it please the court good morning my name is evan greenberg and i represent the petitioner sammy page i do understand and you watch my own clock and i intend to reserve two minutes of my time for about all this morning i'll begin by addressing the jurisdictional issue that this court flagged last and wanted to challenge pretrial proceedings there were ongoing and a diff a second district and braden held that he could file the twenty two forty one petition in the second district even though he was not being held there and that's that's not that's the opposite of what it help right i mean the court has i think that's the opposite of what britain how they said they had to be where where he was in custody right for twenty to forty one no your honor i disagree that he was being held in one state wanted to challenge the proceedings ongoing in kentucky you know i'm sorry i'm sorry i was talking about hernandez i'm sorry you're right but you're right ok there's an agency theory is what you're getting at yes you know mr page is really challenging the proceedings ongoing in alameda county based on the order holding him in custody from two thousand and six from the alameda county superior court and the conduct of the alameda county district attorney's office interrupt you again because it is procedurally a little unique right so so we're talking about a person who's been criminally convicted but that sentence has been fully served and now he's being held pursuant to this order there's the first civil commitment and now there's another order i'll call it a pretrial order that he's being held pending trial in the civil matter right correct is the reason that he's confined in a different part of the state the nature of is that a function of the fact that he's been  of the so that i just get a little bit better education i don't mean to keep interrupting you but your time's ticking away and i want to not disadvantage you that way i'm guessing but i don't know that there are a limited number of facilities where these folks are housed is that right district i didn't know that there is for example one woman being held in a different facility ok he's in the eastern district he is ok so so am i right then then where are these a for let's say a different just a hypothetical person who's been convicted of crimes  just summarize this as a serial serious sexual assault ok and those are prosecuted all over the state of california and then as i understand the scheme then at the conclusion of those the state may or may not move for this designation of sexually violent predator and those actions those subsequent civil actions could happen anywhere in the state of california yes that's my understanding right and then those folks would all go to i mean if their men all go to the same hospital in the same district right correct right so under and they're if if they're seeking the kind of relief your client is seeking under two two four one and it seems to me that what you're describing is a situation where the judges and the attorneys and the folks who are familiar with the criminal cases out of which the civil actions spring will be all over the state and yet all of the two to four ones are going to be heard by one district court and perhaps unfamiliar with the history of the case but nevertheless that's what you're describing well not exactly because we're we're saying that the twenty to forty one if it's challenging the ongoing civil commitment proceedings as in not once has been deemed an f p p and then a based on that judgment for four to challenge proceedings before that ultimate determination they can follow the twenty to forty one based on where those proceedings are ongoing and i'm just curious and following up on what just christian either when he's in custody or where the demand in court well i think he would be in alameda county superior court because that's where that's where his current proceedings are still ongoing so he has an active case in alameda county and that's why and to what extent this court cited last week that what this court's finding in hernandez was that the central district of california lacked jurisdiction to decide behaviors petition there was a question of whether it was a twenty two forty one petition or twenty two and in that case the court didn't really go very far it said that the error was in not determining whether or not it was a two to five five or to two for one and it sent back it sent it back for yes it sent it back with instructions for the court to determine whether what type of petition it was it was a two to four one it had to be where he was in custody then the court said that that's the one i thought we were talking about earlier they did say that the one difference that is important there is that hernandez said the twenty two forty one petitions generally are to challenge the manner of execution of a criminal judgment is you know the location of your housing the type of housing you're in custody credits those kinds of things whereas mr page is not bringing that kind of petition he's bringing the kind of petition twenty to forty one that's more in line with it but it might be when they wanted to talk about or even request supplemental briefing on your time is ticking away and to make sure that the opposing counsel is not prejudiced you want to skip jurisdiction now and you want to talk about the merits and the time you have left or we're going to give you a lot more time on the clock but ok has been held in pretrial detention since two thousand and six based on the order that he should be held until trial and since that time alameda county superior court and the alameda county district attorney's office have not taken any step to move this trial they seem uninterested in doing so particularly the alameda county district attorney's office and so we're really familiar with the facts and your time is ticking so that the district court relied on younger right and in doing so implicitly made a finding that there's an ongoing state proceeding it did and we think that that was an incorrect finding and also that the district court did not really assess whether the proceeding was ongoing that's sort of the basis of the argument that they just record abused its discretion because you said that the district court relied upon the fact that even though you said nothing occurred since the initial family there was an amendment to have this commitment in determining right so i didn't catch was it wasn't there a change in the original petition from a particular like one of two year term a commitment to an indefinite term a commitment isn't that on going to some extent well there so his two year commitment expired in two thousand and six and the alameda county d a then petition for a new two year commitment term that was never ruled on and then while that was pending the state changed it made it indefinite but before his term really becomes indefinite somebody that somebody needs to a jew adjudicate that petition to indefinitely commit him then it's a start talking about this about well no why younger does it does it's this very strong principle about the federal government basically federal court staying out of an ongoing state court proceeding and your argument is your client's in place that argument is that he's been held and the can the trials continued over time after time after time after time is the case law that goes to that where the ongoing proceeding for purposes of younger is deemed to be not actually in fact going well i do see that i'm running  room on time i'd like to reserve the rest but i'll just briefly say that the withdraw knight opinion did accept that argument and hold the younger would apply of course that the that opinion is now withdrawn those are anything other than knight that's what i should have asked there's the one kid the one case th cited in our brief i'll get the name and during rebuttal argument i'll address that if i have one more question you're arguing now for the purposes of younger that there really is no ongoing state proceeding which i actually think is a very strong argument but i think in your jurisdictional argument you are arguing the opposite well it's and i should say it's an active proceeding going on in alameda county superior court in that it's still pending and that every few months the court put it on calendar before kicking the can down the road a little further we would say it's not ongoing such that the federal courts should let it continue it was not in going for purposes of younger it is an act of proceeding before you leave the podium do you have a child or as you claim have a trial date a trial the hearing date for the civil commitment i am not aware that he i do not believe he has a trial date i'm not aware of what happened at the very most recent setting for now thank you thank you morning to please the court i'll talk about jurisdiction first i don't think braden helps us here and rumsfeld vs today i think is actually the most instructive particularly well i'm going to rely a lot on the concurrence there but he was he was being held in one state on our let's say alabama has been held in elephant and alabama in alabama's convictions the kentucky court had a detainer on him for something unrelated and right that the points really are different for that reason he where where he is being detained i believe this was filed in the wrong district however was it your view of the world that all of these statewide would be handled in the same district where the one hospital happens to be is that the right trial because after trying to do for one cert we're all going to be fifty four once if the pretrial if the pretrial right and then after trial is twenty two fifty four so does that necessarily mean this may not matter but does that necessarily mean that the district court that's going to be handling these will be the district court the doesn't have any familiarity with these cases and they're by definition prisoners with long histories right that's that's the way i read the case law in terms of ok in the in the district of custody ok territorial restriction but he doesn't believe it goes to the power of the district to hear it and he says goes on to say that he thinks it's more like venue or personal jurisdiction that can be waived and that's our position now we weren't in the district court we didn't appear yes our position is it was filed in the wrong court but that we would waive it in this instance and if the court and by the way is a way of a ball well frankly there's no solid authority on that justice kennedy says we don't need to we don't need to decide that today so i take from that that it is an open question but that's why i think it seems to be very significant that unlike the padilla case i think it's undisputed he's named the right respondent right yet if this isn't a situation where he named you know the secretary of defense or and we have to go through that whole analysis he's he's named the correct response he literally filed the paperwork in the wrong court yes i think i interrupted  friedman i'm just surprised actually to hear that you think you've waived this or that you're admitting that you waive the said that i wasn't expecting you to say that well i don't i don't know that that i'm that i'm losing anything by taking it back to starting over again i mean fact in fact we won even though we weren't there so it's more like more for the sake of efficiency and by the way mr page has another proceeding virtually identical to this one proceeding in the northern district as well which  date his counsel requested that the matter be put over to the next setting day of january eighth why what was the reason given i don't know that there was a stated reason i don't have the minutes of that and from what i've seen of the minutes that were submitted there never  a reason put down on the minutes that's certainly how the record looks it's just whatever and put it over but it's been years but my impression was that it was the state that was requesting delays in most circumstances is that not the case never been one instance in which there was a request for additional time now this isn't in the record i'm telling you something in the middle of the record but this this is been litigated or is being litigated in the district court and the i identical to two for one another one before judge also a yes then are you arguing are you asserting lack of jurisdiction there are no no i was waiting to see what happened here don't know what i thought i meant what i think it is again that it was filed in the wrong court but i believe it can be waived and in future instances i might move to change it but this this case particularly is so far along it has to be under the under the law as it is that that twenty to forty one has to be in the district of custody of despite the inefficiencies that may arise can we turn to the merits and the merits about night even though i know it's been withdrawn because there's night and then braden is the only other case which i don't think it even cites younger but there's an they allow a pretrial complaint of and i have to distinguish speedy trial from as an affirmative defense from speedy trial to i want i want to trial but there's never been such a claim but if you look tonight and braden the only two cases where i've seen this sort of thing happen they're both saying i want to trial i'm not raising it as an affirmative defense in fact you can't under this court cited brown versus a here and you can't raise it as a firm defense but that's exactly what he's raising now he's not claiming delay he wants an affirmative defense of this is fraud stop this proceeding no way and he's saying look nobody's educating this and i'm just here i'm still sitting here he's he's extremely prolific well maybe prolific but that doesn't mean he's necessarily using the right words but anybody can look at this record and say this looks really peculiar but my point is he's prolific enough to challenge his attorney to say i want to trial he has never said that well his briefs here are saying that right he's received here saying that through through counsel but in fact but then actually in this in the state in the state civil commitment proceedings was a formal affirmatively requested by the defense but when there was continued other than this federal twenty two fifty one challenge in the state could proceedings was one of the continues continuances objected to by the just returning no by the  this last august seventh date was a setting day but they picked it to the next day and that's what's been happening there how they're telling us that his counsel is asking for delays at the same time that his counsel here is saying we want to hearing that there's they're taking opposite strategies is that what you're telling us well or i don't know that the claim on the merits here i will say is that that mr page wants  wants to be let out but i think considering it charitably given that he's pro se you could also read it as saying and i want to hearing about this and the here i want to hearing about this seems to be quite a valid claim if it's not his fault that it's taken seven years or eight years but i can't tell what you're telling us about what why it has taken so long it seems the reasons for the requests to to continue were put over i don't know i think and i will tell you in the district court judge also chronology that like to give you an opportunity to respond on may eleventh two thousand and twelve the superior court granted mr page's motions for a new probable cause hearing and a new mental health evaluation and then just about four months later in october the district court dismissed the federal petition on younger grounds because the state proceedings were ongoing and that's my editorializing he would have had to find the state proceedings were ongoing to dismiss it on younger grounds and indeed there was this new probable cause hearing scheduled but then in and fourteen this appear court set aside its part grant of a prop probable cause hearing that would that would be news to judge also i think he would not have had way to know that and so now here we sit in the fall of twenty fifteen and this just goes on and on news to judge also been this case or the word for just also that you see it at the time he ruled on younger grounds that the state proceedings were ongoing there was a new probable cause hearing that had been set on him and  after he ruled a a little more than a year and a half after he ruled that was vacated so he thought there was going to be a hearing soon and so it seems he implicitly found that there were ongoing proceedings but those proceedings still haven't he had a very different picture about the extent to which the state proceeding was in fact ongoing and i just that's how it looks to us from the cold record and you know we're a a long ways away from the case so i wanted to give you an opportunity to respond well i think that's what we're looking at is what he was looking at and also as as i said but then why wouldn't we look at on the sixty six motion to say wait a minute this isn't really ongoing it may have looked at that way at the time but this is new information  circumstances change since his ruling and the question becomes what are the present circumstances what's the status of the record is cold it doesn't tell us that but we're looking as you say what he had before him is expectation of offending proceeding which is subsequent been dismissed judge also wasn't wasn't informed of of any of this yes to go with what the briefs tell him right he wasn't informed of any of this and frankly a nine month span between his original order i don't think that's enough to say stalled it's not ongoing anymore you know the status now you know the status of the civil commit proceedings now the status is that it's that he can just keep getting held without there ever being a trial i mean i just don't understand how this can still be going on and i agree my our point is really that he shouldn't be able to capitalize on a request on continued requests for continuances and then turn and then come into this court or the district court and say m m there's too much die here and that's because you think he's the one doing the requesting yes but you only i think you told us that you only know that for one instance if you did i think maybe i missed it would you ever yet every instance every i thought you said you didn't know very many of them sir there was one instance in which the district attorney said i want time to believe so believe there was a request to file an amended petition whether that and placated a continuance i don't know but i do recall that so whose burden should it be to show why the sorry i'm sorry that's quite right i think i was interrupted bunch can i just i'm wondering when you say that's in the record in the district court do you mean the other case in the district court because you told us now they're saying yes so it's not in the record in this case but we could find that declaration if we look at the record in that other case yes about this going on forever our point is if he if he really has a sincere claim of delay and wants to put it forward he should say that it's that simple and that's what happened in knight and braden they were actually they actually wanted a trial that was the claim that's never been going to what extent should the court that hearing these requests for continuance have some obligation to say ok enough is enough and i know that we should give due deference in comedy to the state court proceedings but it isn't a some obligation there where the court cannot just indefinitely grant these continuance is right i think there are i think there is where that where that lies i don't know i don't know whether any grounds have been stated for so we need to know that could i ask you what about the the other representation is that the defense counsel declined to provide a declaration one judge also asked one asked for one going to the the reason for the request so i'm familiar with the other case i'm not nearly as familiar with it as and this one i have read the declaration in response to judge also ordered basically the defense counsel simply said i'm involved you know i can't disclose anything about this based on how can you file a brief to us saying that he should get this hearing and this delay is unreasonable if he is requesting the hearing that requesting the delay in the hearing well your honor i still i still have no basis to believe that he is requesting those continuances we have this appear court minutes in front of us that's all we are that's what we're basing that's what we're basing the argument off of that's the record we talk to fine we reached out to the defender representing the client to get the records as far as any conversations that we may or may not have had with that attorney or the client really not comfortable i'm not asking about the content i asked whether you have been in communication with your client i would still not really become or describe pretty uncomfortable ruling on this briefing that makes a very strong argument a very strong suggestion that these continue to zipping requested by the state so we're going to need to know that i guess i'm just also clearly wanted to know that i would have to respond to that one is that to the extent there is a debate over who is responsible for the delay in the superior court proceedings that would really go to the question before judge also that mr page presented in the rule sixty motion which is that my proceedings are not ongoing and judge also of could've had  looked at those looked at those that issue could have said well let's have the declaration come in and let's actually look at who's responsible for it but it seems that he just did not review that and so didn't review what mr page's night argument that the proceedings were not really ongoing there's no indication in the real sense like judge also requested declarations about why the all of these continuances sounds like he went straight to that point that i think i don't have and are standing please correct me absolutely that happened in the asked the court to take judicial notice of the superior court records the one thing i'll say about the declaration is that i know that for at least some of the hearings the district attorney said when his records did not show notes about which party requested t continuance he assumed it was done at the request of mr page's counsel so i do think that there is it's not entirely clear even from the declaration who's really responsible because for at least some of the hearings it seems the dishes attorney didn't have notes and really none of this is in the record for this case it's being developed in ongoing district court proceeding it seems there remained to the judge also to address this question would be the best way to find out who's responsible for this because all we have is a superior court