[00:00:02] Speaker 01:
Thank you, Your Honors.

[00:00:03] Speaker 01:
I'm Sam Koistra.

[00:00:05] Speaker 01:
I am a counsel for petitioner Lee Komye, who pronounces his last name, Komye, for the court's reference.

[00:00:12] Speaker 01:
Not everyone understandably grasps that just based on the spelling.

[00:00:15] Speaker 01:
I intend to reserve two minutes of my time for rebuttal this morning.

[00:00:24] Speaker 01:
Mr. Comier is serving a sentence that guarantees he will die in prison for non-homicide crimes committed when he was a child.

[00:00:32] Speaker 01:
Those facts present grounds for habeas relief based upon the precedent of this court.

[00:00:39] Speaker 01:
Because Lee can make a prima facie showing that he satisfies the authorization criteria, this court should allow him to proceed to the district court on that meritorious petition.

[00:00:49] Speaker 01:
Before I address the previously unavailable portion of the authorization criteria I would like to just briefly touch on the remainder of the criteria just so it doesn't get canceled You don't have a lot of time and I'd appreciate you're going directly to the issue that we may certainly do that So on the question of previous unavailability the standard for determining whether a new rule was previously unavailable is the one announced and

[00:01:13] Speaker 01:
for purposes of SOS applications is the one announced in the United States versus Munoz, which adopts a pragmatic real-world standard that is drawn from the PLRA context where we're determining whether a rule of, excuse me, whether a procedural remedy is available or unavailable to a prisoner plaintiff.

[00:01:36] Speaker 01:
Lee is able to satisfy that standard.

[00:01:42] Speaker 01:
I think his application here is distinct from the unsuccessful application in Munoz in two critical ways.

[00:01:49] Speaker 01:
The first is that what Munoz emphasized is that the petitioner there, the applicant there, was objectively aware

[00:01:57] Speaker 01:
of the case that was the basis for his new claim, his SOS claim at the time.

[00:02:03] Speaker 03:
But your client's state counsel was clearly aware of the Graham issue because it was included in the state petition.

[00:02:15] Speaker 01:
You're correct that the state court counsel was aware of Graham and was aware of Montgomery because that was the basis for the claim in the state court.

[00:02:23] Speaker 01:
However, the focus under Munoz is under what Lee's knowledge was as a pro-state petitioner in this proceeding.

[00:02:31] Speaker 01:
State counsel's knowledge of those cases, of that rule, in a separate proceeding,

[00:02:36] Speaker 01:
and a separate court cannot be imputed to lead in this context.

[00:02:40] Speaker 03:
Well, Munoz uses the term that someone is prevented as a practical matter from asserting the claim.

[00:02:49] Speaker 03:
So I'm not sure

[00:02:51] Speaker 03:
And and I think Munoz makes clear that being pro se does not by itself prevent someone from raising an issue so What specifically prevented him from raising this issue?

[00:03:08] Speaker 01:
So one factor I would like to point to along those lines.

[00:03:11] Speaker 01:
It's just the basic

[00:03:13] Speaker 01:
unique procedural complexity of this case.

[00:03:17] Speaker 01:
Munoz draws its rule from the standard, like I said, in PLRA cases.

[00:03:22] Speaker 01:
And in the PLRA context, this court and the United States Supreme Court has said that when an administrative remedy is opaque and especially complex, when it is so complex that it might be the language from Ross v. Blake is,

[00:03:39] Speaker 01:
would trip up all but the most skillful prisoner, then that simple fact of that complexity renders the remedy unavailable.

[00:03:49] Speaker 03:
I think something analogous... He knew enough to have amended his petition in other respects.

[00:03:54] Speaker 01:
So the amendment in the petition was

[00:03:57] Speaker 01:
that he entered was made by the direct order of the district court and the amendment order made clear that the purpose of the amendment wasn't him, Sue Esponte, saying I want to raise these new claims, these new ideas.

[00:04:08] Speaker 03:
Right, but he understood that that was a possibility whether it was told to him by the court or he figured it out on his own.

[00:04:15] Speaker 01:
We understood that amendment was a possibility because the court told him essentially

[00:04:20] Speaker 01:
You wrote this, you hand wrote this, and we need it to be on the court's official forms.

[00:04:25] Speaker 01:
You don't, you identify the respondent as the Department of Corrections of the State of Arizona.

[00:04:29] Speaker 01:
There has to be a person who responded.

[00:04:30] Speaker 01:
So there's an order from the court.

[00:04:32] Speaker 01:
dismissing the case without prejudice, ordering him, granting him leave to amend, not dismissing the case, but granting him leave to amend the petition to correct those formal deficiencies in his petition.

[00:04:45] Speaker 00:
Mr. Coister, why doesn't that turn the practicality inquiry of Munoz kind of inside out?

[00:04:51] Speaker 00:
I mean, what's the authority that we can silo the fact

[00:04:55] Speaker 00:
that all of these other things are happening.

[00:04:56] Speaker 00:
He understands he can amend.

[00:04:58] Speaker 00:
He's got the pending petition.

[00:05:00] Speaker 00:
It's three months after Montgomery.

[00:05:02] Speaker 00:
Doesn't a practical approach take account of all of those factors in terms of whether these arguments that were being cited at least in other forums were available to him?

[00:05:15] Speaker 01:
Again, I would say the court that focuses on unique procedural complexity of this particular case.

[00:05:20] Speaker 00:
Well, what about more?

[00:05:23] Speaker 00:
I mean, we're looking at this three-month clock with Montgomery, but we had decided before in 2013 that a similarly framed claim may be available or may succeed under the Eighth Amendment.

[00:05:40] Speaker 00:
Why shouldn't we look even back to 2013, in which case he's got plenty of time?

[00:05:45] Speaker 00:
If that's not available, I don't know what would be.

[00:05:47] Speaker 01:
Well, I think this court should look not just at Moore and at Graham, but also at Montgomery, because Montgomery does some additional work for Mr. Comey beyond what was done in Graham.

[00:05:57] Speaker 00:
And usually we're not in the position of typically the habeas petitioner is not looking for us to take the most constrained on point Supreme Court decision.

[00:06:07] Speaker 00:
And I could imagine down the line, you might want to cite Moore as supporting the claim.

[00:06:12] Speaker 00:
So I just don't understand why the work wasn't done in Moore, again, if we're taking a practical view as to whether he could have raised this claim in that petition.

[00:06:23] Speaker 01:
Well, again, I think at this stage, I think we have to remember that the standard that Mr. Comey has to meet is just a prima facie showing, right?

[00:06:31] Speaker 01:
There is a possible merit based upon that.

[00:06:34] Speaker 01:
So is it possible that his claim relies on Montgomery?

[00:06:40] Speaker 01:
Montgomery was practically unavailable to him due to the complexity of this case based upon rules interpolated from the PLRA context, which Munoz adopts.

[00:06:48] Speaker 01:
Right.

[00:06:48] Speaker 01:
And so the question there is, again, it's a permissive standard, it's a light burden.

[00:06:52] Speaker 01:
This core is not supposed to engage in complex analyses at this stage of the proceeding.

[00:06:57] Speaker 03:
And here... Well, complex analyses about the merits, but that unavailability is separate from that, isn't it?

[00:07:06] Speaker 01:
It's complex analysis, I think I understand, is around the authorization criteria.

[00:07:12] Speaker 01:
So for example, the court can address, is not supposed to address procedural defenses and so on.

[00:07:18] Speaker 01:
But even without that, the standard is permissive.

[00:07:21] Speaker 01:
He only has to make a prima facie showing.

[00:07:24] Speaker 01:
And Ali has made a prima facie showing that this is unavailable to him due to the unique procedural complexity of this case.

[00:07:30] Speaker 01:
And that suffices.

[00:07:32] Speaker 00:
But what else other than the fact that it's just pro se?

[00:07:34] Speaker 00:
I mean, even in Munoz, they talk about different things.

[00:07:38] Speaker 00:
What would you point to to say that three months he was able to decide to file a petition, he was able to amend it?

[00:07:47] Speaker 00:
What else?

[00:07:48] Speaker 01:
Well, so again, there's no objective indicia that he was aware of Montgomery, which is relevant to Munoz.

[00:07:52] Speaker 01:
I would also point to, if you look at the docket, I believe it's docket entry 48 of the 2016 proceeding in the district court, respondent files a motion asking for clarification about the procedural status of the case.

[00:08:04] Speaker 01:
Because even to respondent, there's a lengthy procedural history where we're dealing with a dozen or so prior, you know,

[00:08:11] Speaker 01:
seven or eight prior petitions.

[00:08:13] Speaker 01:
It's available to him because he's able to raise it because of his intervening US Supreme Court and ninth court decisions, making his successive claim an initial one, and so on.

[00:08:24] Speaker 01:
That is unique to this case.

[00:08:26] Speaker 01:
It's not present in Munoz.

[00:08:27] Speaker 01:
I would like to reserve the balance of my time.

[00:08:30] Speaker 04:
Thank you.

[00:08:44] Speaker 02:
Good morning may it please the court Amy Thorson from the Arizona Attorney General's office for respondent I'd like to go right to what was raised by petitioners counsel which is is his position that Petitioner was not objectively aware of the Graham claim and because of the from this state PCR proceedings, but it's my understanding that

[00:09:10] Speaker 02:
he would have received copies of every filing that was made on his behalf in state court.

[00:09:16] Speaker 02:
So I believe then he would have had an objective that he would have been a... So was Graham cited in that 2016 habeas proceeding?

[00:09:29] Speaker 04:
Was Graham cited in those papers?

[00:09:33] Speaker 02:
No.

[00:09:34] Speaker 02:
Graham was not cited in his original 2016 petition, but it is cited in the notice of PCR relief

[00:09:39] Speaker 02:
Graham and the Montgomery, that it was made retroactive by Montgomery, is in the notice of post-conviction relief and filed in state court on January 23rd, 2017.

[00:09:49] Speaker 02:
And he didn't file his amended petition until August of 2017, giving him plenty of time to have been aware of that claim and to raise it in his amended habeas petition.

[00:10:02] Speaker 02:
You're saying it was 2017 petition that appeared in?

[00:10:08] Speaker 02:
The notice of post-conviction relief is filed by counsel on January 23rd, 2017.

[00:10:14] Speaker 02:
Was that your question?

[00:10:15] Speaker 02:
I'm so sorry.

[00:10:16] Speaker 02:
Yes.

[00:10:17] Speaker 02:
I'm sorry.

[00:10:17] Speaker 02:
Yes.

[00:10:18] Speaker 02:
Okay.

[00:10:18] Speaker 02:
2017.

[00:10:18] Speaker 02:
Okay.

[00:10:20] Speaker 02:
Okay.

[00:10:20] Speaker 02:
So applying the rule in Munoz, it was not, petitioner cannot show that real-world circumstances prevented him as a practical matter from asserting his claim in his previous petition.

[00:10:34] Speaker 02:
We just talked about when he was aware of the factual basis.

[00:10:39] Speaker 02:
And the timing of the change in the law when it was retroactive and so it would be no later than being made retroactive by Montgomery because this court said it was retroactive as of 2013.

[00:10:53] Speaker 03:
So by that's... Well Montgomery was issued actually before he filed the 2016 petition.

[00:11:01] Speaker 03:
That's correct.

[00:11:02] Speaker 02:
He filed his original petition March 2016 just two months after

[00:11:09] Speaker 02:
So it was available even then, but we know that based on the filings in state courts, we know that he knew about it or we can presume that he knew about it by the time he filed his amended petition.

[00:11:22] Speaker 04:
How many years in prison will he actually serve?

[00:11:26] Speaker 02:
95.25 is what his sentence was, but he's already served a considerable amount of that, I guess.

[00:11:37] Speaker 00:
But what about parole or other factors that might reduce that time?

[00:11:44] Speaker 00:
I mean, does the state concede that he'll be no younger than 114 when he's released?

[00:11:52] Speaker 02:
I don't know.

[00:11:54] Speaker 02:
The only thing I know is that the Arizona Department of Corrections website lists that his earliest release date is 28, no.

[00:12:07] Speaker 03:
As I understand Arizona law, in a consecutive sentence situation, the final, whatever is last, you can apply good time credits to.

[00:12:20] Speaker 03:
And it comes out to something like 84 years, something like that.

[00:12:27] Speaker 02:
I'm honestly not familiar with that.

[00:12:29] Speaker 02:
My apologies.

[00:12:34] Speaker 00:
What do we make of the In the 2016 proceedings the magistrate judges Statement that they deny a stay to mr. Comer, so can we take that to mean somehow that That the ability to amend and raise Montgomery in that petition and to exhaust proceedings was not available to him and

[00:13:04] Speaker 02:
Well, we found some authority for the proposition that even if he wouldn't have been allowed to amend his petition, that he should have withdrawn his petition and gone to state court, exhausted his claim, and then refiled his petition in federal court.

[00:13:25] Speaker 02:
And that case that we found is Mathis v. Thaler, 616 F.

[00:13:28] Speaker 02:
3rd, 461.

[00:13:32] Speaker 03:
Well, even if he'd been denied, he could have sought a COA from this court.

[00:13:37] Speaker 02:
That's correct, yes.

[00:13:39] Speaker 02:
He has to show that he would have been prevented from doing that.

[00:13:42] Speaker 02:
And I don't think he, the record has to show he would have been prevented from doing that.

[00:13:45] Speaker 02:
And the record doesn't show that he would have been prevented from, prohibited from filing an amended habeas petition or that he could have withdrawn his petition and made his claim in his 2016 petition in 2017.

[00:14:03] Speaker 02:
withdrawn his petition and then refiled it.

[00:14:07] Speaker 02:
So he cannot show that he would have been prohibited as a practical matter from raising his claim in his previous petition.

[00:14:18] Speaker 02:
Therefore, he cannot fulfill the previously unavailable requirement of what he has to show in order to file a successive petition.

[00:14:41] Speaker 02:
And also, our position is that he hasn't shown that he is relying on the rule in Graham, that he's relying on what would be an extension of the rule in Graham.

[00:14:50] Speaker 02:
And that isn't sufficient to make the required showing to pursue a successive petition.

[00:14:56] Speaker 02:
That is the position we took in our briefing.

[00:15:10] Speaker 02:
I don't know if the court has any questions about that part of it.

[00:15:15] Speaker 04:
No?

[00:15:16] Speaker 02:
No.

[00:15:17] Speaker 02:
Okay.

[00:15:17] Speaker 02:
The court has no further questions and he shouldn't, I would argue that he should not be allowed to file his successive petition because he has not met at least two of the requirements that the claim was previously unavailable and that he is relying on a new rule of constitutional law and therefore his successive petition should be disallowed.

[00:15:36] Speaker 02:
Thank you, counsel.

[00:15:42] Speaker 04:
Mr. Koester, am I pronouncing your name correctly?

[00:15:46] Speaker 01:
You are pronouncing my name correctly, I appreciate that.

[00:15:50] Speaker 01:
Just very briefly on the question of the length of Mr. Komye's sentence.

[00:15:55] Speaker 01:
For sentences imposed when Leeds was imposed, he does not have access to parole under Arizona law.

[00:16:01] Speaker 01:
There's never been a contention by the state that his sentence gives him any opportunity for life outside of prison.

[00:16:06] Speaker 01:
He will die in prison as he is currently sentenced, even if he gets some good time credit on the back end.

[00:16:10] Speaker 01:
It was so long that he will die in prison.

[00:16:15] Speaker 01:
I think it's notable we're talking about the state court proceeding.

[00:16:18] Speaker 01:
The state court petition, which lays out his claim under Graham and Montgomery, was not filed until several months, I believe it was in 2019, after the 2016 habeas petition

[00:16:31] Speaker 01:
Was ended in 2017 it was already denied by the time that the PCR petition Was played so Lee even if he was being served documents did not receive the document that actually laid out the claim until after the habeas proceeding are you saying he didn't receive the notice that Council was referring to that stated 2017

[00:16:55] Speaker 01:
I cannot say specifically.

[00:16:56] Speaker 01:
I do not know off the head if he did receive that notice.

[00:16:58] Speaker 01:
If we assume that he did, it did not include the full scope of the argument.

[00:17:04] Speaker 03:
But it included notice that that argument was being made.

[00:17:08] Speaker 01:
And the notice cites Montgomery, but I'm not sure how much can be drawn beyond that.

[00:17:14] Speaker 01:
Finally, I think it's notable that the state was aware that he was represented by counsel in the state petition, but made no effort to inform that counsel about what was going on in Havy's petition.

[00:17:24] Speaker 01:
It allowed him to proceed per se in the PLRA context.

[00:17:28] Speaker 01:
That is perhaps analogous to state interference

[00:17:32] Speaker 01:
I've out of time or almost out of time.

[00:17:34] Speaker 04:
So answer the question.

[00:17:35] Speaker 01:
Okay.

[00:17:37] Speaker 01:
So in the PLRA context, the court will consider whether there's state action that contributed to the unavailability of procedural remedy.

[00:17:45] Speaker 01:
In this case, the state was clearly aware that Mr. Acomier was represented by counsel in this very complex case in state court.

[00:17:54] Speaker 01:
But state court was not served on the pleadings in federal court.

[00:17:58] Speaker 01:
State counsel was not

[00:18:01] Speaker 01:
notified affirmatively by respondents about this ongoing case.

[00:18:04] Speaker 03:
Is that their obligation in your view?

[00:18:06] Speaker 03:
I don't know if it's an ethical obligation, but I do know that if we're discussing whether some action by the state... Well, if they have no obligation to do something affirmative and they do nothing, I'm not really sure why that's an action by the state that...

[00:18:23] Speaker 01:
has any i think the state the state your honor was aware of the complexity of this case there's an inquiry again a documentary forty eight about what's happening was going on the case inquired the court was going to impose a state uh... was aware of what mister lee is a person that mister colby i was contending with as a person petitioner knew that he had uh... counsel it could have intervened potentially corrected this cut this off

[00:18:46] Speaker 01:
at the beginning, if we would even be here, and elected not to contact that counsel, allowed Mr. Comier to proceed in this very complex case with a lawyer that was just off stage but was uninformed about what was going on.

[00:18:59] Speaker 01:
I think that has to be considered as part of the flexible Munoz analysis as well.

[00:19:06] Speaker 01:
And if there are any other questions, I'm happy to answer them.

[00:19:08] Speaker 01:
Otherwise, I would just request that we be allowed to bring this meritorious claim challenging death in prison for a child committed to non-homicide crimes.

[00:19:16] Speaker 01:
Thank you very much, counsel.

[00:19:18] Speaker 01:
Thank you.

[00:19:18] Speaker 04:
Comey v. Matos will be submitted.

[00:19:21] Speaker 04:
Aguilar v. Bondi.

[00:19:24] Speaker 04:
Hernandez-Diaz v. Bondi.

[00:19:27] Speaker 04:
Hanvier Vier v. Bondi.

[00:19:30] Speaker 04:
Wow, we have a lot.

[00:19:32] Speaker 04:
Enriquez Reyes v. Bondi.

[00:19:35] Speaker 04:
U.S.

[00:19:36] Speaker 04:
versus Marie Jones and the Sousa versus City of San Clemente have previously been submitted.