[00:00:01] Speaker 00: Case number 17-3023, United States of America versus Brian W. Talbot, Appellant. [00:00:09] Speaker 00: Mr. Sample for the Appellant. [00:00:11] Speaker 00: Mr. Nguyen for the Appellate. [00:00:13] Speaker 01: Mr. Sample, good morning. [00:00:15] Speaker 03: Good morning, Your Honors. [00:00:16] Speaker 03: May it please the Court, Brandon Sample for Appellant, Brian Talbot. [00:00:20] Speaker 03: With the Court's permission, I'd like to reserve two minutes for rebuttal. [00:00:24] Speaker 03: I want to focus my argument today on one of the two issues presented in this appeal, namely whether this court should vacate and remand Talbot's claim of statutory ineffective assistance of counsel by Section 2255, CJA counsel to the district court for further consideration. [00:00:42] Speaker 03: I recognize that a COA is required before the court may issue a merits determination on this issue. [00:00:49] Speaker 03: However, I believe the minimal requirements for the issuance of a COA on this issue has been met and that the court should expand the COA that was previously granted by the district court. [00:01:01] Speaker 03: The government does not seriously contest that the Criminal Justice Act does not guarantee a statutory right to effective assistance of counsel. [00:01:10] Speaker 03: Rather, the government asserts that Talbot's claims of statutory ineffective assistance by CJA counsel should first be raised by a motion under Rule 60 and that, substantively, the claims are meritless. [00:01:24] Speaker 03: But Talbot should not be forced to present those claims in a Rule 60 motion. [00:01:29] Speaker 03: As we argue, this Court has longstanding, in the context of a direct appeal, allowed claims of ineffective assistance of counsel to be considered in the first instance on direct appeal if those claims are colorable. [00:01:43] Speaker 04: And- We haven't done that yet in 2255, correct? [00:01:46] Speaker 03: That's correct, Your Honor. [00:01:47] Speaker 04: We haven't rejected it either. [00:01:48] Speaker 03: That's correct, Your Honor. [00:01:52] Speaker 04: The other alternative would be to file another 2255. [00:01:57] Speaker 03: Which would probably present an issue, right? [00:02:01] Speaker 04: Yes, sir. [00:02:02] Speaker 04: Although maybe not, because if you file a new 2255, although I haven't explored this, alleging ineffective assistance in the first 2255. [00:02:14] Speaker 04: If there is such a substantive claim, then that would be a good use of a second 2255, I suppose. [00:02:23] Speaker 03: Possibly. [00:02:24] Speaker 03: I mean, it's very complex, whether or not it would be a, quote unquote, second or successive 2255 within that term of art, as the court has interpreted it. [00:02:35] Speaker 04: Yeah, so it could be a problem. [00:02:36] Speaker 04: So your point is, do the remand. [00:02:38] Speaker 03: do the remand, allow the district court to consider the claim in the first instance, and the defendant shouldn't be penalized by requiring to use a Rule 60 motion, which is going to be reviewed under a lesser standard. [00:02:52] Speaker 04: So what is the ineffective assistance at the 2255? [00:02:55] Speaker 03: The issue there is that the defendant who initially filed the motion himself pro se, raised in ground four of his motion, a claim that his sentencing attorneys were ineffective or failing to object to a breach of the plea agreement by the government. [00:03:11] Speaker 03: The government in this case, as part of the plea agreement, agreed that it would not make any motion for a guideline departure in the case. [00:03:20] Speaker 03: Now there was an allegation by the defendant that he had engaged in new criminal conduct while he was on release. [00:03:27] Speaker 03: And the government argued subsequent for the sentencing and that sentencing that the district court should impose an upper departure. [00:03:36] Speaker 04: So he raised that and they then at this 2255, the lawyer said we're not really raising that. [00:03:42] Speaker 03: Well, he said initially that in the letter to the district court that he had reviewed all the filings and he had made a determination that I'm going to proceed with the pro se submission. [00:03:53] Speaker 03: Now, the odd thing about that is, is that the time until this appeal was undertaken is that page 25 of the pro se 2255 motion was actually docketed with the clerk, but not imageable on Pacer. [00:04:08] Speaker 03: I actually had to file a motion with the district court to correct the record with respect to that, and the district court granted that motion. [00:04:15] Speaker 03: And so the clerk inserted page 25 into the image on PACER. [00:04:20] Speaker 03: So there's really no way for 2255 council to have made any kind of assessment about whether or not this is a claim that should or should not have been withdrawn. [00:04:29] Speaker 03: But when the evidence you're hearing in the case began, [00:04:32] Speaker 03: 2255 counsel advised the district court that he had decided not to proceed on ground four and instead focus on the other issue that is also raised in this appeal, but which is not being addressed today, the argument concerning the original plea counsel's advice and whether or not the defendant would have, was prejudiced as a result of the advice that resulted in his guilty plea. [00:04:57] Speaker 01: Didn't Judge Wilkins deny the motion to depart? [00:05:01] Speaker 03: Judge Wilkins did deny the motion. [00:05:03] Speaker 01: So where's the prejudice? [00:05:05] Speaker 01: Why are we even considering that ground? [00:05:09] Speaker 03: Well, we're considering that ground because in the context of a breach of the plea agreement, it's our position that it doesn't matter that the judge ultimately denied that motion for departure because you have the issues attendant with the defendant having an expectation [00:05:28] Speaker 03: that the government is going to adhere to its obligations in the plea agreement and perform consistently therewith. [00:05:35] Speaker 03: And so the fact that the court ultimately may have denied that motion in our position is irrelevant. [00:05:42] Speaker 03: In fact, there are cases, which we discuss in our brief, that suggest when a court does not even consider [00:05:51] Speaker 03: a breach or maybe there was even a recent case from this court that I believe that was decided last week, although the context is very different, that if they're not even aware of the facts that may constitute the breach, that that could still ultimately form a cognizable claim for a breach of the plea agreement. [00:06:10] Speaker 03: So the fact that the district judge at sentencing ultimately did not grant a guideline based on her departure doesn't mean that it wasn't the defendant's reasonable understanding at the time of when he entered into the plea agreement that the government was going to hear. [00:06:27] Speaker 01: How did it hurt him? [00:06:28] Speaker 01: I mean, unless you're arguing that Judge Wilkins wouldn't have done it unless he first heard the government want to change its mind and say, well, I'm not going to grant that motion because of the plea agreement, but I'm going to grant a variance. [00:06:46] Speaker 01: And he never said anything like that. [00:06:48] Speaker 01: He set out very specifically why he independently was going to up the sentence. [00:06:56] Speaker 03: That is correct, Your Honor, but we don't know how the government's forceful advocacy for the guideline of departure may have played into Judge Wilkins' calculus overall in deciding whether or not to grant that variance. [00:07:10] Speaker 03: Because in many ways, the way the government presented that issue is they presented it as being one and the same, that the departure and the request for a variance were the same, although the Supreme Court's Irizarry case recognized that there's an analytical distinction between a departure [00:07:26] Speaker 03: which is which arises under the guidelines versus a variance, which is arises under 35 53. [00:07:32] Speaker 04: What should the sentencing counsel? [00:07:36] Speaker 04: What should the council have done that was not done? [00:07:39] Speaker 03: They should have objected. [00:07:40] Speaker 03: They should have objected to the government's, um, pre sentencing request for a guideline upward departure. [00:07:46] Speaker 03: And when they renewed their request of the sentencing, they should have objected as well. [00:07:49] Speaker 04: But the facts to pick up on Judge Henderson's point, maybe I'm not understanding the facts still would have come in. [00:07:58] Speaker 04: Ultimately, ultimately, yes. [00:07:59] Speaker 04: And the facts inform the variance. [00:08:02] Speaker 04: But that's not affected. [00:08:05] Speaker 04: I'm having trouble like Judge Henderson was, I guess, in her questions. [00:08:12] Speaker 03: I would merely point the court back to its own decision in Wolfe, where it talks about that the defendant there had agreed to, [00:08:25] Speaker 03: that the government would recommend acceptance of responsibility. [00:08:28] Speaker 03: Ultimately, they didn't do that. [00:08:29] Speaker 03: It's not analogous in the situation where the judge just went ahead and granted acceptance of responsibility, but the court statement in there about that the definitive bargain for a sentencing proceeding, which a trial judge would consider the government's recommendation for a downward adjustment, [00:08:44] Speaker 03: in conjunction with all other factors of the case, not a proceeding in which all other factors are foreclosed against him before consideration of the government's recommendation. [00:08:53] Speaker 03: So we don't really know. [00:08:55] Speaker 03: We don't know, ultimately, whether or not this would have affected. [00:08:58] Speaker 04: Can I ask you about the other issue real quick? [00:09:03] Speaker 04: As we sit here today, does he, does your client want to withdraw the plea? [00:09:09] Speaker 03: He does, Your Honor. [00:09:12] Speaker 03: With that, I'd like to reserve my limited time. [00:09:16] Speaker 01: Good morning. [00:09:18] Speaker 02: Good morning, Your Honors. [00:09:20] Speaker 02: May it please the Court, Eric Winford, United States. [00:09:24] Speaker 02: Having failed to persuade the District Court to grant relief, Appellant now presses arguments he either waived or hasn't presented to the District Court to try to undo his plea agreement. [00:09:35] Speaker 02: Those claims fail not only for procedural reasons, but also on their merits. [00:09:39] Speaker 02: Appellant started with his claim about 2255 Council. [00:09:43] Speaker 02: I think there are important reasons not to extend this court's rule in Mohammed about remanding ineffective assistance claims raised for the first time and direct appeal to the 2255 setting. [00:09:54] Speaker 04: Can I ask a question about the premise? [00:09:57] Speaker 04: Do you can agree that ineffective assistance at a 2255 proceeding is itself a cognizable claim? [00:10:07] Speaker 02: But Your Honor, I don't think that's the kind of claim that an appellant could get a certificate of appealability on. [00:10:12] Speaker 04: To get a certificate of appealability... I'm not asking in this case. [00:10:16] Speaker 04: As a general matter, is ineffective assistance in a 2255 proceeding state aid claim for which relief may be granted? [00:10:27] Speaker 02: I don't think... I'm sorry, I'm misunderstanding the question. [00:10:31] Speaker 02: It wouldn't be a constitutional claim. [00:10:32] Speaker 02: It would be a statutory claim. [00:10:33] Speaker 04: Correct. [00:10:34] Speaker 04: Do you accept that it's a statutory claim? [00:10:38] Speaker 04: Or is there no such thing? [00:10:39] Speaker 04: I guess when I'm asking, does the government agree that there's such a thing as ineffective assistance at a 2255? [00:10:45] Speaker 02: I don't think that's clear, Your Honor. [00:10:46] Speaker 02: And the reason is that it's not clear that appellant has a statutory right to counsel at the 2255 proceeding at all. [00:10:53] Speaker 02: We have some cases in, I think, footnote nine of our brief saying that in a 2255 proceeding as opposed to trying. [00:11:00] Speaker 04: You haven't argued that here. [00:11:01] Speaker 04: So I think we're assuming that there is such a thing. [00:11:04] Speaker 02: Yeah, and as we've said in our brief, assuming that that appellant had a statutory right to 2255 counsel, his claim would still fail because he hasn't made a substantial showing of a denial of a constitutional right to get his COA. [00:11:20] Speaker 02: And it's also clear from the record that the claim is mirrorless. [00:11:23] Speaker 02: The plea agreement that Appellant signed in this case, it's on page 50, the relevant page is 51 of the appendix, makes clear that although the government generally agreed not to seek an upward departure, it would be free from its obligations under the agreement if Appellant committed further crimes in between his plea and sentencing. [00:11:42] Speaker 02: And there's no dispute in this case that appellant did commit crimes, tried to open up bank accounts to the fake social security number, tried to cash worthless checks, engaged in other kinds of financial fraud that freed the government from its obligation not to seek an upward departure. [00:11:57] Speaker 02: So there's no breach of the plea agreement at all. [00:12:00] Speaker 02: And I think as some of your honor's questions suggested, even if you were able to show a breach, it's not at all clear from the record that there's any prejudice to appellant. [00:12:08] Speaker 02: The district court denied an upward departure and the sentencing transcript makes pretty clear that the court was concerned about, you know, would have reached the same result in any case given its concern about the crimes that appellant had committed while on release. [00:12:27] Speaker 04: What about the other argument that he says he would have? [00:12:31] Speaker 04: He raised an argument between 255 that he would have not played. [00:12:38] Speaker 02: I think it's important to understand the history of how this claim unfolded. [00:12:41] Speaker 02: Appellant did make that assertion in his initial pleading, as his counsel said in his argument. [00:12:47] Speaker 02: But by the time he got to the 22 55 proceeding, Appellant's counsel made very clear that he was proceeding on one theory of prejudice. [00:12:55] Speaker 04: OK, why isn't that ineffective assistance at the 2255? [00:12:58] Speaker 02: I think there was a good strategic reason that counsel could have had for making that choice. [00:13:05] Speaker 02: It's the same choice that... Namely, what is that? [00:13:08] Speaker 02: I don't see that. [00:13:09] Speaker 02: This is something that, Your Honor, the defendant, this court recognized that a defendant did in the case of United States versus Eli, which we cite in our brief. [00:13:16] Speaker 02: And this is the theory. [00:13:17] Speaker 02: The theory is that by focusing on the sentence he received and arguing that the sentence was too high, as opposed to the plea agreement being problematic, appellant avoided a potentially very bad outcome in the case, which is actually undoing the plea, having to go to trial on a claim that all the lawyers involved... But they say, and this may be foolish, but they say that he [00:13:44] Speaker 04: would withdraw the plea if he could, as we sit here today. [00:13:49] Speaker 04: And that's been his, that's clearly his position in the 2255. [00:13:52] Speaker 02: Well that was his original position in the 2255. [00:13:56] Speaker 04: I don't see it waived at the hearing, by the way, but that's a separate issue. [00:14:01] Speaker 02: Well, at the hearing, and this is on page 116 and 119 of the government's appendix, the district court specifically asked, what happens if I don't find that his sentence was... It's in the context of talking about the other claim, so I understand your point there. [00:14:18] Speaker 02: And your honor, I would say even on appeal, it's not clear to me that what back to your point about the strategic. [00:14:23] Speaker 04: Why is it not? [00:14:25] Speaker 04: Why is it strategic at 22 55? [00:14:29] Speaker 04: not to just throw everything against the wall. [00:14:31] Speaker 04: So, yeah, we would like to withdraw a plea, ineffective assistance there, and the other arguments. [00:14:39] Speaker 04: Why would you pick and choose in the way you suggested if you're trying to get relief, especially since he does spell it out in the pro se submission, which is very thorough, as you're aware, that he would have not pled guilty had he received effective assistance. [00:14:54] Speaker 04: And the district court, by the way, says, [00:14:56] Speaker 04: that, yeah, he had lousy counsel when he made the plea. [00:15:00] Speaker 02: I think at that time, the calculation that appellant could have made was I'm willing to make a lot of different arguments about trying to get a lower sentence, and I don't want to risk giving up the benefits that the government has agreed to, you know, has given me in the plea agreement. [00:15:16] Speaker 02: He would risk at that point, and he may have changed his mind between then and now. [00:15:21] Speaker 04: But at that time, he wasn't... But I think what he's saying now is, well, my lawyer was going rogue when he did this at the 2255. [00:15:30] Speaker 02: Well, I think we start with the presumption under cases like Strickland that counsel acted strategically and in the exercise of regional professional judgment. [00:15:38] Speaker 02: We know from the record that that Appellants Council spoke to all of the previous lawyers involved in the case, reviewed all the documents in the case and spoke to appellant after 20 suppose he had raised. [00:15:49] Speaker 04: He had sufficiently preserved the claim of I would have withdrawn the plea had I received effective assistance during the plea negotiations. [00:15:59] Speaker 04: the other problem is suppose that had been preserved. [00:16:02] Speaker 04: Would we properly deal with that at this point? [00:16:06] Speaker 02: Well, I think from the record in front of the court, appellant would also be unable to make out the you know, a meritorious claim, even if he had preserved it. [00:16:16] Speaker 04: So why the district court said? [00:16:18] Speaker 04: Yeah, you got. [00:16:19] Speaker 04: Lousy counsel in the play. [00:16:23] Speaker 04: The guy showed up for three minutes, four minutes. [00:16:27] Speaker 04: Didn't really know what's going on. [00:16:30] Speaker 02: Well, I would say just as an initial matter, at the sentencing, you know, Appellant did sign a lengthy agreement that he, you know, he said he knew whether to plead colloquy. [00:16:44] Speaker 02: Even on appeal, it's not clear, Your Honor, that what appellant is saying is that he would have gone to trial on the superseding information to which he pleaded guilty. [00:16:54] Speaker 02: His claim on appeal seems to be, I would have agreed to go to trial on the initial indictment filed in the case. [00:17:01] Speaker 02: And I would have done that. [00:17:02] Speaker 04: What he's saying is, had I received half-decent counsel, I would never have pled guilty to the information, which added up a few jacked-up charges that were not in the initial indictment. [00:17:14] Speaker 04: that what he's saying? [00:17:17] Speaker 04: Yes, that's what he's saying. [00:17:18] Speaker 04: And the district court then says, you're right, you got blousy counsel. [00:17:23] Speaker 02: The burden on it would still be on appellant to make out a claim of prejudice. [00:17:28] Speaker 04: And the prejudice is under Supreme Court case law, I would not have pled guilty. [00:17:33] Speaker 04: That suffices, correct? [00:17:36] Speaker 02: If he had provided evidence of that, yes. [00:17:39] Speaker 04: Well, his evidence is his own testimony, and so the question is credibility. [00:17:43] Speaker 04: If you believe that. [00:17:45] Speaker 02: And I would go back, Your Honor, and say there's a, you know, the district court didn't address that, didn't adjudicate that, and there's an important reason for that, and that's because it understood appellant [00:17:54] Speaker 02: to not pressing that argument. [00:17:56] Speaker 04: Even though it's raised in the 2255, to have waived that at the hearing, which may itself be further ineffective assistance of the 2255. [00:18:03] Speaker 04: I realize this is kind of a hall of mirrors here, but yeah. [00:18:07] Speaker 02: Well, I think that would be, it would be one thing if appellant were, had now pressed in this court that 2255 counsel was ineffective for that reason. [00:18:16] Speaker 02: But appellant doesn't seriously challenge in his brief that [00:18:19] Speaker 02: his counsel did actually waive that theory of prejudice at the 2255 hearing. [00:18:25] Speaker 02: And I think that, you know, that waiver matters. [00:18:27] Speaker 02: Parties all the time raise arguments, press arguments, and then come back to court and say, I don't want the court to consider that claim, I'm withdrawing it. [00:18:35] Speaker 02: And I think the district court wanted to be clear that it understood what theory of prejudice appellant was pressing. [00:18:43] Speaker 04: I'm just concerned that the whole time he seems to be saying, and I got in a half-decent lawyer, I wouldn't have pled guilty. [00:18:52] Speaker 04: And that states a cognizable claim under Supreme Court case law. [00:18:57] Speaker 04: And maybe it's dumb to withdraw the plea, but he seems to have articulated that pretty consistently throughout. [00:19:04] Speaker 04: And we're never going to consider that under your theory. [00:19:07] Speaker 02: Well, I think the record is consistent with his counsel having, again, having reviewed the documents and talked to him, made a strategic choice that at that time, it didn't make sense to press the theory of prejudice that he's now pressing now. [00:19:19] Speaker 02: And I think that waiver matters. [00:19:21] Speaker 02: And for that reason, we would ask that the court affirm. [00:19:25] Speaker 02: If there are further questions. [00:19:29] Speaker 01: Does Mr. Sample have... Pardon? [00:19:33] Speaker 01: Okay, why don't you take two. [00:19:39] Speaker 03: I would simply like to add just briefly to the procedural question that opposing counsel raised about the COA and whether or not the court can get to that statutory issue because it doesn't involve a constitutional claim. [00:19:52] Speaker 03: We discussed this in our filings and in [00:19:56] Speaker 03: The Supreme Court has held in another context that a COA can issue on a non-constitutional procedural matter provided that the underlying issue itself is of constitutional dimension. [00:20:11] Speaker 03: And so the way we have essentially strung this together is that while a claim of statutory ineffective assistance of counsel is not of constitutional dimension, provided the underlying claim [00:20:25] Speaker 03: that is being asserted that 2255 Council should have raised is a constitutional dimension, then you can issue a COA just as you would be able to do in a procedural context. [00:20:36] Speaker 04: Any case that says that? [00:20:38] Speaker 03: No. [00:20:38] Speaker 03: This would be an issue of first impression. [00:20:40] Speaker 03: Any case that rejects that? [00:20:42] Speaker 03: None that I'm aware of, Your Honor. [00:20:44] Speaker 03: And for all the other reasons we've already adduced in the briefing, simply ask the Court to remand. [00:20:53] Speaker 03: The Court has no further questions. [00:20:55] Speaker 01: I have one. [00:20:56] Speaker 01: Did you come all the way down from Rutland, Vermont? [00:20:59] Speaker 03: Actually, Your Honor, I came from San Francisco. [00:21:01] Speaker 03: I was giving argument yesterday morning before the Ninth Circuit and flew directly here to do argument today. [00:21:07] Speaker 02: So I'm ready for Christmas. [00:21:09] Speaker 02: Safe travels on the Red Eye? [00:21:10] Speaker 03: Not on the Red Eye. [00:21:11] Speaker 03: I had one o'clock, so I got in about 10 o'clock last night and got some rest. [00:21:15] Speaker 01: All right. [00:21:15] Speaker 01: Well, safe travels.