good morning before we start the clock are you going to be arguing the only person arguing that ok i know you have some health care and you are appearing correct all right in advance i always like to thank on behalf of the court people that handle pro bono cases it's very helpful to the court in terms of determining issues so thank you  good morning your honors may please the court i'm elizabeth white counsel for appellant anthony penned with the court's permission i'd like to reserve two minutes for rebuttal thank you the district court made multiple errors below that have  penn made every effort to pursue his legal claims in compliance with the directives of the court below and within the strictures of his confinement that he was impeded at every turn first the magistrate judge below recommended dismissal of mr  access to court claims because a certificate of appeal ability would not have issued from his denial of his petition this recommendation was adopted by the district court but the magistrate judge applied the wrong standard instead of determining whether mr penton lost the opportunity to asserted non frivolous claim which would constitute an actual injury under lewis v casey the magistrate assessed the merits of the habeas claims finding no certificate of appeal ability would have issued this was this was the case despite the magistrate judge conceding that the plaintive was deprived of the right to appeal the denial of the hay be a sufficient order to seek a certificate of appeal ability as the time for filing both expired while he was out to court and his mail was withheld from him significantly the magistrate never found that mr putin's claim would have been frivolous second the district court dismissed mr penn's remaining claims against defendant newness for failure to effect service i need to ask you a question just sort of for clarification i used to be a state judge so i kind of understand state since but in terms of cunningham all right and then i know that butler came shortly after saying that it was could be applied retroactive three is i'm just trying to assess to him whether his claims prevalence or non problem it seems that he didn't really like state it very well in the first complaint but that being said it when trial judge's sentence at this point under california's determinant sentencing but the low the mid and the upper term it's is not saying that there was an apprentice issue and was that did this trial judges still if they want to give the upper term make the determination but it has to be beyond a reasonable doubt i mean they're not submitting to juries aggravating factors so no but the jury must have found the aggravating factors beyond reasonable doubt for the judge to impose an upper limit so under cunningham and butler the statutory maximum is the middle term and to depart upward from that the judge the facts that would be for me the aggravating factors must have been found beyond a reasonable doubt by the jury so what if i know your client got a like a big this court's decision and butler you're correct the sentence was i think ultimately fifty two years we've looked into it and we've determined that his sentence could be reduced by somewhere between five to ten years based on the judge having improperly found those aggravating factors and going upward from the middle term ok so does he have any avenue to get before a judge at this point so i mean he make an application under a second and successive pay b s and show delegates then actually you know that he under and he could try to submit a successive petition that's that's true i think the more likely avenue would be to file a motion under f r c p sixty six which would require a showing of extraordinary circumstances that we feel it is present here due to the fact that he was impeded from pursuing pursuing that claim pursuing the appeal of access to the courts that would assist him in either a success of petition or a sixty six petition regarding his a b s claims to show that there were extraordinary circumstances or diligence or something or ac you want to draw for district judges in assessing these kind of complaints now i know that you want to gotten anywhere with cunningham an apprentice if you had mentioned them not at that point not at that point because butler comes out after he's back from  what they call it out out to court status so but at least it would be given everybody a clue as to what his problem was the real ira that complained i don't know that i would have seen that he has an apprentice cunningham problem from reading that complaint so i think your honor you know there are certainly precedents saying that pro se litigants pleadings however in artfully pleated must be construed  i have a lot of problems but they don't have a problem saying i could get a lesser sentence you know under something like that they don't that that's just a pretty basic thing and they sit in a cell every day and they think about that all of the time so that's not you know i can understand why it's really hard to state some elaborate scheme of why there's equitable tolling or this that or the other but but sen a case came out and i could get a lesser sentence if if you gave me a chance to go back and talk to the judge isn't that hard and he doesn't say anything about that but i think what he does say is that he implicates all of what was involved in that he is petition by by alleging that his mail is withheld and he wasn't able to to appeal that appeal that he has petitions sentence because he was out of court so he does plead the access to mail and access to  to well the claim is right though he was he was if i'm understanding you correctly correct me if i'm wrong please but he the access to mail and access to court claims are the implicate his aides are much right right so they are ninet y three claims but what they're implicating is his inability due to the withholding of his mail to appeal the happiest claim that decision so it wasn't your claim rely upon getting some type of service is required and i believe the record shows that mr penn made every effort did everything within his power while being incarcerated to provide the marshal service with with information in order to be able to serve nya as their efforts were utterly we all i guess i guess and use is that they all anybody had was his prior address and there wasn't anything else neither no one has no one has come up with anything else and and are our case is that it's the responsibility of your client to get sufficient information to serve those are the words that we've used in the case which governs here which is the walker walker walker states that the plaintiff must identify provide sufficient information to identify  that's not what walker says walker says walker did not prove that he provided the marshal with sufficient information to serve so unless he chose some sufficient information to serve he doesn't meet his burden of proof the only thing he provided was his address which was they did check and it didn't find anything he provided yes i i think in the in the previous paragraph of walker's what i was referring to regarding sufficient information to affected by the u s marshals and the judge found that they had not properly attempted personal service which is something that the judge in this case and i refer you to e r eighty two of the record the judge in this case did order personal service of course and that was never attended with the burden of the burden we have and walker is that your client must provide them or for with sufficient information to serve what information did he provide that would give the marshal an opportunity to serve we now know because we've tried several times that this address is not a good address they tried several times at the address that he provided and then he also of course followed the district court judges the magistrate judge just direction to try to find additional information so our position is that he did certainly everything within his power to identify and provide information sufficient to serve at the marshals then my or later the burden is upon one or the other to do this in our case the specifically that he has to provide sufficient information to serve he did not do so it's it's unfortunate but someplace along the line we have to say what is your burden of proof and that's the burden of proof that we've i think that he meant i think i would say that he met the burden that was placed upon him given his confinement in order to provide as much information and he followed all of the district court's instructions about how to find additional information was very diligent and the marshals just fine you're telling me a lot of the equities i'm suggesting to you that we can't get to the equities when we've already hell specifically that he must give sufficient information to serve clearly he did not give sufficient information to serve i mean i'm sympathetic with with your situation but unfortunately we can't say jihad be a good idea for done this or we should do this when the law tells us what the bigger burden is we have to follow the law whether we like order and i think he did provide sufficient information to serve to identify and to target to serve he provided to attempt service and they did and they did try to serve with that information and they did not engage in the other directives of the destroy your going on to something else what tough on prisoners when they have to give information to serve and they can't go out walk around and find anything but i'm having real difficulty how i can skip around that requirement i understand your honor i would simply say that in the previous paragraph that the standard is stated as sufficient to identify which he certainly did and again the walker case the factual circumstances were certainly very different all you had there was a plaintiff who claimed that he had asked the marshals to serve basically his word against the marshals and the court found that he therefore had in that context had not provided sufficient information that i read that prior position is and then i'll give your rebuttal time as we need it good morning good morning please the court and i represent the prison officials who mr penton chose not to sue in the second amended complaint the courts quite right that this matter was dismissed and he really choose not to sue them or we see that basically directed by the district court not well the district court severely limit is what he could do in a second amended complaint yes the court specifically explained that he should not bring back his access to courts claim that he may sue defendant specifically the same defendants with regard to the withholding of his mail under the first amendment and possibly under the fourteenth amendment if you could find a policy of withholding mail so the court specifically said you can be sued these named defendants but not for access to courts and the court did a full analysis of why that was so i think that i have a concern here i think a little bit like what judge wallace said or that we're all sort of that it seems like he has a non privileged claim under a with cunningham and and when butler was decided after now ok so but it seems like you might have some things to talk about here that there's you know why it the district court might have to be affirmed on the one nine hundred eighty three is the government going to turn around and if he brings tries to get permission to file a second and successive hey b s are they going to say he wasn't delage and even though i mean he's been trying at every turn but it's not working out for him or are they going to say he hasn't been doing anything and therefore because it seems like on the side where he can show that he's you know he might be entitled to five to ten years off  sentence which is not insignificant well your honor it would be improper for me to speculate about a defense in a case that hasn't even been filed but the problem we have here is that my clients are the warden the associate warden the supervisor of him have access to the library after he got back to the prison and was seeking to file i guess a motion for reconsideration of his denial of this hey b s when he didn't get library access to the wrong person well i think you might be thinking of branford but she's got a timing issue with branford he says specifically that he was he requested long library access on september twelfth two thousand seven and he got access on september twenty sixth two thousand and seven that's an excerpt of record one sixty one that's his original complaint so he says that bradford didn't let him into the library between the twelfth of september and the twenty sixth of september he filed a request for extension of time to file objections in the hevia section which expired on november seventh he went up to court on november eighth without any of tried to seek another extension of the hadn't gotten in the library and they sent it to the wrong court well it's interesting he says they sent it to the wrong horse he doesn't assert any of the defendants or anybody i request i represent sent it to the wrong court and it's odd that he says that he addressed it properly and whoever they is it got to the wrong court i'm it's unclear how that is also linked to my client itself little institutionally frustrating from the standpoint that you know you have to understand the judges you know on you know probably sort of on a basic level of fairness you want people to serve every day they just serve to serve but on the other hand you don't want them to serve days that they shouldn't be serving under the law and so i find dealing with the institutional situation overwhelming but when you have a pro say and when it's like going and then a walk back to top it all it just doesn't it doesn't create a terribly satisfying s marshal attempted service at three different addresses that's an excerpt of record forty eight so they attempted to serve it was returned the office of the attorney general was exhorted to work was to find another address that was despite the court telling him twice this is a way you might be able to get information as a practical matter your honor because we had already taken every address we could find from c c r the result would have been the same but the court  didn't give him mechanisms that he could try to use and he didn't avail himself of those it's the one case is a bothersome case for over two decades now we've tried to solve this issue of prisoners who are pro se being able to bring their claims and we've really had remarkable progress especially in the eastern district of california but if if you're requiring him to say show enough for service and he's in jail and he has no investigator is there any other avenue that he has i mean that is a very hard burden i mean it's in there and walker that he has to to provide the information for service but here's a person who's no longer working this is a defended he wants to sue because he can bring his action there is or any alternative that he had that was overlooked to be able to make the system work he asked for counsel to not that i'm aware of your honor but i'm uncertain of that  i think that the district court and the old itself of every remedy that it could it had be assisted him giving him instructions what he might do the u s marshal assisted trying services three different places the closing counsel provided information to the u s marshal to enable service the district court really did try to help mr penton but unfortunately at the end of the day we have a four year old case we have no defendant served and the district court was without the ability to proceed because there was no one over which it if the court has no further questions i'll submit thank you you thank  i'll give you two minutes on rebuttal unless we have more questions because we seem to have a few questions here thank you but he asked for counsel did he twice filed a motion to compel seeking more information to observe noon yes and and asking for counsel to be appointed both motions were denied the district court instructed him to file a california public records act request to seek more information for new noise which he did and as far as the point regarding that counsel for the state just said he didn't file the public records request if i understood that argument if i understood what you said he you know he the public records request was was filed and he received a response that provided that responded that he they couldn't provide any additional information about new news and then providing some information regarding some additional operations and regulations were setting the record time to fifty seven fifty eight is she correct that poking council correct that the person who allegedly deprived him of library access after he got back to the prison was mr branford and he had been sued initially know mr bradford was named in the original complaint was yes and to the point about mr bradford before mr penton was sent out to court he was never called by mr bradford to access the library he submitted the extension the motion for extension of time to object to our in our he received that he received a motion the granting of the extension two days before he was sent out to court he filed another one the day before it was sent to the wrong court and then a claim against him in the original complaint and then he sought to and then at the court's direction he would hold down the number of defendants named in the subsequent complaints and then he sought to file a third amended complaint which know it's an interesting phrase sent out to court he was sent to kentucky in order to potentially testify in another and another case out there as a witness it wasn't his case but i'll go it was his case i didn't know they get passes for those sorts of things he was just sent he was transferred from from the facility so he was gone for some time he was gone for eight months but it could be something of your own to that was in another it just means you're gone from where you're housed on your particular charges then you have to there's some order that centuries somewhere else actually in court as for us i believe it could be for your own matter though in this case i don't think it was ok so if you get another bite at the apple here and i'm not saying that you're going to or whatever i'm just asking are you going to represent i'm sure we would absolutely be happy to have he'll have us right thank you both you meant it was helpful on both sides thank you this matter stand submitted