[00:00:00] Speaker 04:
Your first case, 23-4052, United States versus Cooper.

[00:00:05] Speaker 04:
Counsel for appellant, if you'd make your appearance and proceed, please.

[00:00:12] Speaker 03:
Good morning, Mr. Chief Judge and may it please the court.

[00:00:15] Speaker 03:
I'm Jacob McMahon.

[00:00:16] Speaker 03:
I'm pleased to represent Todd Cooper, who's in federal custody.

[00:00:20] Speaker 03:
His life sentence imposed under the three strikes law is the subject of today's proceeding.

[00:00:25] Speaker 03:
In light of Johnson's new rule of constitutional law made retroactive by the United States Supreme Court in Welch, the residual clause of the three strikes law is unconstitutionally vague, and Mr. Cooper should be resentenced because he does not have three strikes.

[00:00:39] Speaker 03:
There's agreement that he has two strikes, one for the instant offense of conviction in this case and another for a 1988 prior.

[00:00:47] Speaker 03:
For the third strike, the government points to a California robbery conviction.

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I believe there's agreement

[00:00:53] Speaker 03:
that such a conviction does not qualify as a strike today, but the government and I disagree about how the sentencing court would have treated the California robbery in 2003.

[00:01:04] Speaker 03:
Moreover, we disagree about whether the sentencing or a treatment of the California robbery conviction matters.

[00:01:09] Speaker 04:
Well, to start with your prefatory comment, Mr. Inkman,

[00:01:13] Speaker 04:
In United States versus Greer, we said, quote, the only right recognized by the Supreme Court in Johnson was a defendant's right not to have his sentence increased under the residual clause of the ACCA.

[00:01:28] Speaker 04:
We're not dealing with the ACCA here.

[00:01:31] Speaker 04:
Why does Johnson even matter?

[00:01:33] Speaker 04:
I mean, for purposes of determining whether the Supreme Court has spoken to the three strikes law, what basis do you have for believing that would be the case?

[00:01:43] Speaker 03:
Your honor, when I discuss the rule of Johnson, I'm referring to a right not to be sentenced under recidivist statutes residual clause that combines the categorical approach with an imprecise risk standard.

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And I acknowledge your honor's point that the Johnson case was decided with respect to the Armed Career Criminal Act.

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And this is not an Acke case.

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Mr. Cooper was sentenced under the three strikes law.

[00:02:09] Speaker 03:
But as I argue in the briefs, the Johnson rule shouldn't be understood to be statute specific.

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And the court's application of the Johnson rule, which again is the combination of the categorical approach with the imprecise risk standard of a residual clause,

[00:02:25] Speaker 03:
That is the combination of elements or factors that causes a residual clause to be unconstitutional.

[00:02:34] Speaker 00:
If your analysis had been true,

[00:02:36] Speaker 00:
the Supreme Court would have just said all the statutes with similar residual clauses unconstitutional.

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It's obvious this residual clause is going to be unconstitutional, I think.

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At least it is to me.

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But the Supreme Court has really followed this rule under the habeas statute about successive and

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multiple habeas applications to say it has to be applied to a particular statute.

[00:03:10] Speaker 00:
They've been quite clear on that, unless you think they've changed their mind.

[00:03:18] Speaker 00:
How do you get around the string of cases where each time they've said this statute, just this statute, and this statute, they've never said this is a common language, it just applies to everything.

[00:03:29] Speaker 03:
Well, of course, the court could have drawn such a broad rule in Johnson.

[00:03:33] Speaker 03:
On the other hand, the court was deciding the case before it, which was an ACCA case.

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And it's no small thing to declare a law unconstitutional.

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And the court has taken this step by step.

[00:03:44] Speaker 00:
So we don't have a case yet where, affecting Mr. Cooper, that he was sentenced under a three strikes law that has yet been declared unconstitutional by the Supreme Court.

[00:03:55] Speaker 03:
That's true.

[00:03:56] Speaker 03:
I believe it's on page 12 of the opening brief.

[00:03:58] Speaker 03:
I have a chart that in the lower right cell is open because the Supreme Court hasn't yet declared... And that chart was very helpful.

[00:04:06] Speaker 00:
I really appreciated the way you laid that out in your brief.

[00:04:10] Speaker 03:
I'm glad, but I would argue that the... I'm sorry, Judge.

[00:04:13] Speaker 04:
I did too, but it seems to me that chart is determinative.

[00:04:15] Speaker 04:
I mean, you know, we're not on direct appeal.

[00:04:18] Speaker 04:
I mean, this sort of influential logic of, oh, well, the Supreme Court in Johnson and de Maia and these other cases has held residual clauses to be unconstitutional.

[00:04:28] Speaker 04:
Ergo, it would hold it to be unconstitutional here.

[00:04:31] Speaker 04:
I mean, on direct appeal, that has some persuasive force to it.

[00:04:36] Speaker 04:
But we're not on direct appeal.

[00:04:38] Speaker 04:
We're in the context of not only are we in the context of a habeas action, we're in the context of a second and successive habeas action.

[00:04:45] Speaker 04:
And unless I'm missing something, there is a threshold determination that has to be made.

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Of course, the prima facie determination was already made by our court, but there is a threshold determination that has to be made as to whether you have a new rule of constitutional law that the Supreme Court has deemed to be retroactively applicable to

[00:05:07] Speaker 04:
this statute.

[00:05:09] Speaker 04:
And there is no basis for that.

[00:05:11] Speaker 04:
I mean, the district court that I know of, the district court alighted that issue and just went on and dealt with the merits, get that, but that doesn't mean you don't have to meet that standard, right?

[00:05:24] Speaker 03:
I think it depends a little bit on where we're talking about that standard has to be met.

[00:05:30] Speaker 03:
I've argued that I think that the Johnson rule is that when a

[00:05:34] Speaker 03:
criminal statute combines the categorical approach with the imprecise or fuzzy risk standard of residual clause.

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The rule of Johnson, as explained not only in Johnson but the Supreme Court's subsequent cases of Davis and DeMaia, is that such a residual clause is unconstitutionally vague.

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And I recognize as well that the Supreme Court could decide to specifically acknowledge the rule's application to the three strikes law, especially in a direct appeal posture.

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I would caution the court for waiting for such a case because the government agrees with me that this residual clause is unconstitutional.

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And if it's not enforcing it against defendants, such a case may not arise.

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And as the cases I've cited in the briefs

[00:06:16] Speaker 03:
show there are courts, persuasive authorities, district courts around the country, who are recognizing the Johnson rule is not specific to the ACA statute and can be applied in this three strikes context.

[00:06:27] Speaker 04:
Two responses to that.

[00:06:29] Speaker 04:
One, we have decided in Greer that Johnson only speaks to the ACCA.

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So irrespective of what any other court has done, that's what we've done, first point.

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Second point, is it not, in fact, the case

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At this level, now having had the prima facie test satisfied for purposes of the district court acting, is it not the case that there are still things that you have to establish?

[00:07:00] Speaker 04:
You have to establish that you actually have a new rule of constitutional law that applies to this circumstance, and then you have to show that you can get relief accordingly.

[00:07:12] Speaker 04:
At least those two things have to happen.

[00:07:15] Speaker 04:
Do you agree with that?

[00:07:17] Speaker 03:
If Your Honor could repeat the two points for me.

[00:07:20] Speaker 04:
Well, the two things are just the two things that the statute would provide for.

[00:07:23] Speaker 04:
The two things that were part of the prima facie test, once we make a prima facie determination, the district court has to actually find that those things exist, right?

[00:07:37] Speaker 03:
That's right.

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And although I draw the court's attention, I haven't brought this up in the briefing since the government has agreed

[00:07:45] Speaker 03:
the jurisdiction is proper and we have a new rule of constitutional process.

[00:07:48] Speaker 04:
That's where I'm going.

[00:07:49] Speaker 03:
Yes.

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I don't care what the government does in this regard.

[00:07:52] Speaker 04:
If that is a threshold statutory requirement, whether the government agrees that it's met or not, that doesn't do anything for purposes of your burden to show that it's met, right?

[00:08:03] Speaker 03:
And I believe the opening brief's first section does lay out why the rule of Johnson reaches this case and that we've met our burden.

[00:08:11] Speaker 00:
And yes, I understand that you are arguing that we should apply Johnson to a new statute that Johnson did not apply to.

[00:08:20] Speaker 00:
But you've also recognized that the Supreme Court has moved this along statute by statute, step by step, and never looked forward and said,

[00:08:29] Speaker 00:
Let's just cut to the chase.

[00:08:32] Speaker 00:
Everything that's similar is going to be unconstitutional.

[00:08:34] Speaker 00:
They've never said that.

[00:08:36] Speaker 00:
And so for a second or successive writ, the statute is very, very clear.

[00:08:44] Speaker 00:
It can only be maintained when there is a new law made retroactive by the Supreme Court.

[00:08:54] Speaker 03:
Yes, Your Honor.

[00:08:54] Speaker 03:
And as to this court's discussion about what the scope of that rule is from Greer, that it was Johnson-specific, I'd note, as the briefing notes, Greer was decided before the Supreme Court's articulation or further refinement of what the Johnson rule is in Davis and De Maia.

[00:09:09] Speaker 03:
As Davis said, Johnson and De Maia, quote,

[00:09:13] Speaker 03:
teach that the imposition of criminal punishment can't be made to depend on a judge's estimation of the degree of risk posed by a crime's imagined ordinary case.

[00:09:23] Speaker 03:
And I believe that's exactly what the three strikes residual clause does.

[00:09:26] Speaker 03:
And so this rule recognizes retroactive in Welch is applicable in Mr. Johnson, in Mr. Cooper's case.

[00:09:33] Speaker 00:
If we didn't have that last clause of the habeas statute, I would agree with you.

[00:09:40] Speaker 00:
But the one that says it's got to be, you can file a successive writ on the basis of the law having been changed by the Supreme Court.

[00:09:52] Speaker 03:
Well, I would direct the Court's attention.

[00:09:54] Speaker 03:
This is the case I was beginning to mention before that hasn't come up in the briefing.

[00:09:58] Speaker 03:
But just last week, the US Supreme Court GVR'd a case out of the 11th Circuit called Jones.

[00:10:05] Speaker 03:
I'd be happy to provide further

[00:10:07] Speaker 03:
authority for that, but the Supreme Court case number is 23-7166.

[00:10:11] Speaker 04:
If you did file a supplemental authority, that'd be helpful.

[00:10:16] Speaker 03:
Yes, Your Honor.

[00:10:17] Speaker 04:
Thank you.

[00:10:17] Speaker 03:
Go ahead.

[00:10:18] Speaker 03:
The Eleventh Circuit, in essence, had taken the position, sort of thinking back to the chart, the blank cell problem, you might say, meant that there was no jurisdiction for the district court.

[00:10:31] Speaker 03:
to address that three-strikes defendant's habeas petition, even though the government had agreed that the three-strikes residual clause was unconstitutional and that the defendant should receive relief.

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The Eleventh Circuit decided that there was a lack of jurisdiction and the habeas petitioner sought certiorari review.

[00:10:51] Speaker 03:
The Solicitor General

[00:10:53] Speaker 03:
recommended that the court GVR the case because it questioned whether the 11th Circuit's understanding of the jurisdictional rule was correct.

[00:11:02] Speaker 03:
And on November 12th, so just last week, the court did GVR Jones.

[00:11:08] Speaker 03:
So I would acknowledge also, again, just returning to the Chief Judge's point regarding Greer, while that would normally

[00:11:20] Speaker 03:
bind this panel as to the meaning of Johnson's scope, subsequent US Supreme Court developments have intervened.

[00:11:27] Speaker 03:
And again, I think the rule of Johnson, the new rule of constitutional law made retroactive through Welch, is that when a criminal statute combines the fuzzy risk standard of the residual clause with the categorical approach inquiry, such a clause is unconstitutional.

[00:11:42] Speaker 00:
So do you think there's language in Welch that says every residual clause with these two failures

[00:11:50] Speaker 00:
is unconstitutional.

[00:11:52] Speaker 00:
I'm sorry, Your Honor, if you would repeat that.

[00:11:54] Speaker 00:
Do you think that Welch said every residual clause that has these two defects to it is unconstitutional?

[00:12:03] Speaker 03:
I don't think Welch was so clear in articulating the scope of the Johnson rule, because I think Welch was concerned more with whether the Johnson rule is substantive and thus retroactive.

[00:12:16] Speaker 03:
And Welch said that it is.

[00:12:17] Speaker 03:
And as I point out in the briefing,

[00:12:20] Speaker 03:
When the court in the habeas context decides that a certain rule is substantive, then that rule is substantive all the way down.

[00:12:29] Speaker 03:
Or in other words, when the rule reaches a certain category of cases, then the immaterial distinctions within that category no longer matter.

[00:12:38] Speaker 03:
And so the fact that it's

[00:12:40] Speaker 03:
the Armed Career Criminal Act versus the INA versus now here the three strikes law.

[00:12:48] Speaker 03:
These are immaterial differences once you recognize that the Johnson rule is squarely aimed at that combination of two factors, the fuzzy residual clause risk standard and the categorical approach.

[00:13:00] Speaker 03:
I believe the rule of Johnson is when those things combine together,

[00:13:03] Speaker 03:
such a statute as unconstitutional.

[00:13:05] Speaker 03:
I'm sorry, Your Honor.

[00:13:06] Speaker 04:
I'm sorry to interrupt, but you're relying on the subsequent developments then of Davis and de Maia, right?

[00:13:14] Speaker 03:
Post-Greer, yes, Your Honor.

[00:13:16] Speaker 04:
Yes, okay.

[00:13:16] Speaker 04:
Could I just shift you to the marriage for a second?

[00:13:18] Speaker 04:
Please.

[00:13:19] Speaker 04:
And we'll allow for a little bit more time in rebuttal.

[00:13:23] Speaker 04:
But let me shift you to the marriage for a second.

[00:13:27] Speaker 04:
There was an argument, at least as I understood in your supplemental brief, in which you asserted that the language is, quote, a movement should be able to meet his burden by showing that the sentencing court relied on the residual clause with respect to any

[00:13:42] Speaker 04:
of the prior convictions that the government submitted for enhancement, that all, quote, all offenses are fair gain.

[00:13:50] Speaker 04:
I'm just puzzled by that language because it seems to me that that entirely flips your burden.

[00:13:56] Speaker 04:
I mean, and it turns it on the head because it is not, we don't have to, we're not supposed to be searching for something that would justify the burden, that your burden is to show that it's more likely than not that the district court did rely upon the residual clause.

[00:14:12] Speaker 04:
So the fact that there's something out there that some other statute out there, what difference does that make?

[00:14:19] Speaker 03:
Your Honor, I admit you lost me just at the end about another statute.

[00:14:23] Speaker 04:
Well, let me try to be more precise.

[00:14:26] Speaker 04:
What I am saying is that with the inference that I drew from that language in your brief was that if the government puts forward five particular three-strikes offenses, and if any of them would be declared would be ones that have a residual clause that could have been in play here,

[00:14:48] Speaker 04:
that, of course, is unconstitutional, then you can prevail on the merits.

[00:14:53] Speaker 04:
Well, isn't that the exact opposite of the nature of the inquiry, which is, did the district court, in fact, rely upon the residual clause?

[00:15:05] Speaker 04:
More likely than not, rely upon the residual clause in making its determination.

[00:15:10] Speaker 04:
In other words, it seemed to me that the casting saying that all statutes are fair game really just

[00:15:18] Speaker 04:
deprives you of the burden that's at play here.

[00:15:21] Speaker 03:
And Your Honor, I recognize my time is up.

[00:15:23] Speaker 03:
I have responded.

[00:15:24] Speaker 03:
I'm hoping you will.

[00:15:26] Speaker 03:
Thank you.

[00:15:29] Speaker 03:
No, the government, when it provides the notice of which convictions to be relied upon, to quote 851A, which requires the government's notice, the government sets the target zone for the defendant then on collateral review to say, these convictions, the sentencing court had to rely on the residual clause to count them.

[00:15:46] Speaker 03:
And the sentencing court relied on all of the convictions here.

[00:15:49] Speaker 03:
Thus, it relied on the Oregon board.

[00:15:51] Speaker 01:
How do you know that?

[00:15:52] Speaker 01:
The reason the sentencing court... The United States versus Washington specifies that the question is not whether or not the sentencing court could have relied on any of the convictions put forth by the government or in the probation office in the pre-sentence report, but whether or not they actually relied on it.

[00:16:11] Speaker 01:
So how do we know that in 2003 the court relied on all five of those?

[00:16:15] Speaker 03:
And because the first question is one of historic fact, it's did the sentencing court rely on the residual clause?

[00:16:20] Speaker 03:
The next step is did the residual clause reliance prejudice the defendant?

[00:16:24] Speaker 03:
Here the residual clause was used because the government proffered these five offenses, because defense counsel didn't dispute that any of them were qualifying strikes, and because the sentencing court engaged in no offense.

[00:16:36] Speaker 01:
And we know that in 2003,

[00:16:39] Speaker 01:
The government said that none of those would qualify, for example, the 81 robbery, not only under the residual clause, but also under the enumerated offense clause.

[00:16:57] Speaker 03:
Do we know that the government said that?

[00:16:59] Speaker 01:
I think that's what you just said, that the government acknowledged not only that these five convictions were fair game,

[00:17:07] Speaker 01:
But they relied on the third of the three possibilities, the Elements Clause, the Enumerated Defense Clause, and the Residual Clause.

[00:17:16] Speaker 01:
So how do we know that?

[00:17:19] Speaker 03:
I believe the sentencing record shows that the sentencing court counted all of the five proffered convictions, partly in addition because of the comments and how sentencing played up.

[00:17:28] Speaker 03:
And additionally, because in 2006, the sentencing judge, when denying Mr. Cooper's first 2255 motion,

[00:17:35] Speaker 03:
referred to five different serious violent felony convictions to choose from without any indication that a choice had been made.

[00:17:41] Speaker 03:
And my point is that if all of the convictions were counted, as I think the sentencing record supports, then the sentencing court necessarily counted the Oregon burglaries using the residual clause.

[00:17:50] Speaker 03:
That is historical reliance on the residual clause that this court should hold meets Mr. Cooper's step one burden.

[00:17:57] Speaker 04:
There are two responses.

[00:18:00] Speaker 04:
The record is silent, is it not, as to which one it relied on?

[00:18:04] Speaker 04:
I mean, the court didn't expressly say it was relying on one of the five.

[00:18:09] Speaker 04:
I mean, you infer from that that it relied on all five, but it did not distinguish, did it?

[00:18:14] Speaker 03:
The court did not distinguish, and I believe the context of the sentencing shows that the court accepted all five.

[00:18:19] Speaker 04:
Well, the order that is on appeal here is one in which the court, I think it was the same court,

[00:18:27] Speaker 04:
But that's irrelevant.

[00:18:29] Speaker 04:
The court that made the decision from which the order that is on appeal here said it did not, that it did not rely on the residual clause.

[00:18:40] Speaker 04:
What do we do with that?

[00:18:43] Speaker 03:
Two points, Your Honor.

[00:18:44] Speaker 03:
One, I agree it's not material to the analysis, but it was not the sentencing judge whose order is on appeal.

[00:18:50] Speaker 04:
And as I said, it's immaterial.

[00:18:51] Speaker 03:
Go ahead, please.

[00:18:53] Speaker ?:
Agreed.

[00:18:54] Speaker 03:
This court's review, however, is de novo because there is no evidentiary hearing held.

[00:18:59] Speaker 03:
And I believe the district court erred when it basically assumed the answer to the question this court reserved in Lozado about whether the defendant is allowed to show historical residual clause reliance with respect to any of the convictions that the government put forward.

[00:19:16] Speaker 03:
I think the district court actually put correctly the right question at the first step.

[00:19:21] Speaker 03:
It was saying to the extent that a sentencing judge adjudicated an offense as a serious violent felony or strike under the residual clause, the sentence suffers from a constitutional defect.

[00:19:31] Speaker 03:
Now that defect may be harmless, but my position here is that the sentencing court necessarily adjudicated the Oregon burglaries under the residual clause because they didn't otherwise qualify.

[00:19:42] Speaker 03:
And so that meets Mr. Cooper's step one burden.

[00:19:45] Speaker 04:
All right.

[00:19:49] Speaker 04:
Unless you have something else.

[00:19:50] Speaker 01:
Can I ask one more question?

[00:19:51] Speaker 01:
I know we're going way over time.

[00:19:53] Speaker 01:
Assuming, for purposes of my question, that we reject your position on the Lozado question of whether we skip straight to harmlessness.

[00:20:06] Speaker 01:
I just have a question on this sort of counterfactual question

[00:20:10] Speaker 01:
of what the court relied on in 2003.

[00:20:13] Speaker 01:
A lot of stuff obviously happened between 2003 and Leverton.

[00:20:17] Speaker 01:
So my question is, since the appellate record doesn't have the indictment, doesn't have the plea agreement from 81, the plea documents, obviously after between 2003 and now we have Mathis in terms of

[00:20:39] Speaker 01:
the application of the categorical approach can call for a modified categorical approach where you look at the indictment or the plea agreement to determine which of these two crimes the defendant was convicted of in 1981 in California, one of which would unquestionably satisfy the generic definition of robbery and one that would not.

[00:21:04] Speaker 01:
But we don't

[00:21:05] Speaker 01:
have any of those documents.

[00:21:07] Speaker 01:
So we don't know whether or not in 2003 the sentencing court applied the modified categorical approach, just as if he or she would have done in 2024.

[00:21:18] Speaker 01:
But if we reject your position on harmlessness being the first inquiry, it's your burden for me to point at you.

[00:21:26] Speaker 01:
It's the appellant's burden to show that, based on the background legal environment in 2003, that the petitioner can show that there was actual reliance on the improper consideration of robbery, the one that involved injury, a threat to property, as opposed to a person.

[00:21:51] Speaker 01:
Do you understand my question?

[00:21:53] Speaker 03:
Yes, I believe I do, Your Honor.

[00:21:58] Speaker 03:
In response, I'd say I think the question assumes the divisibility of the California statute and that the modified categorical approach could then suss out whether the defendant was convicted of the personal bodily injury or the property threats.

[00:22:11] Speaker 01:
How do we know?

[00:22:12] Speaker 01:
And if we don't know, is there a failure approved by the appellant?

[00:22:18] Speaker 03:
No.

[00:22:19] Speaker 03:
Partly because the California statute isn't divisible in the first place.

[00:22:22] Speaker 03:
So the modified categorical approach has no place to play.

[00:22:25] Speaker 03:
But also important here.

[00:22:27] Speaker 03:
Mr. Cooper's sentencing was in January of 2003.

[00:22:33] Speaker 03:
Shepard, the US Supreme Court case I understand to have introduced the modified categorical approach, is a 2005 decision.

[00:22:39] Speaker 03:
So I'm not really sure that the sentencing court would have even had the modified categorical approach on the brain, so to speak.

[00:22:49] Speaker 04:
All right.

[00:22:49] Speaker 04:
Let's hear from the government.

[00:22:50] Speaker 04:
Thank you.

[00:22:51] Speaker 03:
Thank you, Your Honor.

[00:23:00] Speaker 02:
Mr. Chief Judge, and may it please the court, Nathan Jack of the United States.

[00:23:05] Speaker 02:
Cooper was convicted in California for robbing a man in his own home, tying him up, and threatening to kill him while holding a hunting knife.

[00:23:14] Speaker 01:
When he was given a life sentence... We know that from the pre-sentence report, but we don't know that that was the charge in the indictment.

[00:23:26] Speaker 01:
And isn't that the $64 question?

[00:23:29] Speaker 01:
What was he convicted of?

[00:23:31] Speaker 01:
And without the indictment or the plea agreement, you know, we can look at what the probation officer said in the pre-sentence report, but frankly, I don't think we even know that the district court approved of that finding in the probation report.

[00:23:48] Speaker 01:
Obviously, the probation office doesn't make findings, the court does.

[00:23:52] Speaker 02:
So that's assuming that the categorical approach applied in 2003, whereas if we look at what courts actually did in 2003, they accepted convictions for robbery based solely on the certified copies of the conviction without engaging in any type of categorical analysis.

[00:24:10] Speaker 02:
No definition of what a generic definition of robbery would be.

[00:24:14] Speaker 02:
No assessment of whether the state crime for robbery was a categorical match to that generic definition.

[00:24:21] Speaker 02:
That's in Oberley.

[00:24:22] Speaker 02:
That's in McEvich, where the district court simply accepted that it qualified as a strike based solely on the certified copies of the convictions.

[00:24:33] Speaker 01:
So you're saying that a court in 2003

[00:24:37] Speaker 01:
would have accepted a certified copy of the judgment in sentence and said, okay, well, you were convicted of this enumerated offense of robbery, and so we don't really care whether or not the robbery involved a threat to property or not.

[00:24:57] Speaker 01:
And I didn't see a case cited for that.

[00:25:02] Speaker 01:
I saw tons of cases cited for that.

[00:25:04] Speaker 01:
indisputable proposition that courts would typically take it as a prima facie showing that they would take a certified copy of the J&S.

[00:25:14] Speaker 01:
But I haven't seen a case, and maybe I overlooked it, saying that the presentation of the certified copy of the J&S is going to be dispositive even if the argument is that it wouldn't qualify under the enumerated defense clause as a threat to a person.

[00:25:33] Speaker 02:
That's Oberly that we discussed in our brief, and I'll just quote from here.

[00:25:38] Speaker 02:
The district court found that Oberly had committed four prior violent felonies, two previous Albuquerque bank robberies, and two Ohio aggravated robberies based solely on the certified copies of conviction.

[00:25:52] Speaker 02:
That's what courts were doing in 2003.

[00:25:54] Speaker 01:
Yeah, and I thought that's what I asked you.

[00:25:57] Speaker 01:
Yeah, that they accepted the felony conviction that it would qualify as one of the identified offenses.

[00:26:03] Speaker 01:
But where in Oberly does it say that that will preclude any challenge based on the absence of a threat to person?

[00:26:14] Speaker 01:
You're saying that Oberly also addressed the issue that we're talking about today?

[00:26:20] Speaker 02:
So my point is, in this successive 2255 motion, the burden is incumbent on Cooper to prove that the categorical approach applied in 2003.

[00:26:30] Speaker 02:
And he has offered zero authority on that front.

[00:26:35] Speaker 02:
He points to two cases.

[00:26:38] Speaker 02:
One, Leeverton decided 15 years after his sentencing, so was in no way part of the legal landscape in 2003 when he was sentenced.

[00:26:46] Speaker 02:
And he's offered another case, Romero, a 97 case, that did not involve the enumerated defenses clause.

[00:26:53] Speaker 02:
The offense in that case was conveyance of weapon, which, of course, is not listed in the three strikes law.

[00:26:59] Speaker 00:
So you're saying the defendant did not establish, and probably is unknowable on this record, what the district court, in fact, relied on.

[00:27:08] Speaker 02:
I'm saying that it is his burden to prove

[00:27:13] Speaker 02:
that the categorical approach... Well, and that's the second step.

[00:27:16] Speaker 00:
We can't know, and it's his burden.

[00:27:20] Speaker 00:
Those two things mean that he's not going to win.

[00:27:24] Speaker 00:
Correct.

[00:27:26] Speaker 01:
After Taylor, wouldn't even in 2003, or 1990 for that matter, wouldn't the inquiry have simply been whether or not the defendant was convicted of the generic offense of robbery under the Enumerated Defense Clause,

[00:27:40] Speaker 01:
And so you would look at whether the model penal codes, federal statutes to determine what the generic offense of robbery was.

[00:27:48] Speaker 01:
And if the generic offense of robbery was a threat to person, then the question then would have been whether or not the defendant had been convicted under the Enumerated Defense Clause 3559 of robbery as defined as the injury to person.

[00:28:06] Speaker 02:
If we were talking about ACCA, yes, that's what courts would have done.

[00:28:11] Speaker 01:
I'm saying, forget 2003 and 1990, wasn't that always?

[00:28:17] Speaker 01:
Isn't that what the word convicted means?

[00:28:21] Speaker 01:
Haven't we always looked at enumerated offense clauses to determine whether or not the offense was as a generic offense?

[00:28:32] Speaker 01:
There is no such thing as a robbery.

[00:28:35] Speaker 01:
offense of robbery.

[00:28:36] Speaker 01:
It wasn't that even in 1990.

[00:28:38] Speaker 02:
Not when it came to the three strikes law.

[00:28:40] Speaker 02:
We can look at what courts actually did in the three strikes law, that's McEvich.

[00:28:46] Speaker 02:
And we can look at how this court interpreted McEvich and applied McEvich in Martinez-Quindeas, for example.

[00:28:52] Speaker 02:
And those cases limited Taylor to ACCA.

[00:28:57] Speaker 02:
They looked at the unique statutory language in ACCA.

[00:29:01] Speaker 02:
the unique legislative history in ACCA.

[00:29:05] Speaker 00:
And explicitly- Is there something unique about ACCA?

[00:29:08] Speaker 02:
I mean, what is so unique about ACCA?

[00:29:12] Speaker 02:
Yeah, so this court talks about it at McEvish in Martinez-Candace.

[00:29:17] Speaker 02:
And the legislative histories had included a definition of burglary at one point and then admitted it.

[00:29:26] Speaker 02:
And the language was much more exclusive in ACCA as opposed to the three strikes law.

[00:29:32] Speaker 02:
And so that's why in those cases, this court cabined Taylor to ACCA.

[00:29:38] Speaker 02:
It was very clear about that in Martinez-Quindeas.

[00:29:41] Speaker 00:
But the language in ACCA is very, very similar to what we've got here, isn't it?

[00:29:46] Speaker 02:
It wasn't to courts in 2003.

[00:29:48] Speaker 02:
And there's been a huge shift in the categorical approach and our understanding of Taylor over the past two decades.

[00:29:55] Speaker 02:
So looking back now, we may see similarities that courts in 2003 didn't.

[00:30:01] Speaker 02:
This is what courts in 2003 saw.

[00:30:04] Speaker 02:
The Supreme Court and Taylor did not impose the categorical approach as a universal requirement of all sentencing enhancements.

[00:30:11] Speaker 02:
Taylor was an interpretation of 18 USC 924E.

[00:30:16] Speaker 02:
this court cabin Taylor in 2003 to ACCA.

[00:30:21] Speaker 02:
It declined to apply Taylor to the three strikes law.

[00:30:28] Speaker 01:
Now.

[00:30:28] Speaker 01:
Wait a minute.

[00:30:30] Speaker 01:
Are you talking about Martinez-Candajas?

[00:30:33] Speaker 01:
Correct.

[00:30:33] Speaker 01:
And you're saying that Martinez-Candajas referred to 3559's enumerated defense clause?

[00:30:42] Speaker 01:
No.

[00:30:43] Speaker 02:
Martinez-Candajas was, of course, a guidelines, but it

[00:30:46] Speaker 02:
My point is, it cabined Taylor to ACCA, as it did and as the court did in Makovich as well, which was a three-strikes law.

[00:30:56] Speaker 01:
Well, there's a difference between saying it cabined the categorical approach and saying that it didn't necessarily embrace the categorical approach with regard to this particular guideline inquiry.

[00:31:11] Speaker 02:
Correct.

[00:31:11] Speaker 01:
Those are two completely different things.

[00:31:13] Speaker 02:
Those are two different things.

[00:31:14] Speaker 02:
And I grant that the holding was, we're not applying the categorical approach to this particular guideline.

[00:31:20] Speaker 02:
Its reasoning, though, as I just read, was that Taylor is limited to ACCA.

[00:31:27] Speaker 02:
But even if the government were overreading these cases, we think these cases show that courts in 2003 did not apply the categorical approach.

[00:31:38] Speaker 02:
All Cooper can muster in response is that,

[00:31:41] Speaker 02:
these cases don't actually prove that.

[00:31:44] Speaker 02:
I think he's mistaken, but even if he's correct on that, that does not affirmatively prove his burden that courts in 2003 did in fact apply the categorical approach.

[00:31:55] Speaker 02:
The government has no burden here.

[00:31:57] Speaker 04:
Well, is the government conceding at the threshold that Johnson

[00:32:03] Speaker 04:
the Supreme Court, that Johnson reflects a Supreme Court new rule that has been applied retroactively to the three strikes law.

[00:32:15] Speaker 02:
I wouldn't say we're conceding that.

[00:32:17] Speaker 02:
I think our argument is that even spotting him that, he still cannot prove that burden.

[00:32:21] Speaker 02:
But of course, if this court

[00:32:24] Speaker 02:
disagrees.

[00:32:25] Speaker 04:
Is that his burden, ultimately, to show?

[00:32:28] Speaker 04:
I mean, the government may, as an economical matter, decide to spot him that.

[00:32:34] Speaker 04:
But the bottom line is, in order to prevail, that is part of his burden, is it not?

[00:32:39] Speaker 02:
That is correct.

[00:32:40] Speaker 02:
He must make that threshold showing that there is a new rule of constitutional law that applies retrogradually on appeal.

[00:32:47] Speaker 02:
Again, this is a successive 2255 motion, where the burden is tremendously high for him.

[00:32:54] Speaker 02:
And the Congress intentionally drew that high burden to create a delicate balance between finality and error correction.

[00:33:02] Speaker 01:
Is the ultimate determination on, going back to Judge Abel's question, on whether or not the Supreme Court made this right retroactive to cases on collateral review, once there was a prima facie determination by a panel on the ultimate determination on the merits, is that a jurisdictional

[00:33:24] Speaker 01:
I think you've said already in response to the Chief's question that it's part of the appellate's burden.

[00:33:28] Speaker 01:
Is that a jurisdictional requirement for us to address the merits or is that just part of his, I don't mean to downplay it, but part of his underlying burden in order to get relief?

[00:33:41] Speaker 02:
I believe that the threshold showing of a new rule of constitutional law is a jurisdictional question.

[00:33:46] Speaker 00:
The Supreme Court has told us to be very cautious about calling something jurisdictional.

[00:33:50] Speaker 00:
There's nothing in that clause that says it is jurisdictional.

[00:33:55] Speaker 00:
So I'm going to be cautious about that.

[00:33:58] Speaker 00:
Is that issue a critical part of our analysis?

[00:34:04] Speaker 02:
Whether it's jurisdictional or not, and again, I'm not speaking on behalf, I'm not prepared to say this is the United States position.

[00:34:14] Speaker 02:
There are cases treating it as jurisdictional, but it is, whether jurisdictional or not, it is a critical question for the court to address, whether this is a new rule of constitutional law.

[00:34:23] Speaker 04:
And let me speak to the it, in terms of what is jurisdictional.

[00:34:28] Speaker 04:
I mean, one could argue, and at least I think we have cases that say that,

[00:34:34] Speaker 04:
the prima facie showing is jurisdictional.

[00:34:38] Speaker 04:
In other words, the district court doesn't have jurisdiction to deal with the second or successive if we haven't said that the court, that prima facie showing has been made.

[00:34:48] Speaker 04:
So to that extent, the threshold showing is jurisdictional.

[00:34:51] Speaker 04:
But once we've done that, and then it is now within the domain of the district court to act on the motion,

[00:35:00] Speaker 04:
I don't know why it would be jurisdictional.

[00:35:03] Speaker 04:
I mean, I think it's a threshold burden the court has to make, that the defendant has to satisfy.

[00:35:08] Speaker 04:
But I don't know why it would be jurisdictional then.

[00:35:12] Speaker 02:
I think that's a fair interpretation.

[00:35:15] Speaker 02:
But it is a critical question.

[00:35:16] Speaker 02:
It is the burden on Cooper to prove that new rule, which he has not.

[00:35:22] Speaker 02:
So our argument

[00:35:28] Speaker 02:
is that Cooper has not proven that the categorical approach applied in 2003.

[00:35:33] Speaker 02:
He has not offered any authority of any court using the categorical approach for the enumerated offenses clause.

[00:35:42] Speaker 01:
That happens a lot.

[00:35:45] Speaker 01:
The appellate will say the appellate hasn't identified a case, and the appellate will say the appellate hasn't decided a case.

[00:35:52] Speaker 01:
And my hypothesis is, in 2003, there was no case.

[00:35:57] Speaker 01:
You cited Malkovich on the exception, which unquestionably, everybody that looks at the statute would say, of course, to determine whether or not the exception was satisfied.

[00:36:12] Speaker 01:
Of course, you have to look at the facts.

[00:36:15] Speaker 01:
generic definition of robbery, I don't think there was a, nobody cited a case one way or the other saying that we had a fact-based approach or a categorical approach in 2003.

[00:36:27] Speaker 01:
So don't you ultimately have to look at the more difficult question.

[00:36:34] Speaker 01:
In 2003, was there a reasonable argument that there would be a fact-based approach as opposed to a categorical approach or vice versa?

[00:36:45] Speaker 01:
And, I mean, you've pointed to Oberly that, okay, well, you cited cases saying that, well, you know, we didn't necessarily apply the categorical approach across the board to the guidelines, but don't you really have to make a textual argument based on the 3059th Enumerated Defense Clause to see whether or not there's a possible reading even 21 years ago

[00:37:08] Speaker 01:
that you would look at the facts as opposed to the categorical approach.

[00:37:12] Speaker 01:
Certainly, the government in Leverton didn't see a reasonable alternative.

[00:37:19] Speaker 02:
Correct.

[00:37:20] Speaker 02:
And Leverton has come after decades of development of the categorical approach.

[00:37:23] Speaker 02:
Remember, this is Cooper's burden to prove.

[00:37:27] Speaker 02:
So to the extent it was an open question, if we disregard Oberle and what courts did then, if we confine Malkovich,

[00:37:34] Speaker 01:
What's the textual argument?

[00:37:36] Speaker 01:
Putting aside all of the case law from 2003 to 2018, what is the textual argument in 2003 that the government would have made to say that we would have applied the categorical approach, not to the exception, but to the generic definition of robbery?

[00:37:54] Speaker 02:
I think the question really should be what textual argument that Cooper has made and has proven

[00:38:00] Speaker 02:
that courts applied the categorical approach in 2003, and he has not done that.

[00:38:04] Speaker 02:
To the extent it's an open question of law, Cooper loses.

[00:38:09] Speaker 02:
It is his burden to prove by our proponents of the evidence.

[00:38:12] Speaker 02:
that the court must have relied on the residual clause.

[00:38:14] Speaker 02:
So an open question does him no good.

[00:38:17] Speaker 02:
We discuss, in our brief, the Fourth Circuit's Johnson opinion, which, despite applying the categorical approach, talked about the language that the three-strikes law uses that, in 2003, would give pause before applying the categorical approach.

[00:38:32] Speaker 02:
It used very, very inclusive language.

[00:38:34] Speaker 01:
It applied the categorical approach.

[00:38:35] Speaker 01:
Johnson, they applied the categorical approach.

[00:38:38] Speaker 02:
And I recognize that.

[00:38:39] Speaker 02:
So after the development of the past two decades of the categorical approach, they applied it.

[00:38:45] Speaker 02:
But courts in 2003, before that development happened, could look at this language and say, we can still use a fact-specific inquiry.

[00:38:52] Speaker 02:
It uses very inclusive language.

[00:38:54] Speaker 02:
It uses described in instead of defined in.

[00:38:59] Speaker 02:
And so from that, courts in 2003 could look at the facts of the case and, like Oberly did, accept it based on the certified copies of the conviction.

[00:39:08] Speaker 02:
If there are no other questions, I ask this court to affirm.

[00:39:11] Speaker 04:
Thank you, counsel.

[00:39:14] Speaker 04:
I think the case is submitted unless my colleagues have any further questions.

[00:39:18] Speaker 04:
Thank you.

[00:39:19] Speaker 04:
Thank you for your fine arguments on both sides.