Oral Argument Legal Case Summary

Oral Audio Transcript(Beta version)

. Under that verification, the petitioner have sought to amend the petition to delete the unabsorbed claims. Your honor, he might have, but by the time he would have, the case had already been dismissed. And query whether he would have then had a successive petition problem. Well, that's true, but subsequent to the dismissal could he not have made a petition to the court for reconsideration? The answer to your question is yes, he could have. Is it reasonable to expect that he would have, I think the answer is no, because he's not presumed to have a detailed knowledge of federal procedure. He received an order from the bill. Council did not, the district court say those prisoners who misunderstand this total exhaustion requirement and submit mixed petitions nevertheless. Are entitled to resubmit a petition with only exhausted claims. Yes, Your Honor, he did write that. So, he did know that he had that option. Well, Your Honor, what he knew from the district court. And the option of two things either to resubmit a petition with only exhausted claims, and I'm reading, or to exhaust the remainder of their claims. And he elected to go for the latter. And 43 days after this, he filed something in the state court system. Am I correct? You are correct. All right. Your Honor, if I might expound a little bit further though on the footnote that you've alluded to here. I think that the problem with presuming that that cures all ills is twofold. The first is that the text of the judge's opinion, not this very last footnote that simply quotes from Rose Against Lundy, the text of the opinion tells him that the petition will be dismissed without prejudice, that he has an available state remedy and he should go and try to exhaust his claims. That was the direction that he was given by the district judge. Was a petitioner proceeding, Prosecutor? Was it a counsel petition? He was, Prosecutor, at that time, Your Honor. And returning, though, to the footnote that Judge Alvester refers to, which I think is footnote seven, from the district court's opinion of October 31 of 2003, I think the problem with that is that it does not make clear to him what resubmitting it means. By the time Mr. Ursonoli received this information in a footnote, his petition had been dismissed, suispanti, because the state never raised the exhaustion issue. Suispanti, no notice to him at all, no opportunity for him to argue that, yes, in fact, he had exhausted those claims. And what he was told was it was a dismissed petition. Mr. Fawn, you make a point in your brief that, according to you, the district court delayed for something like 14 months before it acted, at which point you would have passed the one year at the moment. When, under your view, should the district court have acted? I mean, if we're going to write a presidential opinion, what should we tell the district judges? Are they required to act within how much time in order to permit the enough time to file the habeas under Edda? You're on a respectfully

. I don't suggest to the court that it adopt any such rule. But you want us to say 14 months is too long. Not quite, Your Honor, if I might explain. I understand how things work in district courts, and it would be very difficult for this court to say, you must act on habeas petitions at least to determine if they're mixed with an ex-period of time. It wouldn't be difficult. We could do it. The question is, should we do it, and if so, what should we tell them? Well, and I'm not sure that that's what this court needs to do. I think instead what the court needs to recognize, and I think that Justice O'Connor recognized it, in that penultimate paragraph of Rines Against Weber, and that is that oftentimes simply through congestion in the courts, and the time it takes these things to percolate through, by the time a district judge gets to an otherwise timely petition, the statute of limitations under AEDPA will have passed. And so therefore, instead of simply reflexively dismissing the petition under Rose Against Lundy, which was a fine rule until AEDPA, and then no longer became a fine rule, what the courts should simply do is issue an order, not unlike what the court does under Miller or Mason, and what has been approved by the Supreme Court in Castro, simply enter an order of saying, this is a mixed petition. You can't point to anything that the district court did that was wrong when it decided the case on the 14th month. The period itself was not improper. In your honor, if the question is, do we take issue with the fact that it took Judge Brown 14 months to get to it? Yes. The answer is no. I clerked for this meeting, Judge, and I understand that these things do take time. Nor was there anything wrong about on the Rose versus Lundy, his dismissal of the petition, because it was a mixed petition. No, Your Honor, I disagree there, Your Honor, if I might, and I'm sorry, Judge Sauer, I'm sorry, Your Honor, no, no, no, no, no, no, no. What I was going to say is this. I would pick issue with two things. The first thing your Honor is that he gave no notice to Mr. Ersonoli, and this Court has said, for example, in Ben Dolff, United States against the Z-Dolff. Was there a requirement that he, at that time, that he give notice to petitioners that he was going to dismiss the petition? There's nothing in this Court's precedence or in the Supreme Court's precedence, but I think that it's fair to say that given the extreme consequence of that dismissal, what he should at the very least have done was to say to Mr. Ersonoli, that Court perceives your petition as being a mixed petition. Something like a show cause order, if you will. You have 20 days to tell us if somehow we're mistaken. No, no, please. You have to respond to dismissal. I agree with you, but we can't say that the District Court erred in its procedure and in its decision. If we're looking, Your Honor, and I think we need to clarify what we're talking about, there are two District Court orders. One of them is on appeal

. The later one, the second habeas petition was dismissed. That's what we're here on review of. However, obviously, we need to discuss what occurred with the first petition. And what I would say is, with the first petition, the two ways that I would posit that the District Judge erred were one, he didn't give notice and any opportunity to be heard. And second, the language of his order, not unlike in graph against more, an unpublished opinion of this Court, the language of his order suggested at least, to Mr. Ersonoli, that he could go back to the State Court, exhaust his remedies, and come back to the District Court when, in fact, that wasn't the case. This is an issue that is not going to re-occur. I mean, now, presumably, all the District Judges will know after Rines that they can stay in a bay, right? I disagree, Your Honor. Well, I disagree with the first premise of your question, which is that it's not going to recur. And if I might offer the next one, I could ask. Well, District Judge will know, and we may reaffirm it, re-assert it. We don't have to reaffirm it. They'll know precisely what their options are. Your Honor, I think that's not exactly so. And it's for this reason that I say that. Go ahead. There are a number of circumstances that can arise. An inmate comes to District Court, and he presents a mixed petition. And the District Judge says, your petition is mixed. Now, the District Judge may, in rare circumstances, under Rines, stay and a bay. Only in rare, you read Rines is saying only in rare circumstances. It says exceptional, Your Honor. It does. And what happens then in the case where stay and a bance is not, in fact, appropriate? That's what Justice O'Connor was talking about in the 10-ultimate paragraph of Rines. In that case, in that case, the District Judge has to allow the inmate to carve up his own petition and to ask the District Judge to keep the Exhausted claims and dismiss the unexhausted claims. Because otherwise, if the inmate is simply dismissed, his petition is dismissed, is thrown off into the ether, and he'll never be able to come back. What will happen is what happened to Mr. Urson-Oli here. Mr

. Urson-Oli had two claims that are undisputably exhausted. They were timely presented. He did it with diligence. And because they happened to be associated with unexhausted claims, they were tossed out. And now, when he comes back, they're gone. He will never get federal review, even though with the exception of guilt by association, he did everything right. That can't be right. That's not what rose against London, at a moment. Justice Loverdard was basically, I understand the question, saying, this is unlikely to occur again. How is this going to occur again, also factor in the bend-off decision, which says that you can't dismiss a petition so responding without giving notice to the petitioner, and an opportunity to be heard. That's our current law. To a light of that, together with Rye's, how is this likely to recur? I think it is likely to recur, Your Honor, and I'll explain why. There are going to be those things. I know the time may run out, but we're talking actually a lot of over-der-dictum, what's going to happen. I'm interested in your first statement in your summary that the court earned. Now, you said he earned by what? Not notifying him? Well, Your Honor, let me clarify what I met. We're talking here about the second. First of all, tell me what you said. Then you've clarified. What I said at the outset of the argument, Your Honor? No, just before this dialogue began, the pot rhyme. You said, one, the court earned, and secondly, the language in the order. Yes, Your Honor. If we're looking at the first petition, the dismissal of the first petition, which is, of course, not on review before your honors, however important for purposes of discussing equitable tolling, he aired in two ways. One was that he gave no notice, and I think there was a bend-off and under Grandbury and those words. But does that go to the equitable tolling issue in this case as opposed to whether the district judge earned in what he did? I think it goes to both your honor. Because, for example, in bend-off, you'll recall in bend-off there were two cases that were consolidated before the court. One was bend-off, one was otero, and in bend-off, the determination was, yes, it was all right to- But at the time the judge brown made his decision, I don't know that there was a standard that he deviated from. I don't know that there was a law or case that he did not follow. He did what I said

. That's the point that I'm- which is under Rose versus Lundi dismiss a misrepetition. Well, and so where is the legal error? And, let's slow it over, I see my light as I may go ahead and- Well, sir, let me answer. I still- If you're saying it's an error, is it a constitutional error? And if so, what case are you relying on? No, your honor, it's not a constitutional error, it's a procedural error along the lines of the error in bend-off. If I can respond then to the question posed by Judge Flentes, I think that the answer is that at the time Judge Brown heard the first petition and dismissed the first petition, there was no law that said what he had to do. That doesn't mean that he didn't err. This court makes new law all the time and applies it to existing cases. Bend-off, in fact, was such a case. So that's not the issue. But, by the time, bend-off was after Judge Brown made his decision. Grandbury was before. There were cases that said that you don't sue a Sponti-Due things in the habeas arena without allowing notice and an opportunity to be heard. Hi. Go ahead, finish the sentence. Thank you, Your Honor. And so I think that there was an error there, but I think that what we want to really be looking at is the second order. That's what's up on review before this court. And the problem there was that knowing what happened and with the benefit of bend-off, and with the benefit, by the way, of rinds, because they had already been decided, Judge Brown nonetheless dismissed the petition, refused to find equitable tolling, even though he could see what had happened with the previous petition, and that in fact, there was a basis there for equitable tolling, because the propinquity of the unexhaustive claims and the exhaustive claims simply ended up working mischief that the court in Rose Against Bondy certainly never understood. Excuse me. Excuse me. Excuse me. Oh, he's coming. Yeah. Yeah, Mr. Fine. You'll come. We'll hear you back on the bottle, but I'm going to ask you on the bottle also to think about whether the district court should look at the claims that were un-exhausted or the claims that the prisoner now tries to get before the court and decide whether they have any merit or not, should that go into the consideration of how to handle the matter? I don't expect you to answer that now, but I don't see that issue in the briefs. I'd be interested in your reaction. And your honor, I'll be prepared on the rebuttal to answer the take-home question. Okay

. Thank you. Thank you. Good afternoon, Your Honours. May I please the court revert at D. B. Ossie from the Ocean County New Jersey Prosecutors Office appearing on behalf of all appellees? Mr. B. Ossie, I... This panel sat... Well, Judge Wendy, I... The Judge and I are sat on Tuesday the other half of this sitting and I commented about how delighted I was that the first three of the four cases will have female lawyers arguing that such a change from when I first came on this court and sat with Judge Olfacer in those days. So welcome. Thank you, Your Honours. And I'm from Tom's River New Jersey, too. Oh. This is my first appearance in this court, Your Honour. Thank you very much for the welcome. We delighted to have you. Now, let's hear what you have to say. Okay. My first order of business is to disagree with Mr. Finds opening statement that the District Court relied upon the pre-AEDPA case of Rose in a true or non-degree of this matter because in fact the District Court relied on more than just the Rose versus 1D decision, which is obvious in the courts were in opinion. Before I go into the cases that the court did rely upon and why his decision was correct, I just would like to note for the court that when this this petitioner went back to the state court, he still did have the opportunity to be heard on those unabsorbed claims

. He was passed the five year state court limitation to be heard, but in fact the court did hear him on the merits of that claim then decided that he the claim was not worthy of being granted because those claims had already been adjudicated by the court. There's a factual issue, isn't there with respect to what the state court did, whether it considered the uninsourced claims or not? And that's not in the COA, and I don't even know whether we would have jurisdiction to can we can expand the COA, I don't even know if we have jurisdiction. You know, I don't know if the state court did not consider the unabsorbed claims it's our position, that's because he did not articulate them when you went back to the PCR court. I have, and I know, here written out what he claimed in his second PCR petition and compared them to the grounds that the district court said were unabsorbed and they do not match, he did not do what he set out to do. And the opportunity to do this. Yes, exactly. Are you referring to the unabsorbed claims that were present in the first petition? Yes, right. Okay. I was curious about Judge Brown's initial decision, dismissing the mixed petition. As opposed to other options he may have exercised. Well, I think there's a contention in the brief at least by the appellant petitioner that he didn't source those claims. And that's in the brief, am I wrong? In that respect, you're under then there would be a factual contention. The State submits that it's obvious upon a comparison left to right that he did not. But as Mr. Fine said in his brief, words are subject to different interpretations. However, the State submits it's quite obvious that he did not exhaust when he returned. Well, why don't we do with that when one council says it wasn't exhausted. One council says it wasn't exhausted. The CLA, that's not it. Was that raised in the motion? The request for a certificate of appellability? You know, what do we do with the only issue that the CLA was granted on was the equitable polling issue? Yes, that's correct. At this moment, I do not know if that was raised in his motion. Okay, good. Well, looking at it that way, should there be equitable polling? Is the petitioner entitled to equitable polling? You are on our tariff position. He's not for several reasons, but I was not going to address the certificate of appellability in that respect. Well, but it's up for us on equitable polling. Yes. Okay. And so, Judge Wensei said, asked you, what should our view be on equitable polling? With regard to the factual decision of whether he exhausted his claims? No, whether he can go back and have his claims heard before Judge Brown, his exhausted claims. Oh, all of the exhausted ones, I'm sorry, I misunderstood

. Well, of course, Mr. Fine, they have a different view. But from your perspective, the unexhausted claims are unexhausted. There were, if there's a mixed petition, and the question is, could he be heard on those that were exhausted? You're on our tariff position that while he could be, he need not be in this case. And he still would not suffer any prejudiced or unfairness because there are only three of those exhausted claims. Two of them are very similar. They deal only with the alleged inadequacy of his counsel. Okay, but you're getting into the, you're getting into the merits of the claims. Exactly. He didn't have a chance to present the claims. He didn't have a chance to be heard as to whether he could go forward with the claims. I understand. But having learned that the district court chose for him a course of action that where he had other options that might have benefited him more, which is the exhausted claims. The district court said, go back to the state court. Very sorry, I can't hear any of your claims. So the district court laid a decision. We are in the district court. This does not matter. It shows for him a course of action that might not have been the best from his standpoint. I correct your honor, but I would refer the court to the same footnote and also to the Mason warnings contained in the original decision to which judge Alessert referred earlier as being adequate notice to this petitioner. Under a pliler, the court is not required to give this petitioner advice is merely required to act in accordance with the law and allow the petitioner to pursue whatever options he had. But he's not asking for advice. He just wants a chance to be notified of the action that the court is going to pay. He wants a chance to present his view. He's not asking for advice about the statute of limitations. But your honor, when this was dismissed, he had noticed that it could have been dismissed under the Mason warnings. And then he did not approach the court with only the three remaining exhausted claims. Which is why I asked, raise the question that nobody really has raised. Should the district court be given the opportunity to decide whether the exhausted claims are frivolous or not by looking at them? In other words, the district court didn't see them and picking up on Judge Frentess

. I'm not saying that it's necessarily should. But what should we do with that when the district court didn't look at them to decide whether there was anything to them? Your honor, as a general rule, the way the practice is approached in my office is generally speaking, although I don't want to commit myself to this on the top of my head. Generally, we would not have an objection to such a review, a personally review, which is all it would take in this instance to determine that those are also meritless in a habeas petition. What would be the procedure by which that was done? Wouldn't it have to be that it goes back if that should be done? That it goes back to the district court to decide on the equitable tolling issue and the district court may decide no equitable tolling. It wouldn't be equitable to tolling this case because there's nothing to the claims. Or it would be equitable because there might be a germ of something there. And you say you're all just within the objective. Potentially, right? If we would do that, we would be making new law. We always do that. Okay. Well, I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit

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. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit more. I'll give it a little bit. The goal who'll are the defense had not wter revealing the goal had not wter to make like a get away against it- I'll give it the goal who I want to And then from you was, what is different in this case, factually, than was in graph the more? Which was decided last year? You're on extraordinary circumstances, do not exist here, that existed in graph. The court in graph said that tolling is appropriate if the defendant actually misled the plaintiff, we don't have any actual misleading here of the defendant or if the plaintiff was in some extraordinary way prevented from asserting his rights, he was never prevented from asserting his rights in his initial petition. It was his error that caused this problem that were now before the court on. He was not prevented in an extraordinary way from filing his first petition correctly. I agree with you 100% because I don't think that Judge Brown misled the petitioner in any way, but that's a different standard from the extraordinary circumstances standard. I don't know if you're mixing two different standards. The extraordinary circumstances may very well apply where a petition is dismissed without notice and an opportunity to be heard. That's my view. Perhaps you're right. There is a case also that the name escapes me right now but specifically says that extraordinary circumstances do not equal the initial failure to exhaust remedies. So that by himself would not bring him over the threshold. And also the other, I think circumstance was if the petitioner properly filed pleadings within the wrong forum and that's not the case that we have before us here today. Does the matter that he was prosely? Well, your honor. His pleadings would obviously be viewed more liberally but in this case again, it does not because had the petition not been dismissed after the year had run and he had gone back to this court with those with the grounds that he pled in the second PCR petition. We would still be in the same place because, again, it's our position he did not properly exhaust. So it makes no difference in this case and that's why the state argues there ended up being no prejudice. Despite the bumpy road that we took to where we are now, the end result would have been the same. Supposing we were to disagree with you on equitable tolling and prejudice. And we were to say that equitable tolling applies. What claims would he be entitled to present before Judge Brown? At the most of the three exhaustive claims, Your Honor

. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit more. I'll give it a little bit. The goal who'll are the defense had not wter revealing the goal had not wter to make like a get away against it- I'll give it the goal who I want to And then from you was, what is different in this case, factually, than was in graph the more? Which was decided last year? You're on extraordinary circumstances, do not exist here, that existed in graph. The court in graph said that tolling is appropriate if the defendant actually misled the plaintiff, we don't have any actual misleading here of the defendant or if the plaintiff was in some extraordinary way prevented from asserting his rights, he was never prevented from asserting his rights in his initial petition. It was his error that caused this problem that were now before the court on. He was not prevented in an extraordinary way from filing his first petition correctly. I agree with you 100% because I don't think that Judge Brown misled the petitioner in any way, but that's a different standard from the extraordinary circumstances standard. I don't know if you're mixing two different standards. The extraordinary circumstances may very well apply where a petition is dismissed without notice and an opportunity to be heard. That's my view. Perhaps you're right. There is a case also that the name escapes me right now but specifically says that extraordinary circumstances do not equal the initial failure to exhaust remedies. So that by himself would not bring him over the threshold. And also the other, I think circumstance was if the petitioner properly filed pleadings within the wrong forum and that's not the case that we have before us here today. Does the matter that he was prosely? Well, your honor. His pleadings would obviously be viewed more liberally but in this case again, it does not because had the petition not been dismissed after the year had run and he had gone back to this court with those with the grounds that he pled in the second PCR petition. We would still be in the same place because, again, it's our position he did not properly exhaust. So it makes no difference in this case and that's why the state argues there ended up being no prejudice. Despite the bumpy road that we took to where we are now, the end result would have been the same. Supposing we were to disagree with you on equitable tolling and prejudice. And we were to say that equitable tolling applies. What claims would he be entitled to present before Judge Brown? At the most of the three exhaustive claims, Your Honor. Some what were that he was convicted of murder and conspiracy to murder. I mean, this is not a little criminal out there. Oh, exactly, Your Honor. I mean, it's pretty serious. Two of them dealt with his trial attorney's advocacy, the test under Strickland versus Fritz, as to the trial counsel's competency. You mean not in effect of assistance of counsel? Yes, just. In effect of assistance. Based on a new defense, however, the other one had to do with... It's not subject to the one you... That's it, that's it. I was just saying that the ineffective assistance of counsel claim is not subject to the one-year effort rule, is it? I mean, that comes up as a collateral attack. It's not subject to the one-year AEDPA limitations, Your Honor. Yeah. I was not aware of that. I thought that it was, along with any other claim that it could have filed within a petition. Anyway, two of them... It is now after AEDPA. I thought so, Your Honor. Yeah, you may be wrong. It could be wrong. You may be wrong. Two of them dealt with trial counsel's alleged ineffectiveness and the other one dealt with denying the motion for a judgment of acquittal on three of the counts in the indictment, which dealt with not the main murder, but the threat to murder, a witness who was going to testify against him, conspiracy and threats to murder that witness. That's the second

. Some what were that he was convicted of murder and conspiracy to murder. I mean, this is not a little criminal out there. Oh, exactly, Your Honor. I mean, it's pretty serious. Two of them dealt with his trial attorney's advocacy, the test under Strickland versus Fritz, as to the trial counsel's competency. You mean not in effect of assistance of counsel? Yes, just. In effect of assistance. Based on a new defense, however, the other one had to do with... It's not subject to the one you... That's it, that's it. I was just saying that the ineffective assistance of counsel claim is not subject to the one-year effort rule, is it? I mean, that comes up as a collateral attack. It's not subject to the one-year AEDPA limitations, Your Honor. Yeah. I was not aware of that. I thought that it was, along with any other claim that it could have filed within a petition. Anyway, two of them... It is now after AEDPA. I thought so, Your Honor. Yeah, you may be wrong. It could be wrong. You may be wrong. Two of them dealt with trial counsel's alleged ineffectiveness and the other one dealt with denying the motion for a judgment of acquittal on three of the counts in the indictment, which dealt with not the main murder, but the threat to murder, a witness who was going to testify against him, conspiracy and threats to murder that witness. That's the second. That's the other counter convict. He was convicted of that, right? He was convicted of all of them, Your Honor. That is the one of the three grounds that was exhausted, but that does not pertain to his trial counsel. That pertains to the court's value to deny a motion to acquitt at the end of the state's case. This is a quick question. Do you agree with Mr. Fine that this issue, of equitable tolling, may recur? The issue, well, certainly, Your Honor, anything could happen, but in light of the cases that have come out in the five years since the District Court dismissed this first petition, it's unlikely. Of course, it could happen, and then the protections of bend-off would now apply. And the court would decide whether to grant equitable tolling based on the three criteria in the Ryan's case, which we, I wouldn't argue, wouldn't have applied in this case in any event. So, yes, Your Honor, it could happen, but it would be rare, and it would be taken care of by the other cases that now exist. I want to take you beyond your rep, because this is an important issue for this court, and to the extent we give advice to the District. Judge, do you agree that the District Court should issue a stay and a stay order only in extraordinary circumstances? I mean, there is language like that in Ryan's. It doesn't say extraordinary, but it says it shouldn't be the usual situation. What is the basic, the basic, the basic, the basic, the basic, the three criteria that exist in Ryan's, they seem to be fair criteria to both sides. There are, there is language in these cases that say tolling and advance should be done sparingly. It should not be a run of the mill remedy, or run of the mill event, and the state would agree with that. That would go, wouldn't it, to how long the District Court waits to issue its dismissal, because in this case, when it was 14 months, I mean, it might be different as the District Court issued its order in three months, and he still had all that time as the distinguish from 14 months. Isn't that right? It may, Your Honor, but then those time issues could recur again, even if it were issued at the three month point. Then we're going to be dealing with how soon after did the petitioner refile, did it refile correctly? But then it's a petitioner's call. Yes. Then the responsibility is that if the petitioner delayed, we have an entirely different situation. Yes, Your Honor. Yes. Okay. Interesting. Thank you. You're welcome, Judge. Thank you. Come again

. That's the other counter convict. He was convicted of that, right? He was convicted of all of them, Your Honor. That is the one of the three grounds that was exhausted, but that does not pertain to his trial counsel. That pertains to the court's value to deny a motion to acquitt at the end of the state's case. This is a quick question. Do you agree with Mr. Fine that this issue, of equitable tolling, may recur? The issue, well, certainly, Your Honor, anything could happen, but in light of the cases that have come out in the five years since the District Court dismissed this first petition, it's unlikely. Of course, it could happen, and then the protections of bend-off would now apply. And the court would decide whether to grant equitable tolling based on the three criteria in the Ryan's case, which we, I wouldn't argue, wouldn't have applied in this case in any event. So, yes, Your Honor, it could happen, but it would be rare, and it would be taken care of by the other cases that now exist. I want to take you beyond your rep, because this is an important issue for this court, and to the extent we give advice to the District. Judge, do you agree that the District Court should issue a stay and a stay order only in extraordinary circumstances? I mean, there is language like that in Ryan's. It doesn't say extraordinary, but it says it shouldn't be the usual situation. What is the basic, the basic, the basic, the basic, the basic, the three criteria that exist in Ryan's, they seem to be fair criteria to both sides. There are, there is language in these cases that say tolling and advance should be done sparingly. It should not be a run of the mill remedy, or run of the mill event, and the state would agree with that. That would go, wouldn't it, to how long the District Court waits to issue its dismissal, because in this case, when it was 14 months, I mean, it might be different as the District Court issued its order in three months, and he still had all that time as the distinguish from 14 months. Isn't that right? It may, Your Honor, but then those time issues could recur again, even if it were issued at the three month point. Then we're going to be dealing with how soon after did the petitioner refile, did it refile correctly? But then it's a petitioner's call. Yes. Then the responsibility is that if the petitioner delayed, we have an entirely different situation. Yes, Your Honor. Yes. Okay. Interesting. Thank you. You're welcome, Judge. Thank you. Come again. Thank you. Mr. Fine. Mr. Fine, are you a pointed council? I am, Your Honor. Pro bono. Pro bono. Well, we thank you for that. Thank you, Your Honor. It's so important for good lawyers to be willing to do that. So. Well, we appreciate the opportunity. Yeah. I'd like to begin by answering Judge Slovittor's take home exam question. Yeah. I think that the answer is that the district judge has the ability to do that. Whether this court should instruct that the district court do that, I think, is another story. Because it's a discussion. Do what I didn't do. I didn't do that. It was my question was whether the district, at the end of his principal argument, whether the district court should consider the merits if any of the. I am. I am. I am. I am. In deciding whether to grant equitable tolling. And my answer, Judge Aldousert, was that I think that it's always within the discretion of the district court now to do that. But I don't think that this court needs to instruct district courts or judge Brown in this case, particularly to do that. I'd like to address just a few issues in Rebottle

. Thank you. Mr. Fine. Mr. Fine, are you a pointed council? I am, Your Honor. Pro bono. Pro bono. Well, we thank you for that. Thank you, Your Honor. It's so important for good lawyers to be willing to do that. So. Well, we appreciate the opportunity. Yeah. I'd like to begin by answering Judge Slovittor's take home exam question. Yeah. I think that the answer is that the district judge has the ability to do that. Whether this court should instruct that the district court do that, I think, is another story. Because it's a discussion. Do what I didn't do. I didn't do that. It was my question was whether the district, at the end of his principal argument, whether the district court should consider the merits if any of the. I am. I am. I am. I am. In deciding whether to grant equitable tolling. And my answer, Judge Aldousert, was that I think that it's always within the discretion of the district court now to do that. But I don't think that this court needs to instruct district courts or judge Brown in this case, particularly to do that. I'd like to address just a few issues in Rebottle. The first is the question of will this recur again? And I think that the answer to that is yes, it will. And let's go back if we might to Rines Against Weber. And I'll stand corrected. I think I said that Justice O'Connor used the word extraordinary. She said very limited, I think, is the language. Because I think I did what Judge Slovittor did and looked through the opinion very quickly. Nonetheless, it is something that's to be sparingly used. What are the circumstances of inmates who have mixed petitions and who do not qualify for stay in advance? Those are the people like Mr. Urson-Oli. And those cases will always occur because they may not meet the standard. What happens with those people, what Justice O'Connor told us in the penultimate paragraph of her opinion in Rines, was they should be allowed to carve up their own petitions. That did not happen here. That's what needs to happen in this case. Obviously, Judge Brown did not have the benefit of Rines when he issued his 2003 opinion. But certainly when 2006 rolled around and he dismissed the second petition, then he had the benefit. So if you represented Mr. Urson-Oli before Judge Brown, when he made his decision and he said, I see unexhausted claims here. And this is a mixed petition. I'm about to dismiss it. You would have said, wait a second, Judge, I would like to. What would you ask him to do? I would say, Your Honor, I'd like number one to argue that they are exhausted because he disagrees with you. And Your Honor, I respect that decision. Now, having made that determination, I know that the Statutive Limitations is run. So therefore, I'd like to ask that you allow me to carve out the unexhausted claims and then you go ahead and look at the three that you have found undisputably. Are exhausted. So, go ahead, no. I might have the lead in advance. Well, that's it. But she said only limited circumstances

. The first is the question of will this recur again? And I think that the answer to that is yes, it will. And let's go back if we might to Rines Against Weber. And I'll stand corrected. I think I said that Justice O'Connor used the word extraordinary. She said very limited, I think, is the language. Because I think I did what Judge Slovittor did and looked through the opinion very quickly. Nonetheless, it is something that's to be sparingly used. What are the circumstances of inmates who have mixed petitions and who do not qualify for stay in advance? Those are the people like Mr. Urson-Oli. And those cases will always occur because they may not meet the standard. What happens with those people, what Justice O'Connor told us in the penultimate paragraph of her opinion in Rines, was they should be allowed to carve up their own petitions. That did not happen here. That's what needs to happen in this case. Obviously, Judge Brown did not have the benefit of Rines when he issued his 2003 opinion. But certainly when 2006 rolled around and he dismissed the second petition, then he had the benefit. So if you represented Mr. Urson-Oli before Judge Brown, when he made his decision and he said, I see unexhausted claims here. And this is a mixed petition. I'm about to dismiss it. You would have said, wait a second, Judge, I would like to. What would you ask him to do? I would say, Your Honor, I'd like number one to argue that they are exhausted because he disagrees with you. And Your Honor, I respect that decision. Now, having made that determination, I know that the Statutive Limitations is run. So therefore, I'd like to ask that you allow me to carve out the unexhausted claims and then you go ahead and look at the three that you have found undisputably. Are exhausted. So, go ahead, no. I might have the lead in advance. Well, that's it. But she said only limited circumstances. That's right. I haven't followed up actually because I wanted to see where you stand. But if that's the case, then if you were to go, if we were to agree with you, the only thing that would remain are the three exhausted claims. Well, I think that this goes back to Judge Brown. It would go back for those three claims. I think that there would be a decision for either this Court or for Judge Brown to make. And just, Olga, may I go ahead? Yeah, go ahead. Thank you. Clearly, those three counts, those three claims should go back. I think there's no question about that. They were exhausted. They were timely. Everything else. But I think that there would also be a question for Judge Brown about whether the other claims that were presented in that second petition had been exhausted by the time the second petition was filed. Because if we're equitably polling, then we have relation back and we have claims that are timely and exhausted. Now, I realize that that sounds as though it's giving something of a windfall to Mr. Urson, Olga. But of course, he didn't create this circumstance. I'm not sure. I'm not sure because I'm not sure that he had that right when Judge Brown made that first decision. And said somewhere on it. So you could have a field or asked for re-argument on the fact that there were unnecessary claims. I mean, what you're saying is that if, and that's a big if, if we were to grant equitable polling, Judge Brown should still consider the claims that he said were uninsourced. Do I not understand you? Well, I think you're on her. I mean, is that what you're saying? The short answer is yes. The slightly longer lawyerly answer is that I think what the court would do is, is, is remain the case with instructions to Judge Brown to vacate the dismissal and equitably toll the time. And then to figure out if in addition to those three claims, there are any others that he's going to hear. And I think that, that to some degree, that's going to be within his. Thank you

. That's right. I haven't followed up actually because I wanted to see where you stand. But if that's the case, then if you were to go, if we were to agree with you, the only thing that would remain are the three exhausted claims. Well, I think that this goes back to Judge Brown. It would go back for those three claims. I think that there would be a decision for either this Court or for Judge Brown to make. And just, Olga, may I go ahead? Yeah, go ahead. Thank you. Clearly, those three counts, those three claims should go back. I think there's no question about that. They were exhausted. They were timely. Everything else. But I think that there would also be a question for Judge Brown about whether the other claims that were presented in that second petition had been exhausted by the time the second petition was filed. Because if we're equitably polling, then we have relation back and we have claims that are timely and exhausted. Now, I realize that that sounds as though it's giving something of a windfall to Mr. Urson, Olga. But of course, he didn't create this circumstance. I'm not sure. I'm not sure because I'm not sure that he had that right when Judge Brown made that first decision. And said somewhere on it. So you could have a field or asked for re-argument on the fact that there were unnecessary claims. I mean, what you're saying is that if, and that's a big if, if we were to grant equitable polling, Judge Brown should still consider the claims that he said were uninsourced. Do I not understand you? Well, I think you're on her. I mean, is that what you're saying? The short answer is yes. The slightly longer lawyerly answer is that I think what the court would do is, is, is remain the case with instructions to Judge Brown to vacate the dismissal and equitably toll the time. And then to figure out if in addition to those three claims, there are any others that he's going to hear. And I think that, that to some degree, that's going to be within his. Thank you. I think that's all the time. What, what, what, when assuming the way we agree with you, what is the reason that we give in saying that there was equitable polling? The reason you're on her is that the constitutional right to federal habeas review ought not hinge on the propinquity of un-exhausted claims with exhausted claims. This rule, this total exhaustion rule of rose against Monday simply didn't matter until OK. And now, of course, it does matter and he should have been allowed, Mr. Urson, only the opportunity to either ask for stand-abeyance or to excise the un-exhausted claims. But either way, the mere fact that they live side by side in one petition is more reasoned. You would want us to give retroactive effect to Bum, Gandalf and Ryan. Thank you very much. I, I do your honor. And just to clarify a very quick point, I think your time is on. All right, your honor. We have a lot of cases after you. I, I see that. Thank you, Mr. Mayor. Very eager for me to be done. Thank you, Mr. Mayor. Thank you very much. Thank you very much. Thank you very much. We'll hear from you.

Good afternoon, Jalora, good afternoon. Holy, oh, here we go. Um, will you, will you, will you, that's a lot. Well, for the benefit of those people in the audience, the third circuit has fully won technical. And one of our colleagues is the Hussis Chambers in California. And so that's Judge Alderser. And he's joining us now by video and he will, he can see you all. Well, at least those who are arguing. And he can see, can you see us, Ruby? Or are you much better at this, at this time? This is great and true. Yeah, they did improve it. And the only thing is that at, ordinarily, the panel will recess at the end of the arguments and go to Chambers to confer. But because it's difficult for Judge Alderser to recess at Chambers. And we don't have the equipment that we have here. At the end of the argument, we'll ask everybody to leave the courtroom. And we will do the conferences in the courtroom. And the representative of the clerk's office will be sure that there's no interruptions. Okay. And so we'll begin with, is it, personally, am I pronouncing it, that's soft, see? It is, right? Okay, good. I don't believe here, counsel. May please the court. My name is David Fine. I represent Louis Urcinoli, the appellant in this case. Your honor, may I reserve three minutes, please, please. Absolutely, that's granted. Thank you. This court should reverse the dismissal of Mr. Urcinoli's habeas petition because the district court relied upon a pre-anti-terrorism and effective death penalty act understanding of Rose Against the Lundy. In a way that ensured that Mr. Urcinoli's timely, fully exhausted claims would never be reviewed by a federal court. Rose Against the Lundy held that district courts could not consider so-called mixed petitions, and that district courts therefore must dismiss those petitions. Under that verification, the petitioner have sought to amend the petition to delete the unabsorbed claims. Your honor, he might have, but by the time he would have, the case had already been dismissed. And query whether he would have then had a successive petition problem. Well, that's true, but subsequent to the dismissal could he not have made a petition to the court for reconsideration? The answer to your question is yes, he could have. Is it reasonable to expect that he would have, I think the answer is no, because he's not presumed to have a detailed knowledge of federal procedure. He received an order from the bill. Council did not, the district court say those prisoners who misunderstand this total exhaustion requirement and submit mixed petitions nevertheless. Are entitled to resubmit a petition with only exhausted claims. Yes, Your Honor, he did write that. So, he did know that he had that option. Well, Your Honor, what he knew from the district court. And the option of two things either to resubmit a petition with only exhausted claims, and I'm reading, or to exhaust the remainder of their claims. And he elected to go for the latter. And 43 days after this, he filed something in the state court system. Am I correct? You are correct. All right. Your Honor, if I might expound a little bit further though on the footnote that you've alluded to here. I think that the problem with presuming that that cures all ills is twofold. The first is that the text of the judge's opinion, not this very last footnote that simply quotes from Rose Against Lundy, the text of the opinion tells him that the petition will be dismissed without prejudice, that he has an available state remedy and he should go and try to exhaust his claims. That was the direction that he was given by the district judge. Was a petitioner proceeding, Prosecutor? Was it a counsel petition? He was, Prosecutor, at that time, Your Honor. And returning, though, to the footnote that Judge Alvester refers to, which I think is footnote seven, from the district court's opinion of October 31 of 2003, I think the problem with that is that it does not make clear to him what resubmitting it means. By the time Mr. Ursonoli received this information in a footnote, his petition had been dismissed, suispanti, because the state never raised the exhaustion issue. Suispanti, no notice to him at all, no opportunity for him to argue that, yes, in fact, he had exhausted those claims. And what he was told was it was a dismissed petition. Mr. Fawn, you make a point in your brief that, according to you, the district court delayed for something like 14 months before it acted, at which point you would have passed the one year at the moment. When, under your view, should the district court have acted? I mean, if we're going to write a presidential opinion, what should we tell the district judges? Are they required to act within how much time in order to permit the enough time to file the habeas under Edda? You're on a respectfully. I don't suggest to the court that it adopt any such rule. But you want us to say 14 months is too long. Not quite, Your Honor, if I might explain. I understand how things work in district courts, and it would be very difficult for this court to say, you must act on habeas petitions at least to determine if they're mixed with an ex-period of time. It wouldn't be difficult. We could do it. The question is, should we do it, and if so, what should we tell them? Well, and I'm not sure that that's what this court needs to do. I think instead what the court needs to recognize, and I think that Justice O'Connor recognized it, in that penultimate paragraph of Rines Against Weber, and that is that oftentimes simply through congestion in the courts, and the time it takes these things to percolate through, by the time a district judge gets to an otherwise timely petition, the statute of limitations under AEDPA will have passed. And so therefore, instead of simply reflexively dismissing the petition under Rose Against Lundy, which was a fine rule until AEDPA, and then no longer became a fine rule, what the courts should simply do is issue an order, not unlike what the court does under Miller or Mason, and what has been approved by the Supreme Court in Castro, simply enter an order of saying, this is a mixed petition. You can't point to anything that the district court did that was wrong when it decided the case on the 14th month. The period itself was not improper. In your honor, if the question is, do we take issue with the fact that it took Judge Brown 14 months to get to it? Yes. The answer is no. I clerked for this meeting, Judge, and I understand that these things do take time. Nor was there anything wrong about on the Rose versus Lundy, his dismissal of the petition, because it was a mixed petition. No, Your Honor, I disagree there, Your Honor, if I might, and I'm sorry, Judge Sauer, I'm sorry, Your Honor, no, no, no, no, no, no, no. What I was going to say is this. I would pick issue with two things. The first thing your Honor is that he gave no notice to Mr. Ersonoli, and this Court has said, for example, in Ben Dolff, United States against the Z-Dolff. Was there a requirement that he, at that time, that he give notice to petitioners that he was going to dismiss the petition? There's nothing in this Court's precedence or in the Supreme Court's precedence, but I think that it's fair to say that given the extreme consequence of that dismissal, what he should at the very least have done was to say to Mr. Ersonoli, that Court perceives your petition as being a mixed petition. Something like a show cause order, if you will. You have 20 days to tell us if somehow we're mistaken. No, no, please. You have to respond to dismissal. I agree with you, but we can't say that the District Court erred in its procedure and in its decision. If we're looking, Your Honor, and I think we need to clarify what we're talking about, there are two District Court orders. One of them is on appeal. The later one, the second habeas petition was dismissed. That's what we're here on review of. However, obviously, we need to discuss what occurred with the first petition. And what I would say is, with the first petition, the two ways that I would posit that the District Judge erred were one, he didn't give notice and any opportunity to be heard. And second, the language of his order, not unlike in graph against more, an unpublished opinion of this Court, the language of his order suggested at least, to Mr. Ersonoli, that he could go back to the State Court, exhaust his remedies, and come back to the District Court when, in fact, that wasn't the case. This is an issue that is not going to re-occur. I mean, now, presumably, all the District Judges will know after Rines that they can stay in a bay, right? I disagree, Your Honor. Well, I disagree with the first premise of your question, which is that it's not going to recur. And if I might offer the next one, I could ask. Well, District Judge will know, and we may reaffirm it, re-assert it. We don't have to reaffirm it. They'll know precisely what their options are. Your Honor, I think that's not exactly so. And it's for this reason that I say that. Go ahead. There are a number of circumstances that can arise. An inmate comes to District Court, and he presents a mixed petition. And the District Judge says, your petition is mixed. Now, the District Judge may, in rare circumstances, under Rines, stay and a bay. Only in rare, you read Rines is saying only in rare circumstances. It says exceptional, Your Honor. It does. And what happens then in the case where stay and a bance is not, in fact, appropriate? That's what Justice O'Connor was talking about in the 10-ultimate paragraph of Rines. In that case, in that case, the District Judge has to allow the inmate to carve up his own petition and to ask the District Judge to keep the Exhausted claims and dismiss the unexhausted claims. Because otherwise, if the inmate is simply dismissed, his petition is dismissed, is thrown off into the ether, and he'll never be able to come back. What will happen is what happened to Mr. Urson-Oli here. Mr. Urson-Oli had two claims that are undisputably exhausted. They were timely presented. He did it with diligence. And because they happened to be associated with unexhausted claims, they were tossed out. And now, when he comes back, they're gone. He will never get federal review, even though with the exception of guilt by association, he did everything right. That can't be right. That's not what rose against London, at a moment. Justice Loverdard was basically, I understand the question, saying, this is unlikely to occur again. How is this going to occur again, also factor in the bend-off decision, which says that you can't dismiss a petition so responding without giving notice to the petitioner, and an opportunity to be heard. That's our current law. To a light of that, together with Rye's, how is this likely to recur? I think it is likely to recur, Your Honor, and I'll explain why. There are going to be those things. I know the time may run out, but we're talking actually a lot of over-der-dictum, what's going to happen. I'm interested in your first statement in your summary that the court earned. Now, you said he earned by what? Not notifying him? Well, Your Honor, let me clarify what I met. We're talking here about the second. First of all, tell me what you said. Then you've clarified. What I said at the outset of the argument, Your Honor? No, just before this dialogue began, the pot rhyme. You said, one, the court earned, and secondly, the language in the order. Yes, Your Honor. If we're looking at the first petition, the dismissal of the first petition, which is, of course, not on review before your honors, however important for purposes of discussing equitable tolling, he aired in two ways. One was that he gave no notice, and I think there was a bend-off and under Grandbury and those words. But does that go to the equitable tolling issue in this case as opposed to whether the district judge earned in what he did? I think it goes to both your honor. Because, for example, in bend-off, you'll recall in bend-off there were two cases that were consolidated before the court. One was bend-off, one was otero, and in bend-off, the determination was, yes, it was all right to- But at the time the judge brown made his decision, I don't know that there was a standard that he deviated from. I don't know that there was a law or case that he did not follow. He did what I said. That's the point that I'm- which is under Rose versus Lundi dismiss a misrepetition. Well, and so where is the legal error? And, let's slow it over, I see my light as I may go ahead and- Well, sir, let me answer. I still- If you're saying it's an error, is it a constitutional error? And if so, what case are you relying on? No, your honor, it's not a constitutional error, it's a procedural error along the lines of the error in bend-off. If I can respond then to the question posed by Judge Flentes, I think that the answer is that at the time Judge Brown heard the first petition and dismissed the first petition, there was no law that said what he had to do. That doesn't mean that he didn't err. This court makes new law all the time and applies it to existing cases. Bend-off, in fact, was such a case. So that's not the issue. But, by the time, bend-off was after Judge Brown made his decision. Grandbury was before. There were cases that said that you don't sue a Sponti-Due things in the habeas arena without allowing notice and an opportunity to be heard. Hi. Go ahead, finish the sentence. Thank you, Your Honor. And so I think that there was an error there, but I think that what we want to really be looking at is the second order. That's what's up on review before this court. And the problem there was that knowing what happened and with the benefit of bend-off, and with the benefit, by the way, of rinds, because they had already been decided, Judge Brown nonetheless dismissed the petition, refused to find equitable tolling, even though he could see what had happened with the previous petition, and that in fact, there was a basis there for equitable tolling, because the propinquity of the unexhaustive claims and the exhaustive claims simply ended up working mischief that the court in Rose Against Bondy certainly never understood. Excuse me. Excuse me. Excuse me. Oh, he's coming. Yeah. Yeah, Mr. Fine. You'll come. We'll hear you back on the bottle, but I'm going to ask you on the bottle also to think about whether the district court should look at the claims that were un-exhausted or the claims that the prisoner now tries to get before the court and decide whether they have any merit or not, should that go into the consideration of how to handle the matter? I don't expect you to answer that now, but I don't see that issue in the briefs. I'd be interested in your reaction. And your honor, I'll be prepared on the rebuttal to answer the take-home question. Okay. Thank you. Thank you. Good afternoon, Your Honours. May I please the court revert at D. B. Ossie from the Ocean County New Jersey Prosecutors Office appearing on behalf of all appellees? Mr. B. Ossie, I... This panel sat... Well, Judge Wendy, I... The Judge and I are sat on Tuesday the other half of this sitting and I commented about how delighted I was that the first three of the four cases will have female lawyers arguing that such a change from when I first came on this court and sat with Judge Olfacer in those days. So welcome. Thank you, Your Honours. And I'm from Tom's River New Jersey, too. Oh. This is my first appearance in this court, Your Honour. Thank you very much for the welcome. We delighted to have you. Now, let's hear what you have to say. Okay. My first order of business is to disagree with Mr. Finds opening statement that the District Court relied upon the pre-AEDPA case of Rose in a true or non-degree of this matter because in fact the District Court relied on more than just the Rose versus 1D decision, which is obvious in the courts were in opinion. Before I go into the cases that the court did rely upon and why his decision was correct, I just would like to note for the court that when this this petitioner went back to the state court, he still did have the opportunity to be heard on those unabsorbed claims. He was passed the five year state court limitation to be heard, but in fact the court did hear him on the merits of that claim then decided that he the claim was not worthy of being granted because those claims had already been adjudicated by the court. There's a factual issue, isn't there with respect to what the state court did, whether it considered the uninsourced claims or not? And that's not in the COA, and I don't even know whether we would have jurisdiction to can we can expand the COA, I don't even know if we have jurisdiction. You know, I don't know if the state court did not consider the unabsorbed claims it's our position, that's because he did not articulate them when you went back to the PCR court. I have, and I know, here written out what he claimed in his second PCR petition and compared them to the grounds that the district court said were unabsorbed and they do not match, he did not do what he set out to do. And the opportunity to do this. Yes, exactly. Are you referring to the unabsorbed claims that were present in the first petition? Yes, right. Okay. I was curious about Judge Brown's initial decision, dismissing the mixed petition. As opposed to other options he may have exercised. Well, I think there's a contention in the brief at least by the appellant petitioner that he didn't source those claims. And that's in the brief, am I wrong? In that respect, you're under then there would be a factual contention. The State submits that it's obvious upon a comparison left to right that he did not. But as Mr. Fine said in his brief, words are subject to different interpretations. However, the State submits it's quite obvious that he did not exhaust when he returned. Well, why don't we do with that when one council says it wasn't exhausted. One council says it wasn't exhausted. The CLA, that's not it. Was that raised in the motion? The request for a certificate of appellability? You know, what do we do with the only issue that the CLA was granted on was the equitable polling issue? Yes, that's correct. At this moment, I do not know if that was raised in his motion. Okay, good. Well, looking at it that way, should there be equitable polling? Is the petitioner entitled to equitable polling? You are on our tariff position. He's not for several reasons, but I was not going to address the certificate of appellability in that respect. Well, but it's up for us on equitable polling. Yes. Okay. And so, Judge Wensei said, asked you, what should our view be on equitable polling? With regard to the factual decision of whether he exhausted his claims? No, whether he can go back and have his claims heard before Judge Brown, his exhausted claims. Oh, all of the exhausted ones, I'm sorry, I misunderstood. Well, of course, Mr. Fine, they have a different view. But from your perspective, the unexhausted claims are unexhausted. There were, if there's a mixed petition, and the question is, could he be heard on those that were exhausted? You're on our tariff position that while he could be, he need not be in this case. And he still would not suffer any prejudiced or unfairness because there are only three of those exhausted claims. Two of them are very similar. They deal only with the alleged inadequacy of his counsel. Okay, but you're getting into the, you're getting into the merits of the claims. Exactly. He didn't have a chance to present the claims. He didn't have a chance to be heard as to whether he could go forward with the claims. I understand. But having learned that the district court chose for him a course of action that where he had other options that might have benefited him more, which is the exhausted claims. The district court said, go back to the state court. Very sorry, I can't hear any of your claims. So the district court laid a decision. We are in the district court. This does not matter. It shows for him a course of action that might not have been the best from his standpoint. I correct your honor, but I would refer the court to the same footnote and also to the Mason warnings contained in the original decision to which judge Alessert referred earlier as being adequate notice to this petitioner. Under a pliler, the court is not required to give this petitioner advice is merely required to act in accordance with the law and allow the petitioner to pursue whatever options he had. But he's not asking for advice. He just wants a chance to be notified of the action that the court is going to pay. He wants a chance to present his view. He's not asking for advice about the statute of limitations. But your honor, when this was dismissed, he had noticed that it could have been dismissed under the Mason warnings. And then he did not approach the court with only the three remaining exhausted claims. Which is why I asked, raise the question that nobody really has raised. Should the district court be given the opportunity to decide whether the exhausted claims are frivolous or not by looking at them? In other words, the district court didn't see them and picking up on Judge Frentess. I'm not saying that it's necessarily should. But what should we do with that when the district court didn't look at them to decide whether there was anything to them? Your honor, as a general rule, the way the practice is approached in my office is generally speaking, although I don't want to commit myself to this on the top of my head. Generally, we would not have an objection to such a review, a personally review, which is all it would take in this instance to determine that those are also meritless in a habeas petition. What would be the procedure by which that was done? Wouldn't it have to be that it goes back if that should be done? That it goes back to the district court to decide on the equitable tolling issue and the district court may decide no equitable tolling. It wouldn't be equitable to tolling this case because there's nothing to the claims. Or it would be equitable because there might be a germ of something there. And you say you're all just within the objective. Potentially, right? If we would do that, we would be making new law. We always do that. Okay. Well, I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. 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I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit. I'll give it a little bit more. I'll give it a little bit. The goal who'll are the defense had not wter revealing the goal had not wter to make like a get away against it- I'll give it the goal who I want to And then from you was, what is different in this case, factually, than was in graph the more? Which was decided last year? You're on extraordinary circumstances, do not exist here, that existed in graph. The court in graph said that tolling is appropriate if the defendant actually misled the plaintiff, we don't have any actual misleading here of the defendant or if the plaintiff was in some extraordinary way prevented from asserting his rights, he was never prevented from asserting his rights in his initial petition. It was his error that caused this problem that were now before the court on. He was not prevented in an extraordinary way from filing his first petition correctly. I agree with you 100% because I don't think that Judge Brown misled the petitioner in any way, but that's a different standard from the extraordinary circumstances standard. I don't know if you're mixing two different standards. The extraordinary circumstances may very well apply where a petition is dismissed without notice and an opportunity to be heard. That's my view. Perhaps you're right. There is a case also that the name escapes me right now but specifically says that extraordinary circumstances do not equal the initial failure to exhaust remedies. So that by himself would not bring him over the threshold. And also the other, I think circumstance was if the petitioner properly filed pleadings within the wrong forum and that's not the case that we have before us here today. Does the matter that he was prosely? Well, your honor. His pleadings would obviously be viewed more liberally but in this case again, it does not because had the petition not been dismissed after the year had run and he had gone back to this court with those with the grounds that he pled in the second PCR petition. We would still be in the same place because, again, it's our position he did not properly exhaust. So it makes no difference in this case and that's why the state argues there ended up being no prejudice. Despite the bumpy road that we took to where we are now, the end result would have been the same. Supposing we were to disagree with you on equitable tolling and prejudice. And we were to say that equitable tolling applies. What claims would he be entitled to present before Judge Brown? At the most of the three exhaustive claims, Your Honor. Some what were that he was convicted of murder and conspiracy to murder. I mean, this is not a little criminal out there. Oh, exactly, Your Honor. I mean, it's pretty serious. Two of them dealt with his trial attorney's advocacy, the test under Strickland versus Fritz, as to the trial counsel's competency. You mean not in effect of assistance of counsel? Yes, just. In effect of assistance. Based on a new defense, however, the other one had to do with... It's not subject to the one you... That's it, that's it. I was just saying that the ineffective assistance of counsel claim is not subject to the one-year effort rule, is it? I mean, that comes up as a collateral attack. It's not subject to the one-year AEDPA limitations, Your Honor. Yeah. I was not aware of that. I thought that it was, along with any other claim that it could have filed within a petition. Anyway, two of them... It is now after AEDPA. I thought so, Your Honor. Yeah, you may be wrong. It could be wrong. You may be wrong. Two of them dealt with trial counsel's alleged ineffectiveness and the other one dealt with denying the motion for a judgment of acquittal on three of the counts in the indictment, which dealt with not the main murder, but the threat to murder, a witness who was going to testify against him, conspiracy and threats to murder that witness. That's the second. That's the other counter convict. He was convicted of that, right? He was convicted of all of them, Your Honor. That is the one of the three grounds that was exhausted, but that does not pertain to his trial counsel. That pertains to the court's value to deny a motion to acquitt at the end of the state's case. This is a quick question. Do you agree with Mr. Fine that this issue, of equitable tolling, may recur? The issue, well, certainly, Your Honor, anything could happen, but in light of the cases that have come out in the five years since the District Court dismissed this first petition, it's unlikely. Of course, it could happen, and then the protections of bend-off would now apply. And the court would decide whether to grant equitable tolling based on the three criteria in the Ryan's case, which we, I wouldn't argue, wouldn't have applied in this case in any event. So, yes, Your Honor, it could happen, but it would be rare, and it would be taken care of by the other cases that now exist. I want to take you beyond your rep, because this is an important issue for this court, and to the extent we give advice to the District. Judge, do you agree that the District Court should issue a stay and a stay order only in extraordinary circumstances? I mean, there is language like that in Ryan's. It doesn't say extraordinary, but it says it shouldn't be the usual situation. What is the basic, the basic, the basic, the basic, the basic, the three criteria that exist in Ryan's, they seem to be fair criteria to both sides. There are, there is language in these cases that say tolling and advance should be done sparingly. It should not be a run of the mill remedy, or run of the mill event, and the state would agree with that. That would go, wouldn't it, to how long the District Court waits to issue its dismissal, because in this case, when it was 14 months, I mean, it might be different as the District Court issued its order in three months, and he still had all that time as the distinguish from 14 months. Isn't that right? It may, Your Honor, but then those time issues could recur again, even if it were issued at the three month point. Then we're going to be dealing with how soon after did the petitioner refile, did it refile correctly? But then it's a petitioner's call. Yes. Then the responsibility is that if the petitioner delayed, we have an entirely different situation. Yes, Your Honor. Yes. Okay. Interesting. Thank you. You're welcome, Judge. Thank you. Come again. Thank you. Mr. Fine. Mr. Fine, are you a pointed council? I am, Your Honor. Pro bono. Pro bono. Well, we thank you for that. Thank you, Your Honor. It's so important for good lawyers to be willing to do that. So. Well, we appreciate the opportunity. Yeah. I'd like to begin by answering Judge Slovittor's take home exam question. Yeah. I think that the answer is that the district judge has the ability to do that. Whether this court should instruct that the district court do that, I think, is another story. Because it's a discussion. Do what I didn't do. I didn't do that. It was my question was whether the district, at the end of his principal argument, whether the district court should consider the merits if any of the. I am. I am. I am. I am. In deciding whether to grant equitable tolling. And my answer, Judge Aldousert, was that I think that it's always within the discretion of the district court now to do that. But I don't think that this court needs to instruct district courts or judge Brown in this case, particularly to do that. I'd like to address just a few issues in Rebottle. The first is the question of will this recur again? And I think that the answer to that is yes, it will. And let's go back if we might to Rines Against Weber. And I'll stand corrected. I think I said that Justice O'Connor used the word extraordinary. She said very limited, I think, is the language. Because I think I did what Judge Slovittor did and looked through the opinion very quickly. Nonetheless, it is something that's to be sparingly used. What are the circumstances of inmates who have mixed petitions and who do not qualify for stay in advance? Those are the people like Mr. Urson-Oli. And those cases will always occur because they may not meet the standard. What happens with those people, what Justice O'Connor told us in the penultimate paragraph of her opinion in Rines, was they should be allowed to carve up their own petitions. That did not happen here. That's what needs to happen in this case. Obviously, Judge Brown did not have the benefit of Rines when he issued his 2003 opinion. But certainly when 2006 rolled around and he dismissed the second petition, then he had the benefit. So if you represented Mr. Urson-Oli before Judge Brown, when he made his decision and he said, I see unexhausted claims here. And this is a mixed petition. I'm about to dismiss it. You would have said, wait a second, Judge, I would like to. What would you ask him to do? I would say, Your Honor, I'd like number one to argue that they are exhausted because he disagrees with you. And Your Honor, I respect that decision. Now, having made that determination, I know that the Statutive Limitations is run. So therefore, I'd like to ask that you allow me to carve out the unexhausted claims and then you go ahead and look at the three that you have found undisputably. Are exhausted. So, go ahead, no. I might have the lead in advance. Well, that's it. But she said only limited circumstances. That's right. I haven't followed up actually because I wanted to see where you stand. But if that's the case, then if you were to go, if we were to agree with you, the only thing that would remain are the three exhausted claims. Well, I think that this goes back to Judge Brown. It would go back for those three claims. I think that there would be a decision for either this Court or for Judge Brown to make. And just, Olga, may I go ahead? Yeah, go ahead. Thank you. Clearly, those three counts, those three claims should go back. I think there's no question about that. They were exhausted. They were timely. Everything else. But I think that there would also be a question for Judge Brown about whether the other claims that were presented in that second petition had been exhausted by the time the second petition was filed. Because if we're equitably polling, then we have relation back and we have claims that are timely and exhausted. Now, I realize that that sounds as though it's giving something of a windfall to Mr. Urson, Olga. But of course, he didn't create this circumstance. I'm not sure. I'm not sure because I'm not sure that he had that right when Judge Brown made that first decision. And said somewhere on it. So you could have a field or asked for re-argument on the fact that there were unnecessary claims. I mean, what you're saying is that if, and that's a big if, if we were to grant equitable polling, Judge Brown should still consider the claims that he said were uninsourced. Do I not understand you? Well, I think you're on her. I mean, is that what you're saying? The short answer is yes. The slightly longer lawyerly answer is that I think what the court would do is, is, is remain the case with instructions to Judge Brown to vacate the dismissal and equitably toll the time. And then to figure out if in addition to those three claims, there are any others that he's going to hear. And I think that, that to some degree, that's going to be within his. Thank you. I think that's all the time. What, what, what, when assuming the way we agree with you, what is the reason that we give in saying that there was equitable polling? The reason you're on her is that the constitutional right to federal habeas review ought not hinge on the propinquity of un-exhausted claims with exhausted claims. This rule, this total exhaustion rule of rose against Monday simply didn't matter until OK. And now, of course, it does matter and he should have been allowed, Mr. Urson, only the opportunity to either ask for stand-abeyance or to excise the un-exhausted claims. But either way, the mere fact that they live side by side in one petition is more reasoned. You would want us to give retroactive effect to Bum, Gandalf and Ryan. Thank you very much. I, I do your honor. And just to clarify a very quick point, I think your time is on. All right, your honor. We have a lot of cases after you. I, I see that. Thank you, Mr. Mayor. Very eager for me to be done. Thank you, Mr. Mayor. Thank you very much. Thank you very much. Thank you very much. We'll hear from you

Legal Case Summary

Urcinoli v. Atty Gen NJ

Date Argued: Wed Jun 10 2009

Case Number: A136516M

Docket Number: 2597708

Judges:Not available

Duration: 44 minutes

Court Name: Court of Appeals for the Third Circuit

Case Summary

Urcinoli v. Atty Gen NJ

Oral Audio Transcript(Beta version)