[00:00:00] Speaker 00: Case number 13-5171, James M. Head, appellant, versus Eric D. Wilson, warden. [00:00:20] Speaker 00: Ms. [00:00:20] Speaker 00: Terra Mina for the appellant, Mr. Smith for the appellee. [00:00:26] Speaker 03: All right. [00:00:27] Speaker 03: Good morning. [00:00:28] Speaker 03: May I present the court? [00:00:30] Speaker 03: Rosanna Termina for Petitioner James Head. [00:00:33] Speaker 03: I'd like to reserve two minutes for rebuttal. [00:00:36] Speaker 03: Until December 23rd, 2009, D.C. [00:00:39] Speaker 03: Code Section 23-110-G was used by state habeas respondents and courts in this circuit to deny defendants convicted in D.C. [00:00:49] Speaker 03: Superior Court a federal forum for review of any [00:00:53] Speaker 03: and all claims directly challenging their convictions and sentences. [00:00:58] Speaker 03: It was not until 40 years after Section 23110 was enacted that this court held for the first time in Williams v. Martinez that subsection G of the statute did not, in fact, divest federal courts of jurisdiction over a DC prisoner's claim of ineffective assistance of appellate counsel. [00:01:17] Speaker 01: What decision made it? [00:01:21] Speaker 01: I can't remember exactly how you phrased it in your argument, but what decision made it clear before Williams that you could not file the 2254 petition in federal court based on ineffective assistance of appellate counsel? [00:01:36] Speaker 03: Well, Your Honor, there had been no petitions. [00:01:40] Speaker 03: This Court and the District Court had never actually exercised jurisdiction over a federal habeas petition of a D.C. [00:01:48] Speaker 03: prisoner challenging their sentences or their convictions under 2254. [00:01:55] Speaker 03: So the Court had never [00:01:58] Speaker 03: actually ever exercised jurisdiction in that circumstance. [00:02:03] Speaker 03: Now there are, the summary opinion that I could find was the Collier case in 1999 and I think that that's even stronger evidence that this court took, the way that this court took that issue. [00:02:18] Speaker 03: It summarily rejected Mr. Collier's petition. [00:02:22] Speaker 03: It did so without argument. [00:02:25] Speaker 04: He used the procedure of the recall of the mandate, which is not 23110. [00:02:33] Speaker 04: What case in our circuit has been an impediment? [00:02:38] Speaker 03: The fact that that Mr. Collier did use the recall of the mandate procedure is actually strong evidence that there was still confusion after Streeter. [00:02:52] Speaker 03: If he had not used the recall of the mandate procedure, then the court would have dismissed his claim because he had not exhausted his state court remedies. [00:03:01] Speaker 04: Why was there confusion after Streeter? [00:03:02] Speaker 04: Streeter said do exactly what Collier did and he did it. [00:03:06] Speaker 03: Right and Collier did it and the court dismissed the case for lack of jurisdiction. [00:03:12] Speaker 03: So in that sense Streeter did not establish what Williams established Collier. [00:03:20] Speaker 03: continue to deny jurisdiction to these types of claims even after they had been exhausted in state court. [00:03:26] Speaker 04: You've taken a one paragraph ruling that says he followed the appropriate procedure, which was recall of the mandate. [00:03:34] Speaker 04: He lost that. [00:03:36] Speaker 04: The failure to win in that court, meaning the court of appeals of the local court of appeals, does not make it an effective [00:03:46] Speaker 04: or does not make it an effective remedy. [00:03:51] Speaker 04: I don't see how that helps at all, and leaving aside the fact that it's unpublished in a one paragraph. [00:04:01] Speaker 04: If anything, if our precedent before Williams indicated anything, it was that you have to go by a recall of the mandate because 23110 has no applicability to the ineffective assistance of appellate counsel. [00:04:23] Speaker 03: Yes, Your Honor, but Collier is directly at odds with the Williams decision. [00:04:28] Speaker 03: The state of the law now has nothing to, the ineffectiveness or inadequacy of the recall of the mandate procedure is not relevant at all to the calculus. [00:04:41] Speaker 03: 23110G only [00:04:44] Speaker 03: divests federal courts of jurisdiction for claims that could be brought under 23110. [00:04:49] Speaker 03: Now claims of ineffective assistance of appellate counsel cannot be brought under 23110. [00:04:56] Speaker 03: So the 23110 G's jurisdictional [00:05:03] Speaker 03: limitation is not applicable in this situation. [00:05:08] Speaker 03: So as of Williams, the court has recognized that there is jurisdiction to hear claims of ineffective assistance of appellate counsel. [00:05:16] Speaker 03: And in fact, those who do not use the recall of the mandate procedure cannot [00:05:23] Speaker 03: bring their claims here in federal court because they will be deemed to have not exhausted their state court remedy. [00:05:28] Speaker 03: So that is what they must do. [00:05:31] Speaker 03: And at that point, once the recall of the mandate procedure is in place, it's that decision that this court reviews in habeas review. [00:05:41] Speaker 01: Now, Collier was decided in 2001, I believe, right? [00:05:47] Speaker 03: I believe it was 1999, but Your Honor probably has it in front of him. [00:05:52] Speaker 01: That may be right, 1999. [00:05:55] Speaker 01: But even assuming that Collier was something that told Mr. Head he could not bring this claim, he did not have any petitions pending between, it looks like, 1994 and 2001. [00:06:15] Speaker 01: So when EDPA became effective as to him, well, EDPA's passed in 1996, I guess what I'm saying is he didn't file anything during the time period where he had to file something under EDPA challenging or in federal court [00:06:41] Speaker 01: bringing this ineffective assistance of appellate counsel claim. [00:06:47] Speaker 01: So unless Streeter was something that was the impediment, you can't really use Collier as the impediment because Collier comes too late. [00:06:59] Speaker 03: Do you see what I'm saying? [00:07:03] Speaker 03: The issue here is that Williams really, well, one, Mr. Head didn't file his petition because there was no, at that time, the court had never recognized jurisdiction for this type of claim. [00:07:17] Speaker 03: But Ms. [00:07:18] Speaker 02: Taormina, I know you have two points and I want you to be able to get to them, but you seem to have flipped the presumption. [00:07:24] Speaker 02: If there is no law making clear the path, as Williams subsequently did, the absence of law, I don't think, has been held to be an impediment, an impediment cognizable under the statute. [00:07:38] Speaker 02: And I wonder if you have any authority of any circuit court to the contrary. [00:07:41] Speaker 02: So the question is not, did he lack a roadmap, which Williams provided? [00:07:46] Speaker 02: But what can you point to that was actually an impediment? [00:07:50] Speaker 02: And Collier was a non-precedential decision. [00:07:52] Speaker 02: In fact, Mr. Williams [00:07:53] Speaker 02: went ahead and, lo and behold, succeeded without impediment. [00:07:59] Speaker 02: So there's really a question, I think, for you to identify what the impediment was. [00:08:04] Speaker 03: Yes, Your Honor. [00:08:05] Speaker 03: Well, there's two things. [00:08:06] Speaker 03: Mr. Williams actually did not present this argument at all in his original petition. [00:08:12] Speaker 03: He brought a claim of ineffective assistance of appellate counsel. [00:08:15] Speaker 03: He in fact argued that this was not a 2254 petition, it was a 2241 petition and that therefore 2254 was inadequate and ineffective. [00:08:28] Speaker 03: His argument was somewhat convoluted. [00:08:32] Speaker 03: It was this court that saw the petition, identified that there might be an issue, appointed counsel for Mr. Williams and then [00:08:42] Speaker 03: counsel argued brought this issue up to the court. [00:08:46] Speaker 03: So Williams was not Williams. [00:08:50] Speaker 03: He didn't really identify this issue for the court. [00:08:54] Speaker 03: No one had argued this issue before the court, and I think that that is extremely important. [00:09:02] Speaker 03: Also, I want to get back to the fact that Collier, because it was a summary decision, there was no argument in that case. [00:09:10] Speaker 03: Also, the court didn't ask the government or order the government to respond to Mr. Collier's petition. [00:09:18] Speaker 03: It merely summarily rejected the argument based on a lack of jurisdiction without any argument, any government response. [00:09:25] Speaker 03: There was no government response in that case. [00:09:27] Speaker 03: So if we're talking about [00:09:30] Speaker 03: futility, it really, at that point in time, as late in that point in time, it was useless. [00:09:35] Speaker 02: Are we talking about futility or are we talking about an impediment? [00:09:38] Speaker 02: So I guess that it would still be helpful to us, I think, if you focus on what are you pointing to as the impediment? [00:09:46] Speaker 03: Well, the impediment is that the fact that the court did not recognize that 23110G did not [00:09:55] Speaker 03: impose a jurisdictional bar. [00:10:00] Speaker 03: And it's not just this court, but also this was the defense that all of the state habeas respondents were using in response to the petitions that they were ordered to respond to. [00:10:13] Speaker 03: So in that sense, the state habeas respondents were using 23.110 to impede the [00:10:22] Speaker 03: the review of the merits of any ineffective assistance of appellate council claims and the courts were accepting that as the impediment. [00:10:33] Speaker 03: So the impediment was 23-110-G. [00:10:35] Speaker 01: So that's what I'm trying to get to. [00:10:38] Speaker 01: Was the impediment the statute or was the impediment this court? [00:10:45] Speaker 03: Well, the impediment was this, well, not only this court's [00:10:51] Speaker 03: I don't want to say interpretation of the statute, but the way that it would that it used this statute and not just this court, but again, it's the state habeas petitioners that are sorry respondents that we're using from this court was the impediment. [00:11:05] Speaker 03: 23-110-G is the impediment. [00:11:10] Speaker 03: The fact that this court at no time prior to Williams had exercised jurisdiction and in fact had, and I think it's routinely, summarily rejected these claims without even considering its jurisdiction was the impediment. [00:11:27] Speaker 01: Okay, so if 23-110-G was the impediment, that was passed by Congress, correct? [00:11:34] Speaker 03: 23 110 G was passed by Congress, but it is a DC state law. [00:11:41] Speaker 01: So this action by Congress is a state action? [00:11:45] Speaker 03: Well, it's a state law. [00:11:49] Speaker 01: What authority do you have for the proposition that an act of Congress is a state action? [00:11:57] Speaker 03: Well, D.C. [00:11:58] Speaker 03: is treated as a state, Your Honor, so in that sense, it's that authority that would be analogous to this situation or be transferred, sorry, to this situation. [00:12:08] Speaker 01: But it's not D.C. [00:12:09] Speaker 01: acting, it was Congress passing a statute applicable to the District of [00:12:13] Speaker 03: Yes, but it's still state law. [00:12:16] Speaker 03: And in that sense, because the court was relying on state law, it really is. [00:12:22] Speaker 03: And because DC is unique in that sense where Congress can pass a state law, we would never really be in this situation in another jurisdiction. [00:12:30] Speaker 03: But we are, and DC is considered a state, and DC code [00:12:33] Speaker 03: offenses are considered state law offenses, otherwise they would be able to be prosecuted in federal court and they're not. [00:12:41] Speaker 03: So in that sense, I think that the state action aspect is satisfied. [00:12:47] Speaker 01: But that... What would be your authority for that? [00:12:51] Speaker 01: What case would you cite? [00:12:53] Speaker 03: Your Honor, if it's not in this, if this circuit actually hasn't [00:12:58] Speaker 03: hasn't ruled upon it, then there would be no case law, because this is not something that would come up in, let's say, the 7th, 6th, or any other circuit. [00:13:08] Speaker 02: But by analogy, is there, or even under equitable tolling, something that shows... [00:13:13] Speaker 03: Well, with respect to equitable tolling, there's no state action requirement. [00:13:19] Speaker 02: But in terms of looking at that kind of enacted law, which is itself part of the mechanism for bringing in the habeas as something that's the obstacle, [00:13:33] Speaker 03: Well, there are the cases involving, it's not an interpretation of state law, there are the cases involving interpretation of the circuit law interpreting the procedures and the time limitations where the circuit courts have, and they're cited in my brief, where they have interpreted incorrectly [00:13:55] Speaker 03: the 2244 requirements or 2255 requirements, and they're based on a reasonable reliance on that precedent. [00:14:04] Speaker 03: The defendant failed to file his or her petition on time, and the courts have granted equitable tolling in those situations. [00:14:12] Speaker 02: I wonder if on equitable tolling you could address the Whiteside decision that the Fourth Circuit entered since the briefing. [00:14:20] Speaker 03: So with respect to Whiteside, I want to point out that it is still, even though it has been vacated, it is still the considered opinion of at least three judges on the Fourth Circuit. [00:14:36] Speaker 03: So I believe Judges Gregory and Davis were on the original panel. [00:14:41] Speaker 03: They filed a dissent to the per curiam, and then the dissent picked up Judge Nguyen. [00:14:48] Speaker 03: Well, how many judges are on the other side? [00:14:50] Speaker 03: No, absolutely. [00:14:52] Speaker 04: I don't see the significance of that. [00:14:54] Speaker 03: Absolutely. [00:14:55] Speaker 03: The only significance is that it's still a split opinion, and that there are three circuit court judges that believe that Whiteside should have been granted equitable tolling in that case. [00:15:06] Speaker 03: That is the only significance of that. [00:15:09] Speaker 03: But in addition, Whiteside is also distinguishable. [00:15:15] Speaker 03: It involved a challenge to the defendant's career offender status, where based on circuit law, it's now clear that one of the underlying convictions is no longer a qualifying conviction for a career offender. [00:15:31] Speaker 03: And the defendant had never challenged that on direct appeal and was now trying to use the new circuit precedent to [00:15:42] Speaker 03: to change his sentence after the time limit had already expired. [00:15:47] Speaker 03: So Whiteside is dealing with substantive law, a change in substantive law. [00:15:54] Speaker 03: Here we're dealing with jurisdiction, which really is an access to the court issue. [00:16:00] Speaker 03: And that is precisely whether, I mean, if we're looking simply at statutory tolling, if you look at 2244D1B, really what that provision is aimed at preventing is obstacles to court access. [00:16:19] Speaker 03: And jurisdiction goes to the heart of court access. [00:16:24] Speaker 03: because there is no meaningful access to the court if the court does not exercise its jurisdiction, which it had not done in previous to Williams. [00:16:37] Speaker 03: But in that sense, the white side is distinguishable because it was a change in substantive circuit law, which does [00:16:47] Speaker 03: do a head run into 2244D1C in a different way than in this case. [00:16:55] Speaker 03: This case does not conflict with 22D1C, which is the exception for changes in substantive law. [00:17:02] Speaker 03: Because, again, I made this point in the brief, the substantive claim that Mr. Head is bringing here is ineffective assistance of appellate counsel. [00:17:12] Speaker 03: So that is not a new [00:17:14] Speaker 03: right that he's attempting to assert. [00:17:17] Speaker 01: Can you address the Menominee Tribe case? [00:17:20] Speaker 03: Yes, Your Honor. [00:17:20] Speaker 03: That case is very similar to Minter, the Minter case out of the Fourth Circuit, which preceded the Whiteside case. [00:17:30] Speaker 03: And in that case, I think it's extremely different because the reason that, well, [00:17:38] Speaker 03: First and foremost, it's a civil case involving civil penalties. [00:17:42] Speaker 03: It does not involve a constitutional right such as a state prisoner's right to petition for a right of habeas corpus. [00:17:53] Speaker 03: And it's an equitable tolling case, so it doesn't apply to your statutory argument. [00:17:56] Speaker 03: Yes, it doesn't apply to my statutory argument. [00:17:58] Speaker 03: But even with respect on its face, if we were to take it on its face, [00:18:03] Speaker 03: plaintiffs in that case, or the defendants, I suppose I don't know in the civil context where they were, but they hadn't exhausted their administrative remedies. [00:18:16] Speaker 03: And they hadn't done so because they said, well, we're essentially [00:18:21] Speaker 03: the administrative agency is not favorable to us, so we'll just go straight to federal court. [00:18:28] Speaker 03: That's not what happened here. [00:18:30] Speaker 03: Because there's no, and just as in mentor, there's no reason, I mean you must, you must, [00:18:41] Speaker 03: exhaust your state court or administrative remedies in order to have something to appeal to the federal court. [00:18:48] Speaker 02: I think the thing that feels similar is where there are some shoals or some headwinds facing a litigant and so there's not a clear roadmap to success, the litigant nonetheless has to file and preserve and bring the challenge and may be defeated in one court and the next court. [00:19:07] Speaker 02: You know, in order to really say I was prevented, it has to be something more than just, gee, the law doesn't look good for me. [00:19:16] Speaker 03: Well, that may be true in this substantive law arena. [00:19:22] Speaker 03: But again, this is jurisdiction where essentially the court is saying stay out. [00:19:29] Speaker 03: The doors are closed to you here. [00:19:33] Speaker 03: So that's one distinction. [00:19:34] Speaker 03: Second, in that case and in Minter, the petitioners were relying on a lower court's precedent, [00:19:47] Speaker 03: interpretation of federally, in Minter for an example, they were relying on a state court's interpretation of federal law to, and basically saying we're not going to, it's futile for us to bring this claim in state court. [00:20:04] Speaker 03: But you have to lose in state court in order to get to federal court review, otherwise there would be no reason for federal court review. [00:20:11] Speaker 03: But in this sense, I really do think that the distinction does lie in the fact that this was a jurisdictional bar. [00:20:21] Speaker 03: to be clear in cases such as Boosley and in Whiteside, the courts in both of those cases make clear that the arguments that Simmons eventually won on and that Bailey eventually won on for Boosley were arguments that different petitioners were making routinely. [00:20:42] Speaker 03: They were not novel arguments. [00:20:44] Speaker 03: They were routine arguments that should have been brought and should have been [00:20:49] Speaker 01: Let me just anticipate what I think we'll hear from the government before we let you sit down. [00:20:56] Speaker 01: And that is that the government will say when 23-110 was passed and approved by the Supreme Court, all that really was made clear was that the habeas jurisdiction of the Superior Court would be deemed effective. [00:21:17] Speaker 01: you know, just as effective as if a habeas could be filed in federal court. [00:21:25] Speaker 01: But once the D.C. [00:21:27] Speaker 01: Court of Appeals said, and there was a safety valve, of course, that said that, in 23110G, that said that if there wasn't really an effective remedy in superior court, then you could bring a habeas petition in federal court. [00:21:45] Speaker 01: So once the DC Court of Appeals interpreted 23-110 to say, well, you can't bring a habeas in Superior Court for ineffective assistance of appellate counsel, but you can file this motion to recall the mandate, I think that what the government is basically arguing is that, you know, that's saying that that's not really foreclosing [00:22:14] Speaker 01: anyone from making an argument that that procedure, that motion to recall the mandate procedure, isn't an effective procedure. [00:22:24] Speaker 01: And so, as far as equitable tolling goes, why should there be equitable tolling when, you know, he could have made that argument, and that's an obvious argument to be made, because that's right there in the statute too, right? [00:22:40] Speaker 03: It sounds, now it sounds like it's an obvious argument to make, but no one made it. [00:22:46] Speaker 03: It was a novel argument, and novelty is something that the Supreme Court in Boosley did recognize could be a potential basis for equitable tolling. [00:22:57] Speaker 03: If this truly was not an argument that litigants were making [00:23:01] Speaker 03: at the time, because it seemed so very clear that it wouldn't be successful. [00:23:08] Speaker 03: And in fact, generally, I can't say that that argument wasn't successful, because it wasn't made. [00:23:15] Speaker 03: So it does seem obvious now. [00:23:17] Speaker 03: But like I said, Williams did not make the argument. [00:23:21] Speaker 03: It was essentially raised [00:23:24] Speaker 03: but not explicitly, but the opportunity was given for the argument to be made by this court. [00:23:31] Speaker 03: But Williams did not make that argument. [00:23:33] Speaker 03: It was not previously made. [00:23:35] Speaker 03: And I think it's very important, extremely important, that the government strenuously opposed the petitioner's [00:23:47] Speaker 03: argument in the Williams v. Martinez case and said that absolutely 23110G did divest jurisdiction to hear ineffective assistance of counsel claims. [00:24:00] Speaker 03: And when they lost initially in Williams v. Martinez, they [00:24:04] Speaker 03: asked for re-hearing on Bonk. [00:24:06] Speaker 03: And the government does not do that and in fact cannot do that lightly. [00:24:09] Speaker 03: I believe that they need authority from the Solicitor General's office in order to ask for re-hearing on Bonk. [00:24:15] Speaker 03: So they felt very strongly that Williams was not as obvious as we all see it now. [00:24:21] Speaker 03: It was not obvious to them. [00:24:22] Speaker 03: That was not their argument in their briefs in Williams. [00:24:26] Speaker 03: I know that that's going to be their argument today, but it wasn't their argument in their briefs. [00:24:30] Speaker 03: And they did ask for a rehearing on Bonk, which I think is a very significant sign that they felt strongly that Williams was wrongly decided. [00:24:40] Speaker 03: And again, not so obvious. [00:24:42] Speaker 03: And Your Honor, I looked, I think it's still confusing to some district courts. [00:24:49] Speaker 03: I reviewed how the district courts were interpreting Williams after the fact, and there's at least one district court who has dismissed a petition for [00:25:00] Speaker 03: an ineffective assistance of council petition where the petitioner exhausted his remedy in state court. [00:25:08] Speaker 03: He filed a motion to recall the mandate, lost, and then brought his petition here in federal court. [00:25:15] Speaker 03: And the court ruled that the recall the mandate procedure was not inadequate or ineffective. [00:25:21] Speaker 05: And that's- After Williams. [00:25:22] Speaker 03: After Williams. [00:25:23] Speaker 03: So it's confusing. [00:25:26] Speaker 03: It's still confusing. [00:25:27] Speaker 03: And again, Boosley did recognize that novelty is a basis for equitable tolling. [00:25:35] Speaker 03: And I think that because no one had raised this issue, because it took 40 years from the enactment of 23-110 for this court to recognize that there is a claim that DC prisoners can bring here in federal court, I think that that's an exceptional circumstance. [00:25:52] Speaker 03: All right. [00:25:52] Speaker 04: We'll give you a couple of minutes. [00:25:53] Speaker 04: Mr. Smith? [00:25:58] Speaker 04: I'd like you to address Streeter, because my reading is for 40 years we haven't. [00:26:05] Speaker 04: Streeter is a roadmap. [00:26:10] Speaker 04: Williams wasn't written on a clean slate. [00:26:15] Speaker 04: We had led the way in Streeter. [00:26:18] Speaker 05: I agree with that. [00:26:19] Speaker 05: I think the court could view Streeter as a roadmap. [00:26:23] Speaker 05: In fact, the Streeter opinion itself says we assume that [00:26:26] Speaker 05: once the DCCA does its portion of this case, that in Streeter, this court didn't dismiss Streeter's petition, it held it in abeyance pending action by the DCCA. [00:26:43] Speaker 04: Well Williams itself [00:26:46] Speaker 04: characterizes Streeter as having assumed that we do have jurisdiction. [00:26:50] Speaker 04: Go ahead. [00:26:50] Speaker 05: It did. [00:26:51] Speaker 05: In Williams, this court said Streeter anticipated the very sort of claim that Appellant is raising today. [00:26:58] Speaker 05: Appellant's argument is essentially the last argument he made was [00:27:03] Speaker 05: that the impediment to the filing of his petition was confusion or confusion about the state of the law, and I would submit that that simply contradicts the plain language of the statute. [00:27:14] Speaker 05: Well, that wasn't the position that the government took in Williams. [00:27:17] Speaker 05: That's correct, and we were wrong. [00:27:19] Speaker 05: And to the extent that we would acknowledge that there was some confusion, there was nothing [00:27:25] Speaker 05: that prevented appellant from filing the claim that he filed in this case, and that Williams himself... All the smart government lawyers were wrong, but... We were wrong. [00:27:36] Speaker 01: Mr. Head should have figured that out. [00:27:40] Speaker 01: Well, he should have. [00:27:41] Speaker 01: Even though the smart government lawyers didn't figure it out. [00:27:44] Speaker 05: Well, that's correct. [00:27:47] Speaker 05: That's essentially what the statute requires, and that's also what equitable tolling requires. [00:27:54] Speaker 05: what the court in the Menominee Tribe case essentially said, where the law is unclear, the burden is on the litigant to go forward and file the claim, to make the claim. [00:28:06] Speaker 05: The government was wrong. [00:28:09] Speaker 05: Appellant is not bound by the government's view about the law. [00:28:12] Speaker 05: Appellant's action should be governed by the law. [00:28:16] Speaker 05: And this court says what the law is. [00:28:19] Speaker 05: The government, the U.S. [00:28:20] Speaker 05: Attorney's Office's interpretation of the law is not what binds appellant. [00:28:24] Speaker 05: So appellant has got to act within the law as it exists. [00:28:28] Speaker 05: And this court in Williams said that Streeter, and it was very clear, it used the word anticipated, [00:28:32] Speaker 05: It said Streeter anticipated the sort of claim that Appellant is now raising. [00:28:38] Speaker 05: Williams himself raised that claim. [00:28:40] Speaker 05: Appellant has argued this morning that it was amicus on Williams' behalf, but amicus made that argument, and that argument succeeded. [00:28:47] Speaker 05: The plain language of the statute requires an impediment, and not just an impediment, the statute says an impediment that prevented [00:28:58] Speaker 05: the litigant from filing a claim or from making a claim. [00:29:01] Speaker 05: The impediment has to prevent or foreclose the claim. [00:29:06] Speaker 05: And in addition, there are other aspects of the statute's plain language that appellants simply can't meet. [00:29:13] Speaker 05: There is no state action. [00:29:15] Speaker 05: This court's interpretation of a DC code provision is not itself state action. [00:29:25] Speaker 05: And if the state action is the DC code provision, [00:29:29] Speaker 05: That provision has remained the same since 1970. [00:29:33] Speaker 05: It hasn't changed. [00:29:35] Speaker 05: And again, as this Court recognized in Streeter, or in Williams talking about Streeter, Streeter did provide a roadmap of sorts to raise this type of claim. [00:29:48] Speaker 05: In addition, there's no unlawful state action. [00:29:50] Speaker 05: Each of those are plainly requirements set forth in the statute which appellant cannot meet. [00:29:59] Speaker 05: I did want to briefly address Collier, as Judge Henderson indicated earlier. [00:30:04] Speaker 05: Collier is non-precedential. [00:30:06] Speaker 05: It's an unpublished, one-paragraph decision. [00:30:10] Speaker 05: It did not create the impediment, and Appellant hasn't argued that it did. [00:30:14] Speaker 05: Appellant's brief argues that this court's precedent was the impediment, but today Appellant's made the argument that the impediment to his claim was 23-110-G, the D.C. [00:30:28] Speaker 05: Code provision. [00:30:29] Speaker 05: And that provision, as I mentioned before, has not changed. [00:30:34] Speaker 01: And there was... If we switch to equitable tolling away from the statutory argument, you cite mentor for your equitable argument, I mean for your statutory argument, but mentor was also discussed equitable tolling. [00:30:56] Speaker 01: and it described equitable tolling as being reserved for those rare instances where, due to circumstances external to the party's own conduct, it would be unconscionable to enforce the limitation period against the party and gross injustice would result. [00:31:16] Speaker 01: Based on that, why hasn't Mr. Head met that standard, if that's the standard? [00:31:23] Speaker 05: Well, he simply hasn't, Your Honor. [00:31:25] Speaker 05: He was convicted in 1980 of a double homicide and [00:31:32] Speaker 05: a long, that long period of time passed before Appellant raised his claim. [00:31:37] Speaker 05: Appellant could have raised it following Streeter, for example. [00:31:41] Speaker 05: Streeter provided a roadmap of sorts as Judge Henderson indicated earlier. [00:31:45] Speaker 05: And even if Appellant, even if one could excuse Appellant from raising that claim prior to Williams, Appellant was not diligent. [00:31:53] Speaker 05: He still doesn't meet [00:31:55] Speaker 05: the test for equitable tolling because he still waited two and a half years following this court's decision in Williams to file the claim that's before the court now so He wasn't diligent in in addition, but when Williams came down he had a petition pending, right? [00:32:13] Speaker 01: He had a 23 110 I'm sorry not when Williams [00:32:18] Speaker 01: When Williams was decided, what year? [00:32:21] Speaker 01: Williams was decided in 2009. [00:32:23] Speaker 01: And wasn't his petition, I guess his fifth petition still pending at that time? [00:32:30] Speaker 05: It was, and that argument goes, I mean in part it goes to [00:32:35] Speaker 05: statutory tolling, it's provision D2 says that when you have another habeas petition or its equivalent pending, the time is told, but that's a statutory tolling argument and appellant, I guess what the court's referring to is appellant sort of imported that into his equity. [00:32:52] Speaker 01: Well I guess what I'm saying is if he had filed a 2254 petition the day after Williams came down, wouldn't the government say dismiss it because under 23 110 he's got one [00:33:05] Speaker 01: pending in Superior Court? [00:33:06] Speaker 01: I mean, he can't be in both places at the same time. [00:33:13] Speaker 05: I don't know. [00:33:14] Speaker 05: We may have made that argument. [00:33:19] Speaker 05: But the burden is on Appellant to preserve his own arguments. [00:33:23] Speaker 05: He's got to file the petition in order to preserve [00:33:27] Speaker 05: his rights. [00:33:28] Speaker 05: And an additional response to your question, Your Honor, is that another element that excludes appellant from the sort of extraordinary circumstance that would qualify for equitable tolling is the circumstance has got to be beyond the litigants' control. [00:33:47] Speaker 05: This Court made that clear in Menominee. [00:33:50] Speaker 05: is even in the language of the Hall and Supreme Court decision and this what appellant is arguing simply isn't beyond his control. [00:33:59] Speaker 05: He like Williams could have filed this claim and that is at bottom a reason not to equitably toll the statutory limitations period here. [00:34:13] Speaker 01: Isn't the unpublished decision in Collier relevant to that point because [00:34:19] Speaker 01: If we're going to look at the equities of this and say, well, he should have known and he should have done what Williams did. [00:34:26] Speaker 01: Well, if it were so clear. [00:34:29] Speaker 01: why did we issue this unpublished decision in Collier? [00:34:34] Speaker 01: We were obviously wrong. [00:34:36] Speaker 05: Sure. [00:34:36] Speaker 05: It could perhaps be relevant, but I would argue that this court in Williams said that Streeter anticipated exactly this sort of claim. [00:34:45] Speaker 05: Streeter put Appellant on notice. [00:34:47] Speaker 05: Appellant's conviction was before Streeter. [00:34:51] Speaker 05: Streeter is 1982. [00:34:52] Speaker 05: Appellant was convicted in 1980. [00:34:54] Speaker 05: Streeter provided the road map that appellant is looking for and the fact that appellant lacks a road map, this court, I would argue that [00:35:08] Speaker 05: the Menominee Tribe case makes clear or at least suggests that lacking a roadmap or confusion about the status of the law is not sufficient to justify equitable tolling. [00:35:21] Speaker 05: I think that that is at bottom what the holding of the Menominee Tribe case is, and this court's bound by that decision. [00:35:29] Speaker 05: Appellants argued that that's distinguishable because it was a civil case, but [00:35:34] Speaker 05: It's applying the same equitable tolling test that's applicable in this case. [00:35:40] Speaker 05: That is the same test whether it's a civil case or a criminal case. [00:35:43] Speaker 01: There's two things I think that appellant argues that are important distinctions between this and any of the other cases. [00:35:53] Speaker 01: One is that this is dealing with jurisdiction and not substantive law or a new, I guess, recognition of a new constitutional right. [00:36:05] Speaker 01: And second, that this is the great writ. [00:36:08] Speaker 01: And there are lots of cases that talk about the importance in the great writ, and we treat it differently. [00:36:17] Speaker 01: So why aren't those two factors important here in trying to figure out how we should interpret equitable tolling? [00:36:30] Speaker 05: Well, I don't fully understand the distinction appellants making between the import of a jurisdictional versus a change in substantive law. [00:36:40] Speaker 05: I don't fully understand that. [00:36:42] Speaker 05: And I guess my response is that has got to be, that distinction has got to be wrong as it applies to a palance claim of ineffective assistance of appellate counsel because Williams made the same claim [00:36:57] Speaker 05: this court exercised jurisdiction, that case went forward and resulted in the decision that appellant now wants to use and claimed in his initial brief was the change in law that opened the door to his claim. [00:37:10] Speaker 05: So I don't fully, maybe I'm not understanding it, I just don't fully appreciate the difference and I don't believe that it's grounded in law in the way that appellant has argued this morning. [00:37:21] Speaker 05: And as to the court's second point about the purpose of the great writ, it is [00:37:27] Speaker 05: a rid of last resorted, and it is an equitable remedy. [00:37:32] Speaker 05: But this court made clear in the Menominee Tribe case that it is also limited. [00:37:40] Speaker 05: It's extraordinary. [00:37:41] Speaker 05: And for the reasons that we've discussed this morning, a parent simply hasn't met [00:37:47] Speaker 05: that high standard. [00:37:49] Speaker 05: In addition, in the Fourth Circuit's recent en banc Whiteside decision, the en banc quirk explains at length why the essentially responds to your honor's point. [00:38:04] Speaker 05: It says that although it is the great writ and although it is last resort, [00:38:11] Speaker 05: petitioner in that case, Whiteside simply couldn't meet that test and the court gave a number of different reasons. [00:38:19] Speaker 05: It distinguished Holland as being different from this case and from Whiteside's case because Holland involved the situation where [00:38:28] Speaker 05: Holland really was prevented, literally prevented from filing a claim because not only was his owner counsel ineffective, but the courts wouldn't accept pro se filings. [00:38:41] Speaker 05: So that's different from this case. [00:38:42] Speaker 05: And Whiteside goes on to explain why were the court to look at change of law as sufficient to trigger equitable tolling, then that simply undermines the whole purpose of [00:38:55] Speaker 05: finality, the purpose of limitations periods in general. [00:38:59] Speaker 05: So I would point the court to the white side on Bonk petition as responding to that point. [00:39:05] Speaker 04: And also in this case, and it's not determinative, but unlike Williams, didn't the local court of appeals and all of these different motions and so forth, didn't it rule on his ineffective assistance of appellate counsel back in the early 90s on the merits? [00:39:23] Speaker 05: I'm sorry, you're referring to appellants, appellant this case and not. [00:39:28] Speaker 04: Yes, I mean in Williams, when they did the motion, the motion to recall the mandate in Williams, according to the concurrence, [00:39:40] Speaker 04: The local Court of Appeals denied it, gave no explanation, denied rehearing. [00:39:45] Speaker 04: So that was never heard. [00:39:47] Speaker 04: That Sixth Amendment claim was never heard on the merits by the local court. [00:39:51] Speaker 04: That is different here, isn't it? [00:39:53] Speaker 04: Didn't the local Court of Appeals, in denying the motion to recall the mandate, reach the merits of the Sixth Amendment claim? [00:40:02] Speaker 05: The local courts, the Superior Court and also the DC Court of Appeals, [00:40:09] Speaker 05: has reached ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims in this case, but we don't think [00:40:21] Speaker 05: it has reached the claim appellant is raising now. [00:40:27] Speaker 05: What's before this court right now is simply the tolling issue, but the merits claim that underlies this. [00:40:34] Speaker 04: The violation of the Constitution. [00:40:36] Speaker 05: Right. [00:40:36] Speaker 05: The D.C. [00:40:38] Speaker 05: court system has reached that issue generally, but not the specific claim appellant is raising here. [00:40:46] Speaker 04: Any more questions? [00:40:48] Speaker 04: All right. [00:40:48] Speaker 05: Thank you. [00:40:49] Speaker 05: We urge the court to affirm the judgment of this court. [00:40:51] Speaker 04: Thank you. [00:40:52] Speaker 04: Does counsel have any time left? [00:40:54] Speaker 04: All right. [00:40:55] Speaker 03: Why don't you take two minutes? [00:40:56] Speaker 03: Just very quickly. [00:40:57] Speaker 03: I don't know what the basis of what the government's last representation is. [00:41:02] Speaker 03: I don't think that there is a basis to say that he did not raise the ineffective assistance of appellate counsel claims that he now raises here in the DCCA. [00:41:12] Speaker 03: I think he did exhaust those claims and they're being brought here. [00:41:17] Speaker 02: That's something that would be Litigated on a remand if this case were remanded whether I didn't take him to be arguing I took him to be saying that you don't have a merits decision even from that forum on this issue [00:41:28] Speaker 03: I think it's a summary denial. [00:41:31] Speaker 03: But I'm so sorry. [00:41:32] Speaker 03: I interpreted him saying that he did not bring the same claims there and here. [00:41:38] Speaker 03: So I do think that to the extent that there is an exhaustion issue, that would be something we would litigate on remand, I believe. [00:41:45] Speaker 03: I just want to address the fact that any number of times the government represented that Mr. Head could have been Williams. [00:41:55] Speaker 03: No, Mr. Head would have been Collier. [00:41:58] Speaker 03: If Mr. Head would have brought his claim earlier, he would have brought it earlier than Mr. Collier. [00:42:03] Speaker 03: Mr. Collier brought it in 1999, and it would have been summarily rejected without argument and without a government response, just as Mr. Collier's claim was. [00:42:13] Speaker 03: So in that sense, if Mr. [00:42:15] Speaker 03: had brought his claim, he would have been Mr. Collier. [00:42:21] Speaker 03: And the government continues or says numerous times that Streeter gave a road map or that this court indicated what it would do in Williams and Streeter, but Collier came after Streeter. [00:42:36] Speaker 03: So still this court was not ready to [00:42:41] Speaker 03: to act on that road map, if in fact Streeter was. [00:42:44] Speaker 03: Perhaps this court took the same position at that time that the government did in its brief in Williams, which was that Streeter provides, quote, no guidance in this situation. [00:42:55] Speaker 03: And that was the government's position in Williams. [00:42:58] Speaker 03: If there are no further questions, we simply ask for a remand for continued proceedings in this matter.