[00:00:01] Speaker 03: Case number 21-3044, United States of America versus Dwight Heyman, also known as Pee Wee, also known as Wee Appellant. [00:00:10] Speaker 03: Ms. [00:00:10] Speaker 03: Yang for the appellant, Mr. Goodham for the appellee. [00:00:20] Speaker 01: Good morning, and may it please the court. [00:00:23] Speaker 01: Mr. Heyman was entitled to an appeal. [00:00:26] Speaker 01: But his trial counsel failed to provide adequate consultation about an appeal in two independent ways. [00:00:33] Speaker 01: First, he failed to advise Mr. Heyman of the advantages and disadvantages of an appeal. [00:00:38] Speaker 01: He gave inaccurate advice. [00:00:41] Speaker 01: He mistakenly claimed the government would treat an appeal as a breach of the plea agreement, but he expressly permitted the ineffective assistance of counsel claim that trial counsel and Mr. Heyman had discussed. [00:00:53] Speaker 01: He then steered Mr. Heyman to raise his ineffective assistance claim through a collateral 2255 motion, but he failed to explain that by pursuing this lesser remedy, he would lose the right to counsel that he was guaranteed only on direct appeal. [00:01:08] Speaker 01: Separately, his counsel also neglected to make a reasonable effort to discern Mr. Heyman's wishes regarding appeal. [00:01:15] Speaker 01: His ministerial instructions about the 14-day deadline were insufficient to satisfy his duty to consult. [00:01:22] Speaker 04: What would he have argued on appeal? [00:01:27] Speaker 01: On appeal, the claim that was preserved was ineffective assistance of counsel. [00:01:31] Speaker 04: How is counsel ineffective? [00:01:34] Speaker 04: If he had taken the direct appeal, he couldn't base the ineffective assistance claim on the failure to take a direct appeal. [00:01:42] Speaker 01: That's correct, Your Honor. [00:01:44] Speaker 01: This court has recognized that the Strickland analysis is a fact-intensive one and that the facts needed to establish ineffective assistance of counsel is not typically part of the district court record. [00:01:54] Speaker 04: And so upon filing a notice of appeal, Mr. Heyman would be appointed a new attorney who could then help him reassess trial counsel's... Argue that the plea deal that the district court thought was so extremely favorable to Mr. Heyman was in fact ineffective assistance. [00:02:12] Speaker 01: Well, what we don't know based on this record is the scope of the investigations that trial counsel did to test the sufficiency of the government's evidence and to test whether there were any defenses that could be raised for Mr. Heyman. [00:02:27] Speaker 01: And those are precisely the questions that could have been answered on direct appeal had Mr. Heyman had the opportunity to have appointed counsel help him reassess trial counsel's performance. [00:02:37] Speaker 01: And due to, in recognition of the fact and sense of nature of the Strickland analysis, as well as the fact that the facts needed to establish an effective assistance of counsel are not typically part of the district court record, it is this court's general practice to remand an ineffective assistance claim that's raised for the first time on direct appeal back to the district court. [00:02:58] Speaker 01: so long as the record does not conclusively show that the defendant is not entitled to relief. [00:03:05] Speaker 01: And that is precisely the circumstance here, where the record is insufficient to demonstrate one way or the other. [00:03:13] Speaker 01: And so Mr. Heyman should not be punished for having lost the opportunity to raise that claim on direct appeal due to the deficient consultation provided by trial counsel. [00:03:26] Speaker 01: At a bare minimum, the decision whether to appeal was one that belonged solely to Mr. Heyman, and he was deserving of receiving accurate advice. [00:03:37] Speaker 01: The inaccurate advice that trial counsel gave about a purported disadvantage of appeal, as well as the steering that occurred that made Mr. Heyman believe that the only viable avenue for him to raise an effective assistance was through a lesser collateral remedy. [00:03:51] Speaker 01: When paired together, that constituted deficient consultation due to trial counsel's failure to advise Mr. Heyman adequately of the advantages and disadvantages of an appeal. [00:04:04] Speaker 01: And separately, his counsel also neglected to make a reasonable effort to discern Mr. Heyman's wishes regarding appeal. [00:04:11] Speaker 01: And those ministerial instructions about the 14-day deadline were insufficient to satisfy his obligation to consult. [00:04:18] Speaker 01: Either of those errors constitutes deficient consultation that satisfies the first step of the Strickland analysis. [00:04:26] Speaker 01: As for the prejudice prong, the district court did not make any factual findings or rulings regarding prejudice. [00:04:33] Speaker 01: And so remand would be proper in this instance so that the district court could reach those findings in the first instance. [00:04:40] Speaker 05: Can you help me with a theoretical question about how the prejudice prong works in this content? [00:04:47] Speaker 05: It seems like maybe [00:04:48] Speaker 05: not only overlaps with the two ways that you could show that there was a duty to consult, but it may be entirely of that. [00:05:03] Speaker 05: So the two ways to show a duty to consult number one, a rational defendant would have wanted to. [00:05:08] Speaker 05: Number two, your particular demonstrated that he wanted to even if he didn't expressly say, [00:05:19] Speaker 05: If you can't prove either of them, I'm not sure how you could prove credit. [00:05:27] Speaker 01: Those two avenues are not duplicative of the prejudice prong. [00:05:31] Speaker 01: And the reason why is for two reasons. [00:05:34] Speaker 01: As for the test regarding whether a rational defendant would apply, the Supreme Court has explained that even in the absence of non-frivolous grounds for appeal, so long if there is substantial evidence of a reasonable probability that this particular defendant would have appealed. [00:05:49] Speaker 05: That's the second way to show. [00:05:51] Speaker 05: There's a duty. [00:05:52] Speaker 01: Yes, Your Honor. [00:05:53] Speaker 01: And as for the second, the duty prong looks solely at expressions of interest that this particular defendant made to trial counsel. [00:06:02] Speaker 01: But the prejudice prong could look at any types of actions or expressions made by Mr. Heyman and not limiting that analysis strictly to the expressions made directly to trial counsel. [00:06:13] Speaker 05: In this case, that doesn't help you because the kind of one piece of evidence we have about things he said to people other than his trial counsel [00:06:23] Speaker 05: he told actually was to his child. [00:06:26] Speaker 05: He said, Tell my Maryland lawyer that this case. [00:06:32] Speaker 05: What could he have meant when he said this case is over other than not going to appeal this [00:06:38] Speaker 01: File counsel explained during the evidentiary hearing that the purpose of that statement was to inform the Maryland attorney to continue. [00:06:47] Speaker 01: The Maryland attorney's purpose was to determine into whose custody Mr. Heyman would go once the sentencing concluded, whether he would go to federal custody or whether he would go to Prince George's County due to a pending Maryland case. [00:06:59] Speaker 01: And so it was for that strategic reason [00:07:02] Speaker 01: that he was instructed to inform a Maryland attorney that the proceedings had ended. [00:07:07] Speaker 01: It was not an expression of an interest in concluding the proceedings, but rather a statement informing the Maryland attorney that that decision would now have to be made. [00:07:17] Speaker 05: What's your best piece of evidence that this particular defendant wanted to appeal? [00:07:21] Speaker 05: That he was dissatisfied with the 15-year plea deal? [00:07:26] Speaker 01: What we have here on this record is much more than general dissatisfaction with the plea. [00:07:31] Speaker 01: Mr. Heyman had many consistent conversations with trial counsel over the proceeding. [00:07:38] Speaker 01: They discussed his desire for trial counsel to do something more to omit the 924C gun charge. [00:07:47] Speaker 01: They discussed withdrawing the plea. [00:07:49] Speaker 01: They discussed raising ineffective assistance. [00:07:52] Speaker 05: I appreciate that and thought it was well briefed. [00:07:55] Speaker 05: If you had to just point to one thing, I'm not saying that one thing has to be just possible. [00:07:59] Speaker 05: Obviously, we look at your strongest piece of evidence and your second strongest and we put them together and we consider them as a whole. [00:08:06] Speaker 05: But what is your strongest piece of that he wanted? [00:08:12] Speaker 01: In addition to those statements, I think the strongest piece of evidence is the fact that he listened to trial counsel's advice and timely filed his ineffective assistance claim through his 2255 motion. [00:08:23] Speaker 01: What that reflects both is that he was willing to raise an effective assistance of counsel and that had he been provided adequate consultation, he would have raised that on appeal. [00:08:35] Speaker 03: Can we consider that 2255 motion and making [00:08:39] Speaker 03: this analysis, or do we look at the time that counsel was making the decision whether an appeal, whether the client wanted to appeal? [00:08:49] Speaker 03: We look at the universe of facts then. [00:08:51] Speaker 03: Is there any case or authority to look at something that post-states by 50 weeks, almost 50 weeks, that critical decision to appeal or not in deciding whether he wanted to appeal? [00:09:07] Speaker 01: The duty analysis is restricted to what counsel knew at the time that the consultation was provided, but it would be relevant in determining the prejudice prong and ask for that duty to consult. [00:09:17] Speaker 01: Another strong piece in the record is trial counsel's own testimony that [00:09:23] Speaker 01: Raising ineffective instances of counsel through a collateral remedy is not typically part of the advice or consultation that he gives to all of his clients, but that he did so here because of the particular conversations that he had had with Mr. Heyman. [00:09:37] Speaker 01: What trial counsels mistaken. [00:09:39] Speaker 03: So there the evidence is what counsel was discussing with Mr. Heyman at the relevant time, not the fact that he actually filed one later, but your focus seems to be on the discussions Mr. Heyman was having with Mr. Katzoff. [00:09:51] Speaker 03: contemporary with the representation indicating that he thought Mr. Heyman wanted some form of future proceedings, whether it would be 2255. [00:10:01] Speaker 03: That's right, Your Honor. [00:10:03] Speaker 01: Those conversations that were happening before the appeal deadline expired reasonably demonstrated to trial counsel an interest in challenging his conviction and sentence. [00:10:13] Speaker 01: And trial counsel recognized that by raising for Mr. Heyman the avenue of ineffective assistance through that collateral remedy, which he testified was not part of his typical practice. [00:10:27] Speaker 01: And the duty to consult, the Supreme Court has explained, is expected to exist in the vast majority of cases. [00:10:34] Speaker 01: And lay defendants are not expected to invoke any precise legal words or legal terms to trigger that duty. [00:10:41] Speaker 01: And so other courts have held a duty to exist [00:10:44] Speaker 01: where a defendant raises a simple question, such as, what's next after sentencing, or makes a single statement expressing a desire to do something to reduce his sentence. [00:10:54] Speaker 01: And what we have here in this record are consistent and ongoing expressions of interest by Mr. Heyman to trial counsel that reflected that interest. [00:11:05] Speaker 03: Can you clarify one thing factually for me? [00:11:06] Speaker 03: After sentencing, he met with the government. [00:11:13] Speaker 03: meetings set up before sentencing or after sentencing? [00:11:16] Speaker 03: Was that all a post-sentencing process, or do we know the timeline of that? [00:11:22] Speaker 01: I'm not entirely sure, Your Honor. [00:11:23] Speaker 01: I believe that meeting was set up before sentencing to occur post-sentencing. [00:11:29] Speaker 01: But the content of those conversations demonstrated that Mr. Heyman continued to express a desire to trial counsel to do something more to challenge his conviction and sentence. [00:11:40] Speaker 01: And during those three encounters, [00:11:42] Speaker 01: The purpose of it was very much reflective of the consistent and ongoing interest that Mr. Heyman had been expressing to trial counsel before sentencing that continued even after sentencing. [00:11:55] Speaker 05: Certificate of appeal cannot specifically mention the prejudice prong of Strickland. [00:12:05] Speaker 05: I think that alone does not [00:12:10] Speaker 05: include us from considering the prejudice. [00:12:13] Speaker 05: Do you agree with me on that? [00:12:16] Speaker 01: I'm not entirely sure, Your Honor. [00:12:18] Speaker 01: I know that this court can address questions of law that the district court has not addressed, but that the general practice is to allow the district court to do so in the first instance. [00:12:31] Speaker 01: And I think that's particularly true here, given that the prejudice prong is a mixed question of fact [00:12:36] Speaker 01: and law, and any factual findings would be reviewed on clear error. [00:12:41] Speaker 01: And because the district court did not make any factual findings regarding prejudice, and because the factual findings for prejudice are not coextensive with the findings needed for performance, it would be proper to allow the district court to reach those findings and to reach that ruling in the first instance. [00:13:01] Speaker 03: I thought Judge Walker was asking whether there's any legal barrier. [00:13:03] Speaker 03: The fact that the certificate of appealability [00:13:06] Speaker 03: reference to particular issues as a matter of law, that doesn't preclude consideration of the prejudice question. [00:13:15] Speaker 03: You've raised common considerations that we would keep in mind on issues in any appeals, certificate of appeal ability or not. [00:13:23] Speaker 03: But the law I thought was pretty clear that we are not confined to just the two questions that were mentioned because what was certified to us [00:13:33] Speaker 03: was that he had made a showing of the deprivation of a constitutional right. [00:13:37] Speaker 03: And so that constitutional question is what's certified. [00:13:40] Speaker 01: I believe that's right, Your Honor. [00:13:42] Speaker 03: And it's not jurisdictional anyhow. [00:13:44] Speaker 01: I do not believe it is jurisdictional. [00:13:50] Speaker 01: And here, if this court does choose to look at the prejudice prong, there is substantial evidence in the record of reasonable probability that Mr. Heyman would have appealed but for the deficient consultation. [00:14:03] Speaker 01: In addition to the timely filing of ineffective assistance of counsel, which reflected that he followed trial counsel's advice and would have raised that if he had known it would not breach the plea agreement and that he had a right to counsel on direct appeal, the record also demonstrates [00:14:20] Speaker 01: diligence on Mr. Heyman's part in pursuing that remedy. [00:14:24] Speaker 01: He repeatedly attempted to access the law library where he was confined. [00:14:28] Speaker 01: And after he was restricted access on multiple occasions, he affirmatively reached out to the Federal Public Defender's Office for their assistance in preparing that filing. [00:14:38] Speaker 01: And so it is the diligence through which he pursued that remedy in addition to the timely filing of that ineffective assistance claim together that collectively demonstrates prejudice here. [00:14:53] Speaker 01: I know for the questions, I reserved my time for. [00:14:55] Speaker 01: Thank you, Ms. [00:14:56] Speaker 01: Yang. [00:15:13] Speaker 06: Or do you have a good hand for the United States? [00:15:15] Speaker 06: If I could, I'd like to address the factual question you asked, Judge Millett. [00:15:19] Speaker 06: relating to whether the meeting was scheduled before sentencing. [00:15:24] Speaker 06: I think that is answered at VA 300. [00:15:29] Speaker 06: Mr. Katzoff is describing that the government was willing to have a meeting, and Mr. Katzoff said he would, quote, schedule it closer to sentencing, and that was a description of a conversation he had with the defendant between the plea hearing and before sentencing. [00:15:44] Speaker 06: Thank you. [00:15:45] Speaker 06: With respect to the [00:15:48] Speaker 06: two pieces of the puzzle here. [00:15:49] Speaker 06: With the court's permission, I'd actually like to start with prejudice, if I might, as Strickland counsels, if this court can easily or more easily resolve an ineffective assistance to counsel claim via prejudice, it is, of course, free to do so. [00:16:04] Speaker 03: My opponent has suggested... Is there any certificate of appealability barrier to us doing that? [00:16:10] Speaker 06: I don't think so, as was previously alluded to. [00:16:13] Speaker 06: I understand that this court is always concerned about the issue of whether or not it was presented to the district court. [00:16:22] Speaker 06: And I believe that's this court's decision and lock it. [00:16:25] Speaker 06: But in this case, prejudice was presented to the district court. [00:16:28] Speaker 06: It is 100% true that he did not rule on it. [00:16:31] Speaker 06: He decided there was no deficiency. [00:16:33] Speaker 06: But if you look at the pleadings, the post hearing pleadings particular that we cited in our brief, [00:16:38] Speaker 06: The Mr. Hayman first raised the issue of a non-frivolous issue on appeal and related it to prejudice. [00:16:45] Speaker 06: Then the government answered and said, well, no, he hasn't shown prejudice. [00:16:49] Speaker 06: So true, district court did not rule on it. [00:16:51] Speaker 06: But I think that covers the certificate of appeal abilities problem, number one. [00:16:56] Speaker 06: Number two, and I think this gets to the issue of my opponent's suggestion, there were no findings of fact that are available to support a prejudice finding if this court wants to embark on that. [00:17:08] Speaker 06: And what Flores Ortega says is that, and I'm looking at 528 U.S. [00:17:15] Speaker 06: at 486, there is overlap between the, in the unique circumstance of missing notice of appeal, there is overlap between the prejudice inquiry and the deficiency inquiry. [00:17:27] Speaker 06: And in particular, there are two factors that the court looks to when assessing each. [00:17:33] Speaker 06: One, identification of non-frivolous issues for appeal, number one, and number two, [00:17:38] Speaker 06: any indication in the record that the defendant himself wanted to appeal. [00:17:43] Speaker 06: And in that context, this district court did make the relevant findings that I think would support if this court wanted to go down that road, the prejudice conclusion. [00:17:52] Speaker 04: And I would direct the court to... So the deficient performance inquiry turns on this duty to consult, which in this case, I don't think there were any [00:18:04] Speaker 04: non-frivolous grounds. [00:18:05] Speaker 04: So this turns on whether there was an indication that this defendant wanted to appeal. [00:18:13] Speaker 04: And the prejudice inquiry, I'm not sure I'll get the precise adjective or adverb, but under Strickland, it's whether there was a reasonable possibility that in this case, the defendant would have taken the appeal, right? [00:18:32] Speaker 04: So those seem almost, if not identical, at least parallel. [00:18:38] Speaker 04: So why would we not just rest on the ground asserted by the district court? [00:18:46] Speaker 06: Certainly, that's available. [00:18:48] Speaker 06: We briefed that fully. [00:18:49] Speaker 06: We think that the record supports the district court's conclusion. [00:18:55] Speaker 06: Is prejudice easier for you? [00:18:57] Speaker 04: I'm just curious why you're going first to prejudice. [00:19:00] Speaker 06: My opponent has suggested the consultation was inadequate, for example, number one. [00:19:05] Speaker 06: So that gets to the adequacy of the consultation. [00:19:07] Speaker 06: Presupposing a duty to consult, though. [00:19:09] Speaker 06: Right. [00:19:10] Speaker 06: And I was just going to turn to that. [00:19:11] Speaker 06: What this court has counseled and what Flores Ortega counsels is that it is a very rare situation when you don't have a duty to consult. [00:19:19] Speaker 06: We think [00:19:20] Speaker 06: In this circumstance, very unique circumstances, we meet that test. [00:19:25] Speaker 06: There was no duty to consult here for all the reasons we've outlined in our brief. [00:19:29] Speaker 06: But we recognize that this court's decision indicated that should be a very rare scenario. [00:19:36] Speaker 06: So our take on this is that you don't even have to satisfy that. [00:19:40] Speaker 06: You don't even have to be comfortable with the notion that this was one of those very rare circumstances. [00:19:45] Speaker 06: Instead, you can look at this. [00:19:47] Speaker 06: But how does that [00:19:49] Speaker 04: How does that make the case easier for you on prejudice? [00:19:55] Speaker 04: If you have a high burden to show no duty to consult, and let's assume for the sake of argument the consultation was inadequate, wouldn't you have a comparably high burden to show prejudice? [00:20:13] Speaker 04: No. [00:20:15] Speaker 06: What Streetlin teaches is that it's the defendant's burden to show a reasonable probability that this would have affected the outcome. [00:20:23] Speaker 06: And what Flores Ortega says in particular is a reasonable probability that but for the missing consultation, the inadequate consultation, he would have appealed. [00:20:36] Speaker 02: And so I guess my point is that the burden shifting makes a prejudice prong easier. [00:20:41] Speaker 02: I think so. [00:20:43] Speaker 02: I think so. [00:20:43] Speaker 06: We had the Strickland overlay of burden on the prejudice. [00:20:47] Speaker 06: Then we have the additional what Flores Ortega said was a critical factor, a critical showing that there was a but for circumstance here. [00:20:55] Speaker 06: So that's a parallel inquiries but shifted burden on prejudice. [00:20:59] Speaker 04: Yeah. [00:21:00] Speaker 06: Yeah. [00:21:01] Speaker 06: And so my only point is that Mr. Kamen got appointed counsel below. [00:21:08] Speaker 06: He has appointed counsel on appeal. [00:21:11] Speaker 06: I have yet to see an identification of a non-furthless issue for appeal. [00:21:16] Speaker 06: The counsel below tried to make some arguments, and if you look at JA 379-80, the district court dismissed them out of hand, I would suggest. [00:21:27] Speaker 06: Although he recognized although the defendant is not required to identify a meritorious ground for appeal, he said the defendant has, quote, struggled to articulate a viable argument. [00:21:37] Speaker 06: And I think that's a charitable statement in terms of the identification of a non-frivolous issue. [00:21:42] Speaker 06: So we have that finding, in fact, I would suggest, number one. [00:21:46] Speaker 06: Number two, what Flores Ortega says is this court should consider whether the defendant has, quote, promptly expressed a desire for appeal [00:21:55] Speaker 06: And again, if you look at the court's findings, the fact that J.A. [00:22:00] Speaker 06: 381, the court says, I find that Haman did not at any time indicate during the period that is the 14 day period that he was interested in appealing. [00:22:11] Speaker 06: You couple that with the silence that undisputed silence that unfolded thereafter all the way till 23 days before the expiration of the year period for a 20 to 55. [00:22:22] Speaker 06: And I would suggest you have a significant factual foundation. [00:22:25] Speaker 03: It was certainly evidence that he was, you know, he wanted, there is evidence in both directions here. [00:22:31] Speaker 03: There's evidence that he wanted to do something to get this, at least the mandatory minimum, the 924C, [00:22:40] Speaker 03: knocked down, that part of it at least. [00:22:42] Speaker 03: And he met with the government after sentencing and that did not go as he had hoped. [00:22:49] Speaker 03: And Mr. Katzoff keeps saying, you know, I don't normally tell him about 2255, but I did in this case because I knew he was unhappy. [00:22:57] Speaker 03: And so I don't, you know, I think we have to reckon with the fact that there are indications here that Mr. Heyman was unhappy, wanted to do something. [00:23:07] Speaker 03: about this extra time, at least that much from the mandatory minimum, 924C, and that Mr. Katzoff knew, because there would have been no reason for him to keep talking to him about 2255, but not appeal. [00:23:24] Speaker 03: There was no reason to talk about one, not the other, if you thought that Mr. Heyman had no interest in going further, right? [00:23:32] Speaker 06: I disagree your honor to the extent that and I would I knew that my opponent has suggested that the only reason 22 55 was on the table and as a discussion matter was because of this is satisfaction. [00:23:47] Speaker 06: Um, I, I don't think that's an accurate reading of the record. [00:23:50] Speaker 03: This court, of course, tell me, tell me why you think he was talking about 20 to 55. [00:23:55] Speaker 03: If you thought Mr. Heyman wasn't interested in any further judicial review, it was part of the plea agreement, your honor. [00:24:00] Speaker 06: And in particular, um, I would, as I read the record that 20 to 55 came up two times. [00:24:07] Speaker 06: Um, number one, it came up as they were discussing the plea agreement. [00:24:10] Speaker 06: Um, and, uh, [00:24:15] Speaker 06: Sorry, Your Honor, I'm trying to find my, here we go. [00:24:21] Speaker 06: And then it came up again as Mr. Heyman was contemplating withdrawing his plea. [00:24:26] Speaker 06: And at that point, we're at JA 326, 327. [00:24:29] Speaker 06: It is true, Mr. Katzoff reminded Mr. Heyman of the things that he had not forfeited by his appeal waivers. [00:24:41] Speaker 06: And he says, [00:24:42] Speaker 06: At this time, we talked about both 2255 and direct appeal separately. [00:24:49] Speaker 06: And I wanted to remind him that he had that avenue if he wanted. [00:24:56] Speaker 03: The appeal waiver did not cover raising ineffective assistance to council on direct appeal either. [00:25:03] Speaker 03: Sure. [00:25:03] Speaker 03: But he wasn't telling him about that. [00:25:05] Speaker 06: Well, again, I think that every time he talked about these two things, he talked about them together. [00:25:12] Speaker 03: No, there's the worst because it's fact he told him that he was concerned that if you do the appeal. [00:25:16] Speaker 03: The government will treat that as a breach of the plea agreement. [00:25:19] Speaker 03: Now, I assume on behalf of the government that you would agree that that was an erroneous reading. [00:25:25] Speaker 03: of the plea agreement to think that he couldn't have done a direct appeal on ineffective assistance of council. [00:25:31] Speaker 06: A hundred percent agree. [00:25:32] Speaker 03: And that was a completely wrong, erroneous advice that he gave him. [00:25:37] Speaker 03: At the extent he said that if you're appealing an effective assistance of council, I mean, he was indicating that an appeal could cause the government to withdraw its plea agreement, knowing that there'd been one risk of that already. [00:25:49] Speaker 03: Maybe that would really scare Mr. Heyman, but in fact, there was zero risk. [00:25:53] Speaker 03: Can he appealed on ineffective assistance of council? [00:25:56] Speaker 06: Sure. [00:25:56] Speaker 06: And again, I can, I can stand here as a member of, as a part of the government and say, of course we would not have suggested that a notice of appeal equal to breach. [00:26:06] Speaker 06: But what I will say is this, in the context of the circumstances of this case, I would suggest that was not an unreasonable warning on the part of Mr. Katzoff. [00:26:17] Speaker 06: And that's for 2 reasons. [00:26:19] Speaker 06: Number 1, Mr. Katzoff had just gone through a very, what I would suggest, recent effort to talk to Mr. Kamen about his desire to withdraw his appeal because he thought the substantive validity of the 924C was not supported by the evidence. [00:26:39] Speaker 06: Mr. Haman decided not to withdraw his appeal. [00:26:42] Speaker 06: That was the threshold leading into the sentencing when they had the consultation, number one. [00:26:49] Speaker 06: Number two, of course, we had the weird circumstance, if you will, that really stuck in Mr. Katz's mind, which was the government threatening to withdraw the plea on the eve of the plea hearing. [00:26:59] Speaker 03: And my only point is that... You just said that that is just neither of those is at all relevant to filing a notice of appeal and then [00:27:09] Speaker 03: as counsel would be appointed and the appeal developed and presumably that counsel would look at the food agreement. [00:27:15] Speaker 03: And had they raised ineffective assistance to counsel, I can't imagine what they could have done on sentencing. [00:27:20] Speaker 03: That was the other route because it was within the limits. [00:27:22] Speaker 03: But had they raised that, it was zero risk. [00:27:26] Speaker 03: So I don't know why Mr. Katzoff, I can't imagine what possible reason he had for not being more candid in what he, if he had concerns, [00:27:38] Speaker 03: to say, but they were rather than simply to say, if you appeal unqualifiedly, it could be a withdrawal of the plea agreement, but hey, here's this 2255 thing you can do all by yourself without an attorney. [00:27:51] Speaker 03: It seemed like he was, this is not you, I don't know why I say with you, but it's that he was really trying to steer him to 2255 and away from an appeal, even though ineffective assistance and counsel can be much more effectively raised on direct appeal because you get an attorney [00:28:09] Speaker 03: showing in this circuit is pretty, you know, it's a colorable claim. [00:28:13] Speaker 03: Maybe he wouldn't have even met that. [00:28:15] Speaker 03: That's all that you need for your, to get a remand to develop a record. [00:28:19] Speaker 03: And so I don't know why any, I don't know why any well-advised counsel would not have explained that to their client. [00:28:27] Speaker 03: If, as he seemed to understand Mr. Katzoff, I'm sorry, that Mr. Heyman wanted to do something more. [00:28:34] Speaker 06: Well, you know, he did no doubt about it, understand that Mr. Heyman wanted to do something more. [00:28:39] Speaker 03: Mr. Katzoff understood that Mr. Heyman was not done, that he wanted to do something more with this. [00:28:44] Speaker 06: Absolutely. [00:28:45] Speaker 06: But I think what the record demonstrates is that Mr. Katzoff understood that Heyman did not want to do something more within the legal system. [00:28:53] Speaker 06: That is, he understood having just decided not to withdraw his plea. [00:28:57] Speaker 03: How could you figure that out? [00:29:02] Speaker 03: If all he wanted to do was talk to the government, then he wouldn't talk to him about 2255. [00:29:07] Speaker 03: Well, again, he knew he wanted to do something more. [00:29:09] Speaker 03: I mean, he wanted to try the government route, but it sounded like Mr. Katzoff, for a good reason, was skeptical that the government was going to look at that discussion the same way Mr. Heyman was hoping it would turn out. [00:29:20] Speaker 06: I don't think Mr. Katzoff thought there was much hope. [00:29:22] Speaker 03: I agree with that. [00:29:23] Speaker 03: And so we told him about 2255 as well because he knew Mr. Heyman wanted to do something about it seemed to be a focus on the 924C. [00:29:32] Speaker 03: Maybe it was broader than that. [00:29:33] Speaker 03: It seemed to be focused. [00:29:34] Speaker 06: Yeah. [00:29:34] Speaker 06: Well, you know, again, I mean, it is true. [00:29:37] Speaker 06: There was a discussion of 2255. [00:29:39] Speaker 06: It was not as my multiple discussions about 22. [00:29:43] Speaker 06: Again, I read the record is demonstrating just twice. [00:29:45] Speaker 06: I mean, it certainly didn't. [00:29:46] Speaker 06: It certainly didn't happen at the time of that final consultation. [00:29:51] Speaker 06: The record is quite clear on that. [00:29:53] Speaker 03: But he got it. [00:29:55] Speaker 03: He got the government not to have a waiver of 2255 in the plea agreement. [00:29:59] Speaker 06: Absolutely. [00:29:59] Speaker 03: That was an upfront one. [00:30:01] Speaker 03: And then the two discussions. [00:30:03] Speaker 03: So all along, Mr. Kurt Katzhoff, excuse me, is retaining this 2255 right, and then talking about this 2250 right, as you said, at least two times. [00:30:14] Speaker 06: Sure. [00:30:14] Speaker 06: I think counsel would be remiss if he didn't make sure that his client understood the options that he had, both direct appeal and 2255, because it was part of the plea agreement. [00:30:25] Speaker 06: I see my time is up. [00:30:26] Speaker 05: I just get clarity on one thing you said earlier. [00:30:28] Speaker 05: It sounded like you were saying that the defendant has the burden [00:30:34] Speaker 05: to show prejudice, which makes sense. [00:30:36] Speaker 05: But that on the performance prong, the defendant would, I guess, have the burden to show that there was no consultation. [00:30:44] Speaker 05: But then did you say the government would have the burden to show that there was no duty to consult? [00:30:52] Speaker 06: No, I think I think I'm sorry if I misspoke. [00:30:55] Speaker 06: I think the burden rests with the defendant to show both that there was a duty to consult, i.e. [00:31:01] Speaker 06: that he had somehow or another reasonably indicated he wanted to appeal or that a rational defendant would have wanted to appeal. [00:31:09] Speaker 06: And that my only point was that both Flores Ortega and this court has said [00:31:15] Speaker 06: There will be very rare circumstances when we find no duty consult. [00:31:20] Speaker 06: I don't burden always with the defendant. [00:31:22] Speaker 06: That's my understanding. [00:31:24] Speaker 06: And Flores Ortega is simply applying Strickland. [00:31:28] Speaker 06: And Strickland is adamant and very clear about that notion. [00:31:31] Speaker 06: The burden stays with the defendant. [00:31:34] Speaker 03: But there's no rare circumstances limitation on the prejudice prong. [00:31:39] Speaker 04: Right. [00:31:44] Speaker 04: If the defendant had taken an appeal and argued that the legal theory underlying the 924C count was invalid, that would have been a breach of the law. [00:31:59] Speaker 06: Yes, I mean, I've certainly never seen a circumstance where the government at that point has swooped in and said you've reached a plea agreement. [00:32:08] Speaker 06: But it's certainly plain language feature of this plea agreement that I suppose the government could have said, okay, you've now briefed this unless you retract that we will find you and we will have a hearing about whether or not you are in breach. [00:32:21] Speaker 06: And if we find you're in breach, all bets are off. [00:32:24] Speaker 03: But any good appellate counsel knows how to deal with that, right? [00:32:28] Speaker 03: They say counsel is ineffective for not arguing with Mr. Winstead, arguing with whoever in that case. [00:32:35] Speaker 06: But I'll finish with this point unless the court has any further questions. [00:32:38] Speaker 06: This gets back to Mr. Counsel's warning about the breach. [00:32:43] Speaker 06: At the time when he's making these decisions and making these sort of providing this information to the defendant, [00:32:52] Speaker 06: He had just gone through a lengthy period where Mr. Haman had said, you know what? [00:32:57] Speaker 06: I want to withdraw my plea. [00:32:58] Speaker 06: I don't think that 924C is supported by the evidence. [00:33:02] Speaker 06: That's at the forefront of Mr. Hamsaw's mind when he says to him, you know, look, if that's the theory that you want to pursue on appeal, I should warn you this would be a breach. [00:33:13] Speaker 06: So it wasn't [00:33:14] Speaker 06: perfectly articulated like that in the hearing testimony. [00:33:18] Speaker 06: But again, if you go back to the circumstances facing Mr. Katzoff at the time he considered what to say to Mr. Heyman, I think that is a significant overlay. [00:33:28] Speaker 03: Well, it might be those are like factual questions that need to be resolved, would need to be resolved or relevant. [00:33:34] Speaker 03: Sure, sure. [00:33:35] Speaker 03: That's one possible reading of it. [00:33:38] Speaker 06: Sure. [00:33:39] Speaker 06: Um, I overstayed my welcome for sure. [00:33:42] Speaker 06: Um, unless the court has any further questions we would ask you from the district court. [00:33:47] Speaker 03: Thank you. [00:33:47] Speaker 03: Very helpful. [00:33:48] Speaker 03: Thank you. [00:33:48] Speaker 00: A few points on rebuttal. [00:34:07] Speaker 01: First, [00:34:09] Speaker 01: My friend on the other side discussed trial in the appointed councils. [00:34:14] Speaker 01: avenues for raising meritorious or non-frivolous grounds for appeal in the 2255 collateral proceeding. [00:34:22] Speaker 01: But the reality is, by the time counsel was appointed for that proceeding, Mr. Heyman was time barred from introducing any new claims. [00:34:29] Speaker 01: And the scope of the evidentiary hearing was limited only to one narrow legal issue, which was whether there had been efficient consultation regarding appeal. [00:34:38] Speaker 01: And so for all the reasons that were discussed earlier, Mr. Heyman was [00:34:44] Speaker 01: was unable to take the opportunity that he was entitled to, to have counsel appointed on direct appeal and reassess trial counsel's performance through that avenue. [00:34:59] Speaker 03: It sounds like he had, I'm sorry to interrupt, but it sounds like he had at least one other proceeding and maybe some other proceedings ongoing at the same time. [00:35:06] Speaker 03: We know he had at least a Maryland case going on at the same time as this one. [00:35:11] Speaker 03: I believe there was a pending Maryland case, but unfortunately that wasn't wrapped up in the as part of the plea bargain. [00:35:17] Speaker 03: No, I don't believe so. [00:35:20] Speaker 03: Sometimes that happens even if it's a state and federal prosecutions, but it wasn't done here by council. [00:35:26] Speaker 03: Maybe couldn't have. [00:35:27] Speaker 03: I don't. [00:35:27] Speaker 03: I have no idea. [00:35:27] Speaker 03: I'm just. [00:35:29] Speaker 01: Thank you. [00:35:29] Speaker 01: I don't believe so, your honor, but I'm not entirely sure. [00:35:33] Speaker 01: The second point I want to make is about my friend on the other side had argued that trial counsel's raising of 2255 through the ineffective assistance Avenue was. [00:35:45] Speaker 01: in vote here only because it was already part of the plea agreement. [00:35:48] Speaker 01: But if we look to JA 293, trial counsel's own testimony indicates that he raised the possibility of ineffective assistance through 2255 because of the particular facts and conversations that he had had with Mr. Heyman a number of times. [00:36:05] Speaker 01: And so that reflects his knowledge that Mr. Heyman wanted to do something more, which is also something that the government has recognized. [00:36:14] Speaker 01: And the duty to consult as the government has acknowledged is something that exists in the vast majority of cases and will not exist in only very rare circumstances. [00:36:26] Speaker 01: And here, given that Mr. Katzoff knew Mr. Heyman wanted to do something more, [00:36:32] Speaker 01: The distinction between those post-sentencing conversations being in a judicial avenue or a non-judicial avenue is irrelevant given that Mr. Heyman was a lay defendant who was not distinguishing for himself whether he was pursuing a judicial remedy or a non-judicial remedy. [00:36:47] Speaker 01: He was simply expressing to trial counsel that desire to do something more and that triggered the duty to consult. [00:36:54] Speaker 01: And finally, the government has agreed that the information that trial counsel provided was misleading and inaccurate. [00:37:02] Speaker 01: There was zero risk to Mr. Heyman to file a notice of appeal given the appeal waiver that was in this case. [00:37:12] Speaker 01: And ineffective assistance would have been much more effectively raised on direct appeal precisely because of the right to counsel that was afforded in that avenue. [00:37:22] Speaker 01: And lastly, although there can be overlap in facts between the prejudice prong and the performance prong, they are not coextensive. [00:37:34] Speaker 01: And the burden to demonstrate a reasonable probability is less than the preponderance of the evidence. [00:37:42] Speaker 01: And here, it is established in the record not only the timely 2255 filing that indicates Mr. Heyman followed trial counsel's advice in raising ineffective assistance of counsel and did so timely, but that he also did so diligently. [00:37:57] Speaker 01: his attempts to access the law library as well as his affirmative reach out to the Federal Public Defender's Office demonstrates his diligence in that regard. [00:38:06] Speaker 04: Suppose he had raised ineffective assistance on direct review and won. [00:38:14] Speaker 04: What would happen at that? [00:38:16] Speaker 04: Wouldn't that just invalidate the plea agreement and he'd be right back to facing trial with a life sentence? [00:38:25] Speaker 01: Yes, your honor. [00:38:25] Speaker 01: It would place him back to the position he was in before that plea was entered. [00:38:29] Speaker 01: And so with new attorney, he could renegotiate a plea or he could choose to go to trial. [00:38:35] Speaker 01: And the passage of time has given us a glimpse into the sufficiency of the government's evidence on the lead. [00:38:41] Speaker 04: So the downside risk point that he could have ended up much worse off by continuing to litigate would apply regardless of whether he took [00:38:54] Speaker 04: an appeal directly barred by the plea agreement, like the substantive validity of the 924C charge, or the permitted ineffective assistance appeal, either of which would have just undone the plea agreement. [00:39:13] Speaker 01: I guess, is the question whether breaching the plea would have equivalent consequences to withdrawing the plea from... Suppose he appeals, if he took an ineffective assistance appeal, [00:39:24] Speaker 04: It's not a breach of the plea agreement, but the consequence of his winning that case is not that he gets to go free. [00:39:34] Speaker 04: It's that the plea agreement is set aside and he's back facing lifetime in prison. [00:39:42] Speaker 01: That's true, Your Honor. [00:39:43] Speaker 01: But what we don't know based on this record is whether trial counsel engaged in reasonable investigations to test the sufficiency of the government's evidence and whether there were any defenses that Mr. Heyman could have raised on those charges. [00:39:57] Speaker 01: And the passage of time has given us a glimpse into the sufficiency of the government's [00:40:01] Speaker 01: evidence the lead defendant in this reported conspiracy with the government characterized as existing above Mr. Heyman was acquitted at trial. [00:40:10] Speaker 01: And what that demonstrates is all that we do not know about the evidence and about trial counsel's investigations before advising Mr. Heyman to take the plea. [00:40:20] Speaker 03: We also know they sounds like they wouldn't have 920 or they might not have 924 c on the next go around. [00:40:26] Speaker 01: That's also true, Your Honor. [00:40:27] Speaker 01: We simply don't know what investigations trial counsel made into the sufficiency of that charge. [00:40:34] Speaker 01: The government relies heavily on the statement of facts that Mr. Heyman agreed to as part of the plea agreement to justify that conviction. [00:40:43] Speaker 01: But if the plea is set aside, he would not be held to the facts that he agreed to in the plea. [00:40:48] Speaker 01: And it would be the government's burden to establish that conviction beyond a reasonable [00:40:54] Speaker 01: But there are no other further questions. [00:40:57] Speaker 01: We ask that this court reverse and remand with instructions to determine prejudice or in the alternative to reverse and remand with instructions to grant. [00:41:06] Speaker 01: Thank you. [00:41:06] Speaker 03: Ms. [00:41:07] Speaker 03: Yang, you and Ms. [00:41:08] Speaker 03: Hashimoto were appointed by this court to represent Mr. Heyman in this case. [00:41:14] Speaker 03: And the court thanks you for your very able assistance. [00:41:17] Speaker 03: With that, the case is submitted.