[00:00:00] Speaker 01: Case number 18-3063, United States of America versus Matthew West, also known as Prime Minister Jacob Ford, a balance. [00:00:08] Speaker 01: Ms. [00:00:08] Speaker 01: Wright for the balance, Mr. Hensburg for the appellee. [00:00:12] Speaker 00: Good morning, counsel. [00:00:13] Speaker 00: Ms. [00:00:13] Speaker 00: Wright, please proceed when you're ready. [00:00:16] Speaker 01: Good morning. [00:00:16] Speaker 01: Please support Lisa Wright for Mr. West. [00:00:18] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:22] Speaker 01: So the parties disagree about just about everything in this case, and fundamentally, [00:00:26] Speaker 01: I don't even agree about how to frame the various disputes, who needs to decide what when. [00:00:32] Speaker 01: So if I could like to step back and get out of the weeds and propose that the court can correct Mr. West's unconstitutional act of sentence without having to reach most of the questions that have been briefed here, we see the decision framework as a three-step simple process. [00:00:47] Speaker 01: Have we passed at those hurdles, procedural hurdles? [00:00:50] Speaker 01: Have we made out a Johnson error? [00:00:52] Speaker 01: on the merits and is the error harmless? [00:00:54] Speaker 01: And the government's framework, we say, wrongly jumbles and conflates those questions and puts them all into the EDPA procedural analysis. [00:01:02] Speaker 01: Unfortunately, the case law and the other circuits on these questions is all over the place. [00:01:06] Speaker 01: So our view of these questions relies on the plain text of 2255 and 2254. [00:01:12] Speaker 01: And obviously, we'd like our reading of EDPA to prevail. [00:01:15] Speaker 01: And we'd also think we're right about the merits burden question. [00:01:20] Speaker 01: The court doesn't have to reach those questions, because even assuming that the government is correct, that to get past EDPA, Mr. West has to show that he has not just a Johnson claim, but a winning Johnson claim. [00:01:33] Speaker 01: And even if it's correct to determine that, Mr. West has to show by reponderance that he was sentenced. [00:01:40] Speaker 01: He has met that reponderance burden. [00:01:42] Speaker 01: And that's the easy way to decide this case. [00:01:45] Speaker 01: So put most simply, Mr. West's ACCA sentence must be reversed because he can show that one, it's more likely than not that he was sentenced under the unconstitutional residual clause. [00:01:55] Speaker 01: And that's for one of two reasons which I can get to. [00:01:59] Speaker 01: And two, the Johnson error was harmless because West does not qualify under any other ACCA clause. [00:02:06] Speaker 01: And we say that the wording answers both of these questions. [00:02:10] Speaker 01: Because it makes clear that a crime like New Jersey Aggravated Assault that can be satisfied with the reckless in its rate does not require force against another. [00:02:18] Speaker 01: The government intends boardings inapplicable because of the circumstances under which the reckless conduct occurs under the New Jersey Aggravated Assault. [00:02:28] Speaker 01: But it fails to grasp the import of boardage versus it failed to grasp the import of the vehicle. [00:02:34] Speaker 01: when they had argued Borden. [00:02:37] Speaker 01: And I'd like to talk about the 28J letter, I think illuminates the issue here. [00:02:42] Speaker 01: So the New Jersey statute says that it can be satisfied if a person recklessly causes a serious or significant injury under circumstances manifesting extreme indifference to human life. [00:02:53] Speaker 01: And the Brasby case, the government cites in the 28J letter, [00:02:59] Speaker 01: First of all, that case decided the question of the enumerated clause, because unlike ACCA, the Sentencing Commission has made aggravated assault at enumerated offense. [00:03:09] Speaker 01: It did not address the [00:03:12] Speaker 01: other than to say that the government concedes that it's a tarot, that the Third Circuit is a tarot case, has held that conviction for reckless conduct is insufficient. [00:03:21] Speaker 01: And if the court looks at a tarot and goes back, that line of authority in the Third Circuit goes way, way back to like 1992. [00:03:27] Speaker 01: So, but what the most interesting thing that Grasby says is they discuss the New Jersey model for injury instructions and [00:03:34] Speaker 01: This is what they say and I'm just going to read from this. [00:03:36] Speaker 01: The New Jersey model criminal jury instructions in New Jersey practice series explain that the phrase under the circumstances manifesting extreme indifference value human life is not part of the recklessness men's rape for aggravated assault and then they quote the jury instruction itself. [00:03:51] Speaker 01: That phrase quote does not focus on the state of mind of the actor but rather on the circumstances under which the jury finds that he or she acted [00:04:00] Speaker 01: And in light of all the evidence, if the jury finds that the conduct resulted in a probability as opposed to a mere possibility of serious injury, then the jury may find he acted under the circumstances manifesting extreme indifference. [00:04:13] Speaker 01: And this did not make it more clear that the recklessness mens rea of New Jersey aggravated assault for burden purposes is identical to the recklessness mens rea held not to satisfy the elements clause in Borden. [00:04:25] Speaker 01: So the circumstances manifesting phrase just heightens the likelihood of injury. [00:04:30] Speaker 01: from possible to probable, it doesn't heighten the mens rea itself. [00:04:34] Speaker 01: And Borden held that the against phrase, Borden said, I mean it said it flat out, that the against phrase requires purposeful or knowing conduct. [00:04:46] Speaker 01: And as we know from being Borden, [00:04:50] Speaker 01: Reckless use of force is not undertaken against anyone because it involves indifference and the lack of targeting and the directness that's required for what it calls the oppositional meaning of the word against. [00:05:02] Speaker 01: So the fact that this indifferent, non-oppositional, and undirected state of mind exists under circumstances with a heightened risk of injury doesn't make the force being used any more targeted or aimed at or consciously directed than it was in Borden. [00:05:18] Speaker 03: That's right. [00:05:19] Speaker 03: Can you go back to the somewhat threshold question of whether you have to show he was likely sentenced under the residual clause or rather merely might have been sentenced under the residual clause? [00:05:34] Speaker 03: This is a civil case. [00:05:36] Speaker 03: Maybe this is a civil case. [00:05:38] Speaker 03: So that alone, I think, [00:05:44] Speaker 03: makes you have to start at something of a disadvantage winning that argument because. [00:05:50] Speaker 03: I think under your theory. [00:05:52] Speaker 03: Even if there's a let's say 80% chance. [00:05:57] Speaker 03: That. [00:06:00] Speaker 03: Mister West's rights were not at all violent. [00:06:06] Speaker 03: He can still win this civil suit. [00:06:10] Speaker 03: It seems like an odd way to think of [00:06:13] Speaker 03: the kind of burden we usually put on a plaintiff? [00:06:17] Speaker 01: Well, I think we're conceiving of the may have. [00:06:20] Speaker 01: We don't, I don't think Mr. West has to take it as far as your honor is because we're conceiving that the may have would only control when the evidence is sort of in equal ways as to, you know, it's like 50, 50, was it the residual or was it the, and so we're in a sense, the government says they shouldn't run the tie and you know, we understand that that has some, [00:06:40] Speaker 01: base appeal, but if you look at Stromberg and Griffin, once we get past the Edward hurdles, we should be treated like any other person with a constitutional claim. [00:06:49] Speaker 01: And under Griffin and Stromberg, when there's a general verdict, we would say this is, in a sense, a general sentencing verdict. [00:06:56] Speaker 01: You do treat the sentence as infected, or the verdict as infected with constitutional error, if you can't tell. [00:07:03] Speaker 01: So it's really just in that situation. [00:07:05] Speaker 01: And that's all Mr. West needs. [00:07:07] Speaker 01: Of course, he doesn't really need that, because we [00:07:10] Speaker 03: Well, and I think maybe there's less daylight than it seemed between what the government is saying and what you're saying on that threshold question of whether it has to be likely or merely just may have. [00:07:25] Speaker 03: And I understand that putting percentages on things like this is not the best way to do it. [00:07:30] Speaker 03: At least let's say it's not an ideal or perfect way to do it. [00:07:34] Speaker 03: But if I understood what you just said, [00:07:37] Speaker 03: I think there's a 60% chance that he was not sentenced under the residuals. [00:07:46] Speaker 03: You'd lose. [00:07:48] Speaker 03: Is that your theory? [00:07:54] Speaker 01: I know that some have interpreted the may have clause as such that we could win, I guess. [00:08:01] Speaker 01: I understand that's a harder argument to make. [00:08:03] Speaker 01: Let's just say that. [00:08:04] Speaker 01: We don't need to make it. [00:08:06] Speaker 01: I mean, because here, the judge himself found it was an acro poise, essentially. [00:08:11] Speaker 01: It didn't go beyond acro poise. [00:08:12] Speaker 01: He did not claim to remember at all, had no recollection. [00:08:16] Speaker 01: He was simply reading the legal tea leaves and trying to figure out had we, you know, he didn't find that the government met the burden of showing it was more likely than not to eat. [00:08:27] Speaker 01: All of a sudden, he just said, we hadn't met. [00:08:30] Speaker 01: other than the residual clause. [00:08:31] Speaker 01: So essentially he left it no further than equipoise. [00:08:35] Speaker 01: So that situation, I mean, I think I can make an argument for that, but I really don't need to. [00:08:40] Speaker 01: And I understand it's a harder argument to make. [00:08:43] Speaker 00: But then why are we looking at the context at the time at all? [00:08:46] Speaker 00: Because it seems like if you look at the context of the law at the time, part of the reason you're looking at the context of the law at the time is try to get a sense of whether [00:08:54] Speaker 00: You're on 50-50 land or 52-48 land or 58-42 land, or if I'm doing my math right, trying to get those both to add up to 100 every time. [00:09:02] Speaker 00: But it's gradations. [00:09:06] Speaker 00: I guess I didn't understand your argument to be, and I don't know why logically it would be, that it's only confined to the pure equipoise situation of 50-50 where it's a complete coin flip. [00:09:18] Speaker 00: It may have sounds. [00:09:19] Speaker 00: I mean, there may be some point at which [00:09:22] Speaker 00: you're far enough along the spectrum that you're not even in may have land anymore, but. [00:09:28] Speaker 01: Yeah, I don't want to concede that. [00:09:30] Speaker 01: I don't want to concede that, but I'm not making that. [00:09:32] Speaker 01: I'm just saying that here may have case, the may have test certainly makes the difference in the situation. [00:09:39] Speaker 01: And that's the worst we are at. [00:09:42] Speaker 01: I mean, that's what we're not any worse than an aqua place. [00:09:45] Speaker 01: Cause that's even Leon. [00:09:50] Speaker 01: We didn't, we didn't find. [00:09:53] Speaker 01: that we were. [00:09:54] Speaker 04: So one of the offenses that you're claiming was not a violent crime is when your client beat somebody over the head with a sawed-off shotgun and knocked them out. [00:10:09] Speaker 04: And that wasn't a violent crime. [00:10:12] Speaker 04: Can you give me a hypothetical under this New Jersey statute where, in common parlance, someone would say, well, [00:10:21] Speaker 04: You were convicted of aggravated assault second degree, but that's not a violent crime. [00:10:28] Speaker 04: Give me a hypothetical. [00:10:29] Speaker 01: Okay. [00:10:30] Speaker 01: Let me look at what Justice Kagan and Borden went through, the different mindsets of purposeful, knowing, reckless, and [00:10:41] Speaker 04: Yeah, but the mindset didn't involve extreme recklessness. [00:10:45] Speaker 01: Right. [00:10:45] Speaker 01: Yeah, exactly. [00:10:46] Speaker 01: So she said that the reckless actor, she imagined a commuter who, late to work, decides to run a red light and hits a pedestrian, and said that was not the right mindset. [00:10:58] Speaker 01: Now, in our hypothetical for us, it would be similar to that. [00:11:01] Speaker 01: We imagine the same reckless red light runner, but the circumstances of his conduct are so dangerous that it makes, you know, [00:11:11] Speaker 01: risk of injury probable and not just possible. [00:11:13] Speaker 04: And that's the test for extreme hurt. [00:11:15] Speaker 04: That's a dichotomy that I don't understand. [00:11:18] Speaker 04: Anything that's possible has some probability of occurring. [00:11:25] Speaker 04: So you're talking about what's probable and what's probable. [00:11:29] Speaker 04: And probable versus possible doesn't tell us when you talk about probable. [00:11:34] Speaker 04: It could be 10% probable. [00:11:36] Speaker 04: It could be 5% probable. [00:11:38] Speaker 04: It could be 100% probable. [00:11:40] Speaker 04: It's total. [00:11:41] Speaker 04: That is a totally meaningless dichotomy. [00:11:45] Speaker 04: It's in the New Jersey statute. [00:11:47] Speaker 04: I know. [00:11:48] Speaker 04: But you didn't quote, by the way. [00:11:50] Speaker 04: I don't understand why. [00:11:52] Speaker 01: The New Jersey statute itself? [00:11:54] Speaker 01: Oh. [00:11:57] Speaker 01: Yeah, I understand what you're saying. [00:11:58] Speaker 01: Yes. [00:11:59] Speaker 01: Well, I think probable, though, to me, I think [00:12:02] Speaker 01: Probably is 51% probable. [00:12:06] Speaker 04: The probable cost doesn't mean it's greater than 50%. [00:12:10] Speaker 01: Well, they've used the word probable. [00:12:12] Speaker 01: I think they've also used the word substantial risk. [00:12:15] Speaker 01: So I understand they're hard to pin down, but they are a scale. [00:12:18] Speaker 01: And it goes from possible to probable. [00:12:20] Speaker 01: And when you get to practically certain, you're at knowing. [00:12:22] Speaker 01: And the point is there is space between probable and practically certain. [00:12:27] Speaker 04: Yeah, I don't think that goes nowhere. [00:12:30] Speaker 01: The hypothetical I would give you would be the same red light runner that Justice Kagan imagined, only under circumstances that are much more dangerous. [00:12:37] Speaker 01: For example, that they know the intersection's busy with pedestrians at that time of day. [00:12:42] Speaker 01: Nevertheless, as they run the light, they decide to look at a text or answer a text on their phone. [00:12:47] Speaker 01: And someone gets hurt. [00:12:48] Speaker 01: That would be probable. [00:12:50] Speaker 01: That would rise to the level of probable. [00:12:52] Speaker 01: But it's not certainty. [00:12:53] Speaker 04: How probable? [00:12:55] Speaker 01: It's not knowing. [00:12:57] Speaker 01: So that space between those two things is what we think is clearly there. [00:13:02] Speaker 00: Can I ask a question about how Borden works out across a couple of scenarios? [00:13:16] Speaker 00: So if you have a situation in which it's absolutely clear that the initial sentencing was done in violation of Borden and that there were aggravated felonies that were counted [00:13:27] Speaker 00: under the elements part of the statute, even though the mens rea was recklessness and put aside extreme recklessness. [00:13:33] Speaker 00: Let's just just talk about flat recklessness, which is foreclosed by Borden. [00:13:37] Speaker 00: Then I think it's true that even if that's the case, a person who was convicted wouldn't have the ability to bring a second or successive 2255 petition that's grounded in what everybody concedes was an error at sentencing. [00:13:55] Speaker 01: If it was if it was. [00:13:57] Speaker 01: I think that's right. [00:13:58] Speaker 01: I mean, I would like to say only if it's clear that it was only on the elements, right? [00:14:03] Speaker 00: Well, let's just make that I don't just give you that. [00:14:05] Speaker 00: So let's just say it was only on the elements clause that district court made it clear and says I, you know, there's some noise in here about the residual cause. [00:14:13] Speaker 00: I'm not even going to get into that. [00:14:14] Speaker 00: I'm just grinding my sentence and. [00:14:16] Speaker 00: elements clause, I know it's recklessness, but I think that's enough. [00:14:20] Speaker 00: And therefore ACCA is satisfied and therefore the mandatory minimum kicks in. [00:14:24] Speaker 00: And then, and then Borden comes around and then the person, let's just suppose they've already filed a 2255 motion. [00:14:33] Speaker 00: Then it's clear that that person can't get relief under 2255 and a second successive. [00:14:40] Speaker 00: And why, why is it that if that person can't get relief, even though it's clear, [00:14:46] Speaker 00: that they should prevail on a board and claim that someone who has some doubt about whether it was the residual clause or not gets to come in and get the relief? [00:14:57] Speaker 01: Well, I mean, we don't qualify under either clause. [00:15:01] Speaker 01: We have a Johnson. [00:15:02] Speaker 01: I mean, we have a Johnson claim to the extent he relied on the residual clause. [00:15:09] Speaker 01: The sentence is unconstitutional. [00:15:10] Speaker 01: And then the only question is, was he harmed by that error? [00:15:13] Speaker 01: And you look at, can it be sustained under another [00:15:17] Speaker 01: because an underboarding can't be. [00:15:19] Speaker 00: Right. [00:15:20] Speaker 00: So your argument is that your client would win under board. [00:15:23] Speaker 00: Am I getting this wrong? [00:15:24] Speaker 00: I mean, I guess what I'm asking is, why does the Johnson allowance give somebody an opportunity to bring, to get relief under board when you couldn't get relief under board and to begin with? [00:15:37] Speaker 01: We would say we're not getting relief under boarding. [00:15:40] Speaker 01: We're just, we have a Johnson error and when you look to see whether we were harmed by it, [00:15:46] Speaker 01: You look at the law and you say, oh, they were harmed because it doesn't apply. [00:15:52] Speaker 01: So they don't have a board and claim, and they're not getting relief under board. [00:15:55] Speaker 00: You're just using board for harmless error purposes? [00:15:57] Speaker 01: Yes. [00:15:59] Speaker 01: The only other thing we use it for, to the extent it relates back as part of the legal landscape, but we don't really need it for that purpose either. [00:16:09] Speaker 04: Can I follow up? [00:16:10] Speaker 04: I wanted to follow up on the chief judge's question. [00:16:14] Speaker 04: One of the things that's somewhat disorienting about this case is that your client has already served his jail time, and he was in the five-year supervised. [00:16:28] Speaker 04: But suppose that instead he was sentenced to 15 years to simplify, the mandatory minimum, and had only served five. [00:16:40] Speaker 04: And he brings the case [00:16:43] Speaker 04: We would not say or analyze it in terms of whether it was likely or not likely or whatever about whether we ought to give relief. [00:16:55] Speaker 04: I think what we do is remand for resentencing. [00:17:00] Speaker 04: and let the district judge sort it out. [00:17:03] Speaker 04: And if the district judge finds that, oh, yeah, I shouldn't have put them in the residual category, I should have put them in the elements category, the sentence remains the same. [00:17:14] Speaker 04: Or we could not remand and say, it's harmless error. [00:17:18] Speaker 04: If he did put it in the residual category, that was harmless error, because those crimes qualify as crimes anyway. [00:17:26] Speaker 01: But we were saying it is not a harmless error. [00:17:30] Speaker 04: harm and we're saying this court should reverse and man for an amended judgment because if we remanded for resentencing, the judge could resent some using the elements close, but you can't know that. [00:17:40] Speaker 04: My hypothetical is that there's no question that both of the crimes were violent crimes or three of them, right? [00:17:50] Speaker 01: I mean, if they're violent crimes, we lose, but they're not. [00:17:55] Speaker 01: I guess I'm not. [00:17:57] Speaker 04: I mean, so if we decide that these [00:18:00] Speaker 04: two beatings that your client engaged in were violent crimes, then you lose. [00:18:07] Speaker 01: That's right. [00:18:08] Speaker 01: I mean, if they qualify as violent felonies, we lose. [00:18:11] Speaker 04: Regardless, we wouldn't go through whether it was likely that those crimes were used under the residual clause. [00:18:18] Speaker 04: That drops out. [00:18:19] Speaker 01: We couldn't show harm, you know, if we were eligible under another clause. [00:18:25] Speaker ?: Okay. [00:18:26] Speaker 00: But then there's a question of whether we can, we can skip directly to that if we, if the threshold conditions for second are successive or jurisdictional. [00:18:34] Speaker 01: We would say you go straight to merits that we've satisfied. [00:18:38] Speaker 01: You go to the merits and under the merits, we would say apply the may have test and that we win that test and therefore we may have been sentenced. [00:18:47] Speaker 01: So we have a Johnson violation. [00:18:49] Speaker 01: Then the question is, can our conviction be sustained under any, our ACA sentence be sustained under anything else? [00:18:53] Speaker 01: And it can't be. [00:18:55] Speaker 01: But even if you go on the preponderance standard and you say, OK, you know, you have to show it's more likely than not that you were sentenced under the residual clause, we feel we clearly do that because of, not just because of Borden, which the district court has presumed, you know, and applied the law correctly because, you know, as in Mooling, you know, subsequent developments when there are statutory interpretation, all the Supreme Court did in Borden was say what the word against another always meant. [00:19:21] Speaker 01: And there's no reason to think that Judge Leon would not construe that correctly, especially when, as they said in Mooling, the law was not inscrutable. [00:19:29] Speaker 01: And that's what other courts were doing at the time. [00:19:32] Speaker 01: And Leacow, of course, even aside, if you don't want to abort and look back, he's presumed to know Leacow and how all the courts were interpreting that. [00:19:40] Speaker 01: And frankly, even before Leacow, courts were finding you didn't use force. [00:19:45] Speaker 01: So why would we think, by any sort of prerogative, that all [00:19:51] Speaker 01: All the signals point to the residual clause, which is the catch-all. [00:19:54] Speaker 01: I mean, at that point, Thomas had just come down saying that returning late to a halfway house created serious potential risk of injury. [00:20:04] Speaker 00: Right. [00:20:05] Speaker 00: This all goes to whether, as a matter of historical fact, we ought to assume that the district court [00:20:10] Speaker 00: thought that the residual clause had to be the only clause that could apply because the district court kind of omnisciently would have understood where the law was going to go, and that therefore I can't rely on the elements clause. [00:20:21] Speaker 00: Right. [00:20:22] Speaker 01: That's your... He's presumed. [00:20:23] Speaker 01: So in a way, we've not only shown it by Baconder, we've shown it by 100% because he's presumed to understand the law, which is now very clear. [00:20:31] Speaker 01: And the law being, you know, what do these words mean, which is a special kind of [00:20:37] Speaker 01: So we're not in a situation like most Johnson defendants. [00:20:42] Speaker 01: And to be honest, this is why the government fights this so hard, is most defendants are trying to rely on cases like Mattis, which have not been made. [00:20:52] Speaker 01: And they're trying to shut that down. [00:20:54] Speaker 01: But that's not our situation. [00:20:56] Speaker 01: And so that's why we don't need to decide all this preliminary question. [00:21:01] Speaker 04: I have just one question. [00:21:04] Speaker 04: I think the gay is the source of this categorical approach to deciding whether it's a violent crime. [00:21:16] Speaker 04: You just look at the statute and you disregard the circumstances of what happened. [00:21:26] Speaker 04: But anyway, and the Borden case, it was only a plurality that bought into that argument. [00:21:34] Speaker 04: But anyway, there is some circuits, and I don't think our circuit has dealt with this yet. [00:21:42] Speaker 04: do something called the modified categorical approach. [00:21:47] Speaker 04: When the statute that is claimed to be violated states three different or two different offenses, the New Jersey statute, the way I read it, has three different offenses in it. [00:22:02] Speaker 04: One is the attempt, two is purposeful, wounding or harm, and then three is the extreme [00:22:10] Speaker 04: uh, you know, extreme disregard for human life, whatever. [00:22:15] Speaker 04: That's three different things. [00:22:17] Speaker 04: So it shouldn't we if if we follow that line of cases, the modified categorical approach, we take a look at the circumstances [00:22:28] Speaker 04: of your client's activity, whatever he was charged with, like the sawed-off shotgun, and see which one of those he falls under. [00:22:41] Speaker 04: And if we did that, it seems to me that anybody who hits somebody else over the head with a sawed-off shotgun is acting purposely. [00:22:48] Speaker 04: And so all this other stuff would go out the window. [00:22:52] Speaker 04: We wouldn't have to care about most likely, and we wouldn't have to go through the categorical interpretation. [00:23:02] Speaker 04: Was that a question? [00:23:04] Speaker 01: I definitely understood it. [00:23:07] Speaker 01: I would say the answer, though, is that the modified categorical does not apply here. [00:23:10] Speaker 01: There's a case in my mind right now, which one it was. [00:23:14] Speaker 01: It explains very clearly that there are two offenses. [00:23:18] Speaker 01: It divides into two offenses. [00:23:19] Speaker 01: One is the attempt, and one is when you actually cause injury. [00:23:23] Speaker 01: And then there's two means of causing the injury. [00:23:27] Speaker 01: And so the modified categorical distinguishes between when you divide statutes that have separate elements, but you don't divide them when they just have different means violating the same element. [00:23:41] Speaker 01: And this statute is not divisible. [00:23:43] Speaker 01: So the recklessness [00:23:47] Speaker 04: is lumped in with the... Grammatically, that doesn't work here. [00:23:53] Speaker 04: If you read the New Jersey statute, it would be, I don't know, a double positive or a double negative or whatever you call it, but it just grammatically doesn't work. [00:24:08] Speaker 04: You have to separate the three things out. [00:24:12] Speaker 01: The means versus elements question can be tricky, but I think as I understand the way the analysis works, these are the means to mean. [00:24:22] Speaker 01: Okay. [00:24:23] Speaker 00: We'll give you some time for rebuttal. [00:24:25] Speaker 01: Thank you very much. [00:24:26] Speaker 01: We'll ask the reverse. [00:24:28] Speaker 00: Thanks, Mr. Hansford. [00:24:39] Speaker 02: Good morning, and may it please the court Eric Hansford for the United States. [00:24:44] Speaker 02: So there are various reasons why the defendant's 2255 motion does not succeed in this case. [00:24:52] Speaker 02: We think that the easiest way home here is the extreme recklessness issue, that these 2255 issues are really peculiar to Johnson claims. [00:25:03] Speaker 02: And Johnson claims are now dwindling. [00:25:06] Speaker 02: So it's not necessarily something that's going to be coming up a lot going forward. [00:25:10] Speaker 02: And so we do think that the easiest way to resolve this case is based on the extreme recklessness issues. [00:25:18] Speaker 02: Just before I get there on the Chief Judge's question about whether these are jurisdictional requirements, the department's position is that the second or successive requirements are not jurisdictional requirements. [00:25:32] Speaker 02: Sub-circuits have kind of old [00:25:34] Speaker 02: pre-RBOT case law suggesting that these are jurisdictional requirements. [00:25:40] Speaker 02: But the department's position is at least a 20 to 55 page is not a jurisdictional requirement. [00:25:47] Speaker 00: So even to get the Court of Appeals authorization is non-jurisdictional? [00:25:51] Speaker 02: So I think that may be jurisdictional, but we're past that. [00:25:57] Speaker 00: But how then, how do you draw that line? [00:25:59] Speaker 00: Why would the one be jurisdictional and the other not? [00:26:01] Speaker 00: What's in the statute? [00:26:03] Speaker 02: So, I believe the so when you get to. [00:26:12] Speaker 02: 2244. [00:26:12] Speaker 02: So 2244B is incorporated through 2255H, at least part of 2244. [00:26:21] Speaker 02: I think the best jurisdictional analysis I've seen is the Sixth Circuit's Williams case that we cite in the brief. [00:26:31] Speaker 02: So I think that's useful on explaining why it's not jurisdictional. [00:26:39] Speaker 02: I am not entirely sure what the department's position on whether the certification is jurisdictional or not. [00:26:44] Speaker 00: And I'm just looking at 2255-H. [00:26:47] Speaker 02: Sure. [00:26:48] Speaker 00: So 2255-H, it says, second or successive motion must be certified as provided in 2244 by a panel of the appropriate court of appeals to contain, and as is relevant here, a new rule of constitutional law made redirect cases on collateral view by the Supreme Court that was previously unavailable. [00:27:03] Speaker 00: Right. [00:27:03] Speaker 00: So is that jurisdictional, that requirement? [00:27:08] Speaker 02: How is it not? [00:27:09] Speaker 02: So, I mean, I think there has been a certification in this case. [00:27:13] Speaker 02: So we're past the, there has been a prima facie certification in this case. [00:27:18] Speaker 00: But then, but you don't think that that's all 2255H encompasses, as I understand it. [00:27:22] Speaker 02: That's correct. [00:27:23] Speaker 02: We also think under 2244B4, there's a separate requirement that the district court then [00:27:31] Speaker 02: re-analyze and make sure. [00:27:32] Speaker 02: Is that jurisdictional? [00:27:34] Speaker 02: So we do not think the B4. [00:27:35] Speaker 00: That's what I don't understand. [00:27:36] Speaker 00: How can it, if 2255H is jurisdictional, at least with respect to the Court of Appeals certification? [00:27:47] Speaker 02: So I'm not entirely sure what the department's position on the initial, whether or not it's initially jurisdictional to get the certification. [00:27:58] Speaker 02: I believe our position is that it's not. [00:28:00] Speaker 00: That's not jurisdictional either? [00:28:03] Speaker 00: Or that it's not? [00:28:04] Speaker 02: I believe our position is that it's not, but I'm not sure about that. [00:28:07] Speaker 00: And how is that? [00:28:08] Speaker 00: I'm happy to follow up in a 28-J kind of... Okay, I don't want to belabor a point that maybe we're not completely sure of here, but how could that... How is that not jurisdictional? [00:28:20] Speaker 00: There's a separate question of whether statutory jurisdiction claims have to be addressed before the merits. [00:28:25] Speaker 00: We have some law that indicates that the statutory jurisdiction, it doesn't have to be addressed before the merits, not withstanding steel company that law. [00:28:31] Speaker 00: I think there's been some concurring opinions that have called that into question, but that issue exists. [00:28:36] Speaker 00: But just on whether it's jurisdictional at all, the statute just says the second successive motion must be certified to contain. [00:28:44] Speaker 00: It sounds like it's just [00:28:46] Speaker 02: So I mean, I think the question is going to be whether that's mandatory claims processing rule, whether it's jurisdictional. [00:28:53] Speaker 02: And certainly the 2244B4, which is what we think creates the district court's obligation to independently review this, that says a second or successive claim must be dismissed by the district court. [00:29:09] Speaker 02: We don't think that is speaking in jurisdictional language. [00:29:12] Speaker 02: So the department's position is certainly that's not a jurisdictional requirement. [00:29:16] Speaker 00: Then can I just ask you about that then? [00:29:18] Speaker 00: I know we're down in weeds that you don't want to be down in, but I just, I'm not, as I sit here now, I can't be certain that they're non-jurisdictional, so I just want to make sure I understand the thinking on this. [00:29:31] Speaker 00: On 2244B4, I'm not understanding what that has to do with the 2255, [00:29:43] Speaker 00: as opposed to a 2254 case, because how is it that 2244B4 in a 2255 case says that the district court has this second layer of assurance that the second or successive precondition is satisfied? [00:30:06] Speaker 00: And by the way, none of this is to say that you don't ultimately, one way or the other, whether you ultimately win, is the route by which one would go through the analysis. [00:30:14] Speaker 00: And on that, that seems like a big skip, that 2255H definitely deals with the threshold certification by the Court of Appeals that there has to be a premium of foster children. [00:30:25] Speaker 00: Everybody agrees with that. [00:30:27] Speaker 00: And the question is, well, what comes after that? [00:30:29] Speaker 00: And this second stage definitely comes after in a 2254 case, but we're talking about a 2255 case. [00:30:35] Speaker 00: What is it? [00:30:36] Speaker 02: Yes. [00:30:36] Speaker 02: So the 2255 before does not explicitly cross-reference 2254 in the way that B1 or B2 do. [00:30:47] Speaker 02: And so every circuit, including the may have circuits, has found that there are two gates that a second or successive 2255 has to pass through, the second gate being that 2255. [00:30:59] Speaker 00: 40 or before every circuit has. [00:31:02] Speaker 00: Right. [00:31:02] Speaker 00: But why is every circuit right about that? [00:31:04] Speaker 00: Sure. [00:31:06] Speaker 00: They may be, but I don't get it. [00:31:07] Speaker 00: Where textually, where's that second stage coming from in a 2255 case? [00:31:15] Speaker 02: So I mean, I think the question is, when 2255H is cross-referencing 2244, what is brought in by that? [00:31:25] Speaker 02: Because the 2255H language, it's not exactly identical to the 2244 language. [00:31:32] Speaker 02: So in doing that cross-reference, it's pulling in something. [00:31:38] Speaker 02: And it's not entirely clear what the scope of that is. [00:31:41] Speaker 02: I think in understanding why that has to be a 2nd gate, why the district court has to re re analyze it useful to look at 2255 H1 for the newly discovered evidence. [00:31:54] Speaker 02: Under that provision, you get a second or successive petition if you establish newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient by clear and convincing evidence to find that no reasonable fact finder would have found the moving guilt. [00:32:14] Speaker 02: So all you have to do, that clear and convincing evidence, especially with that whole provision, [00:32:20] Speaker 02: That is contemplating some sort of standard of proof that you are ultimately put to. [00:32:25] Speaker 02: And the prima facie certification that happens before the circuit just to get the filing of the 2255H, that is not engaging in that sort of analysis. [00:32:37] Speaker 02: There's no evidence. [00:32:38] Speaker 02: There's no evidence at all before the circuit. [00:32:40] Speaker 02: It's just kind of. [00:32:41] Speaker 00: I mean, I don't doubt for a second that it would make a lot of sense if there were this second stage. [00:32:47] Speaker 00: that seems like functionally, it almost seems like that would be maybe the only sensible way to construct the regime. [00:32:53] Speaker 00: But I don't see it. [00:32:55] Speaker 00: I don't see where, even in the H1 situation, what statutorily is bringing, effectively what you're doing is [00:33:05] Speaker 00: bringing in 2244B2A and B into a 2255 case, even though those provisions specifically talk about 2254, not 2255. [00:33:15] Speaker 00: That's effectively what's happening, because then those are the second stage review in a 2254 case. [00:33:21] Speaker 00: And the question is, where is that second stage coming from in a 2255 case as a textual matter? [00:33:27] Speaker 00: How do you get the textual? [00:33:28] Speaker 02: Sure, sure. [00:33:30] Speaker 02: When you look at statutory interpretation, you're looking at content. [00:33:33] Speaker 02: So I think you have to look at the H1 language. [00:33:36] Speaker 02: And I think if you are understanding certification to just mean all we have to do is this prima facie case before the circuit, H1 just makes no sense. [00:33:46] Speaker 02: It makes no sense to be talking about clear and convincing evidence. [00:33:51] Speaker 02: to be looking at what sort of evidence is going to be established because that is not ever required in the 2255. [00:33:59] Speaker 02: You don't have to in order to prevail on a 2255 established by clear and convincing evidence that no reasonable fact finder would have found you not guilty based on newly discovered evidence. [00:34:11] Speaker 02: Instead, even for a newly discovered evidence, your 2255 is going to be based on another claim. [00:34:18] Speaker 02: It's going to be a Brady claim or something along those lines. [00:34:21] Speaker 02: And that's going to be a standard 2255 preponderance standard. [00:34:25] Speaker 02: So I think the fact that H1 is referencing the clear and convincing evidence is the clearest textual signal that there is an evidentiary burden that a defendant has to meet beyond just the prima facie case. [00:34:40] Speaker 02: And then there's just the larger structural point, which is that [00:34:44] Speaker 02: Supreme Court and other courts have recognized 2255H, a second or successive petition, is supposed to make it significantly more difficult to establish a 2255 petition. [00:34:57] Speaker 02: And if you are just reading in isolation that word certified as just this fairly easy prima facie case, you're not really doing a lot of work with that. [00:35:08] Speaker 00: I mean, all this ultimately goes to is that even if I agreed with you that the right way to look at [00:35:12] Speaker 00: the entitlement to relief ultimately is more likely than not. [00:35:16] Speaker 00: Even if I agree with you on that, all this technical debate goes to is, do I do that at the [00:35:27] Speaker 00: threshold stage of deciding whether they've gotten through the second or successive gateway or to do it at the merits to decide whether they actually succeed on a Johnson. [00:35:35] Speaker 02: That's right. [00:35:36] Speaker 02: Um, and just to flag here, this is in part why we think it's easier to resolve all of this on extreme recklessness because, you know, if we can get there on the assumption that it's not jurisdiction. [00:35:47] Speaker 02: Right. [00:35:48] Speaker 02: Right. [00:35:48] Speaker 02: But, but I think no one is saying the, I think any argument that the second gate would be jurisdictional [00:35:54] Speaker 02: It is would be very so. [00:35:57] Speaker 04: What is it? [00:35:58] Speaker 04: What is his status now? [00:36:01] Speaker 04: He served his 18 years or whatever it was and he was what three years into supervisory lease. [00:36:09] Speaker 02: Uh, I don't remember exactly how far, but yes, he has been revoked and that was revoked. [00:36:15] Speaker 04: Right. [00:36:15] Speaker 04: And so he was put back in jail for what? [00:36:21] Speaker 04: What was the cause of his violation of the supervisory lease? [00:36:28] Speaker 02: It was, I believe, a new criminal conviction, but I don't remember the details of it. [00:36:34] Speaker 02: There is a separate appeal involving his revocation. [00:36:37] Speaker 04: I'm just wondering if in this separate appeal or whatever, was he given a concurrent sentence, the two years of the supervisory lease that he didn't [00:36:49] Speaker 04: fulfill a concurrent sentence with whatever the crime was that he committed? [00:36:56] Speaker 02: I don't recall. [00:37:00] Speaker 02: I would assume not. [00:37:01] Speaker 04: Isn't that rather important? [00:37:05] Speaker 04: What relief could we give? [00:37:07] Speaker 04: There are two questions that are involved there. [00:37:10] Speaker 04: Number one is what relief we could give if he's serving concurrent sentences or maybe he's already served [00:37:19] Speaker 04: the supervisor release. [00:37:21] Speaker 04: And number two, if the argument is [00:37:28] Speaker 04: and I've asked defense counsel this, if the argument is that you have to excuse his violation of supervisory lease because of that, he would not have been sentenced to five years or 15 years minimum and five years, if he were sentenced, mis-sentenced under the elements clause. [00:37:54] Speaker 04: And that raises an interesting question. [00:37:56] Speaker 04: In injunction actions, if you violate an injunction, you can't defend on the basis that the injunction was unconstitutional. [00:38:05] Speaker 04: The Supreme Court's held that a number of times. [00:38:07] Speaker 04: You have to, first of all, get that injunction lifted. [00:38:11] Speaker 04: And it seems to me by parallel reasoning, if you claim you shouldn't be under supervisory lease, you just don't go out and violate it. [00:38:20] Speaker 04: What you have to do is get it lifted first. [00:38:23] Speaker 02: So I mean, I understand the analogy and the abstract. [00:38:27] Speaker 02: I'm not aware of any cases that make that sort of analysis. [00:38:33] Speaker 02: But I do think this court ultimately doesn't have to engage with that, because the extreme recklessness is clearly going to qualify as a crime of violence under court. [00:38:42] Speaker 04: Well, if there's no relief we can give, we wouldn't get to that question. [00:38:49] Speaker 02: I guess I'm just not aware of any cases holding that, so I'm not sure that's the easiest way to resolve. [00:38:56] Speaker 04: I'm not sure that there are any cases going the other way either. [00:39:00] Speaker 02: I'm just not aware of any cases. [00:39:03] Speaker 02: But in terms of the extreme recklessness issue, I think that both textually and contextually, which are the two key points that Borden emphasizes, the extreme recklessness looks very different from ordinary recklessness. [00:39:21] Speaker 02: So contextually, extreme recklessness is most often used in murder, in second degree murder, depraved heart murder. [00:39:30] Speaker 02: That's mainly where extreme recklessness is confined. [00:39:32] Speaker 04: This doesn't say extreme recklessness. [00:39:35] Speaker 04: So it says extreme disregard for human life. [00:39:39] Speaker 02: Yes, but that is the classic formulation of extreme recklessness. [00:39:44] Speaker 02: That language comes straight from the model penal code, the New Jersey statutory language. [00:39:49] Speaker 02: And so [00:39:50] Speaker 02: as Braesby and the third circuit recently recognized, this is, this is kind of classic stream recklessness language. [00:39:57] Speaker 04: Do you agree there are three crimes laid out and that's in the, uh, both in the second degree and third degree aggravated assault. [00:40:06] Speaker 04: So I just go through them. [00:40:07] Speaker 04: One is attempt. [00:40:08] Speaker 04: Sure. [00:40:09] Speaker 04: Right. [00:40:10] Speaker 04: Two is purposeful purposeful, you know, arming another, right? [00:40:18] Speaker 02: So I think we do. [00:40:20] Speaker 04: Three is the causing injury, such injury, which is serious or substantial in this regard of human life. [00:40:32] Speaker 02: So I think in applying the categorical approach and what the braise be [00:40:39] Speaker 02: Third Circuit did with this statute is, yes, the attempt is a separate crime because that's kind of textually separately defined, but the court caused injury purposely or under circumstances manifesting extreme indifference to the value of human life recklessly. [00:40:57] Speaker 02: Oh, no, no, no. [00:40:57] Speaker 02: Finish the sentence. [00:40:59] Speaker 04: Finish. [00:40:59] Speaker 04: Cause such injury. [00:41:00] Speaker 04: cause such injury. [00:41:03] Speaker 04: So you cause it in the third clause, you cause it in the second clause, you attempt to cause it in the first clause. [00:41:11] Speaker 02: So I think the modified categorical approach, it is hard to apply. [00:41:18] Speaker 02: It comes from the Supreme Court, so it is something that applies here. [00:41:21] Speaker 02: But I think under the modified categorical approach, we would say those are two crimes, just the attempt and the actual causing and its alternative means committing the same crime. [00:41:34] Speaker 02: causing an injury as opposed to alternative crimes, which has to do with textually how it's applied and things like that. [00:41:43] Speaker 02: The other thing to flag with the modified categorical approach, sadly, that doesn't get us to looking at... What was his crime? [00:41:52] Speaker 04: The crime that I mentioned with beating somebody over the head with a sort of shotgun. [00:41:58] Speaker 04: But the other crime was when he was in prison. [00:42:02] Speaker 02: Right. [00:42:02] Speaker 04: And what were the circumstances of that? [00:42:05] Speaker 02: It was beating a fellow inmate, but I don't remember the details of the circumstances. [00:42:12] Speaker 02: They're in the pre-sentencing report. [00:42:16] Speaker 02: But in terms of- It's in the pre-sentence report? [00:42:19] Speaker 02: Yes. [00:42:20] Speaker 02: I think it's, paragraphs, I think it's- That's not in the appendix, is it? [00:42:24] Speaker 02: I don't think it's in the appendix. [00:42:26] Speaker 02: Do you have a copy of it? [00:42:28] Speaker 02: I mean, we could certainly submit a copy, if that would be helpful. [00:42:32] Speaker 04: Yes, I'd like to see it. [00:42:36] Speaker 02: So in terms of why underportant extreme recklessness does qualify, murder is kind of the classic example of extreme recklessness. [00:42:45] Speaker 02: And extreme recklessness is not strewn throughout the criminal code, unlike ordinary recklessness, where you've got reckless driving and things like that. [00:42:54] Speaker 02: You mean second degree murder is what you're saying? [00:42:56] Speaker 02: Second degree murder. [00:42:57] Speaker 02: Yeah, correct. [00:42:58] Speaker 00: Great heart murder. [00:42:59] Speaker 00: So conceptually, extreme recklessness [00:43:03] Speaker 00: This goes to harmless there is that what you're is that the way the analysis would go that even if there's Johnson error. [00:43:10] Speaker 00: And even if that Johnson error is actionable. [00:43:14] Speaker 00: It doesn't matter because. [00:43:17] Speaker 00: the same predicate offenses still qualify under the law? [00:43:19] Speaker 02: I think that's the cleanest way to understand it. [00:43:22] Speaker 02: I think circuits have done a variety of things. [00:43:25] Speaker 02: Well, what's the government's view on the right way to look at that? [00:43:27] Speaker 02: So I think seeing it as harmlessness is the cleanest way to view it, yes. [00:43:31] Speaker 02: I think ultimately that doesn't, especially, it doesn't really change the analysis since it's the legal question, so we don't have to worry about. [00:43:42] Speaker 04: bears the burden on homelessness here. [00:43:45] Speaker 04: Is there a difference between harmless error analysis and constitutional error in the analysis? [00:43:53] Speaker 04: Are you familiar with Chapman? [00:43:55] Speaker 04: Yes. [00:43:57] Speaker 04: What's the difference in the formulation between the two? [00:44:00] Speaker 04: This would be a constitutional error because of Johnson, right? [00:44:07] Speaker 02: But we're on collateral. [00:44:09] Speaker 02: And so we're applying the Brett standard of harmlessness. [00:44:13] Speaker 02: So we are not we are not applying the harmless beyond a reasonable doubt that would apply direct review, but that does not apply on collateral. [00:44:23] Speaker 02: Is your burden to show homelessness? [00:44:25] Speaker 02: It is our burden, but it doesn't really matter because it's a legal question. [00:44:28] Speaker 00: So can I have the following hypothetical? [00:44:29] Speaker 00: So suppose you have a situation in which the district judge says, [00:44:34] Speaker 00: I see that I could count these offenses either under the residual clause or under the elements. [00:44:41] Speaker 00: I could do either. [00:44:44] Speaker 00: I'm not going to do the elements clause. [00:44:46] Speaker 00: I just, I don't feel comfortable doing that. [00:44:49] Speaker 00: Um, these offenses, I'm not sure they fit. [00:44:52] Speaker 00: There's not going to do that. [00:44:53] Speaker 00: I'm going to go under the residual clause. [00:44:55] Speaker 00: I just want to make it clear. [00:44:56] Speaker 00: That's what I'm doing. [00:44:57] Speaker 00: Sure. [00:44:58] Speaker 00: And then the same 2255 motion is brought. [00:45:02] Speaker 00: Would we do a harmless error analysis? [00:45:04] Speaker 02: That's where, yes. [00:45:05] Speaker 02: So I think you would say the defendant has established that his sentence under 2255A was imposed in violation of the Constitution. [00:45:15] Speaker 02: It was imposed based on a residual clause that is unconstitutional. [00:45:20] Speaker 02: So there'd be the 2255A showing, but it doesn't matter. [00:45:25] Speaker 02: It's harmless because the defendant was still subject to the exact same. [00:45:30] Speaker 00: Even if just subject to? [00:45:32] Speaker 02: Well, no, the defendant also was it as a matter of law, his predicate convictions are violent felonies and therefore even if we know as a matter of historical fact that the district judge would not have used the elements close. [00:45:51] Speaker 02: That's correct. [00:45:51] Speaker 02: Yes. [00:45:52] Speaker 02: Yes. [00:45:53] Speaker 00: That's how harmless error analysis applies in the 20 to 35 stage that even if the district judge says, I'm not going to go under the clause. [00:46:02] Speaker 02: I mean, then on a direct appeal, have the district court said that and declined to rely on the residual clause, then I think you'd likely see a government appeal in that, or potentially see a government appeal in that case. [00:46:16] Speaker 02: So that's why you're looking at whether or not the defendant has qualifying violent felonies as opposed to [00:46:28] Speaker 02: trying to dissect what the district court would have said in the harmless area. [00:46:35] Speaker 02: At the 2255 a stage, you are trying to figure out what the district court did in this specific case. [00:46:41] Speaker 00: But for harmless purposes, we don't look at what the district court said. [00:46:45] Speaker 02: Correct. [00:46:46] Speaker 02: And we also don't look at we do look at the state of the law. [00:46:51] Speaker 02: Now we look at [00:46:53] Speaker 02: That's what we're looking at with a harmless air analysis. [00:46:57] Speaker 02: So the defendant, should a defendant establish that he was improperly sentenced under the residual clause, we'd say, yes, he was improperly sentenced at that time. [00:47:07] Speaker 02: But that doesn't matter because he was subject to the exact same enhancements on another legally applicable theory. [00:47:19] Speaker 00: I do think it's not that not just that he was subject to because it has to be more than that, right? [00:47:27] Speaker 00: Just the fact that he was he qualified. [00:47:30] Speaker 00: I mean, these are all legal. [00:47:31] Speaker 00: They definitely applied. [00:47:32] Speaker 00: It has to be that they definitely. [00:47:35] Speaker 02: Well, I mean, by a ponderance, but they're all legal. [00:47:39] Speaker 02: So I don't think we have to be dissecting the standard. [00:47:44] Speaker 02: The question is just post-mortem. [00:47:46] Speaker 02: Does extreme recklessness qualify under the [00:47:48] Speaker 04: You can go off into the blue yonder on this. [00:47:52] Speaker 04: Is this a subjective inquiry? [00:47:55] Speaker 04: And it reminds me of the beginning of a very famous Court of Appeals case that said the principal issue in this case is what the district court would have thought on an issue about which it never thought. [00:48:12] Speaker 02: Yeah, I mean, I think that is potentially what happened here. [00:48:16] Speaker 02: Just on the 2255, of the three alternative arguments, timeliness, 2255-H and the merits, I think the cleanest way of seeing that the preponderance standard is the appropriate standard is 2255-A. [00:48:34] Speaker 02: what we're calling the merits of the 2255, which is the language, and that is a prisoner in custody has to establish that the sentence was imposed in violation of the Constitution. [00:48:47] Speaker 02: That clearly adopts a preponderance standard. [00:48:50] Speaker 02: It's not a may have standard. [00:48:51] Speaker 02: It doesn't work to say he may have been sentenced under the residual clause, and therefore a sentence was imposed in violation [00:49:00] Speaker 00: But you still don't think that's the easiest way to resolve the case. [00:49:02] Speaker 00: You think the easiest way to resolve the case, actually, is to even assume that went away and go to extreme recklessness. [00:49:07] Speaker 02: That's correct. [00:49:08] Speaker 02: And all five circuits who have confronted the extreme recklessness issue have agreed that extreme recklessness does satisfy it. [00:49:16] Speaker 02: So in part, that circuit consensus is helpful here. [00:49:20] Speaker 03: I get that there's not a circuit split on this important question yet. [00:49:29] Speaker 03: But I mean, this is ACCA. [00:49:35] Speaker 03: I mean, you seem to be very confident that the Supreme Court is going to agree with you. [00:49:40] Speaker 03: And I just don't know. [00:49:41] Speaker 03: I wouldn't bet my house on what the Supreme Court will do with an ACCA question. [00:49:51] Speaker 03: Full stop. [00:49:52] Speaker 03: So I'm not sure why the easiest [00:49:56] Speaker 03: and easiest in the sense of we can feel the most comfort and certainty that we're getting it right isn't to do it on the must-prove likelihood versus nearly may have. [00:50:12] Speaker 03: Not even get into whether it's jurisdictional or not. [00:50:16] Speaker 03: As we could say, I think even under steel code, if it's jurisdictional and likelihood is required, there's no jurisdiction. [00:50:24] Speaker 03: It's not jurisdictional. [00:50:26] Speaker 03: likelihood is still required, he loses on the merits. [00:50:31] Speaker 03: It seems like we could, there are some, you know, so many interesting questions in this case, but if I think that that is the easiest question, it must be likely, not may have, then can I assume away almost every other question in the case? [00:50:46] Speaker 02: Yes, I think you can. [00:50:48] Speaker 02: The reason we think the extreme recklessness is the easier way, which is, I agree, ACA is [00:50:54] Speaker 02: rarely the easiest way to resolve things. [00:50:56] Speaker 02: But unlike the extreme recklessness issue where there is circuit consensus, there is disagreement in the circuits about all these 2255 issues. [00:51:07] Speaker 02: So I think that's that's the reason we're pointing there. [00:51:09] Speaker 02: The other thing I'd say on the extreme recklessness is the [00:51:14] Speaker 02: The Supreme Court has consistently, in ACCA, looked at the consequences of the decision, has emphasized that ACCA is supposed to capture crimes like murder, quoting a then Judge Alito opinion, and has, so in the Quarles opinion in 2019, in the Stokely opinion in 2017, [00:51:40] Speaker 02: The Supreme Court is looking at common ways that crimes, common law crimes of violence, are defined. [00:51:48] Speaker 02: So in Stokely, it's robbery under the elements clause and is interpreting the elements clause in a way to make sure you're not excluding these kind of classic crimes of violence. [00:51:59] Speaker 02: And so extreme recklessness, because that is largely confined to second degree depraved heart murder, that seems to very much fall within the [00:52:10] Speaker 02: the heartland of where, what should be a crime of violence, even in the upside down world of ACCA, saying murder is not a crime of violence. [00:52:20] Speaker 02: One day, one day, we'll find out. [00:52:24] Speaker 02: If there are no further questions, we'd ask this court to go for it. [00:52:29] Speaker 00: Thank you, Mr. Hansford. [00:52:30] Speaker 00: Ms. [00:52:30] Speaker 00: Fratt, we'll give you the three minutes that you asked for. [00:52:37] Speaker 01: Just to clarify, Judge Randolph, [00:52:39] Speaker 01: So the status is that he received, so he was serving five years of supervised release. [00:52:43] Speaker 01: He was revoked for the technical violation, no new criminal conviction. [00:52:50] Speaker 01: He was given 13 years. [00:52:51] Speaker 04: What was the technical, was it what, not reporting or something? [00:52:56] Speaker 01: He was, one thing I know for sure, he was living with his girlfriend instead of with his cousin where he was supposed to be living. [00:53:02] Speaker 01: I can't remember if there was, [00:53:06] Speaker 01: I believe a pill involved. [00:53:08] Speaker 01: I don't recall if it was found. [00:53:09] Speaker 01: I guess the judge found by the conference that... Are you handling his other appeal? [00:53:14] Speaker 01: Our offices at this point, yeah. [00:53:17] Speaker 01: But the point is that he got, after the 13 months, the judge took the 60 months, this is how you do it, took the 60 months and subtracted the 13, gave him, you know, and so he has to do 47 more. [00:53:28] Speaker 01: And he only started that in December. [00:53:31] Speaker 01: So he's got like almost four years left. [00:53:36] Speaker 04: Well, what's the answer to the question that I tried to pose, which is that if he was on supervised release and violated that, is that violation wiped clean if you win this case? [00:53:54] Speaker 04: I'm not sure it is. [00:53:57] Speaker 01: Well, it can't be wiped clean. [00:54:01] Speaker 01: I do think his supervised release, his remaining supervised release needs to be... It's like an adjunction. [00:54:07] Speaker 04: You know, you violate it. [00:54:09] Speaker 04: You don't have a defense that was unconstitutional to begin with. [00:54:13] Speaker 04: You've got to get the supervised release vacated, and then you can do whatever you please, but you can't go out and violate it. [00:54:22] Speaker 01: Yeah, I have to think about how procedurally it's going to work, but I mean, that we do have an appeal. [00:54:27] Speaker 01: from that 47 month remainder. [00:54:30] Speaker 01: And it was very clear that Judge Leon got to that by taking our 60 months, which was wrong, and subtracting 13. [00:54:38] Speaker 01: Because that's how the statute works. [00:54:40] Speaker 01: And this all flows from our conviction. [00:54:44] Speaker 01: So that's that. [00:54:45] Speaker 01: Then just on newly discovered evidence point, I just don't really understand how the government's reading it. [00:54:50] Speaker 01: When the statute says newly discovered evidence that is proven, [00:54:55] Speaker 01: It's just saying, hypothesize that when we get to the merits, it's going to be valid. [00:55:00] Speaker 01: It's just not telling you that it has to be proven at the procedural stage. [00:55:04] Speaker 01: That's that. [00:55:06] Speaker 01: Just on this term, extreme recklessness, I just want to be clear that Grasby explains that really, and I think a lot of the courts call it extreme indifference recklessness, which is a term of art. [00:55:16] Speaker 01: Extreme recklessness suggests that there's more recklessness. [00:55:19] Speaker 01: But there isn't. [00:55:20] Speaker 01: There's just recklessness under these circumstances that make it more extremely indifferent. [00:55:25] Speaker 01: I also want to say that, you know, the government, these cases that governments rely on, nobody is saying much more than that this is, that streaming difference recklessness is closer to knowledge. [00:55:40] Speaker 01: How is that enough under boardings? [00:55:42] Speaker 01: And some of the cases don't even deal with the fact that there's not an aiming or directing. [00:55:48] Speaker 01: They just say, they look at the context, and they say, well, these are really bad crimes. [00:55:53] Speaker 01: We don't want to blur what's possible. [00:55:55] Speaker 01: They jump way past all the things that Justice Kagan said, like over and over so clearly. [00:56:01] Speaker 01: They're just not flying board inclusive. [00:56:06] Speaker 00: Under your argument, the classic second degree murder would not count. [00:56:11] Speaker 01: if it's got it right, because as Razbi makes clear, it's just recklessness, but under special circumstances. [00:56:22] Speaker 01: And I just want to say one more thing, which is that finally, just on the big picture of Edpa, there seems to be this feeling that somehow our interpretation of Edpa is going to swing the doors wide open. [00:56:35] Speaker 01: And I just want to be clear and undermine finality. [00:56:38] Speaker 01: But under our interpretation, [00:56:40] Speaker 01: Almost nobody can bring a second successive petition. [00:56:43] Speaker 01: There is this little narrow window. [00:56:45] Speaker 01: And it's for this people who lightning strikes them because this Supreme Court does this incredibly rare thing, making a new rule, and then ruling that it's retroactive. [00:56:54] Speaker 01: I mean, this never happens. [00:56:56] Speaker 01: If you fall in that category, yes, it is easy to get through. [00:57:00] Speaker 01: But for everybody else, it's almost impossible. [00:57:03] Speaker 01: So I mean, that's the way this thing is set up. [00:57:05] Speaker 01: And it's not at all odd, we would say, [00:57:07] Speaker 01: that Congress would put this court in charge of the procedural question and leave the merits and the timeliness of the district court. [00:57:16] Speaker 01: So with that, we would ask that the sentence be reversed, the case be reversed, and with an order to amend the sentence to no more than 10 years, three years. [00:57:26] Speaker 00: Thank you, counsel. [00:57:27] Speaker 00: Thank you to both counsel. [00:57:28] Speaker 00: We'll take this case under submission.