[00:00:01] Speaker 02:
The United States Court of Appeals for the Ninth Circuit is now in session.

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Good morning, everyone.

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The cases will be called in the order listed on the docket.

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The first four cases, Alfredo Lopez versus Garland, Perez Lagana versus Garland, Taran versus Garland,

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and Moreno Bueno versus Garland have been submitted on the briefs.

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The first and only case on calendar for argument today is Rosales versus Mejera.

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Council for appellate, would you please proceed?

[00:00:44] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:47] Speaker 01:
I am Ashlyn Sizer-Choa, here on behalf of my client, Mr. Gary Rosales.

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I would like to reserve three minutes for rebuttal, and I will do my best to watch my own time.

[00:00:58] Speaker 03:
Thank you, Counsel.

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Mr. Rosales received ineffective assistance of counsel based on his trial attorney's failure to challenge the illegal entry into the apartment.

[00:01:08] Speaker 01:
This was a winning and obvious claim.

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Police, without a warrant or any reasonable legal justification, entered their apartment while the mother was sleeping to force an interaction with the mother.

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Police then searched the apartment and recovered a gun.

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Police used- Can I ask you a question right off the bat?

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Because to me it's really important.

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Taking all that you say at face value, I need to know right away, are we reviewing this case under the more restrictive standard of EDPA or do we review it de novo because the trial court inappropriately applied or misapplied federal law?

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I believe your honors can do it either way.

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Under EDPA, either under D1 or D2, they were contrary to federal law.

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And so you can review it de novo.

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Additionally, I believe that they applied unreasonable facts.

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They created an order that said that counsel did not brief the issue in which she fully did.

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And so under D2, it can also be reviewed de novo.

[00:02:17] Speaker 05:
So it sounds to me like you're saying

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EDPA doesn't apply, we're reviewing it de novo because of D1 and D2.

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Is that correct?

[00:02:25] Speaker 04:
That is correct, Your Honor.

[00:02:26] Speaker 05:
Thank you.

[00:02:28] Speaker 04:
Let me ask this follow-up question.

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In this case, is there a difference between, you know, whether the state made a, I'll call it a legal mistake or

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that doesn't matter because, you know, their determination was reasonable.

[00:03:01] Speaker 01:
I think what you're asking me, Your Honor, is does it matter whether or not it's based on a legal, you know, whether it's... Can you hold on just one second?

[00:03:08] Speaker 05:
I want to be sure our technical people are aware the clock seems to be frozen at 13 minutes.

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I don't know whether that's just inadvertent and they have a different clock, but mine's showing

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steady at 13 minutes.

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Mine, too.

[00:03:21] Speaker 03:
Thank you.

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Thank you, mine, too.

[00:03:23] Speaker 02:
Thank you, mine, for putting that out.

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I can see that, Judge.

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I'll let Kelly know.

[00:03:30] Speaker 05:
Please.

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Yeah, I don't know what the correct timing is.

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I would guess we're down about 11 minutes now, but I don't know.

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Proceed, Council.

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We'll work out the clock situation.

[00:03:45] Speaker 01:
Okay.

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Judge Tsuchima, could you repeat the question again for me, please, Your Honor?

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I'll assume that... Judge Tsuchima?

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Yeah?

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She asked you to repeat your question.

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Oh, I can hear you.

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I didn't hear the counsel.

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Is there a difference in this case between the, what shall I say, whether or not the state misconstrued federal law?

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Or that doesn't matter because whether they did or not, what they did was reasonable.

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And I think I think I think I'm speaking particularly about the attenuation.

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Right.

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So I practically speaking, there is no difference because whether or not you view it that they applied the facts unreasonably or that they

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either were contrary to federal law, we get to the same place.

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They were unreasonable.

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They made a factual determination that counsel had not briefed the issue of attenuation, when in fact she did.

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In her opening brief, 792, ER 792, she cites to Schneckcloth and Costello, which both have to do with consent, they have to do with illegal entries, they have to do with dissipating the taint, fruit of the poisonous tree,

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These are all concepts that really mean the same thing.

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She may not have used the word attenuation, but the argument and the claim was presented there.

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She says, quote, the consent did not cure the illegal entry and make the search legal.

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And then in the reply at ER 729,

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she repeats and restates the test for attenuation in Brown.

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Quote, respondent argues that if the entry was illegal, it is still possible to save the search if there was sufficient time between the entry and the consent, whether Miranda warnings were given, the presence of intervening circumstances, and the flagrancy of the misconduct.

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And throughout her briefing, she presents sufficient facts for the court to make that determination and to do the analysis.

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And so they made a factual, you know, representation that she didn't brief it.

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And in fact, she did.

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But they also were contrary to federal law because they did not thoroughly, you know, apply Strickland.

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This was an IAC claim to begin with based on the issue of illegal entry, not consent.

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Additionally, they don't apply the federal case they cite.

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They don't apply Wong-Sun, and they definitely don't apply Brown v. Illinois, which is the actual test for attenuation.

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I think either way, whether it's an unreasonable application of the facts or whether or not they were contrary and just completely disregarded federal law, you get to the same place.

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They were unreasonable and their decision should not be owed deference.

[00:07:02] Speaker 05:
Council, as I read this record, it seems to me that the trial court placed the attenuation burden on your client instead of the state.

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Is that your understanding as well?

[00:07:15] Speaker 01:
Yeah, that's my more practical argument is that, you know, I don't think even in post-conviction when no one and no one is expecting me to make my co-counsel's argument for them.

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And so she briefed that there was, you know, she established that there was an illegal entry and she established that her argument was that the illegal entry did not dissipate the consent.

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That is her argument and that is what any argument would be.

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The government then responded with that there was an attenuation exception here.

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They, you know, sided to the case law.

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She responded directly and refuted directly their arguments.

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She refuted their, you know, their arguments towards the purpose and flagrancy of the police conduct.

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And she also mentioned, hey, look, the government has waived the time issue.

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And so she directly refutes the government's argument.

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And so there was a full and cogent briefing

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on both sides here.

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So there's no excuse for the Nevada Supreme Court to have ignored and disregarded this federal, you know, this valid federal constitutional claim.

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Counsel, even if we agree with all of that, what's your response to the prejudice prong of ineffective assistance of counsel?

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How would the outcome

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have likely been changed if the consent is invalidated.

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I mean, the entire landscape of trial would have been different.

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The gun and the confession were integral to the trial.

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The state mentions the gun and the confession multiple times in opening.

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They mention it in closing.

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There was a firearms expert that testified.

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Let's just, I'll explain it head on.

[00:08:58] Speaker 01:
My client testified for himself and he testified about this Eric Klein.

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But we have to remember, if you look at his testimony, his testimony and he testified to explain and to present to the jury why he had possession of the gun.

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That testimony is to explain the relationship of him selling the gun to Eric Klein and back and forth.

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And so without the gun, there would have been no need to explain that relationship and likely he would not have testified at trial.

[00:09:27] Speaker 03:
Is it your argument that but for the discovery of the gun, he would have never confessed?

[00:09:36] Speaker 01:
That as well.

[00:09:38] Speaker 01:
The gun is exactly why he confessed.

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There's no dispute that the police officers showed him the gun in the interview window.

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As soon as they returned, they showed him the gun.

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He changed his story.

[00:09:48] Speaker 01:
I mean, he vehemently denied everything in the first interview.

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He denied it about 19 to 20 times, I think I counted.

[00:09:56] Speaker 01:
He denied.

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When they show him the gun, he then confesses.

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Multiple police officers say this is exactly why he confessed.

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And the state's opening, that's the exact reason they use that against my client.

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And so without the gun, there would have been no confession.

[00:10:12] Speaker 01:
It is a direct fruit of the poisonous tree from there.

[00:10:14] Speaker 05:
One of the things that I noticed is that the cell phone evidence, although it's strong regarding the threatening calls, it linked your client

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only with those made between December 10 and December 13 in 2004.

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But the charges against him go back six years.

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So there is prejudice in that regard.

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Is there not based upon the illegal entry?

[00:10:44] Speaker 01:
So the, I mean, the charges that are linked to the gun directly linked to the gun are eight out of the 10 charges.

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And so there is a heavy prejudice there.

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He's also serving the most amount of time because of the gun and the charges that are linked to the gun.

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He's serving 62 years for the firearm charges.

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And so you're correct, your honor.

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There is absolute prejudice with the charges.

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The phone, although it is another physical type evidence, it really only linked to

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the stalking charge, which was, you know, the phone calls to the DA.

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And so, you know, the gun and the confession are the meat and the potatoes of the state's case here.

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And if they were suppressed, as they should have done, it would have changed the entire defense strategy.

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The state's prosecution would have had to adjust.

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And it would have, you know, there was a reasonable probability that the outcome definitely would have been different.

[00:11:37] Speaker 03:
What would the defense strategy have been without the gun?

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I can tell you what my defense strategy would have been without the gun.

[00:11:47] Speaker 03:
You said the defense strategy would have changed.

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So you made that statement.

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So I'm asking you how would the defense strategy have changed?

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I think a competent attorney would not have put their client on the stand.

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I think they would have had to make the state prove that the phone and the unreliable writings and the unreliable voice recordings could be sufficient for firearm-related charges.

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The gun was linked to the casings.

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And so without the gun, there would be these casings that have no markings.

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And so there would be very weak evidence.

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And the state would have had to work to really prove their case.

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especially with those eight out of ten firearm charges.

[00:12:25] Speaker 03:
Council, am I correct in my recollection that the police were seeking a warrant before they were told that there was consent to enter the apartment?

[00:12:38] Speaker 01:
You know, they allude that they were in the process of thinking about getting one.

[00:12:43] Speaker 01:
This was never mentioned at all during the grand jury.

[00:12:48] Speaker 01:
It wasn't mentioned during the suppression hearing.

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It was only mentioned during trial.

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And they said that they were in the process of writing an affidavit.

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But unfortunately, that's not a warrant.

[00:12:56] Speaker 01:
Good intentions don't really matter.

[00:12:59] Speaker 01:
What matters is that they follow through in following the law.

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And if they were thinking about getting a warrant, then they should have gotten one before they went to that apartment.

[00:13:08] Speaker 01:
And I think I will save the rest of my time for rebuttal.

[00:13:11] Speaker 01:
All right.

[00:13:11] Speaker 01:
Thank you, Council.

[00:13:14] Speaker 03:
We're from the state.

[00:13:18] Speaker 00:
Good morning, Your Honor.

[00:13:19] Speaker 00:
May it please the Court, Matthew Johnson, Senior Deputy Attorney General for the State of Nevada, representing the respondents in this matter.

[00:13:26] Speaker 00:
Your Honor, this is an epic case, and Rosales fails to demonstrate that the Nevada Supreme Court unreasonably applied any clearly established federal law.

[00:13:33] Speaker 00:
Furthermore, Rosales failed to even make an attenuation argument before the Nevada Supreme Court, and therefore failed to meet his burden under Strickland.

[00:13:41] Speaker 00:
Just a minute.

[00:13:42] Speaker 04:
Just a minute.

[00:13:45] Speaker 04:
You say that argument was waived?

[00:13:47] Speaker 00:
No, Your Honor, and I apologize if I'm, can everyone hear me?

[00:13:51] Speaker 00:
I'll try to speak up a little bit.

[00:13:53] Speaker 03:
Could you speak a little more slowly too?

[00:13:56] Speaker 00:
Yes.

[00:13:56] Speaker 00:
Yes, I can, Your Honor.

[00:14:00] Speaker 00:
So, as I was saying,

[00:14:04] Speaker 00:
Mr. Rosales failed to establish that the Nevada Supreme Court misapplied any clearly established law, and Rosales failed to make any attenuation argument before the Nevada Supreme Court, and therefore he didn't meet his burden under Strickland.

[00:14:18] Speaker 00:
Strickland's very clear that the burden is on the petitioner to prove that trial counsel was ineffective, and Kimmelbin B. Morris is very clear that part of that burden is demonstrating that the motion to suppress would have succeeded.

[00:14:33] Speaker 05:
It's very clear that the attenuation argument, the burden is on the state.

[00:14:39] Speaker 05:
not on the defendant.

[00:14:41] Speaker 00:
At the trial, Your Honor, if this was, I agree, if this was a Fourth Amendment claim, a straight Fourth Amendment direct appeal claim, that's correct.

[00:14:48] Speaker 00:
This is a Strickland claim.

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The burden under Strickland and every Strickland case by the United States Supreme Court all clearly explains that the burden is on the petitioner.

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Because this is an IEC claim, it was his burden to make the attenuation argument and demonstrate attenuation in his argument before the Nevada Supreme Court.

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So this idea that it was someone else's burden is just not supported by any law.

[00:15:12] Speaker 04:
Just a minute.

[00:15:13] Speaker 04:
Why is it his burden to demonstrate that when the burden to prove attenuation is on the state?

[00:15:25] Speaker 00:
Because, Your Honor, this is an IAC claim.

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It's not a Fourth Amendment claim.

[00:15:29] Speaker 00:
And Strickland specifically says that it's their burden to demonstrate that counsel fell below an objective standard of reasonableness.

[00:15:38] Speaker 00:
It's their burden to demonstrate that the result of the proceedings would have been different.

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And Kimmelman Morris adds an additional factor.

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Kimmelman Morris says it's their burden to demonstrate that a motion to suppress would have succeeded.

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All of those are their burden

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Therefore, when he is appealing the district court's denial of this IEC claim, it's his burden before the Nevada Supreme Court to demonstrate that this motion to suppress would succeed.

[00:16:03] Speaker 00:
Part of that burden is to demonstrate attenuation, and he failed to meet that burden.

[00:16:09] Speaker 05:
Let me ask you this.

[00:16:10] Speaker 05:
Let me go back to the Fourth Amendment issue.

[00:16:12] Speaker 05:
You know, as I read the record in this, and I see here the police, three big policemen outside the door,

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They knock on the door, wait for a maximum of 90 seconds, walk in.

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This woman is asleep.

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There's no medical emergency.

[00:16:30] Speaker 05:
There's no emergency of any kind.

[00:16:32] Speaker 05:
They then immediately, according to her, say, your son's going to go to prison for 120 years.

[00:16:38] Speaker 05:
We can do it the easy way or the hard way.

[00:16:40] Speaker 05:
I mean, the initial part, counsel had confessed in the hearing that he had omitted to make the claim that this was an illegal entry contrary to the Fourth Amendment.

[00:16:53] Speaker 05:
So don't we have to start with that to show that an IAC claim would literally have been pretty easy if he had made it or he or she, I forget who it was at that point.

[00:17:06] Speaker 00:
You got a couple different parts to that question, and I'll try to take them one at a time if I can.

[00:17:11] Speaker 00:
If I don't go the right order, I apologize.

[00:17:14] Speaker 00:
If we're talking about trial counsel's evidentiary hearing, I think that the opening brief mischaracterizes what was actually stated.

[00:17:22] Speaker 00:
Trial counsel specifically says he has a very vague recollection of any of the facts of this case.

[00:17:27] Speaker 00:
It's happened seven years earlier.

[00:17:29] Speaker 00:
And then he makes that statement that perhaps I missed the issue.

[00:17:33] Speaker 00:
The context is that he doesn't remember what went on at all.

[00:17:37] Speaker 00:
Sorry, Your Honor.

[00:17:37] Speaker 05:
I didn't mean to interrupt.

[00:17:39] Speaker 05:
I'll tell you.

[00:17:39] Speaker 05:
He said he may have missed the issue.

[00:17:41] Speaker 05:
And that's at 14ER 2897.

[00:17:45] Speaker 05:
And the reality is that given the circumstances here, isn't that almost a prima facie satisfaction of the first prong of Strickland?

[00:17:58] Speaker 00:
No, Your Honor.

[00:17:59] Speaker 00:
I think it's very clear in Kimmelman v. Morris.

[00:18:01] Speaker 00:
They state that just saying that a motion to suppress would have been successful is not enough to show ineffective assistance of counsel of the Fourth Amendment claim.

[00:18:12] Speaker 05:
How do we review this, counsel?

[00:18:13] Speaker 05:
We're a pellet body.

[00:18:15] Speaker 05:
We're not a fact finder.

[00:18:16] Speaker 05:
But looking at these facts, a woman, an elderly woman asleep, nothing wrong, to me, this is just a prima facie violation of the Fourth Amendment.

[00:18:28] Speaker 05:
So what do we do?

[00:18:28] Speaker 05:
Do we have to send it back to the trial court?

[00:18:31] Speaker 05:
Do we make the determination?

[00:18:32] Speaker 05:
How do we analyze whether the first prong of Strickland has been violated?

[00:18:38] Speaker 05:
And if so, how does that affect our reasoning in this case?

[00:18:42] Speaker 00:
Yes, Your Honor.

[00:18:42] Speaker 00:
What you'd have to do is, because this is an EDPA case, you'd have to ask whether any fair-minded jurist, even if you determine that the entry was illegal, could have found attenuation in this case.

[00:18:53] Speaker 05:
In this case, there's three factors.

[00:18:55] Speaker 05:
Let's talk about attenuation.

[00:18:57] Speaker 05:
There are three or four prongs that you have to show.

[00:19:00] Speaker 05:
In my mind, it's your burden, as Judge Tashima also said.

[00:19:05] Speaker 05:
I don't see how you satisfy any of the grounds for attenuation.

[00:19:09] Speaker 05:
Convince me I'm wrong.

[00:19:10] Speaker 00:
Yes, Your Honor.

[00:19:11] Speaker 00:
I think there's a couple of different cases here.

[00:19:16] Speaker 00:
You can look at Utah v. Strife, for example, where the court says even where the temporal proximity favors the petition, there's a short amount of time.

[00:19:23] Speaker 00:
The fact that in that case, it was a valid warrant that favored the state and then the purpose and flagrancy of the official misconduct, starting with the valid warrant.

[00:19:31] Speaker 00:
In this case, there was valid consent.

[00:19:34] Speaker 00:
There's already been a determination.

[00:19:35] Speaker 05:
That's the whole idea.

[00:19:37] Speaker 05:
If we don't see there being a valid consent because of the intimidation, waking this woman up and elderly, I don't know.

[00:19:45] Speaker 05:
I don't think she necessarily spoke English all that well.

[00:19:48] Speaker 05:
But bottom line is, arguably, at the very least, she was intimidated.

[00:19:52] Speaker 05:
So the validity of the consent is clearly at issue.

[00:19:56] Speaker 00:
Your honor, that's not the claim made that's before this court, nor the claim made by the petitioner in the opening brief.

[00:20:02] Speaker 00:
The claim and the determinations already been made, which this court has to give deference to, that the consent was valid.

[00:20:08] Speaker 00:
That's already been made.

[00:20:09] Speaker 00:
It's already been adjudicated.

[00:20:11] Speaker 00:
It was adjudicated all the way through the court system.

[00:20:13] Speaker 00:
And it's not one of the claims that was granted COA.

[00:20:15] Speaker 05:
If you did not comply properly, the lower court did not comply,

[00:20:21] Speaker 05:
with federal law, and we find that de novo review applies here rather than EDPA in connection with the attenuation issue.

[00:20:29] Speaker 05:
Isn't this an open issue, not an open and shut issue as you seem to be representing it?

[00:20:35] Speaker 00:
I guess there's two different questions here, Your Honor.

[00:20:38] Speaker 00:
In terms of attenuation, how the courts have evaluated attenuation is whether the causal connection between the illegal entry, the alleged legal entry, and the valid consent, whether or actually the discovery of the evidence is sufficiently attenuated.

[00:20:54] Speaker 00:
And they evaluate those three factors, the proximity, the purpose and flagrancy.

[00:20:58] Speaker 00:
And I think the biggest one here, Your Honor, is the purpose and flagrancy.

[00:21:02] Speaker 00:
This wasn't a case where they were trying to break down the doors.

[00:21:04] Speaker 00:
They were trying to violate her rights.

[00:21:06] Speaker 00:
Whether or not they made a poor decision about pushing open that door, I want to at least remind the court of the facts here.

[00:21:14] Speaker 00:
First, they called out from behind the door repeatedly and loudly

[00:21:18] Speaker 00:
announcing themselves and they were concerned.

[00:21:22] Speaker 00:
This was an elderly woman who they were told did not get around very well, relied on someone else for her care.

[00:21:28] Speaker 00:
Who did they know that from?

[00:21:30] Speaker 00:
They knew it both from the defendant and from the people, the management company downstairs, who told them this information before they went up and also told them they believed she was there.

[00:21:41] Speaker 00:
So they thought someone was home, the lights were off,

[00:21:44] Speaker 00:
She didn't get it round very well.

[00:21:46] Speaker 00:
And even when they pushed open the door, Your Honor, they continued to call from the threshold and there was no response loudly and they were concerned for welfare.

[00:21:54] Speaker 00:
Then they flipped on the light before they entered the apartment and continued to call loudly and saw a woman unresponsive on a mattress with nothing else surrounded by boxes.

[00:22:05] Speaker 00:
And that's when they entered the apartment.

[00:22:07] Speaker 00:
This wasn't purposeful or flagrant activity.

[00:22:09] Speaker 00:
They were concerned that she might be dead.

[00:22:11] Speaker 05:
Wait, you're saying they did not enter the apartment until after they turned on the lights?

[00:22:16] Speaker 05:
That's correct.

[00:22:16] Speaker 05:
Of her lying there?

[00:22:17] Speaker 05:
How do they turn on the lights if they had not entered the apartment?

[00:22:21] Speaker 00:
Let me rephrase, Your Honor.

[00:22:23] Speaker 00:
They didn't step across the threshold until they flipped the light on.

[00:22:26] Speaker 00:
So I don't know the exact sequence of events.

[00:22:28] Speaker 00:
They reached around the corner and turned on the light.

[00:22:30] Speaker 00:
Yes.

[00:22:31] Speaker 00:
That's how I read the record.

[00:22:32] Speaker 00:
So this isn't someone who is just trying to rush in.

[00:22:34] Speaker 00:
They were really concerned for her welfare.

[00:22:37] Speaker 00:
The characterization in the opening brief is not supported by the record about they had some sort of evil design to come in and break into this woman's apartment and coerce her into consenting.

[00:22:46] Speaker 00:
That's not what the record reflects.

[00:22:48] Speaker 00:
And the important thing is there was also intervening circumstances, including her valid consent, which the courts have already litigated, that they explained the consent form to her.

[00:23:00] Speaker 00:
They first allowed her to go to the bathroom to change clothes.

[00:23:03] Speaker 00:
They told her she didn't have the consent.

[00:23:05] Speaker 00:
They explained the circumstances of why they were there.

[00:23:09] Speaker 00:
All of these support the attenuation.

[00:23:11] Speaker 04:
You say they told her not to consent?

[00:23:13] Speaker 00:
Excuse me, Your Honor, I didn't hear you.

[00:23:16] Speaker 04:
You say they told her

[00:23:18] Speaker 04:
She didn't have to consent.

[00:23:19] Speaker 00:
Yes, the record, the record specifically discussed that.

[00:23:22] Speaker 00:
They told her she didn't have to consent.

[00:23:23] Speaker 04:
What the record shows, it seems to me, is they convey that impression in a very coercive way, didn't they?

[00:23:33] Speaker 00:
No, Your Honor, I don't think that's what the record reflects.

[00:23:36] Speaker 00:
And there's also two different testimonies, one from the police officer and one from Mr. Rosales's mother.

[00:23:44] Speaker 00:
But again, this is under EDPA.

[00:23:46] Speaker 00:
This is whether any reasonable jurists could find attenuation under the circumstances of this case, even if reasonable minds might differ about whether to believe one versus the other.

[00:23:57] Speaker 04:
Well, you're speaking in generalities.

[00:23:59] Speaker 04:
If you get down to the facts, what they said was we can do it the easy way, we can do it the hard way, right?

[00:24:05] Speaker 00:
That's not what's reflected by the police lawsuits.

[00:24:07] Speaker 00:
Didn't the record show that?

[00:24:09] Speaker 00:
That's what Ms.

[00:24:13] Speaker 00:
Rosales says, but the police officer did not say they said that.

[00:24:17] Speaker 00:
They explained to her that she didn't have the consent.

[00:24:19] Speaker 00:
They went through the consent form.

[00:24:21] Speaker 00:
They talked to her for 10 to 15 minutes about why they were there.

[00:24:24] Speaker 00:
There's a lot of evidence in the record that a reasonable jurist

[00:24:29] Speaker 00:
the Nevada Supreme Court could determine that there was sufficient attenuation under these circumstances.

[00:24:35] Speaker 00:
And that's why I think it's important that this isn't a de novo case.

[00:24:38] Speaker 00:
This court first has to find that the Nevada Supreme Court unreasonably applied clearly established federal law, and they haven't pointed to any clearly established federal law that was unreasonably applied under the circumstances of this case.

[00:24:51] Speaker 00:
And I think that's the problem here.

[00:24:53] Speaker 00:
Yes, perhaps another jurist, if this was de novo, could make that determination, but we're under an EDPA standard here.

[00:25:01] Speaker 00:
And it's also an ISC plan.

[00:25:05] Speaker 05:
Do you agree that if the three prongs for attenuation, if the standard was that it's your burden and that you didn't meet any of them, arguing though,

[00:25:19] Speaker 05:
Don't you agree that the standard for review would not be Ed Pebbot de novo review with regard to the attenuation matter?

[00:25:26] Speaker 00:
No, Your Honor, because this is still an appeal.

[00:25:29] Speaker 00:
So they're appealing the state district court's determination.

[00:25:33] Speaker 00:
As this court reviews all the time, the person appealing still has to prove their case.

[00:25:37] Speaker 00:
They still have to prove that the district court was incorrect.

[00:25:40] Speaker 00:
And in this case, they didn't do anything with attenuation.

[00:25:44] Speaker 00:
The court still made an attenuation determination when they found that they failed to demonstrate deficiency or prejudice.

[00:25:50] Speaker 00:
They just said, you haven't proved your case.

[00:25:54] Speaker 00:
You haven't shown the prongs.

[00:25:55] Speaker 05:
But again, we get back to the same issue that both Judge Sashima and I have raised, which is the burden in attenuation is on the state, not on the appellant in this case.

[00:26:05] Speaker 05:
So if that's correct, isn't that a problem for you regarding attenuation?

[00:26:10] Speaker 00:
No, Your Honor, because the claim that this Court's reviewing is a Strickland claim, and the Nevada Supreme Court's order said they failed to demonstrate both deficiency and prejudice.

[00:26:21] Speaker 00:
I see I have two minutes left.

[00:26:22] Speaker 00:
I'd like to go to prejudice if I can, Your Honor, and I don't mean to cut you off your question at all.

[00:26:27] Speaker 00:
I do want to point out the evidence that was there.

[00:26:31] Speaker 00:
You mentioned the phone call.

[00:26:33] Speaker 00:
During the phone calls where they could trace it back to the phone of Mr. Rizalas, he admitted to the five to seven shootings.

[00:26:40] Speaker 00:
He admitted that he did the Kitsky Plaza shooting where the one woman was shot.

[00:26:44] Speaker 00:
He admitted that he was involved in that shooting.

[00:26:48] Speaker 00:
In addition, they traced back his handwriting to a letter where he confessed to the Kitsky Plaza shooting and discussed the type of weapon he used.

[00:26:58] Speaker 00:
So both the handwriting

[00:27:00] Speaker 00:
was led back to the defendant.

[00:27:03] Speaker 00:
They mashed up his handwriting to the letters where he confessed, and some of the graffiti, but not all of the graffiti.

[00:27:08] Speaker 00:
There was hundreds of graffiti threatening police, threatening to rape their children, and all the other awful things that were going on in this case.

[00:27:15] Speaker 00:
But they also traced back the phone to the calls where the DA Gamick specifically testified that Mr. Rosales on the phone, he didn't say Mr. Rosales, but the caller,

[00:27:26] Speaker 00:
said that he did the Keatsky Plaza shooting and that he shot into those five or seven, I forgot the number, Your Honor, so I apologize, five or seven other homes.

[00:27:35] Speaker 00:
So there was other strong evidence that a reasonable jurist at the Nevada Supreme Court, even if they didn't find, even if they found the motion to suppress would have succeeded, a reasonable jurist at the Nevada Supreme Court could have found that there was no demonstration of prejudice.

[00:27:53] Speaker 00:
And again, under EDPA,

[00:27:55] Speaker 00:
the petitioner has to show an unreasonable application of both the deficiency prong and the prejudice prong in order to succeed.

[00:28:03] Speaker 00:
And so I think even then, the prejudice was sufficient, Your Honor.

[00:28:07] Speaker 00:
But I do think it's important.

[00:28:08] Speaker 00:
This is a Strickland case, and the law is very, very clear.

[00:28:12] Speaker 00:
There's no case that says under Strickland the burden is on the prosecution or the state to prove that case.

[00:28:19] Speaker 00:
Thank you, Your Honor.

[00:28:21] Speaker 03:
Thank you, Counsel.

[00:28:22] Speaker 03:
Rebuttal?

[00:28:24] Speaker 03:
Council, may I just ask you before you start?

[00:28:27] Speaker 03:
You're not contending that the consent was involuntary, are you?

[00:28:35] Speaker 01:
You're muted.

[00:28:37] Speaker 01:
Pardon me.

[00:28:39] Speaker 01:
I think that the courts don't have to touch the consent issue.

[00:28:43] Speaker 01:
There was a Ninth Circuit case that this court decided, US v Washington, in which the test for the ability of consent and attenuation overlap, but they are not the same.

[00:28:54] Speaker 01:
And so I think the consent issue can be left alone.

[00:28:58] Speaker 01:
But I do think that if your honors find under de novo review that the consent wasn't valid, that is definitely in your purview.

[00:29:03] Speaker 01:
But I believe that this court does not have to touch the issue of consent to find

[00:29:08] Speaker 01:
that it didn't purge the taint of the illegal entry.

[00:29:11] Speaker 03:
Okay, but I'm asking you, did you make the argument that the consent was not voluntary?

[00:29:17] Speaker 03:
I didn't see that you made that argument.

[00:29:18] Speaker 01:
No, that argument was not made.

[00:29:20] Speaker 01:
I left the issue of consent alone because regardless, this court does not have to touch it to find that counsel was deficient for failing to

[00:29:28] Speaker 01:
file the motion to suppress based on the illegal entry.

[00:29:31] Speaker 01:
I would like to say this court has recently in Chong, VU West stated that a very obvious Fourth Amendment violation is deficient performance.

[00:29:41] Speaker 01:
I mean, in this case, this is like the perfect issue spotter for a 1L first criminal law class.

[00:29:48] Speaker 01:
I mean, it's very obvious here that there was an illegal violation and that counsel was deficient for not putting it forward.

[00:29:56] Speaker 01:
And additionally, he stated that he may have missed it.

[00:29:59] Speaker 01:
And I think this is a worthy and winning claim.

[00:30:02] Speaker 01:
And as such, it is entitled to Folsom review by this court because Nevada Supreme Court disregarded it.

[00:30:07] Speaker 01:
Thank you.

[00:30:08] Speaker 03:
Well, yeah, but I'm still thinking about the prejudice prong of it.

[00:30:12] Speaker 03:
That's a little bit difficult for me.

[00:30:17] Speaker 03:
That the outcome would have likely been different.

[00:30:21] Speaker 03:
I don't know.

[00:30:22] Speaker 03:
Would you like me to answer that?

[00:30:26] Speaker 03:
I'm struggling with that.

[00:30:28] Speaker 03:
I'm struggling with that.

[00:30:30] Speaker 01:
I think any attorney, defense attorney's worst case scenario is if your client has a direct piece of evidence like a gun and a confession.

[00:30:38] Speaker 01:
And in this case, they had both.

[00:30:40] Speaker 01:
If trial counsel would have filed to suppress both of them and they would have been suppressed, he wouldn't have had either of those issues.

[00:30:47] Speaker 01:
And so he wouldn't have had to be confronted with a defense of how did he have this gun.

[00:30:52] Speaker 01:
The state also mentions multiple times, you know, we never fingerprinted the gun.

[00:30:56] Speaker 01:
It was Gary's.

[00:30:57] Speaker 01:
This is his gun.

[00:30:58] Speaker 01:
So I think the gun is just integral.

[00:31:01] Speaker 03:
But if the gun were out,

[00:31:04] Speaker 03:
evidence.

[00:31:04] Speaker 03:
Are you saying that there would not have been enough evidence to convict him if the gun and the confession were out?

[00:31:11] Speaker 03:
Is that your argument?

[00:31:13] Speaker 01:
I think my argument is that there's a reasonable probability that there would be a different outcome, at least on the 8 out of 10 charges.

[00:31:19] Speaker 01:
Alright, thank you.

[00:31:20] Speaker 03:
Any other questions?

[00:31:22] Speaker 05:
I guess I would just like to follow up very briefly with defense counsel.

[00:31:27] Speaker 05:
So the fact I gather you're saying that on

[00:31:30] Speaker 05:
Eight of the ten charges that were convicted, there would have been a different result, but for the violation, the entry violation.

[00:31:38] Speaker 05:
But you seem to confess that there would have been likely a conviction on two, is that correct?

[00:31:44] Speaker 01:
I'm not willing to concede that because the, you know, handwriting, unreliable handwriting analysis is, you know, known.

[00:31:51] Speaker 01:
Forensics are not always clear on connecting the two.

[00:31:54] Speaker 01:
The phone recordings were spotty.

[00:31:58] Speaker 01:
I mean, anybody can call in and claim that they're doing something.

[00:32:02] Speaker 01:
And, you know, I do think that that would have been a very hard case for the state to make.

[00:32:07] Speaker 01:
But I do know for a fact that eight of those 10 charges would not have been found if the gun and the confession.

[00:32:13] Speaker 03:
Additionally, though, the confession also mentions- You don't know it for a fact because we never know what the jury's going to do.

[00:32:20] Speaker 03:
So for a fact, you may think there's a good probability, but we don't know that.

[00:32:28] Speaker 03:
That's part of the conundrum.

[00:32:31] Speaker 01:
I would offer to this court that I know that there's at least a reasonable probability that the outcome would have been different.

[00:32:36] Speaker 01:
That's fair.

[00:32:38] Speaker 03:
Any other questions?

[00:32:40] Speaker 01:
Nope.

[00:32:41] Speaker 03:
All right.

[00:32:41] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:32:44] Speaker 03:
The casters argued is submitted for a decision by the court that completes our calendar for today.

[00:32:50] Speaker 03:
And we are in recess until 930 a.m.

[00:32:53] Speaker 03:
tomorrow morning.

[00:32:56] Speaker 02:
All rise.

[00:32:57] Speaker 02:
This court for this session stands adjourned.

[00:33:03] Speaker 02:
Thank you.