good afternoon your honour's before we do that we have judge cool i video can you hear us just gould yes again judge ronson and good afternoon to you judge common and the court good afternoon your honor federal public defender michael franti on behalf of the petitioner william charles payton we're here on mr payton's motion for a certificate of a pill ability following the district court's denial of his motion for fraud on the court the district court's decision made at least three areas debatable among curious of reason first district court erred in failing to apply the recklessness standard now respondents opposition brief to the cohen acknowledged that the sixth circuit has in fact adopted a standard that encompasses recklessness for fraud on the court the district court did not adopt that standard mr printed before we get that far can you explain to me the distinction that you're trying to make in our case law with regard to sixty p we have held requires a certificate of a cool little itty and rule sixty d when both of those rules address fraud or misconduct by the opposing party as the basis to reopen a judgment well i think there is a good thing chanelle and that is an alternative argument that we make that no so typical of appeal ability is required because of all sixty three is distinct the reason for that is that in the car how is it distinct that's what i'm having a hard time understanding yes so the reason it's distinct is because in the context of fraud on the court you never have to reach the merits of the person it's a unique situation because the petitioner appellant can ultimately prevail without the court ever reaching the merits in a sixty b context you're always reopening the judgment ultimately to get somewhere the presumably the merits of the case but they both address situations where the integrity of the underlying proceed that led to the judgement is question because of the conduct of the opposing party and i'm really struggling trying to understand the distinction world sixty b context where i agree there's some overlap by acknowledge that there's some overlap between what might be brought under the rules but there's also there's plenty that's brought under rule sixty b that certainly would not fall under rule sixty and i think once you're in the rule sixty now you're narrowly focused you're now we focused just on fraud on the court so on like real sixty three where you can raise a real sixty three motion just based on misrepresentations that another party gave you death as a penalty for misconduct by the opposing side is that the relief that you're asking for that that is one of the remedies that we suggested we did also suggest however that cooperation here were just requesting a call on it if the court granted the call it could also remain on for an evidentiary hearing for us but why would we do that when it is now law of the case that the testimony of these quote unquote jailhouse informants wouldn't have made a difference in the underlying determination by the jury that he was guilty of the crimes and b that there were sufficient aggravating circumstances to warrant the death penalty well this court and the supreme court but starting with hazel outlets has said that fraud on the court is a miscarriage of justice so when you're alleging fraud on the court you are alleging that there's been a miscarriage of justice and the supreme court has said and dobson the zant that a miscarriage of justice is itself and it's absent a lot of the case so is your argument that it's just pure structural error that we don't look to the harmfulness the the testimony that you're challenging i'm not sure that i would i'm not making a claim of structural error in the traditional sense i think it is analogous to structural air that you're claiming there's a structural error in the proceedings when a fraud on the court motion so i do think that there's an analogy there but i'm not claiming that this is somehow a new constitutional claim that is structural arugula concept well the problem i've got is it's not really a new claim at all i mean we have examined exhaustive boy this is what now the fourth round of appeals to the ninth circuit at least two i think three you have only been involved i think in two of the three but that the issue of the reliability of the informant the jailhouse informant testimony and the weight that that testimony was to be given has been exhaustive lee litigated and you've lost before every court that you've raised the argument why have you why can we now revisit what we have previously said wouldn't have mattered to the ultimate outcome in the case well this is different i do want to start off by saying that those two prior appeals if you were kind of getting to a substantial showing  claim be the same to exclude the evidence that was obtained through the messiah violation yes and that's the critical difference because when the court analyzed prejudice from say the brady the brady claim it was doing just that it was saying further information related to the informant eskil there were folk not here for the penalty phase that that would not have made a difference in his that would not have changed the outcome as it hasn't been that human in essence what it seems to me that what the courts were saying and i think we've said it as well is that there was no miscarriage of justice here that the defendant was convicted on very very strong if not overwhelming evidence and the nature and heinous the crime were sufficient to warrant the aggravating circumstances that resulted in the verdict of death and i think on that point there are some terms of our here that need to be distinguished because miscarriage of justice is used in the hay vs contacts in another in another context where you're arguing actual innocence or something along those lines and we're not arguing that the miscarriage of justice here is in the way that miscarriage of justice is typically used in a hay vs proceeding where arguing that the miscarriage of justice is the father on the court because that is what is allowed less and if there's fraud on the fraud is a miscarriage of justice but doesn't the fraud have to be material to the outcome of the case again i'm back to the same problem that you're arguing right now isn't there a legal authority from the supreme court or our court saying and let's saya violation that interfered with counsel rights under the sixth amendment is reviewed for harmless can be reviewed for almost say or yes so in messiah yes so so if that's the case and then if there is overwhelming evidence of as the penalty phase and for me as clara was one of only two penalty phase witnesses the only other penalty phase witness in this case was mr page in his ex girlfriend he had conception consensual sex with her she testified and then there was there was an attack and i acknowledge that but i don't think that that one witness had the ex girlfriend who's not testifying to actually what happened in in his commitment offense where you know it's a rape or murder that based on the ex girlfriends testimony alone that would have been sufficient for a death threat at least reasonably debatable mr pretty you're overlooking the significant evidence of the crime itself which the death penalty jury was certainly well according to which strongly corroborated what the ex girlfriend had to say about mr payton's relations with women as clara's comments in the penalty cases testimony about his comments go much farther than just saying that he had a problem with women he's saying that mr payton had this inherent urge to rape and kill all women regardless of age or looks what we've got here and all of that goes to his the judgment of the death penalty i understand but the california supreme court when there was two dissenting judges on the california supreme court when they heard this evidence and they said although the crimes defendant committed were heinous they were not of such magnitude as to make a death verdict a foregone conclusion that's from his direct appeal to california supreme court judges so there's at least two judges that saw that already saw a prejudice in this case that gets back to my point i mean you know then we had appeals through the hey b s to the ninth circuit and went to the supreme core and and those court nobody has questioned the reliability of the evidence of his guilt as judge cool points out and i mean i just i can have a hard time seeing why this makes any difference to the ultimate outcome both of the guilt phase and the penalty phase well it makes a difference because we're learning that the federal hav proceeding here was tainted by a prosecutor's fall sworn statements in that proceeding and i think that affects more than just mr payne's case i think it affects the perception of the integrity of a federal hate us review i think it's a foundational claim to attack the integrity of the proceeding and i understand that it is a serious claim but we have the evidence here to support it you know we have a sworn declaration denying any preferential treatment whatsoever to escalate that we have a deposition testimony from the very favorable disposition for actually your honor the jurors did not hear about as clear as favorable about his true favorable there was any cross examined on the fact that he cooperated for years various law enforcement agencies and los angeles that he they knew that he had cooperated they knew that he was hoping for a sentence of one to seven years that's very different than what he got and they also thought that he was just hoping for but there was no deal in exchange for his testimony he was just there out of the goodness of his heart and also knew that the testimony would be brought before the sentencing judge and he understood that based on that he would get a sentence of one to seven years so  are you saying that the jury didn't know that he was trying to better his legal situation by testifying it's a it's a vast it's a vast difference one to seven years and straight released on probation signed by the same prosecutor who's there prosecuting peyton's case that's a vast difference but also it doesn't get at all to what if you hadn't testified at all because that's the true prejudice analysis here if you i think if you want to get our strongest position then the the fact that his testimony could have been excluded altogether that never got evaluated and there you only have one penalty phase witness left that's the ex girlfriend and then you have a wealth of evidence that peyton brings about his good behavior in prison his religious conversion you know people testifying to that work and i think that jurors reasonably i've released reasonable jurors could debate that that was prejudicial to mr pate and to if he had had a fair proceeding with that evidence consider counsel what about the fact that we're dealing with a crime that occurred forty years ago i mean the supreme court has constantly reminded us that there has to be some finality to these cases and i mean this this case is probably i think it's the oldest case that i have with regard to when the crime was committed i mean at what point do we say enough also the orange county informant program has changed fundamentally change the picture of i think how we can look at this case because the the pattern or practice that came out of decry it just matches exactly what was happening because if there was no evidence that that actually existed at the time is there i mean the cry at best as i read the superior court ruling said that it may have been in existence for ten years but that was in two thousand and fourteen so this crime was committed in one nine hundred eighty eighty eight so you had a big gap there where there's just no evidence and i understand there that we're not making the argument that directly  been sorted out before and argued correct on the informants and why they weren't believable or credible if things that were just rehashing we had no systemic problem to point to we had no way to know that this was the systemic type of violation that was happening and so that was it was never argued as a snake there but they the actual evidence challenging the credibility of these informants was let al the systemic evidence has already been pursued presented on multiple occasions and there was a president was a messiah claim i understand if there was a messiah claim it did not have any of this evidence which we argue was intentionally suppressed by the prosecutor in order to alter the result of the federal hate this proceeding if the prosecutor if this evidence had been in its complete form when this court first heard the appeal it's a completely different picture the court what you're asking us to extrapolate pfa words or based on a pattern of conduct that the diff cry court found existed in two thousand and fourteen and you want to extrapolate back to one nine hundred eighty and say well if they were doing that in two thousand fourteen under this track program or whatever it was called then they must have been doing it in one thousand eight and we think that because the connections are there because our evidence doesn't fact so that the prosecutor is lying about one of the informants at least and that there's these movements that match what happened in the cry that were at least entitled to what the cry had part of the twenty four year it's a decade long discovery violation the thing out of to cry it's not a right but that only gets you back to two thousand and four and the problem i'm having is then you want to back up another twenty four years to the one nine hundred eighty and  said i mean we've been over these the impeachment stuff time and time again and nobody has responded to your argument that it would have made a difference i think that's why we need  wasn't relevant and i can understand why because of this free gas in the district court made several errors in concluding that it was not relevant the district court concluded that the cry for example was isolated to a single case that that's all it that the ruling was well it isn't to say i'm not making a systemic ruling here i'm simply saying that the conduct by the orange county sheriff and the district attorney in this case in terms of the punishment that he needed out it was of course just related to that case and he was careful to narrow his what all but you want us to extend his ruling beyond what the superior court judge was willing to say you know just to honor his factual finding he made a factual findings that there was in fact a well established but i'm new here i may have played the court natasha cortinas supervising deputy attorney for the state of california the fact that the federal courts including this court have previously found that the messiah and brady us that rule sixty is to be construed consistent with the d p a and it's limitations on federal hate b s review so what we need to look at is the nature of the other thing that the supreme court consult it's not the label of the application but it's the nature of the claim or the assertion in it and in this case payton is directly challenging the district court's ruling on the merits not only in general for the judgment and it would be a logical for a petitioner and from behaviors proceedings to have to obtain a c e o way in the context of a federal hate us determination and circumvent that requirement simply because they're trying to seek to reopen that same judgment through labeling their document a rule sixty  right so if we were to decide in your favor am i correct that there should be an opinion remember yes i think that there should be an opinion to clarify what should be a natural conclusion of the court's other decisions in the context of the rule six context and that would be helpful and it would be completely appropriate to do it in this proceeding the fact that whether a c e o a is required in a rule sixty d proceeding  does not as my counsel has suggested justify reason for advancing your peel it is something that can be decided in this context in this proceeding and an opinion would be in fact helpful  respect to whether peyton meets the requirements for a c e o way there's two prongs that the supreme court said must exist in the in the context of a rule sixty motion appealing from a federal havior proceeding and that is one that whether the procedural one whether the district court abused its discretion in denying the rule sixty motion and the other is whether there's a debatable constitutional violation now pagan cannot meet either but i'll start with the prog about the substantive one of whether peyton can establish a debatable constitutional violation and he simply cannot do so at this court's questions indicated every court that has examined these issues has determined that the outcome of his guilt and penalty phase would be unaffected by any impropriety concerning the use of informants in peyton's trial and see that there was impropriety in see in the informants i do not make that concession at all peyton has not established with clear and convincing evidence that there was any messiah or brady violations in this case and the court importantly in deciding those claims in the federal hate b s actually had the virtually identical evidence that the that peyton is presenting now to substantiate his accusations and did not find that evidence demonstrated that the that the prosecutor has committed either a brady or a violation so going back to the this the second prong which defeats the certificate of appeal ability is whether peyton can do establish the the debatable constitutional violation and given the courts have at every since determined that it would not affect the outcome pains attempt to bootstrap the improper conduct that is arising out of the decry proceedings in no way alters that conclusion you know as the district court found when reconsidering peyton claim for the seventh time and up and down the federal proceedings that no quantum of evidence relating to the use of jailhouse informants would be sufficient to overcome the highly damning evidence of guilt and supporting the penalty phase in this case now my friend the focus is on the procedural problem about whether the district court abused its discretion in denying the their rule sixty motion and for good behalf of peyton because there is no it doesn't lead to a debatable constitutional violation with respect to the decision itself and the procedural one every court that has passed on it has determined that it would not alter the outcome ok i'll say he didn't have as he phrased it the phrase is it the evidence of the systemic palliation of  defendant's rights what's your response to that that it would be of no consequence given the determination that it would not affect the outcome so even if he had had more evidence that undermined or eliminated the credibility of the jailhouse informants the cases against pay for the guilt and the penalty are overwhelming and pretty independent of the of the informant evidence one last thing i know i had said enough is enough paint painting a c e o way and which we advanced below and the district touched upon that ultimately his claim is the success of petition and he should be required as the supreme court has said to follow the structure of the and the limitations on review that are set forth and and because of that obtained a authorization to file a successive petition and in that avenue peyton would have had been able to provide the additional evidence he claims that he has has been deprived of providing to this court and in that regard his suggestion that there is no other avenue or the should be discovery is completely unfounded and with bottom as to the issue of whether this is consistent with at but there's no inconsistency here holland v florida made clear that retained all of the traditional common law equitable doctrines such as equitable tolling and fraud on the court would fall within that domain but the other thing that i think at the clarifies that is important here is the importance of the first federal habeas proceeding at the drop directs everything to that first federal habeas proceeding and that's the proceeding that we're alleging was tainted and when that first proceeding is tainted it affects everything else all of the proceedings all the appeals after that are tainted when the first at the proceeding is tainted but if if argument is that there has been agreed just misconduct by the state here in the manner in which it introduced the testimony of a jailhouse informant doesn't the taint still require some showing of prejudice it sounds to me like what you're asking us to do is to deprive the state of the right to impose the death penalty as a sanction for the egregious behavior and that goes beyond a question of tainting the reliability of the jailhouse informant isn't that what you're asking us to do yes and they would have had the ability to meet all of this evidence had it all been fairly presented in the first k b s proceeding had it not been hidden from the court in the first proceeding they would have had their fair shot but what does that do to the debatable constitutional claim where one of the prongs is well there are two prongs first you have to show a constitutional violation which you allege is brady a messiah secondly you have to show prejudice and i think that's where it's really important for the court to go back and look at the messiah violation because it won't will not find an opinion from any court saying that you exclude us from there is testimony altogether and there's no thank you this you won't find that you'll only  well we don't have enough evidence yet for the missing even the superior court and the cry imposed only that level of exclusion did it not as a sanction for the violation that it deprived the the state of the right to use the jailhouse informant testimony and dick into cries trial initially yes your honor initially but the ultimate sanction was to strike the death penalty and we augment of the record with that before the district court entered judgment because this issue is debatable we ask that you get as much