[00:00:00] Speaker 04: The next case is White versus Lucero, 24-2035, Mr. Comer. [00:00:08] Speaker 00: Thank you, Your Honor. [00:00:09] Speaker 00: Good morning. [00:00:10] Speaker 00: I'm Mark Comer on behalf of the appellants, who are three officials with the New Mexico Department of Corrections, who are invoking a defense of qualified immunity. [00:00:22] Speaker 00: And I was thinking that I'm the appellant in this case because the district court denied [00:00:29] Speaker 00: invocation of that defense, but really the plaintiff has the burden of overcoming that defense on both prongs. [00:00:36] Speaker 00: And because of that, I just request three minutes in rebuttal to respond to the plaintiff's arguments. [00:00:43] Speaker 00: I think that might be appropriate. [00:00:45] Speaker 00: As far as this particular case goes, I mean, there's quite a few complaints in the case. [00:00:52] Speaker 00: They're quite long. [00:00:54] Speaker 00: We see it kind of as boiling down to really a [00:00:57] Speaker 00: really a limited time frame that's key to the case and is lacking some allegations. [00:01:04] Speaker 03: I'm a little bit confused by your opening. [00:01:08] Speaker 03: You're saying it's plaintiff's burden to ever come qualified. [00:01:11] Speaker 03: But you're here on appeal. [00:01:13] Speaker 03: And isn't it your burden to show us what the district court did wrong? [00:01:16] Speaker 00: I agree. [00:01:17] Speaker 00: I agree with that. [00:01:18] Speaker 03: So could you address what the district court did wrong as to the [00:01:22] Speaker 03: constitutional prong first? [00:01:24] Speaker 00: Absolutely. [00:01:26] Speaker 00: I think the district court interpreted the provisions too broadly. [00:01:31] Speaker 03: Which provisions? [00:01:32] Speaker 00: The constitutional provisions too broadly and imposed a duty on the part of corrections officials to look into the basis for a judicial order. [00:01:44] Speaker 00: This case, from its inception, has asserted that the [00:01:50] Speaker 00: New Mexico District Court lost jurisdiction at some point in the complaints, possibly even 2015 or 2016, and shouldn't have been doing anything, that Mr. White was no longer within the jurisdiction of the state at all. [00:02:08] Speaker 00: And yet we have all of these multiple hearings where he appears, represented by counsel. [00:02:16] Speaker 00: We've got appeals, habeas proceedings. [00:02:19] Speaker 00: and so forth. [00:02:20] Speaker 03: That sounds like a defense. [00:02:22] Speaker 03: That sounds like a defense that you would argue to a jury. [00:02:26] Speaker 03: I mean, it seems like you're telling us that we're bound by the allegations in the complaint. [00:02:31] Speaker 03: You can't re-argue those, certainly. [00:02:33] Speaker 03: You don't have jurisdiction to consider facts on this stage of the appeal. [00:02:38] Speaker 03: And it seems that you're telling us that imprisonment beyond one's terms as a result of deliberate indifference is not a constitutional violation. [00:02:45] Speaker 00: I've not made that argument. [00:02:46] Speaker 00: What I am saying is that the prison officials do not have the obligation to look behind the judicial order that they've been handed to carry out. [00:02:57] Speaker 00: In this case, and this is what I think is really the crux of it and why I think it is narrow, the district court in 2017 [00:03:07] Speaker 00: committed Mr. White to a period of incarceration for two years. [00:03:12] Speaker 00: That's the order that these officials were carrying out. [00:03:16] Speaker 00: In 2018, during these brief conversations, Mr. White alleges that he had with them. [00:03:23] Speaker 00: So what I need to understand, and I think what the court needs to understand in order to state a claim in a case like this is we've got to start with, well, first of all, what's the judicial order [00:03:37] Speaker 00: It's a two year period of incarceration here. [00:03:40] Speaker 00: The complaint omits that, but I think it's a necessary factual allegation to state a claim as a matter of law. [00:03:47] Speaker 00: And what is the operative order in your view? [00:03:52] Speaker 00: The operative word, I mean, I think at this point, I think there needed to be an allegation in the complaint saying he had been committed to a two-year period of incarceration. [00:04:03] Speaker 00: That's the sentence he was serving. [00:04:05] Speaker 00: Let's start with that as the baseline. [00:04:08] Speaker 00: And I think there needs to then be, if we're going to state a claim for excessive incarceration, an explanation of why the prison officials or how the prison officials or the prison [00:04:21] Speaker 00: departed from that two-year term. [00:04:24] Speaker 00: And it's totally lacking in the complaint. [00:04:27] Speaker 00: There's no explanation of it at all. [00:04:30] Speaker 00: The conversations that are related between the parties [00:04:36] Speaker 00: kind of are two ships kind of crossing in the night. [00:04:38] Speaker 00: I mean, Mr. White says, hey, I'm not supposed to be here at all. [00:04:41] Speaker 00: That's a jurisdictional issue. [00:04:43] Speaker 00: And Judge Rossman, I would say a jurisdictional question is a question of law. [00:04:48] Speaker 00: I mean, the court either had jurisdiction or it didn't to sentence him to this. [00:04:52] Speaker 00: That's something that a court decides. [00:04:54] Speaker 00: A jury can't decide that issue, whether or not the court had jurisdiction or not. [00:05:01] Speaker 04: Was he challenging that detention through a [00:05:04] Speaker 04: either a direct appeal or habeas at that point? [00:05:07] Speaker 00: Both. [00:05:09] Speaker 00: So the initial, that order, which was I think the sixth order revoking probation, which Judge Angela Jewell handed down in 2017, I think it was in December, that order got appealed [00:05:25] Speaker 00: And then he later filed a habeas position afterwards, alleging a whole lot of different things that don't really match up necessarily with the complaint either. [00:05:35] Speaker 00: But in the appeal, there was no jurisdictional challenge. [00:05:40] Speaker 04: In the habeas, was there a challenge to his detention? [00:05:43] Speaker 00: there was a challenge to his detention for all sorts of... He was appearing, I think, pro se in that. [00:05:48] Speaker 00: So there was a challenge to a lot of things. [00:05:52] Speaker 00: But I think his position has been that he shouldn't be, at least what he told the defendants according to his complaint, I shouldn't be here. [00:06:01] Speaker 00: I served my sentence a long time ago. [00:06:03] Speaker 00: You should have let me out. [00:06:04] Speaker 00: Now, what did the defendants say? [00:06:06] Speaker 00: Now, this is in March of 2018. [00:06:09] Speaker 00: I mean, this is what the factual allegation is. [00:06:12] Speaker 00: three months into a two-year detention. [00:06:14] Speaker 00: I don't know what the miscalculation would be at that point. [00:06:19] Speaker 00: I mean, he just barely started this term that the court has just ordered. [00:06:23] Speaker 00: And the discussion has been, oh, well, there were mistakes made in the past about some things. [00:06:28] Speaker 04: Are those the only conversations that are alleged in the complaint? [00:06:31] Speaker 00: That's pretty much it. [00:06:37] Speaker 00: the secretary DeFloy Lucero that there was mistakes made in the past. [00:06:43] Speaker 00: And there were mistakes made in the past because there were corrections by the court in the district court over a 300-day pre-sentence confinement credit and some things like that. [00:06:56] Speaker 00: That's the appropriate thing here. [00:06:57] Speaker 00: If you're challenging the jurisdiction or if you're coming into the court challenging, saying I shouldn't be incarcerated or you're litigating what the sentence should be, those are legal questions. [00:07:08] Speaker 03: That's not what he's doing. [00:07:08] Speaker 03: That does not seem to me to be at all what his case is about. [00:07:11] Speaker 03: There are allegations in his complaint where he is challenging his over incarceration as a result of deliberate indifference. [00:07:18] Speaker 03: He has pled individual allegations as to your individual clients. [00:07:23] Speaker 03: That's what Judge Strickland understood. [00:07:25] Speaker 03: And I don't see anywhere in your appellate brief where you have challenged her reasoning. [00:07:32] Speaker 00: Well, that's because that issue is de novo here. [00:07:36] Speaker 00: I've not directly challenged her reasoning, because I think this court reviews this issue de novo in a qualified immunity appeal on whether or not the complaint states a claim under the Constitution, for one, and whether or not the law is clearly established. [00:07:53] Speaker 00: I think this complaint fails on both counts. [00:07:56] Speaker 04: Just sticking on the constitutional for just a second longer, [00:08:02] Speaker 04: Are there circumstances where the Constitution would be violated if corrections officials or warden is alerted to a wrongful or over detention and refuses to do anything about it, investigate or take further action? [00:08:18] Speaker 00: Well, I think thus far there's not an opinion saying that that I'm aware of from any court. [00:08:27] Speaker 00: What I am aware of are cases where the [00:08:32] Speaker 00: jail or the prison makes a mistake. [00:08:34] Speaker 00: They miscalculate something and they lengthen the sentence and don't provide due process. [00:08:40] Speaker 00: They don't give a hearing for it, for example. [00:08:43] Speaker 00: So that's the case law in these areas. [00:08:47] Speaker 00: But the cases have actually said something a little bit the opposite as to concerns if the court made a mistake or there was a lack of jurisdiction. [00:08:56] Speaker 00: And there are some cases about courts making mistakes. [00:08:59] Speaker 00: There's one out of the Seventh Circuit that's still going on right now. [00:09:03] Speaker 00: This court, I believe, has said is that officials carrying out a judicial order such as this have to be unhesitating in carrying out that order. [00:09:15] Speaker 00: They're not to look behind what happened, and they're not supposed to question it. [00:09:20] Speaker 00: And that makes a lot of sense. [00:09:21] Speaker 00: I mean, they are not the advocate for the prisoner. [00:09:25] Speaker 00: They're supposed to be on the side of the court in enforcing the order. [00:09:29] Speaker 04: Could the defendants here have released [00:09:31] Speaker 04: Mr. White? [00:09:33] Speaker 00: I don't know how they could have released Mr. White without violating the court order they just received. [00:09:38] Speaker 03: Could they have taken other action short of release? [00:09:41] Speaker 00: Other actions short of release? [00:09:44] Speaker 00: Well, I don't know what the action would be for one. [00:09:47] Speaker 00: I mean, they said they were looking into the calculations. [00:09:52] Speaker 00: I mean, they can look into the calculations other than speaking to Mr. White about that. [00:09:57] Speaker 00: I don't know what other action they could take. [00:09:59] Speaker 04: Were you involved in obtaining the 2020 discharge? [00:10:03] Speaker 00: I was not. [00:10:05] Speaker 00: And that is a curious order and a curious event. [00:10:09] Speaker 00: And that's all I'm going to say about it. [00:10:11] Speaker 04: Just along the lines, the order does mention pre-sentence confinement credits and probation credits. [00:10:18] Speaker 04: The complaint talks about good time figuring sheets. [00:10:21] Speaker 04: Are those different or are they all the same? [00:10:24] Speaker 00: Well, I think they are each a little bit different. [00:10:27] Speaker 00: There was a pre-sentence confinement issue that was actually addressed by Judge Martinez, I think, at least a year or two before this last confinement that happened in 2017. [00:10:41] Speaker 00: Mr. White has argued about good time figuring sheets being miscalculated in the past. [00:10:50] Speaker 00: But this is my point. [00:10:51] Speaker 00: If there are issues with jurisdiction or the length of a sentence, the time to bring that stuff up is in the district court to get the sentence correct if there needs to be an adjustment. [00:11:04] Speaker 00: There was an adjustment in this case. [00:11:06] Speaker 00: So that's the court's obligation. [00:11:11] Speaker 00: Once the court reviews that, and there's multiple ways, it can be habeas. [00:11:16] Speaker 00: Once the court makes that judicial review and hands that down, a couple of things have happened. [00:11:21] Speaker 00: One, it's been raised. [00:11:23] Speaker 00: Two, there's a due process in court, not talking to corrections officials in the rec yard. [00:11:31] Speaker 00: And three, we didn't have a judicial [00:11:34] Speaker 00: mandate, a pronouncement of what's supposed to happen and what the corrections officials are supposed to carry out. [00:11:40] Speaker 03: Let's assume that we disagree with you on the constitutional prong. [00:11:44] Speaker 03: Could you argue why you prevail under clearly established? [00:11:47] Speaker 00: Well, the clearly established part of it has to do, well, let me put it this way. [00:11:54] Speaker 00: I think the clearly established part of this case has to do with [00:11:59] Speaker 00: goes way back to the original complaint, which talked about the discharge order and there was no jurisdiction. [00:12:06] Speaker 00: There is no case that I'm aware of from any jurisdiction that suggests jail officials have an obligation under the Constitution to review judicial orders for errors. [00:12:22] Speaker 00: It's just not there. [00:12:24] Speaker 03: It's not the cases say the exact opposite. [00:12:29] Speaker 03: My struggle, in part, is I understand your argument that we are obligated to review this de novo, but aided by the party's arguments. [00:12:37] Speaker 03: And I don't see an argument in your brief, and I think your adversary pointed this out, that develops a challenge to Judge Strickland's understanding of the clearly established law. [00:12:50] Speaker 03: She has cited cases. [00:12:51] Speaker 03: She's also relied on obviousness. [00:12:53] Speaker 03: And she gave reasons to support her conclusion. [00:12:59] Speaker 03: Why should we not agree that she got the answer correct? [00:13:03] Speaker 00: Because it doesn't comport with the cases that are cited within this circuit, and that comprise the body of law on this issue. [00:13:13] Speaker 00: If we're talking about the cases that we have, [00:13:18] Speaker 00: are situations where we have a sentence, and then the prison lengthens it somehow without due process. [00:13:26] Speaker 00: Those are the cases that we have. [00:13:27] Speaker 00: That's not this case. [00:13:29] Speaker 02: Well, what about, as I understood it, the complaint is alleging that the error was made on the prison side by not giving appropriate credit to, I can't remember what it was, pre-conviction, pre-sentence confinement, [00:13:48] Speaker 02: And so I don't know, how specific is the judge's order in terms of confinement? [00:13:57] Speaker 02: Doesn't it adjust based on things that happen while you're incarcerated? [00:14:02] Speaker 00: Well, that's where I think the complaint is lacking. [00:14:06] Speaker 00: We have this two-year order. [00:14:10] Speaker 00: Right. [00:14:11] Speaker 00: In the complaint, does it say that these officials or the prison failed to carry out the terms of that order in a specific way? [00:14:21] Speaker 00: It doesn't appear anyway. [00:14:22] Speaker 00: It doesn't explain, well, he should have gotten out on this date, but they extended it by 30 days. [00:14:28] Speaker 00: That's a hallmark of all these other cases. [00:14:31] Speaker 00: The other point is, as far as that discharge order is concerned, the reasons that are asserted in there have nothing to do with [00:14:41] Speaker 00: what was going on during this two-year period when he had these brief interactions with the defendants. [00:14:47] Speaker 02: It doesn't have to have gone on during that two-year period. [00:14:51] Speaker 02: For example, if you had pre-sentence confinement credits, they would have accumulated well before these discussions. [00:15:04] Speaker 02: But if you weren't giving credit for them, [00:15:07] Speaker 02: During these discussions, you are being over detained because you should have gotten credit for him. [00:15:13] Speaker 02: So I don't think the fact that it happened before or after that really matters that much. [00:15:19] Speaker 02: To me, what's important is what power did the prison officials have in terms of his release date? [00:15:29] Speaker 02: And you're telling me, I'm getting the sense that you're saying the judge gives an order that says, you know, he's released on this date in no minute beforehand. [00:15:38] Speaker 02: and that the prison officials have absolutely no ability to change that release date. [00:15:46] Speaker 02: And I'm not sure. [00:15:47] Speaker 02: I got a different impression of what the complaint was alleging. [00:15:52] Speaker 00: I know we're beyond that time. [00:15:55] Speaker 00: I think that what the prison has discretion is they can award good time served. [00:15:59] Speaker 00: That's a matter of a state statute. [00:16:02] Speaker 00: But nowhere does this complaint allege any [00:16:06] Speaker 00: anything during that two year period that he had just been incarcerated. [00:16:11] Speaker 00: He'd already accrued a bunch of good time in a month and a half. [00:16:15] Speaker 00: And then they miscalculated it during that period of time that he was interacting with these defendants. [00:16:24] Speaker 02: But if the complaint alleges that the prison made a mistake and miscalculated, and he alleges these people were aware of it, [00:16:36] Speaker 02: and were deliberately indifferent to it. [00:16:40] Speaker 02: That would be different than the cases that you're relying on where we say you got a court order. [00:16:46] Speaker 02: It would be a situation where the prison actually had the power. [00:16:50] Speaker 00: Well, I don't know that the prison can adjust the sentence because of a perception of something that he's alleged in the past. [00:17:03] Speaker 00: That's where I'm struggling with this, Your Honor, is that [00:17:06] Speaker 00: the prison is carrying out the sentence, if there was something that affected the calculation of that sentence at the district court level, because of something that happened long ago, that's for the district court. [00:17:17] Speaker 00: And there was discussion in the background of the case about those jurisdictional calculations. [00:17:25] Speaker 00: It was squarely before the court. [00:17:27] Speaker 00: at the district court level way back when. [00:17:30] Speaker 00: That's a matter of record in the case. [00:17:32] Speaker 00: And there's part of the state district court. [00:17:35] Speaker 00: I am. [00:17:35] Speaker 00: It's a matter of record. [00:17:36] Speaker 00: I mean, we ended up having to attach most of the criminal history so the court was aware of what was going on and the fact that those things were adjudicated and talked about. [00:17:46] Speaker 00: The DA raised it in 2016. [00:17:50] Speaker 00: So I think there was due process then. [00:17:53] Speaker 00: Those issues were heard, and they were subsumed into the judicial orders that committed him to the incarceration in 2017. [00:18:01] Speaker 00: Thank you. [00:18:03] Speaker 00: Thank you, counsel. [00:18:05] Speaker 01: Good morning. [00:18:06] Speaker 01: May it please the court? [00:18:07] Speaker 01: I'm Ryan Villa, along with Brittany Schaefer, who's joining me at council table. [00:18:11] Speaker 01: We represent Mr. White, the appellee. [00:18:14] Speaker 01: We ask the court to determine that it doesn't have jurisdiction to review Judge Strickland's order denying qualified immunity. [00:18:22] Speaker 01: And only if the court determines that it does have jurisdiction to then affirm Judge Strickland's decision, first on the grounds which has been discussed, which is that the appellant's waived an argument to challenge her determination about qualified immunity. [00:18:40] Speaker 01: And then even if there wasn't waiver, Judge Strickland got it right and determined that the complaint did plead a claim for a violation of clearly established law. [00:18:50] Speaker 02: Well, in ICBAL and in our case, Apodidaca versus Ramesh, we very clearly say that we have jurisdiction to review the sufficiency of the allegations in interlocutory appeals from denial of qualified immunity to determine whether it stated a claim. [00:19:12] Speaker 02: We can't review the facts. [00:19:17] Speaker 02: in the complaint. [00:19:18] Speaker 02: You can't challenge the facts, but we certainly have the jurisdiction and authority to determine whether those facts as alleged can support a claim. [00:19:30] Speaker 01: Yes, that is true. [00:19:32] Speaker 02: How do we not have jurisdiction? [00:19:35] Speaker 01: Here the problem is that the [00:19:38] Speaker 01: The question of clearly established law is dependent on resolution of facts that are essentially disputed. [00:19:45] Speaker 01: I mean, we're not at the summary judgment stage. [00:19:48] Speaker 01: So yes, the court can look at the facts as alleged and say, do these allege a clearly established violation of law? [00:19:55] Speaker 01: And we submit that they do. [00:19:57] Speaker 01: But in this particular case, the way that it was raised by the appellees, that there was no clearly established law, essentially what they're raising is a factual defense. [00:20:08] Speaker 02: Well, clearly established law, whether it is clearly established is an issue of law. [00:20:17] Speaker 01: Correct. [00:20:17] Speaker 02: But it is dependent upon the similarity between the facts of this case and the facts of those other cases. [00:20:23] Speaker 02: But it is a question of law. [00:20:27] Speaker 01: That's correct. [00:20:28] Speaker 01: And I think what's at the problem or at the heart of this case, this appeal, is that there's really two separate formulations of what is the issue of law. [00:20:38] Speaker 01: The appellants say the issue of law is you can't challenge this 2017 to your commitment. [00:20:45] Speaker 01: And we say what's really at issue are what happened before that, right? [00:20:51] Speaker 01: Because the decision by the judge, and it's alleged in the complaint outside of the decision by the judge, but the decision by the criminal judge was that Mr. White's sentence should have been discharged in 2016 of September. [00:21:05] Speaker 01: So this 2017 [00:21:07] Speaker 01: probation violation and commitment orders should never have existed. [00:21:12] Speaker 01: And the reasons why we got there are the facts in dispute. [00:21:16] Speaker 04: It did exist, and the prison officials are saying, we're complying with a facially valid judicial order. [00:21:25] Speaker 04: And notwithstanding Mr. White's disputation of that, what ability did the officials have to disregard it? [00:21:36] Speaker 01: Well, I'll answer that in two ways. [00:21:39] Speaker 01: Yes, that's what the prison officials are saying. [00:21:42] Speaker 01: What Mr. White is saying is that, so that was a probation violation proceeding that led to that two-year commitment. [00:21:50] Speaker 04: Is there any dispute about the validity of the 2017 order? [00:21:55] Speaker 01: In terms of what, did he, was he found to violate probation and did the judge, no. [00:22:02] Speaker 04: That's the history here. [00:22:04] Speaker 01: The dispute is that he should never have been on probation anymore because his sentence should have been completely discharged in 2016. [00:22:11] Speaker 02: And so for me, it's really important what your allegations are in terms of who should have corrected the fact that he should no longer have been incarcerated beyond 2016. [00:22:25] Speaker 02: I mean, he was incarcerated according to a valid court order, right? [00:22:32] Speaker 02: in 2016? [00:22:35] Speaker 02: Facially valid. [00:22:36] Speaker 01: At the time he should have been discharged September of 2016, he was under an originally valid judgment and commitment. [00:22:46] Speaker 02: And so your position is that the prison officials had a constitutional obligation to go to the court and invalidate the order that was holding him in prison in 2016? [00:23:00] Speaker 01: Well, first, the constitutional obligation was to properly implement his sentence, which would have resulted in a discharge in September 2016. [00:23:09] Speaker 01: And he never would have been. [00:23:11] Speaker 02: But it wouldn't have if he was being held by a court order that went beyond 2016. [00:23:17] Speaker 01: Well, the court order that held him beyond 2016 is this 2017 commitment. [00:23:24] Speaker 01: So he's released onto probation that he never should have been on. [00:23:28] Speaker 01: He violates probation that he never should have been on. [00:23:31] Speaker 02: Was that a mistake by the prison? [00:23:33] Speaker 01: Yes. [00:23:35] Speaker 02: So they weren't acting pursuant to a facially valid court order when they released him subject to probation? [00:23:45] Speaker 01: That's right. [00:23:45] Speaker 01: The court order was valid, but their implementation of the court order was incorrect because they failed to, on a number of fronts, to properly implement and calculate the sentence, which they do have a duty. [00:23:57] Speaker 02: Whose responsibility was it to calculate the sentence? [00:24:01] Speaker 01: the prison officials, the Department of Corrections. [00:24:03] Speaker 01: And that's in state statute, which recited those statutes to the court. [00:24:07] Speaker 01: So the judge imposes the original sentence, which is way back in 2006, two cases that got consolidated for a plea. [00:24:16] Speaker 01: And the judge imposed a couple of consecutive sentences and then some concurrent sentences. [00:24:21] Speaker 01: And right away, the prison officials got it wrong in implementing that sentence. [00:24:26] Speaker 01: Which sentence runs first? [00:24:28] Speaker 01: Which sentence runs second? [00:24:29] Speaker 04: How would they know that? [00:24:31] Speaker 04: 2017 sentence on direct appeal when these conversations occurred, and I assume that Mr. White was challenging the validity of his conviction in that appeal. [00:24:42] Speaker 04: I mean, what power would the prison officials have to do anything at that point? [00:24:50] Speaker 01: I mean in 2017 during the direct appeal, I mean I don't think they can get involved in the direct appeal, but what they can do is once they realize and their own paperwork, their own good time figuring sheets says he should have been discharged in September of 2016 and in fact there's another one that says he should have been discharged in September of 2015. [00:25:10] Speaker 01: is they're the ones that ultimately issue the certificate of discharge of the sentence, right? [00:25:15] Speaker 01: That's how somebody knows, I've completed my sentence, I've been discharged, they release you from prison, they give you the certificate of discharge. [00:25:24] Speaker 01: They could have done that at any point in time, and they should have done that statutorily, at least by September of 2016. [00:25:31] Speaker 01: And there's a factual allegation that they should have done that in September of 2015. [00:25:36] Speaker 02: Could they have done it once the two-year [00:25:40] Speaker 02: Order went in place. [00:25:42] Speaker 01: Yes, I think they could have. [00:25:44] Speaker 02: So despite the facially valid two-year order of incarceration, they could say, oh, we made a mistake back in 2016. [00:25:54] Speaker 02: There were several mistakes. [00:25:57] Speaker 02: And we're going to treat that order as no longer valid and release you. [00:26:05] Speaker 01: Correct, I think they could have, I mean there wasn't, what was not an issue in the 2017 probation violation and on the appeal was did they calculate his sentence correctly before 2016. [00:26:17] Speaker 01: What was an issue is did he violate probation and you know, [00:26:22] Speaker 01: should he have gotten this two-year commitment for the violation of probation. [00:26:26] Speaker 01: There wasn't a challenge going on to the problems that happened with the calculation of his sentence. [00:26:33] Speaker 01: And Mr. White was aware of it, but the public defenders that were handling his probation, violation, and appeal were not. [00:26:41] Speaker 01: It's then the subsequent habeas proceedings that ultimately culminate with a 2020 order by the district court judge saying... Which habeas proceeding is this? [00:26:52] Speaker 03: that you're referring to, because his December 2017 habeas was denied, right? [00:26:58] Speaker 01: That's correct. [00:26:58] Speaker 01: So there was a proceeding. [00:27:00] Speaker 01: And I agree, the procedural posture of how we got to the 2020 order is confusing as well, and perhaps also a defense factually for the appellants, but ultimately [00:27:15] Speaker 01: the district court judge agreed with the district attorney and the defense attorney who was representing Mr. White at the time that his sentence should have been discharged in 2016. [00:27:24] Speaker 01: The only way I can interpret how the district court judge got there is through habeas power. [00:27:32] Speaker 01: the time limits for reconsidering a sentence that expired, the only authority the district court judge would have had left in 2020 would have been habeas authority. [00:27:41] Speaker 01: And that judge determined to go along with essentially what the parties had agreed to, which was that [00:27:48] Speaker 01: He had been over detained and he should have been discharged in September of 2016. [00:27:53] Speaker 01: And so it's important to figure out how do we get there, right? [00:27:57] Speaker 01: Because the original sentencing judge says, here's your sentence. [00:28:02] Speaker 01: But the Department of Corrections has to implement it and do it correctly. [00:28:06] Speaker 01: And the complaint alleges a myriad of ways in which they didn't do that. [00:28:11] Speaker 02: But the Department of Corrections made the mistakes on his first sentence before [00:28:18] Speaker 02: the violation of parole sentence. [00:28:22] Speaker 02: And these particular people that are being sued were not involved in that. [00:28:29] Speaker 02: There were no allegations that they were involved in miscalculating it back then. [00:28:34] Speaker 01: They were certainly involved in a sense of being, you know, the deputy wardens in charge of overseeing the good time figuring. [00:28:41] Speaker 01: the original folks who implemented the sentence way back when and over time, because there were mistakes made over time, are not necessarily these appellants. [00:28:52] Speaker 01: But I think the law says if you make a mistake and you don't know about it, you have qualified immunity. [00:28:58] Speaker 01: The law we're dealing with is [00:29:00] Speaker 01: There's a mistake, you're aware of it, and then you don't do anything about it. [00:29:05] Speaker 02: And it's the prison's mistake. [00:29:07] Speaker 01: Correct. [00:29:09] Speaker 01: I mean, there's a bunch of different mistakes and I'm happy to discuss them, but generally it's a failure to give pre-sentence credit confinement, right? [00:29:18] Speaker 01: So the judge under state law says you're entitled to this much pre-sentence credit confinement. [00:29:23] Speaker 01: And so the prison has to factor that into when your release date is going to be. [00:29:28] Speaker 01: There was also a failure once he got on probation and then went back because of probation violations and parole violations to credit him for time on probation because under state law you get credit. [00:29:40] Speaker 04: And those are different credits than the good time figuring sheet credits that are alleged in the complaint. [00:29:47] Speaker 01: Correct. [00:29:47] Speaker 01: And the problem with the good time figuring sheets is one, I mean, [00:29:51] Speaker 01: to this day, the appellants still use paper good time figuring sheets, but the bigger problem is that there are more than one in this case and they're different. [00:30:00] Speaker 01: They impose the sentence differently. [00:30:02] Speaker 01: So like I said, one good time figuring sheet says September 2015, another says September 2016, and part of that is because they're not in the good time figuring sheets, they're not just figuring how much good time do you get or other credits for doing things. [00:30:21] Speaker 01: But they're also figuring, when do you start the sentence? [00:30:24] Speaker 01: So for instance, one of them didn't start the second consecutive sentence, right? [00:30:29] Speaker 01: There was a consecutive sentence. [00:30:30] Speaker 01: So the first one served, and then the second one should start when the first one ends. [00:30:35] Speaker 01: The good time figuring sheets were not consistent with one another about when that second sentence began. [00:30:41] Speaker 04: Is it problematic that those good time credits aren't referenced in the 2020 discharge order? [00:30:47] Speaker 01: No, I don't think so. [00:30:49] Speaker 01: I mean, if we're dealing with a [00:30:50] Speaker 01: a collateral estoppel issue or some sort of heck v. Humphrey issue. [00:30:55] Speaker 01: No, I think the fundamental question is, did they know that he shouldn't have been there after 2016? [00:31:03] Speaker 01: Did these appellants know? [00:31:05] Speaker 01: And did they fail to take any steps to look into it, to remedy it, to try to address it? [00:31:10] Speaker 01: And I think it's fine to say to a jury, here's why we didn't do it, because we thought this 2017 order was valid, and so we're not liable. [00:31:21] Speaker 01: But that's the factual dispute as part of the case. [00:31:23] Speaker 03: So why wouldn't the principle of law that the appellant relies on as resolving the issue here that these corrections officials didn't have a suesponte obligation to investigate the jurisdiction of the sentencing court? [00:31:37] Speaker 03: They were just following the letter of the order. [00:31:40] Speaker 03: Why doesn't that principle of law dispose of your constitutional claim, assuming there is one? [00:31:47] Speaker 01: Because if we can prove that they knew there was a sentencing miscalculation, then we can prove that they knew that [00:31:55] Speaker 01: Once he got out on 2016, he shouldn't have been on probation. [00:31:59] Speaker 01: He should have been discharged. [00:32:01] Speaker 01: And instead of having his probation violated and being recommitted, a certificate of discharge should have been issued, and he should have been done with his obligation. [00:32:10] Speaker 02: So your position is because they knew the order, the judge's order, was invalid. [00:32:17] Speaker 01: I don't know that they have to know that judge's order was erroneous. [00:32:23] Speaker 01: I think they just have to know that there's no basis for him to have been on probation because they miscalculated the sentence. [00:32:30] Speaker 01: Ergo, you can't violate probation. [00:32:32] Speaker 01: You can't be incarcerated for violating probation. [00:32:35] Speaker 02: What were they obligated to do? [00:32:37] Speaker 02: So they have these conversations with him and tell him, yeah, you're right. [00:32:42] Speaker 02: We made mistakes. [00:32:45] Speaker 02: you should be out. [00:32:47] Speaker 02: What did they have to do from that point forward? [00:32:50] Speaker 01: What they could have done right then and there is issue a certificate of discharge on the sentence and it's over. [00:32:54] Speaker 02: Can they order a certificate of discharge when they have a court order that he's still serving a two-year sentence? [00:33:02] Speaker 01: I believe they can. [00:33:03] Speaker 01: I mean there's no [00:33:05] Speaker 02: Any clearly established law? [00:33:07] Speaker 01: Well, and I see that I'm out of time. [00:33:10] Speaker 04: My last question was that question. [00:33:13] Speaker 04: What's the closest clearly established case that is applicable here? [00:33:17] Speaker 01: Well, there's two questions. [00:33:18] Speaker 01: What does New Mexico state law say they can do? [00:33:21] Speaker 01: And the New Mexico state law clearly says they are the sole entity that issues a certificate of discharge of the sentence. [00:33:29] Speaker 01: So they can do that. [00:33:31] Speaker 01: The second question is, you know, [00:33:33] Speaker 01: on clearly established law, is there a 10th Circuit case that says when you're in this situation, is the law clearly established? [00:33:40] Speaker 01: And there's clearly not a 10th Circuit case that what the cases are. [00:33:44] Speaker 01: Or a Supreme Court. [00:33:46] Speaker 01: Or a Supreme Court. [00:33:47] Speaker 01: What the cases are and what Judge Strickland found was that the weight of authority in the circuits says that if a prison official knows that somebody's overdetained, serving a sentence beyond their date, [00:34:01] Speaker 01: they have an obligation to investigate it and do something about it. [00:34:05] Speaker 04: The closest case in this circuit is the unpublished case dire that affirmed the grant of qualified immunity. [00:34:14] Speaker 04: I mean, it's not binding, but is it persuasive to this panel? [00:34:18] Speaker 01: I mean, it certainly can be persuasive. [00:34:21] Speaker 01: But what's clear in the Tenth Circuit is you can have clearly established law either by a decision of this court, the Supreme Court, or the weight of authority in other circuits. [00:34:31] Speaker 01: And Judge Strickland clearly relied on a myriad of authority from other circuits. [00:34:36] Speaker 01: And that has not been challenged in any way. [00:34:38] Speaker 04: What's the best other circuit case? [00:34:40] Speaker 01: Well, in fact, I think it's probably the Sabo case, which not the issue that's gone up on Bonk [00:34:48] Speaker 01: review, but what SABO says is we clearly established in FIGS that if a record keeper knows they've made a mistake in the records and doesn't do anything about it, that there's no qualified immunity. [00:35:03] Speaker 01: And so the issue with SABO that's gone up on appeal or gone up on bank [00:35:07] Speaker 01: is these were two officials that didn't know about Mr. Sabo himself. [00:35:12] Speaker 01: Their job was we review all the judgments, and if we see a mistake by the trial court, we alert them and we correct it. [00:35:19] Speaker 01: And I think that's the question that the en banc is saying, well, is that clearly established? [00:35:25] Speaker 01: But there was no real challenge in Sabo's sights to the Figgs case, which is, I believe, a 2016 7th Circuit case that said in 2011, we clearly established. [00:35:36] Speaker 01: that when a record keeper knows there's a problem with the records. [00:35:39] Speaker 01: And that's what we have here. [00:35:40] Speaker 01: We have a serious problem with the records, the good time figuring sheets. [00:35:45] Speaker 01: Thank you, counsel. [00:35:46] Speaker 01: Your time's expired. [00:35:47] Speaker 04: Case is submitted.