[00:00:00] Speaker 03:
Good morning, may please the court Martin of you the microphone a little closer.

[00:00:04] Speaker 03:
Yes, sir Yes, sir.

[00:00:07] Speaker 03:
Go ahead may please the court Martin of you on behalf of mr.. Gonzales the petitioner This case both boils down to a single and overarching truth previously acknowledged by this court and I quote the anti-terrorism and effective death penalty act does not provide a means for a

[00:00:27] Speaker 03:
federal courts to engage in error correction of state court rulings that favored defendant, the favored defendants.

[00:00:35] Speaker 03:
That was this court in Brown v. Baker, a case factually almost identical, procedurally almost identical to Mr. Gonzalez's case.

[00:00:46] Speaker 03:
In this case, what the court did is it swaspante on its own a court and before

[00:00:53] Speaker 03:
The state had at any point in time argued the issue as to whether probable cause determination had occurred by affidavit review.

[00:01:03] Speaker 03:
The court sua sponte expanded the state court record and rebutted a state court finding that such a determination had never occurred.

[00:01:14] Speaker 00:
Council, did any side object to the state court sua sponte enlarging of the record?

[00:01:21] Speaker 03:
So the court noted that objections could be submitted and no objections were submitted.

[00:01:31] Speaker 03:
petitioner in the lower court was not aware of what the court intended to do with that.

[00:01:36] Speaker 03:
The petitioner was not aware that the court intended to completely disregard 2254D1, 2254D2, as well as 2254E1.

[00:01:48] Speaker 03:
And that's what the court did here.

[00:01:51] Speaker 03:
But the simple fact is there's no need to get into the machinations and the complications of the statute.

[00:01:59] Speaker 03:
because there simply is no mechanism for the court to have done this.

[00:02:04] Speaker 03:
EDPA states that a habeas petitioner may obtain relief if certain hurdles are overcome.

[00:02:13] Speaker 03:
He must present a constitutional claim.

[00:02:15] Speaker 03:
He must exhaust those claims.

[00:02:18] Speaker 03:
He must demonstrate that a decision is unreasonable, an unreasonable application of clearly established federal law or based on unreasonable determination of facts.

[00:02:28] Speaker 03:
And then he may not expand the state court record unless he meets certain very limited exceptions.

[00:02:33] Speaker 01:
Mr. Navio, I guess here's at least one of my problems here at the threshold.

[00:02:38] Speaker 01:
It seems that the state doesn't seem to contest de novo.

[00:02:48] Speaker 01:
We'll hear from them and see whether they contest de novo.

[00:02:49] Speaker 01:
But assuming you get past those hurdles, we're back in de novo.

[00:02:53] Speaker 01:
In other words, the petitioner is put in the

[00:02:58] Speaker 01:
same position of proving breach, notwithstanding what the Court of Appeals said.

[00:03:06] Speaker 01:
And the petitioner then has that burden.

[00:03:11] Speaker 01:
So why would, if the district court looked at this de novo, and generally, for our view, interpretation of a plea agreement is a question of law,

[00:03:27] Speaker 01:
setting aside the additional evidence, just looking at the register, how is Petitioner satisfied, now his burden of proof, to establish a breach given the record as it is?

[00:03:40] Speaker 01:
Just put EDPA aside.

[00:03:42] Speaker 01:
We're just doing de novo as if we are the state district court.

[00:03:45] Speaker 01:
We're just trying to get it right.

[00:03:47] Speaker 01:
And we look at this and we see the register.

[00:03:49] Speaker 01:
What

[00:03:52] Speaker 01:
How has Petitioner carried his burden of proof, assuming that's where we are and you win on everything else?

[00:03:58] Speaker 03:
Yes.

[00:03:59] Speaker 03:
When we look at the state court record, we see only a register of actions that merely note that a 48-hour probable cause determination took place, and that probable cause was found.

[00:04:14] Speaker 03:
But that says nothing, absolutely nothing, as to whether it occurred by affidavit review.

[00:04:19] Speaker 03:
Nevada statutes say that such determinations may occur by affidavit or by a declaration.

[00:04:25] Speaker 01:
But isn't it petitioner's burden to establish that given that that's in the record, that somehow regular processes weren't followed?

[00:04:34] Speaker 01:
And it wasn't by affidavit review.

[00:04:36] Speaker 01:
In other words, it didn't occur in the normal course.

[00:04:39] Speaker 01:
That's petitioner's burden, right?

[00:04:41] Speaker 03:
And I don't mean to belabor the point, but that is a factual finding that has already been established.

[00:04:47] Speaker 01:
But if you get past the EDPA hurdles, are we not in de novo land where everything that the state courts did, right or wrong, benefiting the plaintiff or the defendant,

[00:05:00] Speaker 01:
is a clean slate.

[00:05:01] Speaker 01:
Again, I think that's what an Edbud petitioner usually seeks and usually obtains if they've gotten past 2254D.

[00:05:09] Speaker 01:
So we're looking at this de novo.

[00:05:12] Speaker 01:
Can you take both the good and the bad of the errors that are asserted in the state courts?

[00:05:19] Speaker 03:
I don't think, even on that point, Your Honor, I don't think there's a clean slate.

[00:05:24] Speaker 03:
And this court in Murray v. Schrierer said that after Pinholester, and I'm quoting, a federal habeas court may consider new evidence only on the novel review subject to the limitations of 2254E2.

[00:05:35] Speaker 03:
2254E... That only, that applies to the applicant.

[00:05:42] Speaker 01:
The state's not the applicant.

[00:05:43] Speaker 01:
How's the state the applicant?

[00:05:44] Speaker 03:
The state is not the applicant.

[00:05:45] Speaker 01:
Okay.

[00:05:46] Speaker 03:
But, again,

[00:05:49] Speaker 03:
Those are limitations on a petitioner.

[00:05:51] Speaker 03:
But they don't, by implication, provide the court, the federal court, with an affirmative power to A, disregard a presumption, a finding of fact that is presumed to be correct.

[00:06:05] Speaker 03:
And they also don't provide the lower court with the ability to expand the record.

[00:06:12] Speaker 03:
This court said it best in Brown v. Baker.

[00:06:15] Speaker 03:
It said,

[00:06:20] Speaker 03:
does not provide, quote, an affirmative power to rule that a state court erred in doing too little to justify its detention of a petitioner.

[00:06:31] Speaker 03:
Comedy cuts both ways.

[00:06:34] Speaker 04:
Counsel, 2255, sorry, 2254E1 suggests that the presumption of correct factual findings can be overcome, right?

[00:06:43] Speaker 04:
can be overcome by the petitioner.

[00:06:45] Speaker 04:
So you're saying it's a one-way ratchet, only the petitioner can overcome a factual finding, but the state cannot?

[00:06:51] Speaker 03:
Yes.

[00:06:51] Speaker 04:
How do you read that?

[00:06:53] Speaker 04:
Where does that come from?

[00:06:53] Speaker 04:
From Brown v. Baker.

[00:06:55] Speaker 04:
This court has been... But how is that justified by the statute?

[00:06:59] Speaker 03:
Well, it's justified by the statute because of the same principles of comedy that guide the lower courts to repeatedly deny relief to habeas petitioner.

[00:07:10] Speaker 04:
Well, I mean, this statute was operating under a background assumption that states, federal courts can overturn factual findings, you know, when they want to, but then this was adding a layer for when you're overturning a factual finding in favor of the petitioner and saying it has to be clear and convincing error.

[00:07:27] Speaker 04:
That doesn't mean that the background principle that states can overturn factual findings is eviscerated completely.

[00:07:36] Speaker 03:
Well, if it isn't, then

[00:07:41] Speaker 03:
the lower courts would have the ability to ignore the principles of comedy that guide the statute and basically second out the state courts for the... It seems like, you know, EDPA was clearly anti-petitioner, right?

[00:08:02] Speaker 04:
It's like, in a sense, like creating loops for the petitioner, but it's not saying anything about what the state can do.

[00:08:10] Speaker 03:
Right, but that does not give the lower courts.

[00:08:13] Speaker 03:
We can't read meaning into the statute that would allow for federal courts to overreach.

[00:08:21] Speaker 03:
In this case, it's clear from the record, based on the state court record, that the state court knew best.

[00:08:28] Speaker 03:
The state court knows what a 48-hour probable cause hearing entails.

[00:08:34] Speaker 03:
It knows.

[00:08:34] Speaker 01:
I guess, are we talking about

[00:08:38] Speaker 01:
Where did the factual finding on this point come from?

[00:08:40] Speaker 01:
Let's set aside the additional evidence just on the register.

[00:08:43] Speaker 01:
It came from the Court of Appeal?

[00:08:47] Speaker 03:
It came from the Nevada Court of Appeals.

[00:08:49] Speaker 01:
I guess it's a matter of curiosity, but I think it's relevant to this.

[00:08:54] Speaker 01:
In Nevada, do courts of appeal have the power to make factual findings, or should we read it instead as just in terms of looking at the exact same record we would look at, de novo?

[00:09:06] Speaker 01:
That's a puzzle to me.

[00:09:07] Speaker 01:
Usually we think about trial courts being the ones making factual findings.

[00:09:12] Speaker 01:
Is that a thing in Nevada, courts of appeal?

[00:09:14] Speaker 03:
The Nevada Court of Appeals looked at the entirety of the record and looked at the register of actions that had been submitted by the petitioner.

[00:09:22] Speaker 01:
Right, it's the exact same thing.

[00:09:23] Speaker 01:
We're not talking about testimony.

[00:09:24] Speaker 01:
We're all just looking at basically a criminal docket.

[00:09:28] Speaker 01:
So I guess, first of all, I'm just not clear whether this is kind of a factual question or a legal question.

[00:09:35] Speaker 01:
It's the sort of thing that we take judicial notice of all the time.

[00:09:39] Speaker 01:
But even if it is, whether it's the sort of factual determination that

[00:09:43] Speaker 01:
requires deference by it, where we are in the exact same position as the district court would be, as the Court of Appeal is.

[00:09:51] Speaker 01:
We're just looking at the documents, aren't we?

[00:09:54] Speaker 03:
Yes, but the Nevada's Court of Appeals, what it did is it looked at the entirety of the record before it, and it determined, it made a factual finding that a protocol's determination had not occurred by affidavit review.

[00:10:06] Speaker 01:
Do you have a rule of process or something that's, I guess that's just, that's new to me.

[00:10:13] Speaker 01:
Where should we look to understand whether a Court of Appeal can make factual findings?

[00:10:21] Speaker 03:
Well, that would be a procedural question for this.

[00:10:27] Speaker 03:
That would be inherent to the state court process.

[00:10:31] Speaker 03:
There's no question that the Nevada Court of Appeals, its factual finding involved issues of law as to what the 48-hour probable cause hearing entails.

[00:10:43] Speaker 01:
Right.

[00:10:43] Speaker 01:
But that's something we would be looking at de novo, assuming you're clear, EDPA deference.

[00:10:49] Speaker 03:
That would be something that you would be looking at de novo.

[00:10:54] Speaker 03:
But the factual finding by the state court is entitled to deference, usually, because the state court knows the rules of practice in Nevada better than the federal court does.

[00:11:08] Speaker 01:
So just in other words, I've asked you at the beginning in what way is petitioner

[00:11:12] Speaker 01:
assuming we get to de novo, in what way is petitioner carried as burden of proof to be eligible for habeas relief.

[00:11:23] Speaker 01:
The one thing you're pointing to, we've got the presumption of regularity, we've got the register, the one thing you have is what the court of appeal said as to whether something did or didn't happen based on its view of the record on appeal.

[00:11:39] Speaker 01:
That's your entire case once you get to de novo.

[00:11:42] Speaker 03:
Once we get to de novo review, the record is clear that a probable cause of termination by affidavit review never occurred, emphasis on affidavit review.

[00:11:51] Speaker 03:
And that is clear from, again, the record which shows that

[00:12:00] Speaker 03:
For example, the lower court saw a sponsor requested additional records because they thought that the register of actions alone didn't establish that conditional clause, a meeting of that conditional clause.

[00:12:13] Speaker 01:
Well, it sounds like if, on your theory, if the court of appeal found, was able to find as a fact that was dispositive as to whether there's a breach or not, no amount of evidence could overcome that on your theory, right?

[00:12:27] Speaker 03:
The lower court found that

[00:12:30] Speaker 03:
The Lord Court found that there had been an unqualified right in the plea agreement to argue for habitual criminal status.

[00:12:40] Speaker 03:
The petitioner demonstrates that that was an unreasonable determination of fact, as the Lord Court found.

[00:12:47] Speaker 03:
Do you want to save some time for rebuttal?

[00:12:49] Speaker 03:
Yes, Your Honor.

[00:13:05] Speaker 02:
Good morning, your honors.

[00:13:06] Speaker 02:
May it please the court.

[00:13:07] Speaker 02:
My name is Brooke Jorgensen and I represent the respondents in this matter.

[00:13:11] Speaker 02:
There are two issues that I want to draw to this court's attention.

[00:13:14] Speaker 02:
First, the prosecution did not breach the plea agreement because a magistrate confirmed by probable cause against Gonzalez for the murder committed after the entry of his plea.

[00:13:26] Speaker 02:
Second, the gang evidence was properly considered because the sentencing court is permitted to consider various kinds of information to determine future dangerousness.

[00:13:35] Speaker 04:
Respondents agree that the lower can I ask is the state defending the state court's factual finding that the plea agreement does did allow to argue for the enhancement without the Independent magistrate finding respondents are arguing that the nevada court of appeals Determination was unreasonable it was okay.

[00:13:54] Speaker 02:
Yeah, and we agree with the lower court that a de novo review should have been applied and under a de novo review Gonzalez fails to establish that the prosecution bleached the plea agreement

[00:14:04] Speaker 01:
Not to but to find a point on it, but unreasonable under D1 or D2.

[00:14:10] Speaker 01:
We, our own, in other words, usually the interpretation of a plea agreement is a question of law, so we would point to D1.

[00:14:22] Speaker 01:
But it seems like the parties here are asserting that this is an unreasonable determination of fact.

[00:14:29] Speaker 02:
Yes, we agree with that.

[00:14:31] Speaker 01:
But how is that, I guess, is that right?

[00:14:35] Speaker 01:
In other words, I'm not sure quite what to turn on it, but I think it goes to the discussion I was having with your friend.

[00:14:40] Speaker 01:
If a plea agreement, so let's set aside the problem of whether the affidavit process was followed might be a question of fact to determine from the record.

[00:14:49] Speaker 01:
But the ground on which the Court of Appeal arguably erred, which maybe gets us all to the same place de novo in the end, but that is purely a question of contract interpretation or misinterpretation.

[00:15:01] Speaker 01:
And usually if we saw that on direct appeal, we'd review that de novo as a question of law.

[00:15:07] Speaker 01:
So how is it a question of fact?

[00:15:09] Speaker 02:
It's possible it could be both.

[00:15:11] Speaker 02:
I believe the factual finding that a magistrate did not find probable cause was an unreasonable determination of fact that the Nevada Court of Appeals found.

[00:15:21] Speaker 02:
And then they applied and said that it was also unreasonable that they found that the prosecution had an unqualified right to argue.

[00:15:28] Speaker 01:
Okay, so that could be the law, but the first part would be the fact.

[00:15:31] Speaker 01:
Yes.

[00:15:32] Speaker ?:
Okay.

[00:15:32] Speaker 04:
Can I just ask, how did it happen?

[00:15:34] Speaker 04:
How did the state not present the magistrate's affidavit finding of probable cause to the state courts?

[00:15:44] Speaker 02:
Could you repeat that question?

[00:15:45] Speaker 04:
How did this mistake happen?

[00:15:47] Speaker 04:
How did the state not present to the state courts the fact that an independent magistrate confirmed probable cause?

[00:15:56] Speaker 02:
I can't answer that.

[00:15:57] Speaker 01:
Has the state

[00:15:59] Speaker 01:
raised this particular argument at any point before its response to the petition?

[00:16:04] Speaker 02:
No, this is the first time.

[00:16:06] Speaker 01:
Should that matter to us?

[00:16:08] Speaker 02:
There's no case law saying that we can't raise an argument at this point in time.

[00:16:13] Speaker 01:
So do you concede that we're in de novo review then?

[00:16:17] Speaker 01:
Yes, Your Honor.

[00:16:19] Speaker 01:
So how does that work?

[00:16:21] Speaker 01:
How much of the state court proceedings are we stuck with on de novo review?

[00:16:27] Speaker 02:
Disagree with my friend on the other side and I think they should we should not consider them at all.

[00:16:32] Speaker 02:
I think they're unreasonable So that we should apply a hold an overview and that factual finding is not entitled to deference Does e1 not apply at all then which requires a presumption of it to be correct?

[00:16:50] Speaker 02:
I Think e1 should apply.

[00:16:52] Speaker 02:
Okay, I

[00:16:52] Speaker 01:
Yeah, it's a little weird.

[00:16:55] Speaker 01:
This reminds me a little bit of, it's drawn in a strange way.

[00:17:00] Speaker 01:
The first sentence is general, but the second sentence suggests that it is only applicable to the applicant.

[00:17:08] Speaker 02:
Yeah, for the new evidence.

[00:17:10] Speaker 02:
Yes, for the new evidence.

[00:17:10] Speaker 01:
Well, so then why is not the factual determination?

[00:17:13] Speaker 01:
Why doesn't that take us right into a presumption of correction?

[00:17:17] Speaker 01:
So I, in other words, had started from the point that maybe the petitioner bears the burden of proof.

[00:17:22] Speaker 01:
And given a presumption of regularity and everything that we've seen, there's no evidence other than, and I think your friend agreed with me, that other than what the state court of appeal found, that the affidavit process didn't happen, right, that there was a breach.

[00:17:40] Speaker 01:
So if we have to presume that to be correct, now you have the burden and all we have is the register.

[00:17:48] Speaker 01:
Is that the right way of looking at it?

[00:17:50] Speaker 02:
I think the register is sufficient enough alone to to demonstrate probable cause was found by a judge.

[00:17:59] Speaker 02:
So counsel.

[00:18:01] Speaker 02:
Because there was a 48 hour probable cause review and in Nevada.

[00:18:06] Speaker 02:
Comes along with the complaint and the other were probable cause documents although they were not part of the record Those records are included in that 48-hour probable cause or reveal We also believe that the supplemental exhibits can you guys can take judicial notice of them or?

[00:18:24] Speaker 02:
that under e2 week they were not barred from presenting that evidence and

[00:18:31] Speaker 04:
And what standard applies under E1?

[00:18:33] Speaker 04:
If the applicant has to rebut it, the assumption of correction by clear and convincing evidence, does the government have to use the same standard?

[00:18:50] Speaker 02:
I don't think that's been answered yet.

[00:18:52] Speaker 04:
I think I have another way to put it.

[00:18:54] Speaker 04:
Is there, assuming clear and convincing evidence,

[00:18:58] Speaker 04:
uh... uh... the the standard applies can come together do you think the government met that burden i believe so i think we've met that burden and is it just based off the register loan or do we have to take the supplemental evidence into consideration too i think it's it could be based off the register alone but obviously with the supplemental exhibits it's more clear and convincing but that would only be why would that be enough

[00:19:28] Speaker 01:
The Court of Appeal, in fact, made a finding of fact that this didn't happen.

[00:19:35] Speaker 01:
A higher court in the state of Nevada, a state court that is, as your friend said, is expert in kind of how all of this works.

[00:19:42] Speaker 01:
I mean, it's a definitive ruling that that did not happen.

[00:19:47] Speaker 01:
How can you have, if you're working through the E-1 presumption,

[00:19:55] Speaker 01:
How can the state rebut on a question of state procedure a finding of fact that the Court of Appeal definitively made in the decision under review?

[00:20:07] Speaker 01:
If we're stuck with it, if even in de novo we have to attend to that.

[00:20:11] Speaker 02:
I think the Register of Actions has clear and convincing evidence that a probable cause of determination was found.

[00:20:17] Speaker 01:
Didn't it have the Register of Actions before it?

[00:20:19] Speaker 02:
They did.

[00:20:20] Speaker 01:
Well, then we're just second guessing now.

[00:20:23] Speaker 01:
You can see that it's a factual determination that the Court of Appeal made, that they have a process for doing that, and they did so here.

[00:20:31] Speaker 02:
That there was no probable cause found?

[00:20:33] Speaker 01:
Right, per the procedure.

[00:20:35] Speaker 02:
Yes, and I think that was incorrect.

[00:20:37] Speaker 02:
I think it was unreasonable.

[00:20:43] Speaker 02:
I think the clear and convincing evidence is the Register of Actions.

[00:20:46] Speaker 02:
I think they missed it.

[00:20:48] Speaker 02:
I mean, it says probable cause failed.

[00:20:50] Speaker 02:
That's what I think the Nevada Court of Appeals missed it.

[00:20:52] Speaker 00:
Counsel, let me start asking you a little bit about the Dawson argument that your friend on the other side presented.

[00:20:59] Speaker 00:
Why didn't the court get it wrong when they took Mr. Gonzalez's gang affiliations into account at sentencing?

[00:21:06] Speaker 00:
Why are they allowed to do that here?

[00:21:08] Speaker 02:
I think the case most on point for the second claim is United States v. Schmidt, which was cited in his opening brief.

[00:21:15] Speaker 02:
In that case, the sentencing court heard unrelated evidence that the defendant was a white supremacist, and the sentencing court upheld our

[00:21:25] Speaker 02:
This court, the sentence was upheld because the trial court was permitted to consider his beliefs for the purpose of determining his likelihood of future dangerousness.

[00:21:34] Speaker 02:
That's different than Dawson because in Dawson it was the jury who heard unrelated evidence.

[00:21:39] Speaker 02:
I think it's different having a sentencing judge hear that evidence versus a jury to determine the sentence.

[00:21:48] Speaker 02:
I also think that the information not directly related to Gonzalez but about the gangs was relevant and necessary to determine his future dangerousness.

[00:22:04] Speaker 01:
So I want to, as you may be able to tell, I'm still a little puzzled by the procedure here.

[00:22:13] Speaker 01:
A couple of decades ago, our court was in the practice of just doing, starting with de novo review, and then going and looking at the, and then applying deference effort.

[00:22:23] Speaker 01:
The Supreme Court told us, no, you don't have to do that.

[00:22:26] Speaker 01:
You should get through, you have to look at the 2254D factors.

[00:22:37] Speaker 01:
But for purposes of denying a petition,

[00:22:42] Speaker 01:
Given that 2254 is simply conditions a grant of relief, why can't we just start with de novo and would any part of 2254, D or E, need to apply if we just treat this as the district court's in the position, the petitioner is the burden, we look at the record, all of the state court procedures

[00:23:08] Speaker 01:
wash away.

[00:23:09] Speaker 01:
In other words, it's kind of like with qualified immunity.

[00:23:12] Speaker 01:
We can do it out of order.

[00:23:13] Speaker 01:
And we just start with the de novo review and don't sweat 2254 if we don't find there to be a violation de novo.

[00:23:25] Speaker 02:
Are you saying in this case or in every case?

[00:23:28] Speaker 01:
Well, this case would be one where it might help.

[00:23:31] Speaker 02:
Yeah.

[00:23:32] Speaker 02:
I think Gonzalez is arguing that

[00:23:35] Speaker 02:
It's an unreasonable determination, and he wants de novo review, but only of the parts that he wants de novo review of.

[00:23:41] Speaker 02:
And he can't have it both ways.

[00:23:43] Speaker 02:
If he wants de novo review, we're going to do de novo review.

[00:23:48] Speaker 02:
And he's not going to keep that one fact that's in his favor and throw out the rest.

[00:23:53] Speaker 01:
So then 2254E wouldn't apply?

[00:24:02] Speaker 02:
No.

[00:24:05] Speaker 02:
If there are no further questions, we ask this court to affirm the lower court's decision.

[00:24:09] Speaker 04:
Thank you, counsel.

[00:24:21] Speaker 03:
The notion that 2254E1 and E2 don't apply under an overview is contradicted by this court's decision in Shrirer v. Mary.

[00:24:32] Speaker 03:
2254E continues to apply.

[00:24:36] Speaker 03:
And perhaps more importantly, 2254E does not provide a mechanism for the federal court to respond to do what it did.

[00:24:49] Speaker 03:
This case is particularly egregious because the state at no point made this argument, at no point sought to expand the record.

[00:24:58] Speaker 03:
It was all done and responded by the federal court.

[00:25:01] Speaker 03:
And it was done pursuant to a section of the statute that does not give it that authority.

[00:25:08] Speaker 03:
I think that the decision, again, I don't mean to believe it was a point, but the decision in Brown v. Baker is 100% on point.

[00:25:14] Speaker 03:
2254D and E restrict a petitioner's ability to obtain habeas relief.

[00:25:25] Speaker 03:
They do not grant federal courts an affirmative power to disregard

[00:25:31] Speaker 03:
Findings of fact that benefit a defendant.

[00:25:35] Speaker 03:
What's good for the goose is good for the ganger.

[00:25:40] Speaker 04:
These statutes must be- I'm just not so sure that's correct under EDPA.

[00:25:43] Speaker 04:
That's my problem with this.

[00:25:44] Speaker 04:
I mean, as we said, EDPA was specifically done to stop federal courts from granting habeas petitions.

[00:25:52] Speaker 03:
Yes.

[00:25:52] Speaker 03:
And the notion or the concept behind that is the principle of comedy.

[00:25:57] Speaker 03:
And that applies here as well.

[00:25:59] Speaker 01:
But the comedy goes away if you succeed in, I mean, you have to get through 2254D1 or two, whichever it is.

[00:26:11] Speaker 01:
The comedy is not at issue anymore in a successful claim.

[00:26:16] Speaker 01:
A successful claim, once you've established that there was an error that was unreasonable, fact or law, it is de novo.

[00:26:24] Speaker 01:
We've already gotten past the comedy concerns, and now we're just asking,

[00:26:28] Speaker 01:
What does a petitioner have to establish to win?

[00:26:32] Speaker 03:
Your Honor, sadly, as we find out on almost every habeas case, that is not the case 2254E continues to apply under an overview.

[00:26:42] Speaker 03:
It just, what Pinnholster held is that when analyzing 24D1, the federal courts must refrain to the state court record.

[00:26:54] Speaker 03:
At no point did it say 2254E goes away.

[00:26:57] Speaker 03:
This is a situation that habeas petitioners have to deal with over and over and over again.

[00:27:04] Speaker 03:
And so we ask that those same narrow limitations be applied and not disregarded merely before these factual findings benefit the habeas petition.

[00:27:17] Speaker 04:
My understanding is you want us to apply what E1 and E2, which is textually only to the applicant, apply that to the state as well.

[00:27:25] Speaker 03:
My overarching argument, Your Honor, is that there's no mechanism for doing that.

[00:27:29] Speaker 03:
They can't do it at all.

[00:27:30] Speaker 03:
They can't do it at all.

[00:27:31] Speaker 03:
But to the extent that they

[00:27:33] Speaker 03:
to the extent that a presumption of correctness, a funny fact, a presumption of correctness can be overcome or rebutted, only the applicant, it's the same argument, only the applicant can do that through clear and convincing evidence.

[00:27:48] Speaker 03:
And same goes for 2254E2, to the extent that record can be expanded

[00:27:55] Speaker 03:
it can only be expanded by the applicant if he shows a very narrow limited circumstances such as the exercise of due diligence in the state court.

[00:28:10] Speaker 03:
Yes, Your Honor.

[00:28:12] Speaker 03:
I understand that Dawson is somewhat not a fair rule of law for us.

[00:28:17] Speaker 03:
But what is different about this case is the sheer amount of gang evidence that was introduced.

[00:28:24] Speaker 03:
And it's the explicit representation by the prosecutor at sentencing that he was introducing that evidence to show who Mr. Gonzalez hung out with.

[00:28:36] Speaker 03:
That's a quote.

[00:28:37] Speaker 03:
And who he, quote, associated with.

[00:28:40] Speaker 03:
So in this case, it wasn't to show future dangerousness.

[00:28:45] Speaker 03:
Perhaps some of the evidence was, but the vast majority of the evidence is 75 PowerPoint slides, only three of which concern Mr. Gonzalez.

[00:28:55] Speaker 03:
They meant to show bad character through association, and that is strictly prohibited by the First Amendment's right of association.

[00:29:04] Speaker 03:
Your Honor, I apologize for going over time.

[00:29:06] Speaker 03:
We took you over.

[00:29:07] Speaker 03:
Thank you so much, counsel.

[00:29:07] Speaker 03:
This case is submitted.

[00:29:09] Speaker 03:
Thank you.