[00:00:00] Speaker 02:
This case comes to this court as a result of a dismissal into Rule 12b6 of the Federal Rules of Civil Procedure.

[00:00:29] Speaker 02:
A dismissal under Rule 12b6 asks a single question.

[00:00:34] Speaker 02:
Does the complaint in the case state a claim upon which relief can be granted?

[00:00:40] Speaker 02:
In deciding this issue, the court's review is confined to the complaint itself, the documents attached to the complaint, if any, and facts of which the court can properly take judicial notice.

[00:00:54] Speaker 02:
In this case, the defendant did not contend and the district court did not find that the complaint itself was in any way deficient.

[00:01:04] Speaker 02:
There were no documents attached to the complaint.

[00:01:08] Speaker 02:
The dismissal in this case resulted from the fact that the court took judicial notice of facts not alleged in the complaint that the court concluded defeated the claims asserted by the appellate.

[00:01:23] Speaker 02:
Judicial notice is proper in only limited circumstances.

[00:01:28] Speaker 02:
Federal Rule of Evidence 201B provides that the court may take judicial notice of a fact that is not subject to reasonable dispute because one, it is generally known in the trial court's territorial jurisdiction, or two, it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

[00:01:54] Speaker 02:
In this case, the district court concluded.

[00:01:57] Speaker 02:
that the action was barred by race judicata as a result of a decision of the Superior Court in a prior habeas corpus proceedings.

[00:02:05] Speaker 04:
Putting aside the preclusion question for a moment, and just looking at the judge also alternatively held on the merits that Mr. Herd did not have a claim, can you identify for us how that, how your procedural challenge shows that to have been an error?

[00:02:26] Speaker 02:
Yes, ma'am.

[00:02:27] Speaker 02:
Because the court's review, in order to determine whether the complaint states a cause of action upon which relief can be granted, the court must look at the complaint.

[00:02:38] Speaker 02:
Here, the court found two facts relating to the due process arguments that were not alleged in the complaint.

[00:02:44] Speaker 02:
The first fact was that Mr. Hurd was a mistakenly released prisoner, such that the law relating to mistakenly released prisoners would apply.

[00:02:54] Speaker 02:
The second was that, relating to the substantive due process claim, that Mr. Hurd had not successfully turned his life around, such that the fourth factor under the test announced in United States v. Merritt was not met.

[00:03:09] Speaker 02:
Now, neither one of those facts are generally known in the trial court's territorial jurisdiction, and neither one of those facts can be readily determined based upon facts that are sources whose accuracy cannot be questioned.

[00:03:27] Speaker 02:
What the court tried to do was to look at the pleadings in the prior case.

[00:03:32] Speaker 02:
But when the court takes judicial notice of pleadings in a prior case, it can take notice that the pleadings were submitted.

[00:03:39] Speaker 02:
It could take notice of that fact.

[00:03:41] Speaker 02:
It can take notice maybe that an argument was made.

[00:03:44] Speaker 02:
But it can't take notice of the truth of the matter asserted in those pleadings.

[00:03:50] Speaker 02:
And in this case, particularly in relating to whether Mr. Herdhead successfully turned his life around,

[00:03:57] Speaker 02:
Part of the pleadings that the court relied upon were police reports, or not police reports per se, but reports from the CSOSA who was covering his supervised release and talking about his run-ins with the law.

[00:04:13] Speaker 02:
while during the time when he was out of prison.

[00:04:18] Speaker 04:
Going to the, you said there were these two facts, one of them was that he had been mistakenly released and is Mr. Hurd prepared to dispute or is it just that he has not discovered on that?

[00:04:28] Speaker 04:
What's the

[00:04:29] Speaker 04:
What's the position on mistaken release?

[00:04:34] Speaker 02:
At this case, the record doesn't say why Mr. Hurd was released.

[00:04:38] Speaker 02:
And there are a number of possible reasons why that could have been.

[00:04:41] Speaker 02:
The record in this case does not say.

[00:04:44] Speaker 02:
And the trial court could not properly find on a motion to dismiss that he was released from prison for any particular reason.

[00:04:52] Speaker 02:
And if the District of Columbia wants to prove that he was mistakenly released, then it can submit evidence.

[00:04:58] Speaker 02:
There was no affidavit from the parole commission reciting that he had made a mistake or anything like that.

[00:05:05] Speaker 02:
Because this is a motion to dismiss under Rule 12b6.

[00:05:08] Speaker 02:
It's not a motion for summary judgment.

[00:05:10] Speaker 02:
And on a motion to dismiss... What are the other possibilities?

[00:05:12] Speaker 02:
I mean, they've said... Well, I mean, just thinking in the abstract, I mean, there's pardons, there's medical release, there's good time credits, there's educational credits, there's all manner of things that the parole commission could have done.

[00:05:26] Speaker 02:
And I'm not saying that any of those necessarily happened in this case.

[00:05:29] Speaker 02:
But what was incorrect with the district court's analysis in this case was that this was not a motion for summary judgment.

[00:05:37] Speaker 02:
This was not a circumstance where Mr. Heard had to come forward with any evidence at all to disprove what the District of Columbia was trying to prove.

[00:05:45] Speaker 02:
The district court could have, and by rule probably should have under Rule 12D of the Federal Rules of Civil Procedure,

[00:05:53] Speaker 02:
converted this case into one for summary judgment, at which time Mr. Hurd would have had a burden to come forward with contrary evidence.

[00:05:59] Speaker 02:
But on a motion to dismiss under Rule 12b6, he has no such burden.

[00:06:05] Speaker 01:
You're arguing that even if the district court somehow could have determined

[00:06:11] Speaker 01:
on the pleadings that he was mistaken or released could not possibly have determined or decided to question whether he successfully turned his life around.

[00:06:20] Speaker 02:
That's correct.

[00:06:21] Speaker 01:
And because I don't believe that there were there's a I'm just trying to understand your theory to say even essentially even conceding that this court could not have possibly gotten to the next step.

[00:06:32] Speaker 01:
That's correct.

[00:06:33] Speaker 02:
That's on the pleadings on the pleadings.

[00:06:35] Speaker 02:
And in fact, I don't even think it could have gotten to the first step.

[00:06:38] Speaker 02:
It certainly no, no, I understand your argument.

[00:06:40] Speaker 02:
I just want to make sure we're following it through.

[00:06:42] Speaker 02:
Sure, because the

[00:06:45] Speaker 02:
You know, the court cannot go out and conduct its own investigation, which is what happened in this case.

[00:06:52] Speaker 02:
You know, all litigants, all civil litigants in this country whose cases are governed by the rules of civil procedure are entitled to equal treatment, are entitled to have the court consider the complaint on its merits and deciding whether the complaint states a cause of action does not resolve the case as to whether the plaintiff is ultimately going to win on the merits.

[00:07:13] Speaker 02:
That's an issue for down the road.

[00:07:16] Speaker 02:
The question before the court was whether the complaint stated a cause of action.

[00:07:20] Speaker 04:
And what's the status of your procedural due process claim?

[00:07:25] Speaker 02:
The court found that it was not barred by a race judicata, but that she concluded that because Mr. Hurd was a mistakenly released prisoner, he did not have a protectable liberty interest.

[00:07:40] Speaker 02:
That was the ruling of the district court.

[00:07:42] Speaker 02:
And in that regard, Mr. Hurt, in this case, the time period for incarceration had expired more than a year prior to the time you re-entered the criminal justice system.

[00:07:55] Speaker 04:
But not the total time.

[00:07:56] Speaker 04:
I mean, when you say the time period for incarceration, you're just counting the prison time, but not the supervised release, because you were still within that period, was it not?

[00:08:04] Speaker 02:
No, he was not, because the time period, I mean, if his original time period for incarceration had ended sometime in 2010.

[00:08:15] Speaker 02:
But he was released prior to that time.

[00:08:18] Speaker 02:
His period of supervised provision commenced prior to that time.

[00:08:23] Speaker 04:
Well, under what the government describes as the mistaken release.

[00:08:29] Speaker 04:
So you're counting the supervised release

[00:08:32] Speaker 04:
He served the full surprise release from the mistaken date, but if he were standing on the day his sentence were handed down and saying, when is the date, the calendar date, when I will be free and clear and able to start my life anew?

[00:08:45] Speaker 04:
That date had not yet passed, had it?

[00:08:47] Speaker 02:
Well, it's not the date that he would be free and clear.

[00:08:49] Speaker 02:
I mean, in direct response to your question, if he had served his full prison time up until 2010 and thereafter served his three-year period of 20 of,

[00:08:59] Speaker 02:
supervised release, that would have concluded sometime in 2013.

[00:09:04] Speaker 02:
But that's not the issue here, because the issue is when did his period of incarceration end?

[00:09:11] Speaker 02:
Because they can't, you know, what's clear in the cases in the common law relating to mistakenly released prisoners is up until the time that the original period of incarceration ends,

[00:09:24] Speaker 02:
the government can reconnect.

[00:09:26] Speaker 02:
But once that original period of incarceration ends, they cannot.

[00:09:31] Speaker 02:
And so that's the distinction here.

[00:09:34] Speaker 04:
Although if somebody is on supervised release and violates the conditions of supervised release, they can be re-incarcerated.

[00:09:40] Speaker 02:
They can be.

[00:09:41] Speaker 02:
But that decision is up to the United States Parole Commission, who is conducting the supervised release.

[00:09:48] Speaker 02:
It's not up to the DC Jail.

[00:09:50] Speaker 02:
It's not up to the Superior Court.

[00:09:52] Speaker 02:
It's up to a particular entity.

[00:09:54] Speaker 02:
And what happened in this case was that the D.C.

[00:09:57] Speaker 02:
jailers decided to take it upon themselves to decide all of these issues when they had no authority whatsoever to do that.

[00:10:05] Speaker 02:
And I see that my time is just about up.

[00:10:07] Speaker 02:
I've reserved two minutes for a vote.

[00:10:14] Speaker ?:
Okay.

[00:10:14] Speaker 04:
Thank you.

[00:10:19] Speaker 04:
Ms.

[00:10:19] Speaker 04:
Wilson?

[00:10:28] Speaker 03:
Good morning, and if it please to the court, I'm Mary Wilson, representing the District of Columbia.

[00:10:32] Speaker 03:
The district court properly dismissed this case under 12B6, under both preclusion principles and the substantive due process, and the merits of those constitutional claims.

[00:10:45] Speaker 03:
Mr. Hurd filed a habeas corpus case in Superior Court where he made his substantive due process argument there and said he was wrongfully required to serve the balance of his sentence.

[00:10:57] Speaker 03:
He conceded there that he had arrests during his release and he conceded there that he was erroneously released.

[00:11:04] Speaker 03:
The district court could certainly take judicial notice of the Superior Court records there, and this court can also take notice of the DC Court of Appeals records.

[00:11:20] Speaker 03:
where Mr. Heard conceded in his appellate brief that he had had multiple arrests during his release.

[00:11:27] Speaker 04:
You say he conceded that he was erroneously released.

[00:11:30] Speaker 04:
Are you referring to counsel's reference to the position of the District of Columbia that the release was erroneous?

[00:11:37] Speaker 04:
I mean, there was nothing in the record on that.

[00:11:40] Speaker 03:
Well, throughout the transcript,

[00:11:42] Speaker 03:
First, the trial judge comes out and summarizes the situation.

[00:11:46] Speaker 03:
There's no objection to that summary of the situation or request for a fact-finding hearing.

[00:11:51] Speaker 03:
And throughout counsel's arguments, she said it was a mistaken release, a premature release, an erroneous release.

[00:11:58] Speaker 03:
The entire habeas case was litigated on that premise.

[00:12:02] Speaker 03:
He never asked

[00:12:03] Speaker 03:
If he had evidence or a plausible argument that this was medical parole or the other things he postures in his reply brief, he should have requested a fact-finding hearing or proffered that there.

[00:12:15] Speaker 03:
It doesn't make sense to say, oh, he had an argument that he could have raised in the habeas case that would have resulted in his release, not raise it there, and then come over here and ask for money because he was detained for an argument he didn't make there.

[00:12:30] Speaker 00:
So.

[00:12:31] Speaker 00:
Was he represented in the habeas?

[00:12:33] Speaker 03:
Yes.

[00:12:35] Speaker 01:
The problem I have with Wilson is what we're talking about with other counsel.

[00:12:40] Speaker 01:
The whole case is being tried.

[00:12:43] Speaker 01:
on 12b6 on facts.

[00:12:46] Speaker 01:
It's a bizarre situation at the appellate level to look at this is not the way I realize we keep pushing things back further and further.

[00:12:55] Speaker 01:
But there's got to be a point where it doesn't make sense.

[00:12:58] Speaker 01:
Where a district court says, OK, I'm looking at your complaint.

[00:13:00] Speaker 01:
I'm going to go now look for information and decide it on the merits.

[00:13:05] Speaker 01:
And the decisions on the merits are very large.

[00:13:07] Speaker 01:
And appellant had no opportunity in any way pursuant to summary judgment or otherwise

[00:13:13] Speaker 01:
to contest that which was being asserted.

[00:13:16] Speaker 01:
For example, the most obvious is not successfully turned his life around.

[00:13:20] Speaker 01:
How do you get that disposition on a 12b6 when you're looking only at the pleadings?

[00:13:26] Speaker 03:
Well, you're looking at the pleadings, and the court can take judicial notice of- You can't take judicial notice of everything that happened in the world.

[00:13:33] Speaker 01:
No, but- That's not the concept of judicial notice.

[00:13:35] Speaker 03:
He referenced the habeas case in his complaint, and the court can take judicial notice of the Superior Court record in that case, and the Court of Appeals record in that case.

[00:13:46] Speaker 04:
Yeah, but not quite.

[00:13:48] Speaker 04:
I mean, we need to be somewhat precise about it, because it makes a difference for purposes of judicial notice.

[00:13:53] Speaker 04:
The court surely can take judicial notice of the existence of that proceeding and of what the disposition was, just as we can look at any court's opinion.

[00:14:02] Speaker 04:
But that doesn't mean that we can take judicial notice of facts that were discussed or the way references were made in oral argument.

[00:14:13] Speaker 04:
I mean, that's a very different

[00:14:15] Speaker 04:
That's a very different assertion that I don't take you to be making.

[00:14:20] Speaker 03:
I am making the argument that in this case, there is no purpose in a remand, because in a remand, the facts that are in dispute, that he was erroneously released, it's undisputed.

[00:14:33] Speaker 03:
He had only served 13 months, 42 months of his sentence.

[00:14:37] Speaker 03:
If that's undisputed, it's undisputed.

[00:14:39] Speaker 03:
or as a matter of law that he could not have been on parole.

[00:14:44] Speaker 03:
He conceded in the other case that he had multiple arrests while he was on release.

[00:14:50] Speaker 03:
His appellate brief says, I had arrests but no conviction.

[00:14:55] Speaker 03:
That under the circumstances here that it is a waste of judicial resources and the district's time that after it was litigated in the habeas case and he has no real challenge to the fact of his arrest

[00:15:08] Speaker 03:
or any plausible argument that he wasn't erroneously released, that this case was properly decided on 12b6.

[00:15:15] Speaker 04:
Now, separating out the, um, the preclusion argument from the judicial notice of facts, as far as the preclusion argument goes, the court found that there was claim preclusion.

[00:15:30] Speaker 04:
That seems to me that's clear error, because

[00:15:35] Speaker 04:
A litigant cannot in a habeas proceeding raise a Section 1983 claim for multiple reasons.

[00:15:43] Speaker 04:
That's not jurisdictionally permissible.

[00:15:45] Speaker 04:
And so you can't apply claim preclusion to preclude litigation in a new forum of a claim that wasn't available to be raised in the prior forum.

[00:15:54] Speaker 04:
Isn't that correct?

[00:15:56] Speaker 03:
Well, I think the district court uses the term rest judicata loosely to encompass preclusion principles.

[00:16:02] Speaker 03:
But here, well, no.

[00:16:04] Speaker 04:
She says claim preclusion, and she says a claim that was or could have been raised in the transaction or occurrence test.

[00:16:12] Speaker 04:
That's the familiar claim preclusion test.

[00:16:14] Speaker 04:
She doesn't identify an issue that was necessarily decided

[00:16:19] Speaker 04:
And that was on which there was a full and fair opportunity to litigate.

[00:16:24] Speaker 04:
She doesn't go into any of the issue preclusion inquiries.

[00:16:26] Speaker 04:
So I see this as a claim preclusion decision, and I don't think that's correct.

[00:16:31] Speaker 03:
Well, on de novo review, this court can certainly say that the issue that was decided in the Superior Court, where Mr. Herndon said, you deprived me of a liberty in such a way as to shock the conscience that that issue was raised there, and he cannot really raise it here.

[00:16:50] Speaker 03:
that this court could decide that issue as a matter of law on appeal.

[00:17:03] Speaker 04:
What's your position on the procedural due process claim?

[00:17:06] Speaker 04:
It's somewhat remarkable to imagine being in the position of an offender who believes that he's

[00:17:15] Speaker 04:
you know, free and clear of the prior offense, but he's pleaded guilty to a minor marijuana offense, and he goes in for the second of three weekends.

[00:17:25] Speaker 04:
And he, I mean, for all the record shows, he's told, actually, you're not going to be here for three days.

[00:17:30] Speaker 04:
You're going to be here for 27 months.

[00:17:32] Speaker 04:
And as far as the record reveals, there was no process whatsoever.

[00:17:36] Speaker 04:
I mean, he could have been the wrong Mr. Heard.

[00:17:40] Speaker 04:
Is it the government's position that there's no process due to him to guard against anything like that or allow him an opportunity to raise?

[00:17:52] Speaker 03:
Yes, under the circumstances here where the District of Columbia saw that he had not served 27 months of a sentence for crimes, including possession of a machine gun, that the District of Columbia could keep him

[00:18:09] Speaker 03:
on that sentence, on the Superior Court sentence, without first releasing him and seeking other process.

[00:18:17] Speaker 00:
I mean, there was... Did he contest the fact that he was mistakenly released in the Habeas case?

[00:18:26] Speaker 00:
Did he contest it?

[00:18:29] Speaker 03:
No, no.

[00:18:30] Speaker 03:
And that's my point, that that entire case was litigated on the premise that he was mistakenly released.

[00:18:37] Speaker 03:
And in fact, his counsel says on his behalf, I assumed they had granted me a motion to reduce sentence, even though his counsel had not filed one, and there had been no order.

[00:18:48] Speaker 00:
Do you have a due process right to a hearing about facts or circumstances that you do not contest?

[00:18:59] Speaker 03:
No, no.

[00:19:00] Speaker 03:
And there would be no purpose to remand in this case for facts that were conceded in the sphere of court.

[00:19:09] Speaker 03:
That's why this case was probably disclosed up in a motion just six.

[00:19:12] Speaker 00:
Can you rely on Monsignor for the proposition that his failure to ask either the Court of Appeals or in a separate motion to vacate the judgment in the habeas case,

[00:19:28] Speaker 03:
Yes, the Superior Court decision retains its preclusive effect.

[00:19:35] Speaker 01:
Where in D.C.

[00:19:35] Speaker 01:
law do they embrace Munson Ware?

[00:19:38] Speaker 01:
We searched like crazy.

[00:19:39] Speaker 01:
We can't find any such thing.

[00:19:42] Speaker 01:
That's a federal doctrine.

[00:19:43] Speaker 01:
There's nothing, in fact, if D.C.

[00:19:45] Speaker 01:
picks up the restatement, the restatement seems to say quite the contrary, that that application of you must seek vacatur does not come into play.

[00:19:55] Speaker 01:
And I realize it's convoluted, but the point is you cited no authority to back up your claim, none.

[00:20:01] Speaker 01:
And I can't find it.

[00:20:02] Speaker 03:
Well, the District of Columbia did not.

[00:20:04] Speaker 03:
The District of Columbia Court of Appeals did not vacate the decision.

[00:20:07] Speaker 01:
No, no.

[00:20:08] Speaker 01:
Judge Randolph is asking whether there is an implicit requirement that in order for him to be making this argument, he should have first sought vacatur.

[00:20:18] Speaker 01:
That is a federal motion.

[00:20:20] Speaker 01:
And failure to seek vacatur can cause preclusion to come into play.

[00:20:26] Speaker 01:
I cannot find Monsignor or Bancor in play in the D.C.

[00:20:30] Speaker 01:
case law.

[00:20:31] Speaker 03:
I don't think the D.C.

[00:20:31] Speaker 01:
court feels... Alright, so the new answer to Judge Randolph is there is no such doctrine in play in D.C.

[00:20:37] Speaker 01:
It's non-applicable.

[00:20:39] Speaker 03:
Well, I think the Supreme Court's decision is certainly persuasive that if... No, no, no, it is not.

[00:20:43] Speaker 01:
We have to look at the D.C.

[00:20:44] Speaker 01:
law, and D.C.

[00:20:45] Speaker 01:
law does not apply that doctrine that I can find.

[00:20:49] Speaker 03:
Well, I don't think it doesn't apply that doctrine.

[00:20:51] Speaker 01:
Okay, so you agree we can't find any... And the restatement seems to suggest otherwise, and D.C.

[00:20:57] Speaker 01:
does apply that.

[00:20:59] Speaker 01:
The resatement seems to say there is this Monsignor notion, but not all these states accept it, and D.C.

[00:21:07] Speaker 01:
has never accepted it.

[00:21:09] Speaker 03:
Well, or perhaps D.C.

[00:21:11] Speaker 03:
has not squarely presented whether there's a duty to ask for it.

[00:21:15] Speaker 00:
Well, it isn't – this is a federal case.

[00:21:19] Speaker 00:
It's governed by federal procedural law.

[00:21:22] Speaker 00:
Monsignor.

[00:21:23] Speaker 03:
Thank you, Duterte.

[00:21:25] Speaker 04:
One of the questions, I don't know if you know the answer to this, that the Monsignor issue raises is in federal courts now, in light of Monsignor, we have a practice where if a case becomes moot in the Court of Appeals, we will

[00:21:44] Speaker 04:
direct that the district court vacate the opinion.

[00:21:47] Speaker 04:
Is there any such practice in DC?

[00:21:51] Speaker 04:
I mean, yeah, in the district.

[00:21:52] Speaker 03:
Right, I think I cited DC Court of Appeals case in my brief where the Court of Appeals Suspente vacated.

[00:21:59] Speaker 03:
the lower court decision.

[00:22:01] Speaker 04:
Surely they can do it, but the question is they don't have a regular practice of doing it.

[00:22:05] Speaker 01:
It's a little bit of a... That's why it's very odd to say it's procedural and therefore follow federal when in fact the place that we're looking is DC procedural and they don't have this practice and they're not required to have this practice.

[00:22:18] Speaker 01:
But Your Honor, even if you say... So it is really odd to say that the federal scheme

[00:22:23] Speaker 01:
should be mandatory in DC, there's nothing that says that.

[00:22:27] Speaker 01:
There's no law that requires that.

[00:22:29] Speaker 01:
So they didn't do anything wrong.

[00:22:30] Speaker 01:
The one thing we know is the failure to seek vacatur cannot be held against him because there's no requirement to do it in the DC procedure.

[00:22:38] Speaker 03:
But, Your Honor, even if the court were to hold this pure court case is not preclusive here because the appeal is dismissed as moot, the court can still take judicial notice of the filings there and

[00:22:53] Speaker 03:
that Mr. Hurd's concessions there and therefore affirm on the merits because there's no reason to remand for further development of facts that he conceded in that case.

[00:23:07] Speaker 03:
It doesn't make sense.

[00:23:08] Speaker 03:
I mean, if the substantive due process

[00:23:12] Speaker 03:
claim is about fairness or justice.

[00:23:13] Speaker 03:
It doesn't make sense to say we're going to hold, make the district litigate a case about substance due process and whether he was wrongfully detained on issues he conceded.

[00:23:25] Speaker 01:
You know, what you're calling a concession is a little perplexing, because I look back at that record, and counsel at some point says, erroneously mistaken release, but prefaced by saying that she didn't know for sure and could not explain his release based on what DC Jail had told Mr. Hurd.

[00:23:43] Speaker 03:
I'm glad you raised that.

[00:23:44] Speaker 01:
Okay.

[00:23:45] Speaker 01:
Good.

[00:23:45] Speaker 01:
I'm glad you're glad, so you can help me.

[00:23:48] Speaker 03:
Well, I have good answers.

[00:23:51] Speaker 03:
In that exchange, they are discussing the merit factors.

[00:23:54] Speaker 03:
One of the factors in merit on whether there's a substantive due process violation is whether the government's mistake was negligent or grossly negligent.

[00:24:02] Speaker 03:
That's what they're discussing.

[00:24:03] Speaker 03:
And in that answer, his counsel is saying, I don't know why the Bureau of Prisons let him out.

[00:24:09] Speaker 03:
They may have let him out after the felony sentence, forgotten about the misdemeanor sentence.

[00:24:14] Speaker 03:
In context, they are not saying, we have no idea why.

[00:24:18] Speaker 03:
And his complaint says he was released.

[00:24:21] Speaker 01:
All you're doing is heightening my concern.

[00:24:24] Speaker 01:
The concern about our using judicial notice to sort out things like that and to dispose of a case on 12b6 is bizarre.

[00:24:34] Speaker 01:
Your judicial efficiency argument just doesn't ring true when it's so simple for a district court to move the case to summary judgment.

[00:24:43] Speaker 01:
We have law that says, the district court says,

[00:24:47] Speaker 01:
There are things potentially in dispute here.

[00:24:49] Speaker 01:
I'm putting this on motion for summary judgment.

[00:24:51] Speaker 01:
Make a case.

[00:24:54] Speaker 01:
It's just not hard and it's fair.

[00:24:56] Speaker 01:
It's the fair way to dispose of cases.

[00:24:58] Speaker 03:
The district certainly thinks it can prevail on a motion for summary judgment.

[00:25:02] Speaker 01:
I gather that.

[00:25:03] Speaker 03:
I also think that

[00:25:07] Speaker 03:
I mean, why the district court should have to jump through those hoops, and the district has to jump through those hoops on issues that Mr. Hurd conceded.

[00:25:16] Speaker 03:
And the court can take judicial notice of those documents.

[00:25:20] Speaker 03:
I mean, to say A in the Superior Court and the DC court feels, and then I want a hearing so I can prove not A,

[00:25:26] Speaker 03:
But I understand the court's concerns.

[00:25:28] Speaker 04:
Ms.

[00:25:28] Speaker 04:
Wilson, in the Superior Court, in the habeas proceeding in the Superior Court, Herd's counsel did ask for factual opportunity to bring in, she had some documents that the face sheets, do you remember this, where it appeared somehow that the district's Department of Corrections had

[00:25:49] Speaker 04:
made up some documents sort of re-sentencing Mr. Hurd as of a later date.

[00:25:54] Speaker 03:
I think there was a question about when they started the sentencing.

[00:25:57] Speaker 04:
There was and he said, those are not authenticated.

[00:26:02] Speaker 04:
I don't know where those come from.

[00:26:03] Speaker 04:
They were quite troubling.

[00:26:05] Speaker 04:
They're not in the record before us, but they were troubling to the people present at the time as is evident from the transcript that's now available.

[00:26:13] Speaker 04:
counsel asked for a chance.

[00:26:15] Speaker 04:
She said, I would like to bring in witnesses and authenticate these.

[00:26:18] Speaker 04:
And he said, we are deciding this today.

[00:26:19] Speaker 04:
We're not going to have any witnesses or anything.

[00:26:21] Speaker 04:
So to the extent that she did make an effort to seek an opportunity to factually delve the question whether the release was mistaken or what exactly did happen, she was cut off at the knees on that by the superior court judge.

[00:26:38] Speaker 04:
So she did seek an opportunity.

[00:26:40] Speaker 04:
She didn't get it.

[00:26:44] Speaker 03:
My reading of that was that it was how the Department of Corrections counted when the sentence began to run again and how they did the paperwork to it.

[00:26:57] Speaker 04:
But it would go to the nature of what the government was thinking when the district government asserted jurisdiction over someone who ostensibly had time still owed to the federal

[00:27:09] Speaker 04:
correctional authorities.

[00:27:10] Speaker 04:
It's not entirely regular what was going on.

[00:27:14] Speaker 04:
And we haven't had any factual inquiry into what, in fact, was going on.

[00:27:20] Speaker 03:
To sum up, it is undisputed he had served only 13 of 42 months.

[00:27:26] Speaker 03:
The District of Columbia saw that conviction and made a decision to have him serve the balance of that sentence.

[00:27:38] Speaker 03:
There's a societal interest in crime prevention and making people serve their sentences.

[00:27:43] Speaker 03:
There's no plausible claim here that this was anything other than mistake and release.

[00:27:49] Speaker 03:
And we would urge the court to affirm, but understand the court's concerns about summary judgment.

[00:27:55] Speaker 04:
Thank you, Ms.

[00:27:56] Speaker 04:
Wilson.

[00:27:59] Speaker 04:
Mr. Rowe, you have two minutes remaining.

[00:28:01] Speaker 02:
Thank you, Your Honor.

[00:28:02] Speaker 02:
I just wanted to really just touch on one issue, and that's this issue of whether or not Mr. Hurd had conceded anything at the habeas court proceedings with respect to the reasons for his release.

[00:28:14] Speaker 02:
The sparse record that is here, and of course you don't have the entirety of the testimony that might possibly be available on this because you don't have Mr. Hurd's testimony, we don't have

[00:28:24] Speaker 02:
any testimony from the parole commission, we don't have any testimony from CSOSA, we don't have any testimony from anybody else with any knowledge that might bear on this issue.

[00:28:35] Speaker 00:
But the fact of the matter...

[00:28:43] Speaker 02:
There was no testimony taken, Your Honor.

[00:28:48] Speaker 02:
That was decided on motion papers.

[00:28:53] Speaker 02:
Well, the question is, I mean, there are two questions that are involved here.

[00:28:57] Speaker 02:
One for this case, whether or not there's a basis for issue preclusion, which is what issues were actually litigated.

[00:29:04] Speaker 02:
And issue preclusion requires taking into account whether there was a full and fair opportunity to litigate those issues.

[00:29:12] Speaker 02:
And some of the questions that have been asked today indicate that there was not.

[00:29:18] Speaker 02:
And then the question is on the merits.

[00:29:21] Speaker 02:
Why exactly was he released?

[00:29:23] Speaker 02:
And at the hearing in habeas corpus, nobody knew what the truth was.

[00:29:28] Speaker 02:
You know, people were operating under the assumption that that's what happened.

[00:29:32] Speaker 02:
But that doesn't necessarily make it true.

[00:29:34] Speaker 02:
And in this proceeding, in this court, on this day, where it's an appeal for the Rule 12b6 motion, the court cannot take judicial notice that there was a particular reason or not that he was let out when there is nothing in the record of which judicial notice can be taken that answers that question.

[00:29:53] Speaker 00:
That question's for a different procedure at a different time.

[00:29:56] Speaker 00:
And you make the point that unless on the face of the complaint, there's a race judicata effect, then you have to either have summary judgment or an answer and then litigation.

[00:30:11] Speaker 00:
But on the face of the complaint, he mentions that he brought a habeas corpus action, and it was denied.

[00:30:17] Speaker 02:
He does.

[00:30:18] Speaker 00:
So why is it that on the face of the complaint?

[00:30:21] Speaker 02:
Because that raises the question of whether or not this is claim preclusion or issue preclusion.

[00:30:27] Speaker 02:
Because if this were a case of claim preclusion, you can look at the prior case, you can look at what it involved, and you can look at the fact that there was a judgment in the prior case.

[00:30:38] Speaker 02:
A claim preclusion would preclude all further litigation relating to those operative facts.

[00:30:43] Speaker 02:
And in this case, it would mean, for example, that even a

[00:30:46] Speaker 02:
successful habeas corpus proceeding which resulted in a final judgment would preclude further litigation.

[00:30:52] Speaker 02:
And that's of course obviously not the case.

[00:30:54] Speaker 02:
And it's also obviously not the case that the habeas corpus proceeding in which the only thing at issue is whether or not the prisoner can be let out of confinement

[00:31:05] Speaker 02:
cannot be joined with any other claims, can't be joined with a tort claim, can't be joined with a Section 1983 claim, and for those reasons, claim preclusion does not apply.

[00:31:14] Speaker 02:
What's applicable here is issue preclusion in which the analysis is completely different.

[00:31:20] Speaker 02:
You have to look at what issues were decided, you have to look at whether there was a full and fair opportunity to litigate them, you have to look at whether it would be fair

[00:31:29] Speaker 02:
in the circumstances of the case to apply preclusion in the second case.

[00:31:33] Speaker 00:
Of necessity, a habeas decision, a denial of the habeas decision, is a judgment that he's not been wrongly imprisoned.

[00:31:40] Speaker 02:
That's correct, Your Honor.

[00:31:41] Speaker 02:
And the question is, what preclusive effect does that have to this case?

[00:31:47] Speaker 02:
And because this is not an issue of claim preclusion, claim preclusion doesn't apply.

[00:31:52] Speaker 00:
Does he have a right to assume he was not wrongfully imprisoned?

[00:31:56] Speaker 00:
And the habeas proceedings so established.

[00:32:02] Speaker 00:
What is his claim that despite the fact that I was not wrongly imprisoned, I have a damage action against it?

[00:32:13] Speaker 00:
that takes care of that, because I don't understand.

[00:32:17] Speaker 02:
Well, if he were not wrongfully imprisoned, then the result in his Section 1983 case would be a ruling that he was not wrongfully imprisoned.

[00:32:27] Speaker 02:
But the question, specific question... So he'd lose.

[00:32:30] Speaker 02:
He'd lose.

[00:32:33] Speaker 00:
Why isn't this very simple?

[00:32:35] Speaker 00:
that habeas action is mentioned in his complaint.

[00:32:38] Speaker 00:
The judge looks at the transcript or the recording and listens to the recording.

[00:32:44] Speaker 00:
And the habeas action held that he was not wrongfully imprisoned.

[00:32:49] Speaker 00:
Therefore, he has no 1983 case dismissed.

[00:32:53] Speaker 02:
Right.

[00:32:53] Speaker 02:
And that begs the question that is really for this court to decide.

[00:32:56] Speaker 02:
Because the question then is, this issue of whether or not he was wrongfully imprisoned was decided.

[00:33:02] Speaker 02:
So what preclusive effect does that decision have on this case?

[00:33:05] Speaker 02:
And we have to take into account all those factors, including whether it would be fair in this case to do it.

[00:33:10] Speaker 02:
Taking into account the fact that the Superior Court didn't rule for seven months, that the Court of Appeals in the District of Columbia didn't rule for a year and a half.

[00:33:18] Speaker 02:
And then also we have to apply the law of the District of Columbia relating to what happens when an appeal is dismissed as moot.

[00:33:25] Speaker 02:
And the District of Columbia does not apply the Monsignor analysis.

[00:33:28] Speaker 02:
That's a federal court procedure.

[00:33:31] Speaker 02:
Then the district court adopts instead the restatement of judgments.

[00:33:34] Speaker 02:
And in the restatement of judgments on whether or not issue preclusion can be applied, the restatement of judgments provides that if a prior ruling could not be reviewed on appeal, which this one could not be because it was dismissed as moot, then the prior ruling will not be given the effect of issue preclusion.

[00:33:54] Speaker 02:
And that's where we are in this case.

[00:33:57] Speaker 02:
Under the law of the District of Columbia, that ruling of the District Court, because the appeal was dismissed as moot, cannot be given effective issue preclusion.

[00:34:06] Speaker 01:
You can't find anything on the restatement that says that same rule applies or doesn't apply with respect to claim preclusion.

[00:34:13] Speaker 02:
I don't think that analysis relates to claim preclusion, because claim preclusion bars everything.

[00:34:20] Speaker 02:
If you, you know, when you bring in a claim that's based on a set of operative facts, you've got to bring all your claims at once or you are thereafter barred from all of them.

[00:34:31] Speaker 02:
But because in this proceeding,

[00:34:33] Speaker 02:
where you could not bring the other claims at the same time you brought the habeas proceeding.

[00:34:39] Speaker 02:
And the habeas proceeding was limited to the specific relief of the issuance of the writ of habeas corpus.

[00:34:45] Speaker 02:
Claim preclusion is not applicable in those cases.

[00:34:48] Speaker 02:
It's in the traditional analysis of the difference between race, genocida, and collateral of the stock.

[00:34:52] Speaker 01:
Wait, tell me again.

[00:34:53] Speaker 01:
I was thinking about something else as you were speaking.

[00:34:55] Speaker 01:
I'm sorry.

[00:34:55] Speaker 01:
What is your base, your principal argument on claim preclusion?

[00:34:59] Speaker 02:
No, our argument is that claim preclusion does not apply in this case.

[00:35:03] Speaker 02:
Because?

[00:35:04] Speaker 02:
Because this case, the case we're in today, could not have been brought as part of the earlier case.

[00:35:11] Speaker 02:
It was not a part of that.

[00:35:14] Speaker 02:
Unless there are further questions, I'm out of time.

[00:35:21] Speaker 04:
Thank you.