[00:00:02] Speaker 04:
Case number 15-5056, Carlton J. Blunt, Appellant versus United States of America at L. Mr. Lane for the appellant, Ms.

[00:00:09] Speaker 04:
Kelly for the appellees.

[00:00:11] Speaker 01:
Mr. Lane, good morning.

[00:00:15] Speaker 00:
May it please the court.

[00:00:17] Speaker 00:
In this habeas case, Carlton Blount claims that his appellate counsel's failure to challenge the constitutionality of the accomplice instruction given at trial amounted to constitutionally ineffective assistance.

[00:00:29] Speaker 00:
His petition was dismissed as untimely, and that was an error.

[00:00:32] Speaker 00:
His petition is timely for three separate reasons.

[00:00:35] Speaker 00:
First, the DC Court of Appeals reset the limitations clock under Jimenez by, in fact, reopening Mr. Blount's direct appeal in the course of resolving his motion to recall the mandate.

[00:00:45] Speaker 02:
That's not what they claim they did, though, right?

[00:00:49] Speaker 00:
I believe that they say that they denied the motion to recall, but under the long case, they can use a collapsed procedure where they determine the underlying merits in the posture of deciding the recall motion.

[00:01:01] Speaker 02:
That's a little bit unusual.

[00:01:02] Speaker 02:
Typically, they will say, we've

[00:01:04] Speaker 02:
We called the mandate.

[00:01:06] Speaker 02:
We reopened it.

[00:01:07] Speaker 02:
Let's get going.

[00:01:08] Speaker 02:
They didn't do anything like that here, did they?

[00:01:10] Speaker 00:
Well, they – actually, I believe that there's strong indications in the order that that's what they did.

[00:01:16] Speaker 00:
They said that they decided – Well, let me start with this.

[00:01:18] Speaker 02:
They didn't say they did that, right?

[00:01:20] Speaker 00:
They didn't say that explicitly.

[00:01:22] Speaker 00:
What they said was, first of all, they had a motion before them that

[00:01:26] Speaker 00:
clearly meets the recall standard.

[00:01:29] Speaker 00:
It contains nonconclusory arguments and factual support of a legitimate prima facie ballot claim.

[00:01:36] Speaker 00:
So it clearly met the recall standard.

[00:01:38] Speaker 00:
And then when they decided the motion, they said that the error was harmless based on a review of the entire record.

[00:01:46] Speaker 00:
And that is something that the DCCA has said it does in the reopened appeal posture.

[00:01:50] Speaker 00:
Long says, when we get to the reopened appeal, we review the whole record.

[00:01:55] Speaker 00:
it would not make sense for the recall stage of this to entail a review of the whole record, then there would be no distinction between a recall and a reopen.

[00:02:03] Speaker 02:
So my notes show that they expressly ordered, quote, that the motion to recall mandate is denied.

[00:02:12] Speaker 02:
That's pretty strong language.

[00:02:14] Speaker 02:
I know you're arguing for this sort of functional opening.

[00:02:18] Speaker 02:
That gets us into murky – that gets us into dangerous territory, doesn't it?

[00:02:22] Speaker 02:
I mean, there are finality principles here.

[00:02:24] Speaker 02:
We're dealing with the state court system.

[00:02:27] Speaker 02:
You're asking us to wade into that in a troublesome way, I think.

[00:02:32] Speaker 00:
Well, I think that – I appreciate your concern, but I think that there would be a lot of ways for the DCCA to be clear that it's not, as a functional matter, reopening the appeal by saying

[00:02:42] Speaker 02:
How about the motion to recall mandate is denied?

[00:02:45] Speaker 02:
That isn't clear enough?

[00:02:47] Speaker 00:
Well, I think that's what you might expect to happen given the collapsed procedure that Long created, which is in the posture of the recall motion, we can decide the merits.

[00:02:56] Speaker 00:
So they don't have to go through the sort of formalist rigmarole of saying, well, we're going to grant the recall motion, but we're simultaneously denying the underlying appeal.

[00:03:04] Speaker 00:
They can just say, we're denying the recall motion because we've considered the merits all the way down to the bottom in this case.

[00:03:11] Speaker 00:
And I think that the court could prevent confusion about this by using language that signals that it is really determining this as a prima facie matter.

[00:03:21] Speaker 00:
No prima facie valid claim, frivolous claim, only conclusory arguments, things of that nature.

[00:03:27] Speaker 03:
That was under the DC procedure.

[00:03:36] Speaker 03:
I mean, I appreciate you're trying to struggle with extreme uncertainty, but the sort of bottom line in the two-stage process, the bottom line for stage one is refusing to recall the mandate.

[00:03:55] Speaker 00:
That is, but I think that now that there's a collapsed procedure, the mechanism for disposing of the case of the motion, whether at the prima facie stage or the merit stage, can be an order saying the motion to recall is denied.

[00:04:10] Speaker 00:
And that's what I think happened here.

[00:04:11] Speaker 00:
And that's why they looked at, when they say that they reviewed the entire record, I think that that is, and let me just step back for a second.

[00:04:18] Speaker 00:
Under Jimenez, the key question is whether the conviction was capable of modification.

[00:04:24] Speaker 00:
Not whether the mandate was recalled.

[00:04:27] Speaker 00:
Once the DCCA is saying, we are looking at the entire record here, because we know that an invalid instruction was given and relied upon by the jury, and we have a good motion in front of us, we're going to go all the way down to the bottom on the facts here, that that means that that judgment was capable of modification at that point.

[00:04:45] Speaker 00:
So under Jimenez, that restarts the clock.

[00:04:50] Speaker 00:
If I may, I think this is an important argument, but I also don't want to lose sight of the other two bases for concluding that the petition is timely.

[00:04:58] Speaker 00:
Under Rines, Mr. Blount was entitled to a stay and abeyance pending exhaustion.

[00:05:06] Speaker 00:
And the failure of the district court to provide that stay is a basis for equitable tolling because it deprived him of the ability to obtain federal review of his conviction.

[00:05:17] Speaker 00:
Exhaustion rule under Rose V. Lundy and Rhymes is intended not to foreclose federal review, but simply as a matter of comedy, it creates a sequencing rule.

[00:05:27] Speaker 00:
You have to first go to state court, and then you can go to federal court.

[00:05:31] Speaker 00:
By dismissing outright, the district court converted the exhaustion requirement into a bar on federal review.

[00:05:39] Speaker 00:
And every circuit that has looked at this has reached the conclusion that that is an exceptional circumstance that entitles a PABIS petition to act on both holdings.

[00:05:50] Speaker 00:
The other reason for equitable tolling in this case is the defective pleading doctrine.

[00:05:55] Speaker 00:
Mr. Blount's first habeas petition was a defective pleading in that it stated a facially valid claim, but it suffered from a procedural and curable technical defect, namely

[00:06:06] Speaker 00:
failure to exhaust.

[00:06:07] Speaker 00:
This is a doctrine that's been established since the 40s in the Herb against Pitcairn case.

[00:06:11] Speaker 00:
It comes up through American Pipe and Irwin.

[00:06:14] Speaker 00:
It's recognized there.

[00:06:16] Speaker 00:
Holland incorporates the entire body of traditional equitable tolling rules in the EDPA context.

[00:06:22] Speaker 00:
So this is an established basis for equitable tolling.

[00:06:26] Speaker 00:
And he's satisfied here.

[00:06:27] Speaker 00:
That tolling lasts for the duration of the proceedings on the first habeas petition.

[00:06:33] Speaker 00:
And when coupled with

[00:06:34] Speaker 00:
statutory tolling for his various state post-conviction proceedings, that renders the current petition timely as well.

[00:06:43] Speaker 00:
So there are three bases for finding the petition timely here.

[00:06:50] Speaker 03:
What's your basis for concluding that the D.C.

[00:06:53] Speaker 03:
Court of Appeals didn't apply a proper harmless error standard?

[00:07:00] Speaker 00:
So the court said that it was doing harmless error analysis, of course.

[00:07:06] Speaker 00:
But the only thing it said to explain its conclusion that the error was harmless was that there was overwhelming evidence.

[00:07:15] Speaker 00:
And although that may seem like that's enough, it's clearly not under Nader and Strickland.

[00:07:22] Speaker 00:
Nader is very clear that even in the face of overwhelming evidence, the question is whether a rational fact-finder could reach a different conclusion.

[00:07:31] Speaker 00:
Otherwise, harmless air analysis would displace the jury.

[00:07:34] Speaker 03:
And when... Don't courts sometimes use this phrase?

[00:07:37] Speaker 03:
overwhelming evidence to summarize what is really a more refined decision, which is that in the face of this particular overwhelming evidence, this particular conviction would have occurred where quite certain it would have occurred

[00:07:59] Speaker 00:
Well, in this case, I don't think that works.

[00:08:01] Speaker 00:
On its face, it doesn't satisfy the standard, because Nader says that it's harmless if the element is uncontested and there is overwhelming evidence.

[00:08:12] Speaker 00:
Here, the element was contested, and that contestment was backed up by evidence in the record.

[00:08:18] Speaker 00:
that eyewitness description that did not match Mr. Blount, statements from Mr. Johnson that Mr. Blount was not involved in the shooting, evidence that Mr. Blount had walked away from the situation before the shooting occurred, the judge and the prosecutor agreeing on the record that a reasonable jury could find that Mr. Blount was not the shooter.

[00:08:41] Speaker 00:
In the face of all that, to just say overwhelming evidence doesn't satisfy the standard.

[00:08:46] Speaker 00:
And in Strickland, too, the court said, even when there's overwhelming evidence, all that means is it is less likely that the error was harmful.

[00:08:54] Speaker 00:
Not that that is the end of the analysis.

[00:08:57] Speaker 00:
This court in the Udo case was on for four pages after it says that there was overwhelming and comprehensive evidence, because that's not enough to conclude that the error was harmless.

[00:09:07] Speaker 00:
I'd like to reserve the balance of my time unless there are further questions.

[00:09:09] Speaker 01:
All right.

[00:09:09] Speaker 01:
Thank you.

[00:09:10] Speaker 01:
Thank you.

[00:09:11] Speaker 01:
Ms.

[00:09:11] Speaker 01:
Kelly?

[00:09:15] Speaker 04:
Good morning, Your Honors.

[00:09:16] Speaker 04:
May it please the Court?

[00:09:17] Speaker 04:
Catherine Kelly on behalf of the United States.

[00:09:20] Speaker 04:
First of all, the District of Columbia Court of Appeals here did not reopen Mr. Blount's direct appeal.

[00:09:26] Speaker 04:
The order specifically denied a recall of the mandate in this case, and it was clear that it was denied.

[00:09:32] Speaker 03:
What about the argument, quite apart from technicalities of D.C.

[00:09:36] Speaker 03:
law, the Court of Appeals, the action there met the humanist standard of the court being in a position to grant relief?

[00:09:49] Speaker 04:
that we don't believe in his case applies here because ultimately what the court did in the dcca decision was denied the mandate human is it was very clear that the texas state court issue had reopened the direct appeal that case so this is a very different situation court simply didn't take that step at the state level here to reopen direct appeal which is clear from its decision to deny the mandate

[00:10:24] Speaker 03:
is used if the state court is in a position to, in fact, grant relief, which it obviously was here, given the law.

[00:10:36] Speaker 04:
But the him and his case, there wasn't a question that the state court had reopened the direct appeal.

[00:10:41] Speaker 04:
Whereas here, it's very clear that the state court at issue did not reopen the direct appeal.

[00:10:47] Speaker 04:
And for that reason, any sort of tolling that could apply through the him and his case

[00:10:54] Speaker 04:
can occur here because the state court did not take the action uh... that was underlying him in this which was to to reopen

[00:11:03] Speaker 04:
the direct appeal.

[00:11:05] Speaker 04:
And I would also like to point out in regard to that that Long did not create a collapsed procedure where there was the court looking simply all at once at the underlying merits and whether or not to facially look at the merits in regard to recalling the mandate.

[00:11:22] Speaker 04:
The Long case specifically cited the Watson standard, the two pronged standard where first the court has to decide whether or not to

[00:11:30] Speaker 04:
recall the mandate and in doing so it looks at the facial merits of the case and then second only if the court recalls the mandate

[00:11:39] Speaker 04:
can it then go on to the second step of reopening the direct appeal.

[00:11:43] Speaker 04:
All that Long did really was saying, for purposes of this opinion, what we're going to do since the question of the facial merits and the question of the underlying merits of the ineffective assistance of counsel claim are exactly the same in that case, for purposes of writing this opinion, we're not going to repeat

[00:12:01] Speaker 04:
the same analysis twice.

[00:12:03] Speaker 04:
We're not going to repeat the same facts twice.

[00:12:05] Speaker 03:
Long did not report to create a one-step process.

[00:12:18] Speaker 04:
The two steps, I'm sorry, Your Honor.

[00:12:20] Speaker 03:
Isn't that the case?

[00:12:21] Speaker 03:
The two steps.

[00:12:22] Speaker 03:
If that's true, should it be important to us that the label applied by the court here, refused to grant the motion, should be determined?

[00:12:35] Speaker 04:
It is important to, when you're applying, and the important label is recall of the mandate.

[00:12:43] Speaker 04:
And here, it's very clear from the court's opinion that it's specifically denied

[00:12:48] Speaker 04:
the motion to recall the mandate.

[00:12:49] Speaker 04:
And under the Watson case and the DCCA precedent, if you do not recall the mandate, you absolutely and necessarily have not reopened the direct appeal.

[00:13:00] Speaker 04:
And of course, if you do reopen the direct appeal, then you are again looking at the merits of the underlying and effective assistance of counsel claim, but it's very important, as the DCCA has pointed out, that there is this two-step process, because as they said in the Watson opinion, they do not want to willy-nilly open up direct appeals in order to look at the merits.

[00:13:25] Speaker 04:
That would be a precarious position to take if I'm recalling the particular language correctly from the Watson decision.

[00:13:32] Speaker 04:
So they made very clear that yes, you are looking at the merits in both instances, but you're definitely, under Watson, not reopening a direct appeal on the merits.

[00:13:45] Speaker 04:
Well, when you look at the importance of finality in state court decisions and so forth,

[00:13:51] Speaker 03:
Well, the substance of the analysis is going to be exactly the same, whether it's two steps or one.

[00:13:58] Speaker 04:
Yeah, and both, certainly, they are looking at the underlying merits of the ineffective assistance of counsel claim.

[00:14:05] Speaker 04:
But it's important first that the mandate, you don't reopen a case unless the court first finds that there is some facial-level merit to the underlying court.

[00:14:17] Speaker 03:
I can't even give you an articulation of it.

[00:14:18] Speaker 03:
It doesn't sound all that different from the ultimate Mecca's decision.

[00:14:21] Speaker 04:
In a particular case, you may be looking at many of the same facts, but it is still very clear under District of Columbia Court of Appeals law that you simply cannot reopen a direct appeal without first recalling the mandate.

[00:14:39] Speaker 04:
And the court has made very specific law saying that you are taking these two steps.

[00:14:46] Speaker 04:
And yes, you may be looking at ultimately some of the same facts, or in some cases, all of the same facts.

[00:14:51] Speaker 04:
But that does not mean that just because they looked at the merits, they have reopened the direct appeal.

[00:14:57] Speaker 04:
And they haven't here because it's clear that they denied the request to recall the mandate.

[00:15:03] Speaker 02:
Ms.

[00:15:03] Speaker 02:
Kelly, what troubles me about this case is that this procedural bar, step back from this.

[00:15:10] Speaker 02:
This man was convicted under a jury instruction that was later found to be unconstitutional, right?

[00:15:16] Speaker 03:
That's correct.

[00:15:17] Speaker 02:
And so you better win on your procedural bar, right?

[00:15:22] Speaker 02:
Because otherwise, if we get to the merits of it, we have possibly somebody who was wrongly convicted, right?

[00:15:32] Speaker 04:
Well, I don't believe so, because as the DCCA also found in determining that it was not going to recall the mandate, that there was overwhelming evidence that Mr. Blount was the sole shooter in this case.

[00:15:45] Speaker 04:
So you already have a decision under the Strickland standard, which is the only standard that applies when you're looking at ineffective assistance and counsel claims.

[00:15:56] Speaker 04:
This is the question in this case ultimately looks at whether or not Mr. Blount would have been prejudiced by an aiding and abetting instruction that was later found.

[00:16:10] Speaker 04:
unconstitutional under the Wilson-Bates.

[00:16:13] Speaker 02:
And just the way you phrase that, you start with sort of a presumption that, yes, I think he would be, right?

[00:16:19] Speaker 04:
Well, certainly the DCCA believed that because they found in denying the motion to recall the mandate that there was overwhelming evidence that he was the sole shooter.

[00:16:26] Speaker 03:
We have no reason to believe that they were applying, that secretly they were applying the correct standard.

[00:16:33] Speaker 04:
No, we do, and it wasn't secret.

[00:16:36] Speaker 04:
Court may indulge me for a moment.

[00:16:37] Speaker 04:
The order said that, based on the entire record, any error was harmless due to the overwhelming evidence presented at trial and the government's theory that appellant was the sole shooter.

[00:16:48] Speaker 04:
Therefore, appellant has not met the high standard necessary to recall the mandate.

[00:16:52] Speaker 04:
It cites then the Watson case, which determines the standards for recalling in the mandate and also applies.

[00:17:00] Speaker 03:
The Watson case certainly doesn't apply the standard appropriate to an error involving a missing element.

[00:17:06] Speaker 04:
It applies the standard of Strickland in determining whether Mr. Blount's... This is a special case.

[00:17:13] Speaker 03:
This is Strickland where the error in question is failing to raise on appeal a winning argument about a necessary charge.

[00:17:29] Speaker 04:
In this situation, the court applied the Strickland standard, and the standard under Strickland is always the standard that applies when you're looking at ineffective assistance of counsel.

[00:17:45] Speaker 03:
Court of Appeals would actually do.

[00:17:48] Speaker 03:
And the Court of Appeals, and then I guess you're also rejecting what would happen on remand, if the Court of Appeals would remand for a retrial under a proper charge, then even if you're thinking that a test is the pure, strict one test, it comes out against the government.

[00:18:11] Speaker 04:
Well, I don't believe so because that's not how you look at the test.

[00:18:15] Speaker 03:
First of all, you apply Strickland because it's an ineffective assistance counsel claim.

[00:18:30] Speaker 04:
All the case law that I am aware of says that if you're looking at an ineffective assistance of counsel claim, you're applying Strickland prejudice.

[00:18:37] Speaker 04:
You are not applying a special standard if the alleged ineffective... But you didn't share with us any of those cases.

[00:18:45] Speaker 04:
Well, Watson, which is the case that's relied on in the Blount case by the DCCA, specifically applied the Strickland standard to a case where the

[00:18:55] Speaker 04:
appellant was arguing ineffective assistance of counsel at the appellate level, which is what he's arguing here.

[00:19:04] Speaker 04:
I don't recall off the top of my head, Your Honor, but the point is, I know of no- It makes a difference.

[00:19:10] Speaker 03:
It doesn't.

[00:19:10] Speaker 03:
There's sort of a whole menu of different standards for assessing harmlessness.

[00:19:17] Speaker 04:
I'm aware of no case law that changes the prejudice standard or applies a different standard if your claim of ineffective assistance is a constitutional

[00:19:32] Speaker 04:
um, error being alleged or a non-constitutional error being alleged.

[00:19:36] Speaker 03:
You're talking about ineffective assistance of counsel at the appellate level.

[00:19:41] Speaker 03:
Right, that's all Mr. Blount's seeking.

[00:19:43] Speaker 03:
You've got to project what would happen and if it's the sort of error that involves

[00:19:52] Speaker 03:
almost automatic remand for a new trial.

[00:19:56] Speaker 03:
And it seems to me it turns out that it is a dispositive error.

[00:20:03] Speaker 04:
But Your Honor, this would not require an automatic remand for a new trial.

[00:20:06] Speaker 04:
That's not what would occur here.

[00:20:07] Speaker 04:
You're looking at whether or not this alleged error, alleged deficiency would be prejudicial given the evidence in the case that was presented.

[00:20:17] Speaker 03:
You have to determine whether or not an appellate counsel... So you're assuming, you're assuming that the Court of Appeals reviewing ineffective assistance of counsel for the counsel, ineffectively failed to make a clearly winning argument about a necessary element of the crime, would just say, oh well, he hasn't carried his burden.

[00:20:45] Speaker 03:
What we're saying is this, first of all, was not... Which you have on funds which you have missing element.

[00:20:51] Speaker 04:
Our point is that this was not a clearly winning argument.

[00:20:54] Speaker 04:
It certainly was not a clearly winning argument at the time Mr. Blount went to trial and at the time his direct appeal was done.

[00:21:00] Speaker 04:
So we're not even conceding a deficiency by counsel, given that the Strickland standard tells you you're not looking at these things in hindsight.

[00:21:08] Speaker 04:
You're looking at what

[00:21:10] Speaker 04:
the attorney at the time was aware of.

[00:21:12] Speaker 04:
We're also saying that given particularly the DCCA's decision on the motion to recall the mandate and denying that motion, the court specifically was saying under the Strickland standard that any error was harmless here due to the overwhelming evidence.

[00:21:29] Speaker 04:
That was presented at Mr. Blount's trial, which is what you're really looking at.

[00:21:32] Speaker 04:
You're not going forward and saying if Mr. Blount got a new trial tomorrow, whether or not it would be wrong not to apply Wilson Bay

[00:21:40] Speaker 04:
instruction, what you're looking at is look at the trial that occurred in Mr. Blount's case before Wilson Bay was even decided.

[00:21:47] Speaker 04:
Given all the facts and all the evidence that came in at that trial, was the lack of a Wilson Bay type instruction prejudicial to him in that regard?

[00:21:59] Speaker 04:
And the DCCA has already ruled that it was harmless due to the overwhelming evidence.

[00:22:04] Speaker 04:
And that implying Strickland in this case, as the court did, was the appropriate standard.

[00:22:11] Speaker 04:
And for all those reasons, we believe that there's no basis to find that Mr. Blount's

[00:22:18] Speaker 04:
application here for a certificate of appealability was timely.

[00:22:22] Speaker 04:
There's also no requirement that the district court in denying the first habeas petition here grant a rein stay.

[00:22:30] Speaker 04:
The circuit has not said that a rein stay is required, and certainly none of the circuits that the defense sites or the amicus council sites say that the court has to grant a stay where an appellant hasn't even sought a stay.

[00:22:45] Speaker 04:
In fact, this court denied a certificate of appealability when Mr. Blount challenged the dismissal of his original habeas petition.

[00:22:56] Speaker 04:
So in saying that there should be equitable timing here, amicus has actually been asking this court to deny its own prior decision in this case.

[00:23:05] Speaker 04:
And in addition, there is no defective pleading here.

[00:23:09] Speaker 04:
There's no habeas case that supports that an unexhausted claim is quote-unquote defective, as the Amicus Council says.

[00:23:16] Speaker 04:
Were that to be the rule, it would swallow a deeper hole by creating unlimited time periods, unlimited stays, simply because you had filed an unexhausted claim in the federal court rather than first going to the state court.

[00:23:32] Speaker 04:
And that would simply be an open-handed placeholder for anybody who thought maybe later after he filed his state cases and exhausted those opportunities in the state court, at any point then could come back to the federal court and say, I'm not untimely.

[00:23:50] Speaker 04:
And so for all of those reasons, we believe that the court should deny the application for certificate of appealability here.

[00:23:55] Speaker 04:
Thank you, Your Honors.

[00:24:02] Speaker 01:
All right, why don't you take two.

[00:24:03] Speaker 00:
OK, thank you, Your Honor.

[00:24:04] Speaker 00:
I'm going to try to make a few very quick points.

[00:24:07] Speaker 00:
On the merits of his claim on deficiency, the DCCA itself said that the Pell Council was not justified in failing to raise the challenge on appeal.

[00:24:17] Speaker 00:
The precedent was very weak.

[00:24:19] Speaker 00:
If you look at the Wilson Bay panel decision,

[00:24:21] Speaker 00:
Precedent was weak.

[00:24:22] Speaker 00:
Commentators were against it.

[00:24:23] Speaker 00:
The majority rule was against it.

[00:24:25] Speaker 00:
Trial counsel raised it multiple times vigorously.

[00:24:28] Speaker 00:
Blount asked his appellate counsel to raise it.

[00:24:30] Speaker 00:
It's clearly deficient to have failed to raise it here.

[00:24:33] Speaker 00:
And the prejudice is real.

[00:24:34] Speaker 00:
The trial judge said at trial, a reasonable juror could certainly find that Mr. Blount was not the shooter.

[00:24:43] Speaker 00:
If you look at pages J, 67 to 70 and 87, there's the judge and the prosecutor saying the juror could find he was not the shooter.

[00:24:51] Speaker 00:
The government has never pointed to any evidence that he had the requisite mens rea as an accomplice.

[00:24:56] Speaker 00:
On Rines, the government says that

[00:24:59] Speaker 00:
Mr. Bond had to request the stay and that there's no precedent that he didn't have to request a stay.

[00:25:05] Speaker 00:
But DeLong in the First Circuit, Ursinoli in the Third, Griffin in the Sixth, Jefferson in the Ninth, and Zarvala in the Second, all rose in postures in which the petitioner had not requested a stay or other procedural accommodation for his exhausted claims and was entitled to one, even when the first district court, you know, the first petition had been dismissed and affirmed.

[00:25:25] Speaker 00:
And finally, on the defective pleading,

[00:25:27] Speaker 00:
There's no risk of this becoming an unbounded situation, first of all.

[00:25:32] Speaker 00:
The first petition has to give notice of the claim, and so far it seems like courts want it to be an identical claim.

[00:25:40] Speaker 00:
This case involves the identical claim between the two habeas petitions.

[00:25:44] Speaker 00:
In addition, there are time limits that are still going to be ticking on

[00:25:49] Speaker 00:
state post-conviction proceedings that will cabin how long this can go on for.

[00:25:54] Speaker 00:
So I don't think that's a significant risk.

[00:25:55] Speaker 00:
And this is an established doctrine.

[00:25:57] Speaker 00:
It's 50 or 60 years old at least.

[00:25:59] Speaker 00:
Supreme Court's recognized it.

[00:26:01] Speaker 00:
We're not asking you to make any new law in terms of recognizing defective pleading as a basis for equitable tolling.

[00:26:06] Speaker 03:
Can we go back to your argument that even as either the case for the court

[00:26:17] Speaker 03:
meaningfully, if that's meaningful, stops at stage one, the Jimenez test is satisfied?

[00:26:27] Speaker 00:
Well, I think the Jimenez test is ultimately whether the conviction is capable of modification.

[00:26:32] Speaker 00:
And what the DCCA seems to be saying, and this is consistent, I think, with the general practice, is that if you take a hard look at the arguments and the record,

[00:26:42] Speaker 00:
then that is when the judgment is capable of modification.

[00:26:45] Speaker 00:
There's nothing further to do to make it capable of modification.

[00:26:48] Speaker 00:
And the DCCA has the power itself to decide whether to reopen the judgment or not.

[00:26:53] Speaker 00:
Now, formally, it said it's denying the recall motion, but the collapse procedure

[00:26:59] Speaker 00:
allows the court to do the hard look in the posture of the recall motion.

[00:27:06] Speaker 00:
And the government seems to act like Long doesn't exist, but Long clearly says, we combine those procedural steps.

[00:27:13] Speaker 00:
We are combining our discussion of the merits of the motion with the resolution of the ineffective assistance of counsel claim.

[00:27:21] Speaker 00:
Because it was the same issue, the record was sufficient to reach the ultimate merits.

[00:27:26] Speaker 00:
There was judicial economy in doing so, and it got the answer it needed to get.

[00:27:29] Speaker 00:
Here, that's what the court did.

[00:27:30] Speaker 00:
It just came out the wrong way because it applied the wrong standard.

[00:27:34] Speaker 00:
That standard under NADR, it's the NADR standard.

[00:27:36] Speaker 00:
Strickland says you use the governing standard for the error.

[00:27:40] Speaker 00:
The error here is the misdescription or the omission of the proper element that is governed by NADR.

[00:27:45] Speaker 00:
And NADR says it's uncontested and overwhelming evidence such that a rational fact finder could not find differently.

[00:27:54] Speaker 03:
How is a capable of modification standard satisfied or not satisfied?

[00:28:01] Speaker 03:
I mean, I think as soon as the court has its hands on a case, it's capable of modifying the judgment.

[00:28:11] Speaker 00:
In some sense, I think that's right, but I think that the distinction that should properly be drawn here consistent with DCCA decisions is that if the court is looking only at a procedural barrier to considering the motion, such as that it's untimely, or looking at the motion as a prima facie matter,

[00:28:33] Speaker 00:
almost like what this court and district courts do when considering the motion for COA.

[00:28:38] Speaker 00:
Is there a debatable claim here?

[00:28:41] Speaker 00:
We're not exerting jurisdiction and considering this on the merits.

[00:28:44] Speaker 00:
We're simply deciding whether it's worth doing that.

[00:28:48] Speaker 00:
And the DCCA can do that and can signal that it's doing that by using language that tracks that posture by saying this claim was frivolous or it's only supported by conclusory arguments and no facts in the record.

[00:29:01] Speaker 00:
But there's a separate way of approaching the question, which is getting to the real merits, taking a hard look.

[00:29:07] Speaker 02:
When the court does that... In Jimenez, remind me, and I may be wrong.

[00:29:10] Speaker 02:
In Jimenez, didn't the state court acknowledge that it was reopening?

[00:29:16] Speaker 00:
In Jimenez, yes.

[00:29:18] Speaker 02:
And here's where I'm stuck on.

[00:29:19] Speaker 02:
We just don't have that here.

[00:29:21] Speaker 02:
In fact, we've got language that suggests... It says it's just the opposite, the mandate is.

[00:29:27] Speaker 02:
So to me, that's the hurdle that I have to think through.

[00:29:31] Speaker 00:
I understand that, Your Honor, but in Jimenez, you don't have a class procedure available or arguably being used.

[00:29:39] Speaker 02:
Here, Long says... No, but you've got a principle that Ms.

[00:29:43] Speaker 02:
Kelly referred to.

[00:29:43] Speaker 02:
You've got a principle where you're looking to the state court to tell you, have you reopened or not?

[00:29:50] Speaker 02:
And the state court in Jimenez said, yeah, we've reopened, so go ahead.

[00:29:56] Speaker 02:
look to the state court and they say we didn't reopen.

[00:30:01] Speaker 02:
Well, in which to that effect.

[00:30:02] Speaker 02:
I mean, that's to me, that's the distinction.

[00:30:05] Speaker 02:
Anything you can help me to understand those.

[00:30:09] Speaker 00:
I think the best thing here is that in long, it's a good example.

[00:30:13] Speaker 00:
It says

[00:30:14] Speaker 00:
We're going to consider the merits in the posture of this recall motion, the underlying merits, we'll take a hard look.

[00:30:20] Speaker 00:
And what it does is it says, we are basing our decision on a review of the whole record.

[00:30:25] Speaker 00:
I believe that is the exact phrase, the whole record.

[00:30:28] Speaker 00:
That is a hallmark of the kind of hard look that occurs on a reopened direct appeal.

[00:30:35] Speaker 00:
That's what Long did.

[00:30:36] Speaker 00:
And you have the identical or virtually identical thing in this case where the order says, based on a review of the entire record.

[00:30:45] Speaker 00:
And given that the motion really does satisfy the standard, it is a very detailed motion that cites the relevant precedent

[00:30:55] Speaker 00:
It has a fairly clear arc.

[00:30:57] Speaker 00:
It was pro se, but it was well done.

[00:30:59] Speaker 00:
It lays out the argument.

[00:31:00] Speaker 00:
It points to evidence.

[00:31:02] Speaker 00:
I would find it shocking if the court said that didn't even meet the prima facie standard for a recall motion.

[00:31:09] Speaker 00:
And so I think the only way to understand what the court was doing here, given those facts, is that it was reconsidering the appeal.

[00:31:18] Speaker 00:
Any further questions?

[00:31:19] Speaker 00:
Thank you.

[00:31:20] Speaker 01:
Mr. Lane, you were appointed by the court to represent Mr. Blunt, and you've done an excellent job.

[00:31:27] Speaker 01:
And are you Mr. Gollard?

[00:31:29] Speaker 01:
Your brief was very well written.

[00:31:30] Speaker 01:
So thank you all.

[00:31:31] Speaker 00:
Thank you.

[00:31:32] Speaker 00:
Appreciate it.