[00:00:00] Speaker 04:
May it please the court, Jeffrey Connor on behalf of the appellants.

[00:00:04] Speaker 04:
I'm going to try to reserve about two to three minutes for rebuttal, but I'll keep my eye on the clock, your honor.

[00:00:09] Speaker 04:
I think there's a couple of things that the court may be interested in today, but I'm not quite sure.

[00:00:15] Speaker 04:
But I think I'll start with the mootness question and go from there, because I think that's the easiest place to start.

[00:00:20] Speaker 04:
I think the mootness question in this case is answered by this court's decision in Gardening versus Montana Department of Corrections in the US.

[00:00:27] Speaker 04:
Well, this isn't Gardening.

[00:00:30] Speaker 02:
I mean, I read guarding and I tried to say, but in guarding there were still more things to do.

[00:00:36] Speaker 02:
At a minimum, a decision in the state's favor release it from the burden of a new trial in guarding.

[00:00:44] Speaker 02:
That's at least some relief was available.

[00:00:48] Speaker 04:
But there is none here.

[00:00:50] Speaker 04:
I disagree with that, respectfully.

[00:00:52] Speaker 02:
Well, what is there?

[00:00:55] Speaker 02:
We already have an agreement.

[00:00:58] Speaker 02:
We already have the state agreeing to the agreement.

[00:01:02] Speaker 02:
We already have the defendants even doing the sentence.

[00:01:11] Speaker 04:
Agreed your honor but just I mean it just so happens that they had enough time he didn't have to do more sentence but he did everything they impose the sentence just as this court said in in guarding if the state acts under compulsion of compliance with the district courts writ.

[00:01:28] Speaker 04:
That's enough, like reinstatement of the original judgment here is enough.

[00:01:34] Speaker 02:
But just a minute.

[00:01:36] Speaker 02:
In white it says Section 2254 grants jurisdiction for habeas as long as the person in custody is there pursuant to that state court judgment.

[00:01:48] Speaker 02:
This person isn't in custody pursuant to the state court judgment.

[00:01:52] Speaker 04:
But again, that person isn't there at all guarding answers that question and recognizes that the custody determination under the statute is made at the time of filing of the incident petition, which was filed.

[00:02:05] Speaker 04:
He submitted it for filing on February 7th 2022 when he was still in custody under the 2016 judgment of conviction.

[00:02:14] Speaker 02:
I'm sorry that I interrupted you.

[00:02:16] Speaker 01:
No, not at all.

[00:02:17] Speaker 01:
I was going to explore the same area because I'm not sure I quite fully understand the state's argument on what relief

[00:02:26] Speaker 01:
the panel can provide you that's effective.

[00:02:29] Speaker 01:
I take it from your briefing that you're suggesting that we can unwind everything or the state can unwind everything.

[00:02:36] Speaker 01:
To me, that seems very theoretical.

[00:02:38] Speaker 01:
Does the state really intend on unwinding the whole plea agreement, given that there are due process rights and enforce that agreement, right?

[00:02:46] Speaker 01:
The government voluntarily gave him a misdemeanor plea deal.

[00:02:50] Speaker 04:
I've had discussions with the district attorney's office on this, and they did assure me that if we were to obtain a reversal in this case,

[00:02:56] Speaker 04:
that they would pursue reinstatement of the original judgment of conviction.

[00:03:00] Speaker 01:
Can the state do that without trampling on the defendant's due process rights to enforce the plea agreement that the state voluntarily offered to him?

[00:03:11] Speaker 04:
I have not seen a case yet where what led to the new plea agreement and the new judgment was a misrepresentation

[00:03:25] Speaker 04:
misrepresentation to the state court that it had to abide by the terms of an effectively stayed conditional writ.

[00:03:35] Speaker 04:
Now, I understand what you haven't seen in case that they got went the opposite either because I tried to find understood your honor, but it's Mr. Brown's burden to prove that there's no effective relief available.

[00:03:47] Speaker 04:
It's not my obligation to prove that there is.

[00:03:50] Speaker 03:
But what about Santa Bello and other cases in our circuit that talk about the due process right to receive the bargain that one gets from a plea agreement?

[00:04:01] Speaker 04:
Understood, Your Honor.

[00:04:02] Speaker 04:
And so I think the circumstances we have presented here, and I've not seen a case like this, where there was a misrepresentation to the state court

[00:04:13] Speaker 04:
that resulted in vacating of otherwise valid state judgment of conviction based upon the federal district court's conditional writ.

[00:04:22] Speaker 03:
But the local prosecutor could have clarified whatever.

[00:04:26] Speaker 03:
I mean, you're calling it a misrepresentation.

[00:04:29] Speaker 03:
I don't know.

[00:04:30] Speaker 03:
There were, it seems, multiple opportunities to inform the trial court of the nature of an appeal being pending, but no one did.

[00:04:40] Speaker 03:
Understood.

[00:04:40] Speaker 03:
So what happened with that?

[00:04:41] Speaker 03:
I mean, why did the attorney general's office not speak with the local prosecutor?

[00:04:46] Speaker 04:
I can't speak to that, Your Honor.

[00:04:49] Speaker 04:
take full responsibility for that, that we did have an initial discussion with the district attorney's office that we were making a decision about whether we were going to appeal or not.

[00:04:59] Speaker 04:
And then once we decided to file the notice of appeal, I neglected to inform the district attorney's office that we did in fact file a notice of appeal.

[00:05:07] Speaker 04:
So that's what happened there.

[00:05:09] Speaker 04:
But I think given the language of- Well, they could have reached out to ask you, right?

[00:05:12] Speaker 01:
They could have searched the docket.

[00:05:14] Speaker 01:
or reached out to ask you?

[00:05:16] Speaker 03:
They could have, but I think... Or they could have told the court, you know, I've been in conversations with the attorney general's office, they were considering whether to file a notice of... I mean, none of this came to light in the transcript.

[00:05:27] Speaker 03:
So I'm not sure how much you can bank on the notion of a misrepresentation to undo what are firmly established due process rights.

[00:05:37] Speaker 04:
And that's where I think this gets trickier, Your Honor, because Santa Bella, like in some sense, in those cases, recognized it.

[00:05:44] Speaker 04:
Typically, guilty pleas are considered contracts and treated under contract law.

[00:05:49] Speaker 04:
But there's a slight difference there on the due process side of things.

[00:05:52] Speaker 04:
And just like a mistake of fact on the state's part usually is not going to be enough to set aside the plea agreement.

[00:05:59] Speaker 04:
But I think this is a different circumstance where there was a false representation to the state court that led to vacating the judgment of conviction.

[00:06:07] Speaker 04:
And I think that's the problem here.

[00:06:09] Speaker 04:
And I've not yet seen a case whether under Santabello and due process principles.

[00:06:14] Speaker 03:
But even if you were at the point of just vacating the judgment of conviction, you still didn't get to the point of the plea agreement and a new conviction.

[00:06:22] Speaker 03:
And so even if there had been a misrepresentation made at a certain hearing, there was a subsequent opportunity to undo that.

[00:06:32] Speaker 03:
You might have been in a guarding position, but you stopped being in that once the plea agreement was entered.

[00:06:38] Speaker 03:
and conviction and sentence.

[00:06:40] Speaker 04:
I disagree, Your Honor, because Gardening talks about this.

[00:06:42] Speaker 04:
What happened in Gardening was the state had moved for a new trial, not that the state court had sui sponte vacated the judgment based upon the federal court order.

[00:06:51] Speaker 04:
The state had moved for a new trial and this court said that that didn't matter what the state's actions were, what precipitated the change in circumstances in state court and led to

[00:07:01] Speaker 04:
the new situation.

[00:07:02] Speaker 02:
That was all because it was still in the process.

[00:07:05] Speaker 02:
If it hadn't have been in the process, and if Gardening hadn't have followed the Supreme Court and Moore, if everything had been done, I'm not sure Gardening would have come out the same way.

[00:07:17] Speaker 02:
And I'm trying to figure out where in this record do I find that Nevada would want the original judgment reinstated?

[00:07:30] Speaker 04:
I think in this record, you can look at... There is absolutely no proof that Nevada would want that original judgment reinstated.

[00:07:39] Speaker 04:
I disagree, Your Honor, and what I would point the court to is that the prosecutor's statements in the original hearing when he asked for a stay from the district court

[00:07:49] Speaker 04:
when the district court decided to impose the writ and vacated the judgment of conviction and remanded to the justice court.

[00:07:57] Speaker 04:
So that's your best argument?

[00:07:58] Speaker 02:
That's the best I've got to say that at that point the statement- Because otherwise you just said you talked to them and they said they would do this, they would do that.

[00:08:07] Speaker 02:
But that's not in the record.

[00:08:09] Speaker 04:
You're correct, Your Honor.

[00:08:10] Speaker 04:
So if I could reserve the rest of my time for rebuttal.

[00:08:12] Speaker 04:
Thank you.

[00:08:13] Speaker 01:
All right.

[00:08:14] Speaker 01:
Thank you.

[00:08:24] Speaker 00:
Good morning, Your Honors.

[00:08:25] Speaker 00:
May it please the court, Kimberly Sandberg, on behalf of Lamar Brown.

[00:08:30] Speaker 00:
Your Honors, Mr. Brown's case ended when he was convicted pursuant to a plea offer on October 24, 2024.

[00:08:38] Speaker 00:
He's not challenging that judgment of conviction, and there is no way for the state to undo that conviction, even if it wanted to.

[00:08:46] Speaker 00:
Because Mr. Brown is not challenging that conviction, this court does not have jurisdiction over this appeal because the new judgment has essentially replaced the old judgment and there is no relief to offer respondents.

[00:08:59] Speaker 01:
Well, so I think your opposing counsel's argument is based on the ability to sort of unwind everything and put them back in the original position.

[00:09:09] Speaker 01:
And the linchpin of that argument, as I understand it, is this misrepresentation, purported misrepresentation to the court.

[00:09:17] Speaker 01:
Can you address that?

[00:09:18] Speaker 00:
Your honor, there is no statute or case law suggesting that Mr. Brown's conviction can be unwound.

[00:09:25] Speaker 00:
The only way that could happen is if he, as a petitioner, were challenging that judgment of conviction, which he is not.

[00:09:31] Speaker 00:
And I would like to point out to the court that it's approximately a year and four months since Mr. Brown's misdemeanor conviction.

[00:09:38] Speaker 00:
The state for this entire time, either through the attorney general's office or the district attorney's office could have been working to unwind this conviction.

[00:09:47] Speaker 00:
And so it begs the question, why have they not done that?

[00:09:50] Speaker 00:
There's no decision from this court that stops them

[00:09:55] Speaker 00:
From already trying to unwind that conviction and if they could have done that they would have done that and then this court would have jurisdiction The district courts habeas order doesn't stop them from trying to unwind the conviction.

[00:10:07] Speaker 00:
No, it does not why why what the district?

[00:10:10] Speaker 00:
courts habeas order does not require All it did was require the State District Court to have a status conference 30 days after the Appeal was over or the stay of the case was lifted

[00:10:25] Speaker 00:
But the federal district courts ordered never ordered the district attorney's office to offer a misdemeanor.

[00:10:30] Speaker 00:
It never ordered the state courts to resolve this case.

[00:10:35] Speaker 00:
That was completely done on the district attorney's own accord.

[00:10:40] Speaker 00:
You know, when the case was remanded to justice court, the state district court very explicitly said to the district attorney who was arguing against the remand, she said, you can go and pursue any charges you want.

[00:10:53] Speaker 00:
And the charges they decided to pursue was a misdemeanor conviction.

[00:10:57] Speaker 03:
And how do you respond to your friend on the other side's argument that there was a misrepresentation made in that hearing?

[00:11:04] Speaker 00:
The state public defender definitely did mistakenly say that no appeal had been filed.

[00:11:12] Speaker 00:
was not the basis of the remand to justice court.

[00:11:15] Speaker 00:
In other words, looking at the transcript, the state public defender doesn't say, wait a second, Your Honor, there was no appeal filed.

[00:11:21] Speaker 00:
And then the judge says, oh, OK, in that case, we'll remand to justice court.

[00:11:26] Speaker 00:
That's not what happened.

[00:11:27] Speaker 00:
She mistakenly said, well, they could have filed an appeal.

[00:11:29] Speaker 00:
They didn't file an appeal.

[00:11:31] Speaker 00:
And then there was a long argument between the DA and the state public defender and the court about if the trial counsel was found ineffective,

[00:11:39] Speaker 00:
should this case start from the beginning, since part of that ineffectiveness was telling Mr. Brown to waive his preliminary hearing.

[00:11:46] Speaker 00:
I would also point out that at any point, the district attorney could have looked on Pacer and saw what happened.

[00:11:52] Speaker 00:
This wasn't a secret.

[00:11:54] Speaker 00:
This was all public knowledge.

[00:11:56] Speaker 00:
In fact, on August 1st, the public defender asked the state district court to put the case off for two weeks so that she could call the district attorney, figure out what was going on, and talk to him or her about it.

[00:12:09] Speaker 00:
At any point in that the district attorney could have looked on pacer reached out to the attorney general and from this record We don't know that they didn't we don't know if there were conversations We don't know if the district attorney just said you know whatever you want to do with this case what we want to do is a misdemeanor because this is a case where

[00:12:28] Speaker 00:
the defendant failed to register change of address we think the just thing is a misdemeanor we don't know on this record what went on behind closed doors what we do know is that there is no relief to offer respondents there is no mechanism to

[00:12:42] Speaker 00:
undo this guilty plea of this conviction, jeopardy attached when he pled guilty and the court accepted his conviction and sentenced him.

[00:12:51] Speaker 00:
And there just simply is no relief to offer respondents.

[00:12:54] Speaker 00:
And that's why this court doesn't have jurisdiction and this appeal should be dismissed as moot.

[00:13:00] Speaker 03:
One last question.

[00:13:02] Speaker 03:
Do you know how much time elapsed between that initial court hearing where the conviction was vacated and then the subsequent one where there was a new conviction entered under the plea agreement?

[00:13:12] Speaker 00:
It was on August 15th, 2024 that the case was remanded to justice court and the guilty plea on the misdemeanor was October 24th, 2024, so approximately two months.

[00:13:22] Speaker 03:
So I guess my problem with the argument is, even if there had been a misrepresentation made,

[00:13:29] Speaker 03:
that led to the conviction being vacated, there was an opportunity to undo that, if that really were the case, before a new plea agreement and conviction was entered.

[00:13:41] Speaker 03:
And no one ever took steps to do that and say, oh, wait a minute, there's an appeal pending, we shouldn't do this.

[00:13:48] Speaker 00:
Yes, your honor.

[00:13:49] Speaker 00:
There were two months between the remand and the guilty plea.

[00:13:53] Speaker 00:
No one from either side took steps to say, wait a second, maybe this case should be stayed.

[00:13:58] Speaker 00:
There's an appeal pending.

[00:14:00] Speaker 00:
The only steps that were taken was the DA's office offered a misdemeanor conviction.

[00:14:05] Speaker 03:
And that was duly entered and conviction and sentenced.

[00:14:08] Speaker 03:
And that's that.

[00:14:09] Speaker 00:
Correct.

[00:14:09] Speaker 00:
There's a new judgment of conviction.

[00:14:11] Speaker 00:
Yes.

[00:14:14] Speaker 00:
I have about four minutes left.

[00:14:16] Speaker 00:
But if there are no other questions, I will.

[00:14:19] Speaker 00:
Thank you so much.

[00:14:34] Speaker 04:
Thank you, Your Honor.

[00:14:35] Speaker 04:
So the one thing that I would really point to in looking at the District Court's order here in dealing with this plea deal is that the Federal District Court had found that it was a violation of the ex post facto clause to sentence him to a felony.

[00:14:50] Speaker 04:
And so the state, I don't think, really was able to charge him with whatever he wanted on the failure to register charge.

[00:14:59] Speaker 04:
The US District Court had said, you have to treat this as a misdemeanor under the ex post facto clause.

[00:15:04] Speaker 04:
And so I do think this is like guarding, where the state was acting under the compulsion of the US District Court's order analyzing the ex post facto issue.

[00:15:14] Speaker 04:
And I do think there's effective relief available here in reinstatement of the felony conviction.

[00:15:20] Speaker 04:
It's undisputed that if a habeas petitioner files their... And under what statute would they reinstate?

[00:15:30] Speaker 02:
Under what statute, Your Honor?

[00:15:32] Speaker 02:
Yes.

[00:15:33] Speaker 02:
I don't know.

[00:15:34] Speaker 02:
Nevada statute.

[00:15:35] Speaker 02:
What Nevada case?

[00:15:37] Speaker 02:
What Nevada something did my law clerks and I miss in trying to figure out how you would get that done?

[00:15:44] Speaker 04:
I can't point you to anything specific, Your Honor, but I think that based upon the circumstances where there was a misrepresentation to the state court that precipitated all of this, that occurrence and the failure to have corrected that misstatement

[00:15:59] Speaker 04:
under the rules of candor to the tribunal.

[00:16:01] Speaker 02:
A misrepresentation about whether an appeal was filed when one can go look to see whether the appeal was filed?

[00:16:09] Speaker 04:
Well, I think that they're entitled to rely on counsel's representations.

[00:16:15] Speaker 04:
If they say no appeal was filed and they fail to correct that, counsel had an obligation under the rules of professional conduct to correct that misstatement.

[00:16:22] Speaker 04:
Judge Sanchez's questions are directly on point here, that under the rules of professional conduct, they had an obligation to correct that.

[00:16:30] Speaker 04:
I see that I'm out of time, so I'll submit and ask that this court reverse.

[00:16:37] Speaker 01:
Thank you, counsel.

[00:16:38] Speaker 01:
Thank you both for your arguments this morning.

[00:16:40] Speaker 01:
The matter is submitted, and we'll issue our decision in due course.