00:
What is unauthorized by law in Oklahoma is there is not, but if I could point you directly to the Court of Criminal Appeals decision in Ms.

[00:14:34] Speaker 00:
Graham's case, they never make mention, the majority never makes mention of whether the mandate in BASI has issued or hasn't issued, and that simply was not a part of their order.

[00:14:44] Speaker 00:
In fact, in the NISBIT decision, the mandate had issued.

[00:14:52] Speaker 00:
Yes, but they didn't make their decision on the premise that the mandate had not issued, which is what Petitioner argues and what I think the district court found, but that's not in their decision at all.

[00:15:05] Speaker 00:
There are two paragraphs.

[00:15:07] Speaker 01:
I'm just talking about whether their conclusion that the order was unauthorized by law was accurate.

[00:15:15] Speaker 00:
Right.

[00:15:15] Speaker 01:
Was it accurate or not on April 8th?

[00:15:21] Speaker 00:
Setting that April 8th really doesn't have anything to do with it is what I'm trying to argue, Your Honor, because it's a question of law.

[00:15:27] Speaker 00:
Could McGirt be applied retroactively, regardless of when Bosse was or was not mandated?

[00:15:33] Speaker 00:
As I said, in Matloth, the court granted the writ, regardless of the Bosse mandate.

[00:15:40] Speaker 00:
In Nisbet, the court actually discussed the mandate in Bosse and said it had never issued

[00:15:47] Speaker 00:
And Ms.

[00:15:47] Speaker 00:
Graham filed a supplemental brief in the Court of Criminal Appeals.

[00:15:50] Speaker 01:
But it had issued.

[00:15:51] Speaker 01:
It issued on April 7th.

[00:15:53] Speaker 00:
Correct.

[00:15:53] Speaker 00:
And that's where I'm going with this.

[00:15:54] Speaker 03:
And not only that, the attorney general declined to appeal the Graham decision because it fell down by bossy, right?

[00:16:05] Speaker 00:
I see that my time is up.

[00:16:06] Speaker 00:
May I continue?

[00:16:06] Speaker 03:
Go ahead.

[00:16:07] Speaker 00:
Yeah.

[00:16:07] Speaker 00:
Actually, the district attorney, yes, declined to appeal.

[00:16:12] Speaker 00:
However, the decision in this case itself,

[00:16:15] Speaker 00:
had nothing to do with whether the Bossie case had mandated or hadn't mandated.

[00:16:20] Speaker 00:
It was based on, if I could read, it's page three of the court's opinion in this case.

[00:16:25] Speaker 00:
Because the convictions in this matter were final, before McGirt, the holding in McGirt does not apply, and the district court's order was unauthorized by law.

[00:16:35] Speaker 00:
See, in that law, the only discussion of Bossie is when they say that this is, excuse me, let me set up the proper context for that.

[00:16:47] Speaker 00:
when they say that erroneous judicial relief can be corrected.

[00:16:52] Speaker 00:
This is so even when the post-conviction decision is not timely appealed.

[00:16:57] Speaker 00:
And then they say it's particularly so here, given the misdirection.

[00:17:02] Speaker 00:
Our original decision in Bossy gave the district court and the parties, but it doesn't have to do with whether Bossy was good law on the eighth.

[00:17:09] Speaker 00:
In fact, the court here, the district court, granted post-conviction relief orally before

[00:17:17] Speaker 00:
the mandate in Bassey issued.

[00:17:19] Speaker 00:
The judge said, you know, we've been staying all of these cases waiting for Bassey.

[00:17:24] Speaker 00:
Bassey has been decided, so I'm going to grant relief.

[00:17:26] Speaker 00:
It appears to just be happenstance that the order was entered on April 8th.

[00:17:31] Speaker 02:
Well, I don't know that it particularly matters, but I've always assumed that he orally announced it because there was a conspicuous delay between the 26th and the 8th.

[00:17:44] Speaker 02:
I assume that he was waiting for the mandated bossy to issue before he entered his written order.

[00:17:49] Speaker 00:
There's no evidence of that, Your Honor.

[00:17:50] Speaker 00:
And when you look at the Tulsa County docket sheet in this case, it happens quite a bit that there is a hearing at which an oral decision is rendered, and then it takes at least several days before a written order to be entered.

[00:18:04] Speaker 00:
So I do not believe that there is any connection between the two here.

[00:18:10] Speaker 03:
Anything else?

[00:18:11] Speaker 03:
Thank you.

[00:18:12] Speaker 03:
Time's expired.

[00:18:12] Speaker 03:
Thank you, Your Honor.

[00:18:26] Speaker 04:
Good morning.

[00:18:27] Speaker 04:
My name is Richard O'Carroll, and it's my privilege and responsibility to represent Ms.

[00:18:34] Speaker 03:
Graham.

[00:18:35] Speaker 03:
Could you move the mic a little closer to your mouth?

[00:18:38] Speaker 04:
Pardon me, sir.

[00:18:39] Speaker 04:
It's my privilege and responsibility to represent Ms.

[00:18:42] Speaker 04:
Graham, the appellee in this particular case.

[00:18:46] Speaker 03:
And could you enter an appearance also?

[00:18:48] Speaker 04:
Say again, please.

[00:18:49] Speaker 03:
Enter an appearance.

[00:18:50] Speaker 04:
Richard O'Carroll.

[00:18:53] Speaker 03:
I'm sorry, I did that.

[00:18:55] Speaker 04:
Nerves.

[00:18:56] Speaker 04:
Let me pick up right where the Attorney General Ms.

[00:19:01] Speaker 04:
Kratt left off.

[00:19:04] Speaker 04:
The reason that the trial court Judge Tracy Priddy told the state how she was going to rule was because of the Victims Crime Act, Marcy's Law, and they were entitled to know that, and they'd all come down for the hearing.

[00:19:27] Speaker 04:
And also the reason that she said how she was going to rule was the fact that the Attorney General had done a petition for rehearing on BASI, which is prohibited by the rules.

[00:19:42] Speaker 04:
And at the time I was thinking they're going to grant the rehearing and they didn't.

[00:19:50] Speaker 04:
So we anticipated

[00:19:52] Speaker 04:
Bossy came down, the attorney general the same day or the very next morning did a petition for rehearing.

[00:20:00] Speaker 04:
So that engendered the delay.

[00:20:04] Speaker 04:
So that's the reason that she announced how she was going to rule.

[00:20:07] Speaker 04:
It had been briefed and argued before that many times.

[00:20:13] Speaker 04:
And understanding that this court had an interest in

[00:20:18] Speaker 04:
The 2254D, where Judge Egan makes her de novo findings, that came about, obviously it had to be done.

[00:20:30] Speaker 04:
And the case law says, and she cited the case law that says it has to be done and there must be some determination of it.

[00:20:38] Speaker 04:
And this is not a situation where the state issues subsumed the federal constitutional issue, quite the opposite.

[00:20:48] Speaker 04:
The unauthorized finding by the court of criminal appeals was untrue.

[00:20:56] Speaker 02:
Can I ask you a question?

[00:20:58] Speaker 02:
I don't mean to interrupt you, but when you say it was untrue, was it untrue under state law or under federal law?

[00:21:08] Speaker 04:
Does it make a difference?

[00:21:09] Speaker 02:
Well, I wonder if it might.

[00:21:12] Speaker 02:
So if the court of criminal appeals makes an error in saying,

[00:21:18] Speaker 02:
that Judge Priddy, you know, you don't, you know, you really didn't have the authority to do that.

[00:21:28] Speaker 02:
It's not like we have a rule of civil procedure 60B6 in civil cases.

[00:21:34] Speaker 02:
where you can do things after a judgment to modify an order.

[00:21:38] Speaker 02:
But if the court of a colonel feels that you made a mistake under state law, you didn't really have the authority to do that, and the judge did, well, that's just state law.

[00:21:54] Speaker 02:
You don't get habeas corpus for that.

[00:21:57] Speaker 02:
Is that a problem with your argument?

[00:22:00] Speaker 04:
Well, you do get habeas corpus if you manipulate the state rules to deprive somebody of a liberty interest which had vested with her at that time.

[00:22:11] Speaker 04:
After April 8th, she is released.

[00:22:13] Speaker 04:
And she's walking around untethered in any form or fashion to the government.

[00:22:22] Speaker 02:
Can I probe this a little bit more?

[00:22:24] Speaker 02:
So what if there was a rule of criminal procedure that said that a district court can modify his or her order, you know, say up to one year after the issuance of an order, sort of like what we have in civil cases.

[00:22:41] Speaker 02:
Would that have, would it still have been a violation of due process for the Court of Appeals to do what it did?

[00:22:48] Speaker 04:
Well, answering it as best I can on my hind legs here, I'd say, yeah, because now you're on notice.

[00:22:57] Speaker 04:
If the due process, as the Court's well aware, is all about notice and a meaningful opportunity to be heard, so you'd be on notice.

[00:23:04] Speaker 04:
And Ms.

[00:23:05] Speaker 04:
Graham was relying on the

[00:23:07] Speaker 04:
decades of precedent.

[00:23:08] Speaker 04:
I think there were in the exhibits to the trial court and to the Court of Criminal Appeals, I quoted every case I could find and they were I think in the double digits about this finding dismissing a case on a post-conviction is the same as if a jury acquitted is what Judge Lumpkin said years before this happened.

[00:23:33] Speaker 03:
Wasn't there an OCCA case that

[00:23:37] Speaker 03:
more or less allowed a post-conviction relief to be modified after the appeal period had passed.

[00:23:49] Speaker 03:
I think one of the cases was Anderson.

[00:23:52] Speaker 04:
Anderson is the case and it came out of Sequoia County, but both parties agreed because in that case there were four other decedents in that case that were dismissed with prejudice.

[00:24:05] Speaker 04:
And they had a 10 to life sentence on a guy who was apparently very, very guilty.

[00:24:10] Speaker 04:
And the defense lawyer wanted it and he agreed to it.

[00:24:15] Speaker 04:
It was favorable to the defendant in that context.

[00:24:20] Speaker 03:
And that's what a case like that.

[00:24:23] Speaker 03:
Excuse me.

[00:24:24] Speaker 03:
Would that the principle of that case though put your client on notice that a final judgment might be clawed back?

[00:24:33] Speaker 04:
I see your point, but it's not a slippery slope, it's a free fall off the cliff.

[00:24:37] Speaker 04:
Once you don't have finality under the law, we've got two statutes that Judge Egan cited saying that an unappealed order is a final order.

[00:24:47] Speaker 04:
We cited numerous cases before the others that this is what it is, and then you've got one agreed to situation that didn't get there.

[00:24:58] Speaker 04:
It really didn't get there.

[00:25:00] Speaker 04:
And if you'll remember, the Court of Criminal Appeals asked the Attorney General to do, how the District Court could reacquire jurisdiction.

[00:25:11] Speaker 04:
And then they eventually ruled that they never lost jurisdiction.

[00:25:14] Speaker 04:
And that was in the Nesbitt case that came down in the intervening time.

[00:25:18] Speaker 04:
There was a jointer of about 12 cases, a dozen, literally a dozen cases,

[00:25:24] Speaker 04:
and there was a style on it and one size fits all and Ms.

[00:25:27] Speaker 04:
Graham was the only one that had the April 8th date.

[00:25:30] Speaker 04:
So this is narrowly tailored to Ms.

[00:25:32] Speaker 04:
Graham and she was fortunate to get it.

[00:25:36] Speaker 04:
But it is what it is now and I would suggest that it is way worse than a slippery slope if we start saying final orders can be reopened at any time.

[00:25:45] Speaker 03:
Is finality required under the federal constitution?

[00:25:52] Speaker 03:
No.

[00:25:53] Speaker 03:
As Judge Baccarat, a one year or maybe no limitation on a... I think finality may not... Is that a constitutional problem here or is it just a feature of state law that we might object to because the principle behind finality is really an important one in a system?

[00:26:16] Speaker 04:
I understand what you're saying and the short answer would be

[00:26:20] Speaker 04:
If it was, as I think I told the court a moment ago, if there was a statute that said that, then it would be noticed.

[00:26:29] Speaker 04:
But it was the deprivation of notice that becomes the due process problem.

[00:26:35] Speaker 04:
And that's where she was caught up in that because she was on fetters.

[00:26:40] Speaker 04:
She was walking around.

[00:26:41] Speaker 04:
Those 30 days passed for doing a petition in error, which is jurisdictional, it's over.

[00:26:48] Speaker 02:
One thing that people usually argue with notice is, and an opportunity to be heard.

[00:26:56] Speaker 02:
Meaningful.

[00:26:56] Speaker 02:
Yeah.

[00:26:57] Speaker 02:
And so when you're denied notice, that you didn't have an opportunity to present some argument.

[00:27:03] Speaker 02:
So it was their prejudice from the lack of notice in itself.

[00:27:08] Speaker 02:
In other words, what would Ms.

[00:27:10] Speaker 02:
Graham have done differently had she had noticed that Judge Priddy's release order could be modified?

[00:27:18] Speaker 04:
Well, I would have been involved in every case and I would have resources to the Matloff case, which was on its own terms a violation.

[00:27:32] Speaker 04:
Even taking away the ex post facto argument, for instance, Leon, I use that example.

[00:27:41] Speaker 04:
The court changes the law on the exclusionary rule and puts a good faith.

[00:27:46] Speaker 04:
They didn't go out and re-arrest everybody else that had been released on that.

[00:27:51] Speaker 04:
But in this particular case, if she did have notice, then I could have dealt with the cases that were burgeoning up.

[00:27:59] Speaker 04:
And that was a case that shouldn't have gotten to where it should.

[00:28:06] Speaker 04:
It got to because the court rules

[00:28:11] Speaker 04:
In Matlock, they come along and they say, no problem, you didn't file a petition in error.

[00:28:20] Speaker 04:
Since you have no remedy at law, we're going to grant an extraordinary writ.

[00:28:26] Speaker 04:
When in fact, there was a remedy at law and that was that they could see, they could file with the district court judge

[00:28:37] Speaker 04:
leave to appeal out of time.

[00:28:39] Speaker 01:
Council, on the due process argument, if we get to that, there's procedural due process and then there's substantive due process.

[00:28:50] Speaker 01:
It seems like we've been talking more on the procedural due process side the last few minutes, notice, opportunity to be heard, that sort of thing, as opposed to substantive due process, which goes to fundamental fairness.

[00:29:05] Speaker 01:
Now, are you making

[00:29:07] Speaker 01:
What is your due process argument?

[00:29:09] Speaker 01:
Is it procedural?

[00:29:10] Speaker 01:
Is it substantive?

[00:29:11] Speaker 01:
Is it both?

[00:29:12] Speaker 01:
What is it?

[00:29:13] Speaker 04:
Chapman.

[00:29:14] Speaker 04:
They kick down the guy's door.

[00:29:15] Speaker 04:
They pump his stomach.

[00:29:16] Speaker 04:
That's the substantive due process, as I understand it, back in the 50s.

[00:29:22] Speaker 04:
And they accuse him of dealing drugs because they got it out of his stomach.

[00:29:29] Speaker 04:
That's substantive due process.

[00:29:31] Speaker 04:
And it shocks the conscience.

[00:29:33] Speaker 04:
And that was the finding that the trial judge made.

[00:29:35] Speaker 01:
Well, that's different from your notice and opportunity to be heard, correct?

[00:29:39] Speaker 01:
So you're arguing both.

[00:29:41] Speaker 04:
My argument is that the lack of notice and opportunity was so egregious.

[00:29:46] Speaker 04:
And the changing of the rules in the middle of the game was so egregious, as the trial court found in this case, it shocked the judicial conscience.

[00:29:56] Speaker 01:
Let me back up and just talk about EDPA for a minute.

[00:30:02] Speaker 01:
You had the burden of overcoming 2254D.

[00:30:11] Speaker 01:
Yes, sir.

[00:30:13] Speaker 01:
D1 has to do with unreasonable determination under clearly established Supreme Court law, and D2 has to do with unreasonable determination of fact.

[00:30:27] Speaker 01:
Are you saying you've overcome

[00:30:30] Speaker 01:
that ed pedeference requirement on D1, D2 or both and how have you done it?

[00:30:37] Speaker 04:
On reasonable determination of fact by using the word unauthorized when in fact it was authorized by law.

[00:30:47] Speaker 04:
And that's where the trial judge, Judge Egan hung her hat as I read her order.

[00:30:54] Speaker 04:
And she said she would have gotten there anyway in a footnote in her order denying the application for stay.

[00:31:00] Speaker 04:
I had to look at that at one stage and it turned on the notion that not only did they tender a falsehood, but they talked about it as if they protested that this wasn't a feel-good decision, the majority in this particular case.

[00:31:24] Speaker 04:
So facts pushed the law and a Higgs claim that is especially true.

[00:31:30] Speaker 04:
And when you have egregious facts, you don't have to go out and say everything that detail is wrong here because coming in, it's an anathema to come in and to apply a new rule after the fact.

[00:31:48] Speaker 04:
And it goes against the core of everything that we learned in law school.

[00:31:55] Speaker 04:
And the facts were laid out very plainly.

[00:32:00] Speaker 04:
before the trial court, including all the quotes from the dissenting judges, who apprised the majority of the problems of the constitutional issues.

[00:32:15] Speaker 04:
Judge Lumpkin put the golden day, April 8th, in a footnote.

[00:32:21] Speaker 04:
Judge Hudson was out there saying this isn't a feel-good decision, but in truth and in

[00:32:28] Speaker 04:
The circumstances I would suggest would indicate that he was aware, April 8th.

[00:32:33] Speaker 04:
It wasn't unauthorized.

[00:32:36] Speaker 04:
It was authorized by law.

[00:32:37] Speaker 04:
Bossy was the law of the land for one day.

[00:32:40] Speaker 04:
I can't imagine that Judge Hudson wasn't aware of what Judge Lumpkin wrote in his dissent.

[00:32:50] Speaker 04:
If judges are making false findings a fact, then I think everybody should view it

[00:32:58] Speaker 04:
as egregious and that's what happened here.

[00:33:02] Speaker 04:
So it's a substantive due process violation because of that.

[00:33:07] Speaker 04:
Thank you.