[00:00:01] Speaker 01:
The next case on the docket is Jeremiah Banks versus Kathleen Allison.

[00:00:11] Speaker 01:
And this case is also set for 10 minutes per side.

[00:00:16] Speaker 01:
And so Appellant gets to go first.

[00:00:22] Speaker 01:
Then again, if you want to make rebuttal argument, try to stop before your full 10 minutes is up.

[00:00:33] Speaker 00:
Thank you, Your Honor.

[00:00:34] Speaker 00:
Good morning, and may it please the Court, Raj Shah for petition to repeal of Jeremiah Banks.

[00:00:40] Speaker 00:
I'd like to reserve three minutes for rebuttal, and I will keep an eye on the clock.

[00:00:44] Speaker 00:
Your Honors, this is a non-capital habeas matter that ultimately turns on the plain language of the Supreme Court's decision in Rines v. Weber.

[00:00:52] Speaker 00:
The district court below denied Mr. Banks' motions for a Ryan's stay in abeyance, holding that he did not satisfy the first and third requirements for such stay in abeyance set forth in Ryan's.

[00:01:05] Speaker 00:
But the district court failed to apply the correct legal standard on both of those requirements.

[00:01:09] Speaker 00:
And today, I'd like to focus on the district court's conclusion on the third requirement, which goes to whether Mr. Banks exhibited intentionally dilatory litigation tactics.

[00:01:19] Speaker 00:
Here, the district court concluded that Mr. Banks could not satisfy the third exhaustion requirement because he was not diligent enough, that he didn't exhaust his state remedies quickly enough.

[00:01:30] Speaker 00:
But with respect, Your Honor, that's not what the third requirement looks to.

[00:01:34] Speaker 00:
The third requirement looks not to whether a petitioner was diligent, but rather whether he exhibited bad faith litigation tactics.

[00:01:42] Speaker 00:
Because the district court failed to apply the correct legal standard, it engaged in an abusive discretion in denying stay and abeyance that requires vacating and remanding for further proceedings on the merits of Mr. Banks' claims.

[00:02:01] Speaker 00:
Your Honor, Judge Gould, did I?

[00:02:03] Speaker 00:
I'm sorry, I thought you said something.

[00:02:06] Speaker 00:
I'm sorry, Your Honor.

[00:02:08] Speaker 00:
I'd like to start by addressing what Rines' third requirement is ultimately about.

[00:02:14] Speaker 00:
The Supreme Court made clear in Rines the third requirement is focused on whether a petitioner exhibited bad faith litigation tactics.

[00:02:22] Speaker 00:
And we know this because in Rines itself, the Supreme Court created this requirement specifically to screen out capital habeas petitioners who might try to delay their execution dates

[00:02:34] Speaker 00:
And in so doing, forestall the proceedings and delay them further.

[00:02:39] Speaker 00:
That's the rationale behind the third requirement in Ryan's.

[00:02:44] Speaker 00:
That's how we know that the third requirement is ultimately focused on whether a petitioner has exhibited bad faith in some way.

[00:02:51] Speaker 04:
Although the Supreme Court

[00:02:53] Speaker 04:
talked about the reasons for the rule that it was adopting.

[00:02:58] Speaker 04:
Stay in abeyance if employed too frequently has the potential to undermine the various purposes of EDPA.

[00:03:07] Speaker 04:
Staying a federal habeas petition frustrates EDPA's objective of encouraging finality by allowing a petitioner to delay resolution.

[00:03:17] Speaker 04:
So the Rines Court was certainly very concerned

[00:03:21] Speaker 04:
with the amount of time in addition to other factors.

[00:03:25] Speaker 04:
Is that fair?

[00:03:26] Speaker 00:
That's correct, Your Honor.

[00:03:27] Speaker 00:
And in fact, citing those very considerations, the Ryan's Court recommended that district courts, when adjudicating Ryan's motions, set clear time limits on petitioners for exhausting their state remedies.

[00:03:40] Speaker 00:
So for instance, I believe in Ryan's, the Supreme Court endorsed a Second Circuit opinion that set a reasonable time limit on a petitioner to go back to state court and exhaust his remedies.

[00:03:50] Speaker 00:
What I would note is that the magistrate judge in this case, alongside the district court, failed to impose any such reasonable time limit.

[00:03:57] Speaker 00:
Instead, both the magistrate judge and the district court spent about a year considering the Ryan's motion before ultimately denying it.

[00:04:04] Speaker 04:
Although the magistrate judge

[00:04:08] Speaker 04:
at the very beginning told Petitioner that to the extent the petition includes any unexhausted claims, nothing presents him from immediately returning to state court to attempt to exhaust them.

[00:04:20] Speaker 00:
Well, with respect, Your Honor, I would disagree that that order was directed to Mr. Banks.

[00:04:25] Speaker 00:
That order was directed to the state.

[00:04:27] Speaker 00:
That order directed the state to respond to Mr. Banks' petition.

[00:04:31] Speaker 00:
The language Your Honor is citing appears on

[00:04:35] Speaker 00:
in a footnote amidst a page of instructions for the state.

[00:04:38] Speaker 00:
And in fact, I can tell you where it appears at 1ER 36 at footnote 2.

[00:04:44] Speaker 00:
The Supreme Court has repeatedly cautioned federal courts not to try to trap pro se petitioners who are unsophisticated and unversed in law using trickery.

[00:04:56] Speaker 00:
And I'm not saying that this amounted to trickery, but to say that this placed Mr. Banks on notice of

[00:05:02] Speaker 00:
The idea that he needed to exhaust quickly, I believe, asks a little too much of pro se petitioners.

[00:05:07] Speaker 00:
It asks a little too much to ask pro se petitioners to pay attention to footnotes in the middle of instructions for the state.

[00:05:14] Speaker 04:
Well, the state also, on February 8th, the R450, in fact, told your client,

[00:05:23] Speaker 04:
sort of gratuitously that he may have some timeliness problems in state court, and he's running out of time, but he has some time left to go file.

[00:05:35] Speaker 04:
So I mean, that's an awfully strange thing if the state is engaging in trickery here to say to your client, in addition to your federal court problem, you may have a big state court problem, and you still have an opportunity to cure it.

[00:05:50] Speaker 04:
I mean, is that a fair reading of what the state did?

[00:05:53] Speaker 00:
The state did alert Mr. Banks and the court to these procedural problems, but Mr. Banks then explained why he did not go back into state court to exhaust his remedies.

[00:06:02] Speaker 00:
And the explanation he gave does not show bad faith.

[00:06:05] Speaker 00:
Rather, it shows a simple good faith mistake.

[00:06:07] Speaker 00:
As he repeatedly told the district court, he believed that the inmate who was assisting him, an inmate by the name of Ingram, had already filed a petition in the California Court of Appeal, and that the petition was already under consideration.

[00:06:20] Speaker 04:
You can find out.

[00:06:23] Speaker 04:
the court in response to the motion to dismiss that he wanted the stay to allow for the introduction of additional evidence as the state has pointed out and as the magistrate judge and the district court I think also pointed out that that's one of the reasons he was delaying.

[00:06:48] Speaker 04:
That's the way they interpreted it.

[00:06:50] Speaker 04:
Is that a wrong interpretation?

[00:06:52] Speaker 00:
That is a wrong interpretation, Your Honor, and I would actually note that Mr. Mulford, in his answering brief, does not defend that interpretation, nor does he ever defend that interpretation.

[00:07:01] Speaker 00:
I would argue that that is incorrect when we look at the sentence in context.

[00:07:05] Speaker 00:
If I might, I'd like to read out that sentence.

[00:07:07] Speaker 00:
It appears at 2ER 353 and reads as follows.

[00:07:12] Speaker 00:
Petitioners constructively filed requests for stay and abeyance should be granted so as to allow for the introduction of additional evidence to support petitioners' habeas claims.

[00:07:22] Speaker 00:
When read in context, that sentence is not saying that Mr. Banks wanted to delay the proceedings to find additional evidence.

[00:07:29] Speaker 00:
Rather, that sentence is saying that he should be allowed to exhaust his remedies so that additional evidence can be presented to the state courts in the exhaustion proceedings.

[00:07:37] Speaker 00:
Because all exhaustion proceedings involve introduction of new evidence.

[00:07:40] Speaker 00:
It's all about adding new evidence on post-conviction review to what the state courts have already considered on direct review.

[00:07:47] Speaker 00:
It's not the same thing as saying that Mr. Banks is deliberately delaying the proceedings

[00:07:51] Speaker 00:
in order to find new evidence.

[00:07:54] Speaker 02:
If I can interrupt, so is it your position that once a petitioner files a federal petition and asks for a Ryan's stay, the district court can consider whether the petitioner tried to exhaust the claims in state court in an expeditious way?

[00:08:11] Speaker 00:
Well, the court can consider it as part of Ryan's third requirement when deciding whether or not they engaged in bad faith litigation

[00:08:17] Speaker 00:
But I think the Supreme Court contemplated that exhaustion would actually occur after the Ryan stay was issued.

[00:08:23] Speaker 00:
That's why it endorsed district courts who set reasonable time limits on exhaustion proceedings after granting stay and abeyance.

[00:08:31] Speaker 00:
So while courts can consider it, the Supreme Court made clear in Ryan's that that's not the ordinary order of operations.

[00:08:37] Speaker 00:
The stay should come first and then the petitioner should be given a clear opportunity with deadlines to exhaust his state remedies.

[00:08:45] Speaker 02:
But suppose there was a six, seven, eight, nine month delay because district courts are busy.

[00:08:51] Speaker 02:
You know, you go to ED Cal, they're incredibly busy.

[00:08:54] Speaker 02:
I mean, is it that incumbent on the petitioner to see, look, gee, my petition hasn't been, you know, hearing hasn't been said, nothing's acting.

[00:09:02] Speaker 02:
Maybe I should go to state court and exhaust like my unexhausted claims.

[00:09:07] Speaker 00:
It would be, and Your Honor, I think the district court could certainly consider that when assessing Ryan's third requirement.

[00:09:13] Speaker 00:
It could consider whether the petitioner is acting in bad faith if he's taking too long to go back to state court.

[00:09:19] Speaker 00:
But here, there is no evidence of bad faith.

[00:09:21] Speaker 00:
Although there was certainly a delay, Mr. Banks explained why that delay occurred.

[00:09:26] Speaker 00:
He explained that he made a reasonable good faith mistake in trusting Mr. Ingram to file the petition on his behalf.

[00:09:33] Speaker 00:
And while we might argue about whether Mr. Banks was diligent or whether he was negligent or whether that was a reasonable course of action for him, what we can't say from this record is that Mr. Banks was acting in bad faith and intentionally trying to delay the proceedings, which, as the Supreme Court has noted, is entirely what that third requirement is all about.

[00:09:51] Speaker 00:
Your honor, as I see, I'm rapidly running out of time and would like to preserve anything else for rebuttal unless the court has any further questions at this time.

[00:10:02] Speaker 01:
I have no questions.

[00:10:04] Speaker 00:
Thank you, your honor.

[00:10:05] Speaker 00:
For those reasons, we would ask the court vacate and remand.

[00:10:15] Speaker 03:
Matthew Mulford on behalf of the state.

[00:10:18] Speaker 03:
May it please the court.

[00:10:22] Speaker 03:
Disagrees with several things counsel has said, one regarding what Rines says and one regarding the nature of the order to show cause.

[00:10:32] Speaker 03:
They gave the instructions about exhaustion in state court and finally disagree why anything regarding exhaustion matters due to the excessive delay that means all the claims are now procedurally defaulted.

[00:10:46] Speaker 03:
We'll start with Rines.

[00:10:48] Speaker 03:
I disagree that the words bad faith show up anywhere in Ryan's.

[00:10:53] Speaker 03:
I think council wants the standard of a three justice concurrence to be the holding of the court.

[00:11:01] Speaker 03:
Council keeps focusing on how Mr. Banks was not intentionally dilatory or had bad faith.

[00:11:09] Speaker 03:
The Ryan standard is not that narrow.

[00:11:12] Speaker 03:
It includes abusive litigation tactics.

[00:11:15] Speaker 03:
The majority of the court rejected the narrow interpretation presented by Mr. Shah.

[00:11:22] Speaker 03:
So when we look at the district court dismissing Mr. Banks' federal petition because of a 15-month delay in failing to exhaust, that has to be abusive litigation tactics within the meaning of Reins.

[00:11:38] Speaker 04:
That's at least a reference.

[00:11:39] Speaker 04:
Reins also says, I think going to your point,

[00:11:42] Speaker 04:
And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all.

[00:11:52] Speaker 03:
Yes, I agree.

[00:11:54] Speaker 03:
And that is absolutely clear on the date of the dismissal of the petition.

[00:12:01] Speaker 03:
We also think, the state thinks that Mr. Banks can't show meritorious claims.

[00:12:08] Speaker 03:
And after the fact, does not have good cause for his delay.

[00:12:12] Speaker 03:
So on the day he filed, he has good cause for delay under this court's decision in Dixon versus Baker because he lacked counsel to present his first initial review collateral proceeding in state court.

[00:12:25] Speaker 03:
And the district court so found.

[00:12:29] Speaker 03:
I think that's fair, yes.

[00:12:31] Speaker 03:
But the district court is responding to objections and other things that have happened in the meantime.

[00:12:37] Speaker 03:
But yeah, I think that's a fair reading of the district courts.

[00:12:41] Speaker 03:
So we think counsel's wrong regarding what Ryan says.

[00:12:45] Speaker 02:
If I can ask a question here.

[00:12:46] Speaker 02:
Yes.

[00:12:49] Speaker 02:
Once Mr. Banks filed his federal petition asked for a Ryan stay, should we look at the first factor of good cause?

[00:12:57] Speaker 02:
Should we look at the third factor, the dilatory tactics, or does it matter?

[00:13:01] Speaker 02:
Which prong should we look at in determining how long he took to go exhaust the state court?

[00:13:09] Speaker 03:
There are three factors.

[00:13:10] Speaker 03:
I think we can look at them all.

[00:13:11] Speaker 03:
And the court certainly has discretion to consider them all.

[00:13:14] Speaker 03:
And so the magistrate judge issued an order for further proceedings in the district court, and some of that was directed to the state and filed the motion to dismiss in compliance with that order, and some of it was directed to Mr. Banks.

[00:13:29] Speaker 03:
And so the notion that Mr. Banks is not reading this order is incorrect, or I think is overstating the mark by quite a bit.

[00:13:38] Speaker 04:
The first line of that order says the parties to this action are directed to read this order carefully.

[00:13:48] Speaker 03:
Yes, I agree.

[00:13:49] Speaker 03:
That's how we read it.

[00:13:51] Speaker 03:
We do our best.

[00:13:53] Speaker 03:
I have missed things in orders like that before, but in this case, I think everybody read it and understood it.

[00:13:59] Speaker 02:
Once Mr. Rines filed his request for a Rines stay, how long is too long before he has to go exhaust his state law claims?

[00:14:09] Speaker 02:
Presumably at least 30 to 60 days is okay because typically in district court orders, when they grant the stay, they say 30 to 60 days.

[00:14:16] Speaker 02:
So how we determine how long is too long before a petitioner has to go to state court to exhaust his claims?

[00:14:23] Speaker 03:
In the state's view, he was already too late, all right?

[00:14:28] Speaker 03:
exhaustion and procedural default work fist in glove sometimes, right?

[00:14:32] Speaker 03:
And so occasionally you are exhausted only to the extent that you have a state court remedy that's available.

[00:14:41] Speaker 03:
Waiting too long is one of the big examples of taking your state court remedy away.

[00:14:49] Speaker 03:
So Mr. Rines was right on the edge when he filed.

[00:14:52] Speaker 03:
So the question as to how do we evaluate it, it's a tough one.

[00:14:56] Speaker 03:
And California sometimes makes it difficult because there are no time limits that prevent a filing ever.

[00:15:03] Speaker 03:
Now, that's a rule that usually works to petitioners advantage because they can always ask for relief or say, here's what's going on.

[00:15:11] Speaker 03:
Please excuse my circumstances.

[00:15:13] Speaker 03:
But it cannot go forward.

[00:15:15] Speaker 03:
So this grace period, what we're talking about here, it cannot go further than the statute of limitations.

[00:15:22] Speaker 03:
the one year federal statute of limitations, because that's what's motivating Ryan's.

[00:15:28] Speaker 03:
So Mr. Banks is barely okay the day he files his federal petition, because he's only got about six weeks left on his federal statute of limitations.

[00:15:38] Speaker 03:
Once that's over, it's his burden to get everything done.

[00:15:44] Speaker 03:
Rines does not overrule the statute 2254B that requires exhaustion.

[00:15:50] Speaker 03:
Rines does not overrule Rose versus Lundy, which says that pro se petitioners must exhaust.

[00:15:58] Speaker 03:
So how long is too long?

[00:15:59] Speaker 03:
Well, up until the statute of limitation, there's lots of wiggle room.

[00:16:04] Speaker 03:
After that, very little.

[00:16:08] Speaker 04:
Council, am I reading?

[00:16:10] Speaker 04:
your answering brief correctly, where part of your argument is that in light of the Supreme Court of California's 42623 denial without explanation, but also taking a look at the 11723 Court of Appeal decision that all of the claims are procedurally defaulted, that we should skip right to that and not even

[00:16:40] Speaker 04:
look at the issues that petitioner raised in the opening brief and just say these are all procedurally defaulted and so there's no there there affirmed.

[00:16:55] Speaker 03:
That's what we've argued.

[00:16:56] Speaker 03:
That's what we believe.

[00:16:58] Speaker 03:
We're prepared to defend the district court's judgment on whatever grounds the court is considering.

[00:17:03] Speaker 04:
So how would you address your friend's argument that to proceed on those grounds would be totally unfair?

[00:17:10] Speaker 04:
since they never had any opportunity at all in the district court to address this since obviously everything happened before the Court of Appeal and the Supreme Court of California had ruled.

[00:17:23] Speaker 04:
Why isn't that correct that it would be totally unfair for us to reach that?

[00:17:27] Speaker 03:
This case is about exhaustion.

[00:17:29] Speaker 03:
The petitioner bears the burden of demonstrating exhaustion before he files in the district court.

[00:17:36] Speaker ?:
So

[00:17:37] Speaker 03:
The only reason we're talking about things that happened after the fact is that Mr. Banks failed to exhaust when he should have.

[00:17:45] Speaker 03:
So the unfairness is solely of his own making, if there is any, and we disagree that there is any unfairness.

[00:17:56] Speaker 03:
there's no there there because when he finally did the thing that he asked for the stay to exhaust when he finally went back to state court and exhaust the state court told him you're years too late which is what we predicted the state would be telling him when we filed our motion to dismiss before the statute of limitations had run the district court

[00:18:19] Speaker 03:
functionally gave him the stay.

[00:18:21] Speaker 03:
Now they didn't say you have a stay, you must do all these things, but those things are all implicit in the exhaustion requirement.

[00:18:28] Speaker 03:
They're all implicit based on a one-year statute of limitations, all of which he said he knew in the district court while he was telling the district court that he was doing exhaustion proceedings that were not in fact true.

[00:18:42] Speaker 03:
So coming back to Reins,

[00:18:44] Speaker 03:
If abusive litigation tactics means anything, it has to include the sort of recklessness that Mr. Banks was demonstrating in the district court.

[00:18:54] Speaker 03:
So on appeal, yes, the district court dismissed the case properly.

[00:18:58] Speaker 03:
There's no reason to do anything else because after the district court dismissed the case properly, we know from the state court that it's all procedurally defaulted for the same type of timeliness reasons we told them about initially.

[00:19:15] Speaker 03:
We're happy to consider inmates bringing their claims.

[00:19:20] Speaker 03:
I'm innocent, bring your evidence, consider it.

[00:19:23] Speaker 03:
We would prefer to consider it one and only one time.

[00:19:28] Speaker 03:
And so in the district court, we said, here's what you need to do to perfect your claims.

[00:19:32] Speaker 03:
We'll be happy to consider him, and he never did.

[00:19:35] Speaker 03:
Today, he's saying, oh, that was an error, and we disagree.

[00:19:37] Speaker 03:
And it really doesn't matter because he took even longer after.

[00:19:44] Speaker 03:
We think the judgment should be affirmed either on procedural default, which is absolutely fair, or on exhaustion as the district court ruled.

[00:19:54] Speaker 03:
All the records are Mr. Banks' records.

[00:19:59] Speaker 03:
I see I'm running out of time.

[00:20:00] Speaker 03:
I'm happy to address further questions.

[00:20:04] Speaker 01:
Yeah, I have no question.

[00:20:07] Speaker 01:
I don't know about that.

[00:20:08] Speaker 03:
No.

[00:20:09] Speaker 01:
Judge Penn?

[00:20:10] Speaker 03:
No.

[00:20:10] Speaker 03:
Thank you.

[00:20:11] Speaker 03:
Thank you.

[00:20:11] Speaker 03:
Please affirm.

[00:20:13] Speaker 01:
Thank you.

[00:20:15] Speaker 01:
gave the Banks case shall now be.

[00:20:25] Speaker 01:
I guess.

[00:20:28] Speaker 01:
Yeah, I guess.

[00:20:31] Speaker 01:
A minute of rebuttal.

[00:20:36] Speaker 00:
Thank you, your honor.

[00:20:37] Speaker 00:
Just two quick points to bring the discussion back to what Ryan's actually required

[00:20:42] Speaker 00:
Judge Bennett, you noted that Ryan states regarding the third requirement, the standard is whether the petitioner engaged in abusive tactics or intentional delay.

[00:20:51] Speaker 00:
I would submit that that standard requires some kind of intentional action.

[00:20:55] Speaker 00:
Otherwise, the term abusive tactics or intentional delay would not have any meaning.

[00:21:00] Speaker 00:
So what we need to look for here is intentional action of some kind.

[00:21:03] Speaker 00:
And here, as Mr. Mulford himself said, there's been no, he seems to think that it's recklessness, but that concedes that there is no intentional action here.

[00:21:12] Speaker 00:
That's why Mr. Banks can clear Ryan's third requirement and why the district court erred in holding otherwise.

[00:21:19] Speaker 00:
For those reasons, we would ask this court vacate and remand.

[00:21:22] Speaker 00:
Thank you.

[00:21:23] Speaker 01:
Thank you.

[00:21:24] Speaker 01:
Thanks, counsel.

[00:21:26] Speaker 01:
So I want to thank counsel on both sides for their excellent arguments and their flexibility in helping us hear these cases with remote argument in light of the tragic circumstances in the Pasadena area.

[00:21:50] Speaker 01:
This case shall now be submitted in

[00:21:54] Speaker 01:
parties will hear from us and then do course.

[00:21:58] Speaker 01:
Thank you.