[00:00:05] Speaker 02: Good morning. [00:00:06] Speaker 02: May I please the court Pablo Amazon for Andre Price and I'll aim to reserve two minutes for rebuttal. [00:00:13] Speaker 02: There are two situations where a claim presented in a second in time habeas petition is not subject to dismissal under EDPA. [00:00:21] Speaker 02: The first is where the claim challenges a brand new judgment for the first time, which is the Magwood situation. [00:00:26] Speaker 02: The second is the situation presented in this case, where even though the claim challenges the same judgment and underlying conviction as the first in time petition, [00:00:36] Speaker 02: It's not considered second or successive because the claim could not have been presented in that first petition and therefore does not constitute an abuse of the writ. [00:00:44] Speaker 04: Does Mr. Price's habeas petition challenge his murder conviction or the state court's denial of his resentencing petition? [00:00:54] Speaker 04: Does it matter to the resolution of this case? [00:00:57] Speaker 02: So I'll try to clear this up. [00:00:59] Speaker 02: So he's challenging the underlying conviction, the original judgment saying that his jury had received instruction on an invalid theory of guilt. [00:01:08] Speaker 02: The only reason the resentencing petition is in play is because that's the manner that California mandated him for him to present this claim to the state courts. [00:01:17] Speaker 01: But his claim is that his conviction ought to be vacated, right? [00:01:21] Speaker 02: Excuse me? [00:01:21] Speaker 01: His claim is that his conviction should be vacated. [00:01:24] Speaker 02: Correct. [00:01:25] Speaker 01: Not that he received a sentence that should be changed. [00:01:30] Speaker 02: Correct, correct. [00:01:31] Speaker 02: Yes, we're not arguing this is a new judgment. [00:01:32] Speaker 01: And you're not arguing that you're attacking a new judgment. [00:01:36] Speaker 02: We are not, no. [00:01:36] Speaker 01: So as I understand, however we characterize your claim, because it might fail on the merits if a district court has jurisdiction to hear it, it's that we couldn't raise this claim until the New California statute got passed. [00:01:54] Speaker 01: Correct. [00:01:55] Speaker 01: whether we call it a new fact or a new law, really doesn't matter. [00:01:58] Speaker 01: It wasn't ripe until the new California statute got passed. [00:02:03] Speaker 02: Sure. [00:02:03] Speaker 02: So 2019 is when he could first argue for the first time that his jury had received invalid instructions. [00:02:09] Speaker 01: Right. [00:02:09] Speaker 01: And that was after the disposition of the previous two, or at least it was at a point when it couldn't have been [00:02:16] Speaker 01: couldn't have been made in a previous petition. [00:02:18] Speaker 02: Yeah, and I'll give some review. [00:02:20] Speaker 04: What about People v. Chu, which was a 2014 case? [00:02:23] Speaker 04: Why didn't Mr. Price's claim that the jury was instructed on an invalid theory become ripe after People v. Chu? [00:02:31] Speaker 02: So that one only invalidated it as the first degree murder. [00:02:35] Speaker 02: It wasn't until SB 1437 was passed, and then there's People v. Gentile, which says now the natural and probable consequences doctrine also does not apply to second degree murder. [00:02:45] Speaker 02: So that's why Chu is really not in play. [00:02:48] Speaker 02: He was convicted for second-degree murder under aiding and abetting. [00:02:53] Speaker 01: And we're not considering, because we're just looking at whether this is second or successive, whether the state court reasonably rejected your claim. [00:03:03] Speaker 02: No, no. [00:03:03] Speaker 02: At this point, we would just be asking to remand it to the district court for them to then consider it. [00:03:08] Speaker 01: The district court could well, if we said it had jurisdiction, reject your claim for the reasons that the state court did. [00:03:16] Speaker 01: In other words, it could say, we think the state court was reasonable in finding that yours was not a case in which this new statute is implicated. [00:03:27] Speaker 01: I'm not asking you to agree with that. [00:03:29] Speaker 01: I'm just saying that you're not asking us to say that your claim has merit. [00:03:34] Speaker 01: You're just asking us to say that you couldn't have raised it before now. [00:03:39] Speaker 02: Correct. [00:03:39] Speaker 02: So at this point, it's just all about whether it was right, whether it could have been raised in that first-in-time petition, because the district... And it's based entirely on the New California statute, is it not? [00:03:51] Speaker 02: Correct, yes. [00:03:52] Speaker 01: Now, that may or may not present a federal question, but that statute was not in existence when you filed your first two habeas petitions, right? [00:04:02] Speaker 02: Yeah, yeah. [00:04:02] Speaker 02: And for this, I want to clarify a bit of the timeline so we could kind of better understand why he couldn't raise it in that first one. [00:04:08] Speaker 02: So he filed it initially in August 2017. [00:04:10] Speaker 02: That's when the first in time petition gets filed. [00:04:13] Speaker 02: In December 2017, he also seeks leave to amend to add new claims not at issue here, but those claims that were unexhausted in state court. [00:04:23] Speaker 02: In November 2018, the district court rules that he cannot add those claims precisely because they're unexhausted. [00:04:32] Speaker 02: So essentially, you know, literally one to two months before SB 1437 becomes law, prices of where that- Let me ask you about the timeline, because I was a little confused. [00:04:42] Speaker 01: Sure. [00:04:45] Speaker 01: unsuccessful federal habeas petition still pending when the new law was passed. [00:04:50] Speaker 02: Yes. [00:04:50] Speaker 02: So that's what I'm trying to. [00:04:52] Speaker 01: Yeah, but it couldn't be. [00:04:53] Speaker 01: But the judge said you can't add this. [00:04:56] Speaker 01: Exactly. [00:04:56] Speaker 01: To that one. [00:04:57] Speaker 02: Exactly. [00:04:58] Speaker 02: And that order had come about one to two months before the new law was passed. [00:05:03] Speaker 02: And so that why [00:05:04] Speaker 02: That's why Price would have known in his position. [00:05:06] Speaker 02: And under the abuse of the writ, we do look at his circumstances. [00:05:10] Speaker 01: The federal judge had said, sorry, you can't add that one to your second one. [00:05:13] Speaker 01: Exactly. [00:05:14] Speaker 01: So then you file a third one. [00:05:15] Speaker 02: Exactly. [00:05:16] Speaker 02: So then he does exhaust it January 2nd. [00:05:19] Speaker 02: He shows diligence. [00:05:21] Speaker 02: He files it right away. [00:05:23] Speaker 02: And the trial court didn't deny that petition until November 2019. [00:05:28] Speaker 02: and that was already three months after the first time. [00:05:30] Speaker 04: Let me ask you this, is everyone that's in prison for murder, can they make this claim or why can't I peek under the covers here and look at yours and say well the jury wasn't instructed on [00:05:45] Speaker 04: the natural and probable consequences. [00:05:49] Speaker 04: So does everyone in prison for murder get to make this claim? [00:05:55] Speaker 02: Do you see what I'm saying? [00:05:58] Speaker 04: Why is this a floodgate or what does someone have to show that [00:06:02] Speaker 04: Because it kind of looks like they might say, well, they weren't instructed that way. [00:06:10] Speaker 04: And if you look at the nature of the case, your client had DNA of the victim and that they were instructed on aiding and abetting. [00:06:20] Speaker 02: So kind of addressing the merits of the claim, so he is arguing that [00:06:25] Speaker 02: He, his jury did receive natural and probable consequences instruction in calc. [00:06:30] Speaker 02: 400 where the judge read that optional paragraph that says, you know, if you find sufficient evidence that he was aiding and abetting one crime, he may also be guilty of any other crimes committed during that first crime. [00:06:43] Speaker 02: And, um, you know, kind of going back to what the jury found. [00:06:47] Speaker 02: The prosecution's theory was that he was either guilty of felony murder in the first degree with robbery as the underlying predicate felony, or that it was just malice, murder where he was the actual shooter. [00:07:00] Speaker 02: Yeah, and the jury didn't find any of those theories. [00:07:04] Speaker 01: But you may be dead wrong. [00:07:06] Speaker 01: In other words, that's not what we're here about. [00:07:08] Speaker 01: Yeah, exactly. [00:07:09] Speaker 01: At least looking at it permanently, [00:07:13] Speaker 01: I'm not overly convinced that your federal habeas claim, if allowed to proceed, will be successful. [00:07:20] Speaker 01: That's not the issue. [00:07:22] Speaker 01: The only issue is whether it's barred by the second successive session. [00:07:27] Speaker 02: Yes, basically whether the district court properly dismissed it as barred under 2244B. [00:07:33] Speaker 02: And we are arguing that it wasn't because it wasn't ripe and if we focus on his specific circumstances. [00:07:38] Speaker 04: challenge, like I know one of the things that he challenged in his direct appeal initially and was that there was not given a lesser included of involuntary manslaughter. [00:07:52] Speaker 04: That ship has sailed, right? [00:07:53] Speaker 02: Yeah, that one's long gone. [00:07:55] Speaker 02: So we're not arguing that he can revive any of those claims. [00:07:58] Speaker 02: It's just this due process based on the SB 1437 change in law that did not become viable until 2012. [00:08:05] Speaker 02: Thank you. [00:08:06] Speaker 02: And I'll save the rest of my time for rebuttal. [00:08:08] Speaker 02: Thank you. [00:08:10] Speaker 00: All right, thank you. [00:08:11] Speaker 00: Ms. [00:08:12] Speaker 00: Brennan. [00:08:17] Speaker 03: Good morning. [00:08:17] Speaker 03: Good morning and may it please the court. [00:08:19] Speaker 03: I'm Stephanie Brennan on behalf of the warden. [00:08:23] Speaker 03: At first, I'd like to begin by saying that both of the successiveness issues are before the court and I would urge this court [00:08:29] Speaker 03: to also rule on the new judgment issue in order to give the district courts the guidance that they want. [00:08:36] Speaker 01: Well, we could rule on it except nobody's urging that there is, he's not up here saying there's a new judgment. [00:08:42] Speaker 01: So it would be an advisory opinion, wouldn't it? [00:08:46] Speaker 03: I don't believe so. [00:08:48] Speaker 03: I mean, I believe he's not challenging it. [00:08:51] Speaker 04: He sat here all morning, and we asked people, where is that in your briefs? [00:08:56] Speaker 04: So we are not the court of answering all legal questions. [00:09:00] Speaker 03: Sure. [00:09:00] Speaker 03: I would say that it was part of the COA. [00:09:03] Speaker 03: It was in my brief. [00:09:03] Speaker 03: I was asking the court to rule on it. [00:09:05] Speaker 03: But I'll turn to the ripeness issue, which of course has been decided. [00:09:08] Speaker 01: But you say there's not a new judgment, and he said? [00:09:10] Speaker 03: He doesn't challenge it. [00:09:11] Speaker 01: And he says there's not a new judgment. [00:09:13] Speaker 01: So I'm not sure why we should rule there's not a new judgment. [00:09:16] Speaker 01: Let's talk about the issue that isn't. [00:09:18] Speaker 03: Sure. [00:09:18] Speaker 03: I mean, turning to the ripeness issue, the thing here is that his whole instructional error, I mean, his whole instructional claim is based on this premise that SB 1437 gave him a new instructional claim, which... It may be a terrible theory, but he couldn't have raised that theory until the statute was passed, could he? [00:09:40] Speaker 03: He couldn't have based a claim on it, but that doesn't answer the rightness issue. [00:09:45] Speaker 03: And the rightness issue presupposes that something has changed. [00:09:50] Speaker 01: No, no, that's the merits. [00:09:52] Speaker 01: See, he's saying there's this new statute, and because of this new statute, my federal rights have been violated. [00:09:59] Speaker 01: And I must say, it may change my mind when the merits come back in front of me someday, that I don't think it's a very good claim. [00:10:07] Speaker 01: and that the California Supreme Court was probably right in rejecting it. [00:10:11] Speaker 01: But that's not the issue in front of us. [00:10:13] Speaker 01: The issue in front of us is whether he could have made this claim prior to the time that he filed the third habeas. [00:10:20] Speaker 01: And for the life of me, I can't say how he could have made this claim prior to then. [00:10:25] Speaker 03: I would say, well, the answer to that question is this, is saying that that would only be correct if SB 1437 actually made those amendments in the amendments to the marriage statement. [00:10:35] Speaker 01: No, no, that's a merits claim. [00:10:37] Speaker 01: He's saying, he's making a claim that may be wrong. [00:10:40] Speaker 01: He's saying, there's a new statute, and I'm entitled to relief based on a new statute. [00:10:45] Speaker 01: And you may be entirely correct when you go back to the district judge, if you do, and say, [00:10:51] Speaker 01: That's a crappy claim. [00:10:52] Speaker 01: The statute isn't retroactive. [00:10:53] Speaker 01: It didn't make the changes, he said. [00:10:55] Speaker 01: He's not entitled to relief. [00:10:57] Speaker 01: That's not the issue in front of us. [00:10:59] Speaker 01: The issue in front of us is whether or not he's raising a claim in this petition that he could not have raised in a previous one. [00:11:08] Speaker 01: And so could you address that for me? [00:11:10] Speaker 01: I just don't see how he could have raised this claim as bad as you think it is. [00:11:13] Speaker 03: It absolutely is, for a variety of reasons. [00:11:18] Speaker 03: But so the rightness issue is going to the factual predicate, because that's the whole thing about this case, is like, when did that factual predicate arise? [00:11:28] Speaker 03: And the factual predicate is, when did the facts that give rise to the federal constitutional issue arise? [00:11:36] Speaker 03: So he's pointing to the SB. [00:11:39] Speaker 03: But underlying that is only if that SB actually, truly, [00:11:45] Speaker 03: is a change to that murder statute, which actually would invalidate his jury instruction claim. [00:11:55] Speaker 03: Now, he could have other, quote, ripe claims with regard to a change in the murder statute saying, [00:12:03] Speaker 03: For example, he could have a ripe claim about the murder statute saying there's a due process violation because those amendments should have been retroactive to people with final judgments just like me. [00:12:17] Speaker 03: That would be a ripe claim. [00:12:19] Speaker 03: But an unripe claim is the one he's raising, which is about the jury instruction. [00:12:24] Speaker 03: That's a step removed. [00:12:25] Speaker 03: That is based on saying that those murder amendments are actually retroactive to people with [00:12:32] Speaker 03: final judgments. [00:12:35] Speaker 03: That actually would be the factual predicate. [00:12:38] Speaker 03: That's why it's not the merits. [00:12:40] Speaker 03: The merits of his instructional claim have to do with the actual alternative legal theory claim. [00:12:48] Speaker 03: That's the merits. [00:12:50] Speaker 03: What you're doing with rightness is actually saying, does that factual predicate exist? [00:12:57] Speaker 04: I know you try to distinguish Brown v. Ashley, but I feel like that's problematic for you. [00:13:05] Speaker 03: You know, Brown is different, because Brown, all of those claims actually went to the resentencing proceedings themselves. [00:13:14] Speaker 03: Like, the due process challenge there had to do with, you know, it's unfair that you're treating me differently than people who are able, like, it should apply to people who are convicted of conspiracy for murder. [00:13:31] Speaker 03: That's sort of similar to this analogy they said here. [00:13:33] Speaker 03: It's he would have a due process, a right due process claim of saying that these murder statutes, the amendments should be retroactive to people who had final judgments. [00:13:42] Speaker 03: That would be a right claim, but not the jury instruction claim that he's trying to raise. [00:13:47] Speaker 01: What aside technical definitions of ripeness for a moment, and to see if we can agree on one thing. [00:13:54] Speaker 01: Do you agree that he could not have brought the claim he's bringing? [00:13:58] Speaker 01: whether it's valid or invalid until the statute was passed. [00:14:01] Speaker 03: I mean, sure, he couldn't say, I'm basing this jury instruction claim naming SB 1437. [00:14:08] Speaker 03: He couldn't name that statute before. [00:14:12] Speaker 01: The claim is based entirely on the statute. [00:14:14] Speaker 03: But again, it doesn't answer the rightness question. [00:14:17] Speaker 01: Well, that's why it was his. [00:14:19] Speaker 01: I understand. [00:14:20] Speaker 01: We may or may not agree on that. [00:14:22] Speaker 01: I'm just trying to make sure I understand your position. [00:14:24] Speaker 01: You do agree that he couldn't have even thought about bringing this claim until the statute passed. [00:14:30] Speaker 03: Again, naming that particular statute, no. [00:14:33] Speaker 03: But again, it doesn't answer the ripeness question. [00:14:35] Speaker 01: My second question is, as I read the petition, he's not really bringing any other claim. [00:14:42] Speaker 01: In other words, he's not saying all these other things you said. [00:14:45] Speaker 01: He's just saying, this statute entitles me to relief. [00:14:49] Speaker 03: He's saying his claim is, my jury instructions, the jury was instructed on an invalid theory. [00:14:57] Speaker 03: And therefore, I'm, you know. [00:14:59] Speaker 01: But he's basing that claim entirely on the passage of this statute. [00:15:03] Speaker 01: Yes. [00:15:03] Speaker 03: And he could have some other. [00:15:05] Speaker 04: There are people that have gone back in front of the state courts. [00:15:08] Speaker 04: And I'm familiar with at least a few cases, because I was a trial judge back in the day, where they were convicted, say, on the provocative act theory, or that they were [00:15:18] Speaker 04: They were the mastermind of some drug break-in and, you know, but they weren't there. [00:15:23] Speaker 04: It's not an eight earn a better type thing that they've actually gotten relief for. [00:15:28] Speaker 04: They've been found that they're free. [00:15:31] Speaker 04: They're free. [00:15:32] Speaker 04: Saying you were convicted on the problem that what you did by telling someone that if you go over to that house there, they have drugs in the house, and then they go over and it's a home invasion and people are killed. [00:15:44] Speaker 04: They're people that are getting out. [00:15:47] Speaker 04: That's retroactive in a way. [00:15:49] Speaker 04: Sure, just like CHOO is. [00:15:50] Speaker 04: And so, for example... Because it's insufficient. [00:15:52] Speaker 04: They were convicted on the theory of the law that this particular statute says is not valid. [00:15:58] Speaker 03: Sure, just like CHOO. [00:15:59] Speaker 03: And for example, CHOO is a situation where it's... [00:16:02] Speaker 03: Again, all crimes in California are statutory. [00:16:08] Speaker 03: And what happened with Chu is saying that it was the judicial decision that was interpreted what the statute was always. [00:16:17] Speaker 03: And it was just that over a period of time, the courts had been misinterpreting it. [00:16:22] Speaker 03: And all that Chu said is going back and saying, the statute under which you were convicted always meant this. [00:16:30] Speaker 03: And that's different than the situation here, where it's the statute itself that has been changed. [00:16:35] Speaker 03: And that's what makes it different here than what happened in Chu, if here there had been a judicial decision interpreting the murder statute that he had been convicted under. [00:16:47] Speaker 03: and that the change had been made just as in Chu of saying that under second degree murder, the national probable consequences no longer existed, he would be fined. [00:16:57] Speaker 04: Who can bring a claim after that case? [00:17:03] Speaker 03: After after the statute was passed who can bring sure so people who I mean so people who are Currently haven't been convicted yet as the state California state courts saying that this new definition of murder applies to all people who have not yet been convicted and then People that were convicted in the past under the probable the natural and probable consequences [00:17:27] Speaker 03: Of course, and that's for people saying they go under this resentencing statute and they're released not because there's been any trial, not because the jury was misinstructed, but instead they are resentenced because it's an act of leniency. [00:17:44] Speaker 03: Again, not because anything wrong happened at their trial. [00:17:47] Speaker 04: Well, right, but they're saying it's not a valid theory of murder. [00:17:51] Speaker 03: Because they're saying you are, again. [00:17:53] Speaker 04: And they're out. [00:17:54] Speaker 04: They're free. [00:17:55] Speaker 03: Correct. [00:17:56] Speaker 04: And it's basically, and their conviction is gone, right? [00:17:58] Speaker 03: Their conviction is gone. [00:17:59] Speaker 03: But again, Your Honor. [00:18:00] Speaker 04: The evidence can't support it under that theory. [00:18:03] Speaker 03: Because they're saying, but it's not because anything wrong happened at your trial, which again, his theory here, his claim here is jury instruction error. [00:18:12] Speaker 03: I'm saying he can go ahead and bring up a claim. [00:18:15] Speaker 04: That's why he might not win. [00:18:16] Speaker 04: And that's why he didn't win on the state re-sentencing. [00:18:21] Speaker 04: But we're just dealing with ripeness. [00:18:24] Speaker 03: Yes, correct. [00:18:25] Speaker 03: And so he could have a ripe claim if he aims it only at his resentencing. [00:18:30] Speaker 03: And he can bring that type of claim, which would be ripe, but it would not be cognizable as what the district court had already found, saying if that's his claim. [00:18:39] Speaker 04: Hypothetically, let's assume that he went back on the resentencing and the state court got it wrong. [00:18:47] Speaker 04: And they said no. [00:18:49] Speaker 04: you you know and then you say he can't challenge that in the federal court and the federal court might say no the state court got it wrong and you were convicted under the natural and probable consequences so you're entitled to relief so you're just saying looking at his case pulling the covers off he's only making jury challenges and he really it wasn't convicted under that [00:19:14] Speaker 04: And that's why he'll lose on habeas. [00:19:16] Speaker 04: But I don't know why he can't challenge it. [00:19:20] Speaker 03: Again, Your Honor, because his- Because he's going to lose, you're saying. [00:19:24] Speaker 03: He's going to lose if he makes, well, he's going to lose for a number of reasons. [00:19:31] Speaker 03: But the fact remains is that he can't make this type of claim. [00:19:34] Speaker 04: But what if he was going to win? [00:19:36] Speaker 04: What if he was going to win? [00:19:37] Speaker 04: And then you wouldn't let him bring a habeas? [00:19:43] Speaker 03: The California state courts haven't permitted him to make this type of claim. [00:19:47] Speaker 01: Well, and so we have a habeas judge, if he had jurisdiction, would determine whether the California state court was an unreasonable application of federal law. [00:19:58] Speaker 01: And I suspect you would probably win on that issue. [00:20:03] Speaker 01: But I'm still having trouble figuring out why this is a second or successive, barred by the second or successive, [00:20:13] Speaker 01: uh, statute when it couldn't have been argued before. [00:20:17] Speaker 01: And that's, I mean, it seems to me the one thing that's clearly outside second or successive is an argument you couldn't possibly have made before. [00:20:26] Speaker 01: It may be a terrible argument, you may be right, but it is an argument he couldn't possibly have made before. [00:20:32] Speaker 03: And I understand the challenge or the difficulty of really trying to look at what the difference is between the merits of something and getting into the factual predicate on the rightness issue. [00:20:47] Speaker 03: And what I'm trying to say about the rightness issue is really looking at, if you look at what the factual predicate is, [00:20:56] Speaker 03: The fact that gives rise to the federal constitutional violation, that fact has to be the amendment themselves and whether it's right or wrong. [00:21:05] Speaker 03: Because what is the thing that he's saying invalidates the jury instruction? [00:21:10] Speaker 03: And the only thing that can invalidate that jury instruction is if that amendment applies to him. [00:21:17] Speaker 03: And that has to be what this inquiry is about rightness. [00:21:21] Speaker 03: And that's not the merits. [00:21:23] Speaker 03: That's what this court has to decide. [00:21:26] Speaker 00: All right. [00:21:26] Speaker 00: Thank you, Counselor. [00:21:27] Speaker 00: You're well over your time. [00:21:28] Speaker 03: Thank you. [00:21:31] Speaker 00: Mr. Almazan. [00:21:33] Speaker 02: Again, just to keep it real simple, like Judge Hurwitz, you mentioned, the question is, could he have brought this specific claim while his first in time petition was still pending? [00:21:47] Speaker 02: For the reasons I discussed earlier, he couldn't have. [00:21:49] Speaker 02: Therefore, the claim was not right. [00:21:51] Speaker 02: the district court wrongly dismissed it as second or successive, and we would ask that this case be remanded for the district court to consider the merits of this claim. [00:22:00] Speaker 00: All right. [00:22:00] Speaker 00: Thank you very much, counsel. [00:22:02] Speaker 00: Price versus Arce is submitted. [00:22:05] Speaker 00: We have previously submitted comprehensive medical center versus State Farm.