October 13, 2010 - DNA ISSUE by Justice4Hank

DNA  ISSUE

UNITED STATES SUPREME COURT ORAL ARGUMENTS TRANSCRIPT  OCTOBER 13, 2010

Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

HENRY W. SKINNER,

Petitioner

LYNN SWITZER, DISTRICT ATTORNEY

FOR THE 31ST JUDICIAL DISTRICT OF :

TEXAS

- - - - - - - - - - - - - - - - - x

No. 09-9000

Washington, D.C.

Wednesday, October 13, 2010

12 The above-entitled matter came on for oral

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argument before the Supreme Court of the United States

at 10:02 a.m.

APPEARANCES:

ROBERT C. OWEN, ESQ., Austin, Texas, Appointed by this

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Court; on behalf of Petitioner. GREGORY S. COLEMAN, ESQ., Austin, Texas; on behalf of Respondent.

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C O N T E N T S

ORAL ARGUMENT OF

ROBERT C. OWEN, ESQ.

PAGE

On behalf of the Petitioner

ORAL ARGUMENT OF

GREGORY S. COLEMAN, ESQ.

On behalf of the Respondent

REBUTTAL ARGUMENT OF

ROBERT C. OWEN, ESQ.

On behalf of the Petitioner

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P R O C E E D I N G S (10:02 a.m.)

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CHIEF JUSTICE ROBERTS:

We will hear

argument first this morning in Case 09-9000,

Skinner v. Switzer.

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Mr. Owen. ORAL ARGUMENT OF ROBERT C. OWEN ON BEHALF OF THE PETITIONER MR. OWEN:

Mr. Chief Justice, and may it

please the Court: The issue before the Court today and the

only question litigated to decision in the courts below

is whether a prisoner's claim that seeks only access to

evidence for DNA testing may be brought in Federal court

under the Civil Rights Act.

The Fifth Circuit summarily answered that

question "no" in hearings with longstanding view that

any Federal claim that might conceivably set the stage

for a subsequent collateral attack, however removed in

time, must itself be brought via habeas.

clearly cannot be squared with the decisions of this

Court, especially since Wilkinson v. Dotson, that the

Court should reverse and remand.

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That rule so

I would like to begin by describing the contours of the Heck rule. 3 Alderson Reporting Company

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JUSTICE GINSBURG:

May I ask you about --

Wilkinson was parole, parole eligibility, so it didn't

touch the conviction or the sentence, where this one

does.

So the cases are distinguishable on that basis. MR. OWEN:

Justice Ginsburg, the reason that

we argue our case does not touch the conviction is that

the relief that we are seeking, access to the evidence

for testing, if we won, if we win in district court and

we get that access, it does not necessarily imply -Â

which is the language this Court used in Heck and

repeated in Dotson -- that the conviction is lawfully

invalid.

JUSTICE GINSBURG:

I understand that

argument, but there is the distinction of the type of

case of where the -- the one, conviction and sentence

were never going to be questioned, only parole

eligibility, where here, the discovery that you seek in

1983 is not a destination.

further litigation that may or may not arise.

MR. OWEN:

The destination is to

That's true, Your Honor.

We -Â

we don't see that as a distinction that compels the

conclusion that Dotson isn't the model to follow,

because in -- in our view, what Dotson said -- again,

the prisoners, as Justice Ginsburg says, were before the

court seeking a declaration about parole procedures that 4 Alderson Reporting Company

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Ohio planned to use in their cases.

procedures had been adopted after those prisoners were

sent to prison, and they complained that was an ex post

facto violation.

Those parole

And Ohio argued, both in the Sixth Circuit

and in this Court, that the fact that these prisoners

expected at some point to come back to court armed with

a judgment in their favor and seek a reduction in their

sentences was enough to conclude that the case should be

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within the core of habeas. JUSTICE KENNEDY:

It does seem odd,

though -- and I don't want to jump into your argument

too much, because you have got planned out what you want

to tell us -- it does seem odd that if your suit for DNA

testing is not attack -- an attack on the sentence, that

you asked for a stay.

I mean, if it's not an attack on the

sentence, why shouldn't that factor into our decision

not to grant a stay or to grant a stay?

it's an irony in your position.

MR. OWEN:

It's -- it's -Â

I think it's an irony -- I -- I

accept the Court's point that that -- that that seems

unusual, but I think that the reason that the Court's

cases, at least as to the relief that we're seeking and

not the stay that the Court entered in order to hear 5 Alderson Reporting Company

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this case and decide the question, that the relief we

are seeking does not necessarily imply the legal and

validity -Â JUSTICE KENNEDY:

Well, we don't grant a

stay in order to decide a question.

because of the likelihood of success on the merits.

that goes to the sentence.

that your attack doesn't go on the sentence.

see why we don't just lift the stay, under your own view

We grant a stay And

And now you are telling us I don't

of the case. MR. OWEN:

No, Your Honor.

I think -- if

I -- if I was understood to say that, then I -- let me

clarify. I think that our success -- when the -- when

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the Court applies the stay standard, it asks the

question:

merits?

lawsuit, means getting access to the evidence.

That's -- that's what it means.

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What is the likelihood of success on the Success on the merits, for purposes of our

JUSTICE KENNEDY:

If that's all it means, we

shouldn't have granted a stay. MR. OWEN:

I don't -- I don't think so, Your

Honor, because I think once we had demonstrated that we

were likely to prevail on the merits of the case, I

think the Court was within, you know, appropriate 6 Alderson Reporting Company

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judgment to -- to make sure that the case didn't become

moot by Mr. Skinner's execution.

that the demonstration that we had to make was not about

whether his ultimate -- whether, ultimately, he might

get relief from his conviction, but whether we have a

chance of prevailing on this civil rights claim that

asks for access to the evidence. CHIEF JUSTICE ROBERTS:

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Because I do think

But that disconnects

the irreparable harm alleged with respect to a stay and

your claim that you now say -- you say now that your

claim is not going to necessarily affect the -- the

sentence.

obviously the execution.

irreparable harm from your failure to get access to the

DNA evidence, unless its linked to the sentence.

The irreparable harm, if I remember, is quite

MR. OWEN:

But it's -- there is no

Your Honor, I -- I guess I don't

have a better answer than the one I gave

Justice Kennedy, and that is:

doesn't have to link those two things.

the Court finds that Mr. Skinner is going to die before

he can litigate his claim and it finds he has a

reasonable chance of prevailing on that claim, that is

sufficient to -- to enter the stay.

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JUSTICE ALITO:

I think the stay standard I think that if

In the real world, a

prisoner who wants access to DNA evidence is interested 7 Alderson Reporting Company

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in overturning his conviction.

MR. OWEN:

Absolutely.

JUSTICE ALITO:

MR. OWEN:

JUSTICE ALITO:

Do you deny that?

No, Your Honor. And isn't the emergence of

the Rooker-Feldman argument in this case an illustration

of the absurdities that pursuing the 1983 path produces?

Because habeas is not subject to claim preclusion, is

it?

MR. OWEN:

JUSTICE ALITO:

It's not subject to

Rooker-Feldman? MR. OWEN:

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No.

No, it's not subject to those,

Your Honor. JUSTICE ALITO:

But since you've squeezed

this into 1983, now have you to deal with both of those

issues.

MR. OWEN:

I think that the -- the

reason that -- I think the reason the Rooker-Feldman

issue has arisen at this juncture in the case is that

the pleadings in the district court were not permitted

to -- because of the sort of -- the fact that we were

dismissed at a very early stage in the process,

essentially on the threshold of the case, there was no

opportunity to develop in full what the legal arguments 8 Alderson Reporting Company

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are for both sides. JUSTICE KENNEDY:

Except that at page 18 of

the yellow brief, where you did have time to explain

your doctrine, you say a Federal constitutional issue

arose only because the Court of Criminal Appeals'

decision regarding the State law issue turned out to be

so arbitrary and unreasonable as to denying

Mr. Skinner's Federal due process rights -- correct me

if I am wrong, but I think -Â

MR. OWEN:

JUSTICE KENNEDY:

No, that's correct.

Rooker-Feldman to a tee. MR. OWEN:

I thought that's

Correct me if I'm wrong.

No, I think, Your Honor,

that's -- I -- I don't agree about the Court's reading

of Rooker-Feldman if you think that -- if the Court

believes that that would preclude it.

this:

in that case who were unsuccessful lawyers who are,

what, a law school graduate and an attorney who was

barred outside the District of Columbia, and were trying

to get a waiver for a requirement for taking the bar

here in the District of Columbia.

of claims against the application of that rule by the

District of Columbia Court of Appeals in their

circumstances.

And the reason is

In the Feldman case itself, the -- the plaintiffs

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They filed a number

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But -- and this Court said those claims

can't proceed.

Those claims challenge the application

of the law to the facts. But this Court went on to say in Feldman -Â

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the last paragraph of the opinion says they have also

raised other claims, and those claims are that this

rule, as authoritatively construed by the District of

Columbia Court of Appeals, is -- is unconstitutional.

It violates the Constitution.

Feldman, those claims may proceed. JUSTICE KAGAN:

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And the Court said in

Mr. Owen, as I read -- as I

read -- I'm sorry. JUSTICE SOTOMAYOR:

I'm sorry.

What's the

rule that is arbitrary and capricious that you are

challenging?

MR. OWEN:

Your Honor, the rule that we are

challenging is that when the Court of Criminal Appeals

construed the faults provision of the Texas DNA testing

statute in our case, it created a wholesale

classification that said everybody who falls into

Mr. Skinner's situation who did not ask for testing at

trial is forever foreclosed from getting testing.

JUSTICE SOTOMAYOR:

Could you tell me how

that's different than what Alaska did in the Osborne

case that we upheld their procedure? 10 Alderson Reporting Company

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one of the elements of the Alaska rule as well.

MR. OWEN:

I think -- I'm sorry.

JUSTICE SOTOMAYOR:

That if you had an

opportunity to ask for it and gave it up, that you lost.

So how are we getting to that here?

to get past Osborne here? MR. OWEN:

How are you going

I think in Texas we have -- the

difference, I think, Your Honor, is the difference

between a substantive due process claim, as I understand

it, and a procedural due process claim.

That in Osborne

the claim that was being made was that the State was

denying a Federal right in denying access on that basis. Our argument is that the Texas -- the Texas

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statute was enacted to grant, essentially, protection to

a class of inmates who were -- inmates who were

wrongfully convicted and can prove that with DNA

evidence.

in a way that needlessly chops a bunch of those inmates

out.

that it doesn't have reference to the specific facts of

the case, the likelihood of innocence, the reasons for

not doing the testing, and so on.

And then -- and then interprets that statute

And that that is arbitrary, at least to the extent

CHIEF JUSTICE ROBERTS:

Osborne expressly

considered both procedural due process and substantive

due process. 11 Alderson Reporting Company

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MR. OWEN:

But the reason, Your Honor, as

I -- as I read Osborne, that it did not reach a

decision on the procedure, or it didn't -- that it

rejected Osborne's procedural due process claim was

because he hadn't tried at State court. I mean, that was the premise of Osborne,

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was he was -- I think the Court's language in Osborne

was if he hasn't tried those procedures, he is in no

position to complain about them in Federal court,

whereas we did try the procedures and it's precisely

that that is the basis for our claim in Federal court.

If I -Â

JUSTICE SOTOMAYOR:

MR. OWEN:

JUSTICE SOTOMAYOR:

Are you -Â

I'm sorry. Are you -- one of the

criticisms by your adversary of your proposal to bring

these actions via 1983 is a prospect that the courts

will be used to collaterally attack convictions by all

sorts of due process allegations concerning discovery

disputes.

you agree with them that that's going to happen, or if

you don't, why not?

Could you address that point, and why either

MR. OWEN:

I don't agree with them, Your

Honor, and for a couple of reasons.

that experience doesn't suggest that. 12

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First of all is The rule that we

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are asking the court to adopt for the whole nation has

been the rule for some time in six different circuits

and there is no evidence that in those circuits there

have been a very large number of prisoners going into

court under section 1983 and trying to leverage

discovery under the circumstances that are suggested by

Respondent's brief.

So that's the practical reason.

As a legal -- as a legal reason, I think

that our claim turns on the existence of the liberty

interest in the State statute for DNA testing that Texas

has created, and that there is no statute in Texas for

other kinds of general discovery; for example, access to

the prosecutor's file, police reports, or other kinds of

documents.

that.

That's not -- there is no legal hook for

Our legal hook is the existence of that DNA

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testing statute and the existence under State law of

opportunities to bring claims of actual innocence after

the evidence is tested. CHIEF JUSTICE ROBERTS:

The critical

formulation in Heck necessarily implies -- is a little

difficult.

verb points the other.

strikes me as a little less conclusive than you seem to

think.

I mean, the adverb points one way and the And how -- "necessarily implies"

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MR. OWEN:

I think if that word were in

isolation, Your Honor, there might be more uncertainty

about what "implies" means.

the cases -- looks at Prieser, looks at Heck, looks at

Edwards, looks at Nelson, looks at Hill -- what you'll

see is the word "necessarily" is in all those cases.

And, in fact, in Hill -- or maybe it was Nelson; one of

the two Florida cases -- the court italicizes it twice

in the same paragraph.

But if the Court looks at

And -足

CHIEF JUSTICE ROBERTS:

Well, you -- you

read "necessarily implies" to mean "conclusively

establishes," right? MR. OWEN:

Not that strong, Your Honor.

But

to finish, the other answer I was going to say is that

in other cases -- I was going to say, "necessarily" is

everywhere.

court also -- "implies" is not in all the cases.

Dotson, for example, the court uses the word

"demonstrates."

judgment underlying the custody is invalid.

"Necessarily" is in all the cases.

"Necessarily demonstrates" that the

So I think that there's -足

CHIEF JUSTICE ROBERTS:

But the

So you are asking

for an expansion of Heck from "necessarily implies" -足

MR. OWEN:

No, I think we are -- I think -足

CHIEF JUSTICE ROBERTS: 14 Alderson Reporting Company

-- to

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"demonstrates"?

MR. OWEN:

No, Your Honor.

CHIEF JUSTICE ROBERTS:

So if "implies"

doesn't mean the same as "establish" or "demonstrate,"

give me an example of a case where the 1983 claim would

not establish innocence but would still be covered by

Heck.

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MR. OWEN:

I think that -- I think Edwards

is an example of that, Your Honor, where -- in Edwards,

the defendant, the prisoner, was suing in Federal court,

alleging that, in his words, "the procedures that were

used to deny him" -- I think it was deny him parole or

convict him of disciplinary offenses, but the procedures

that had resulted in the disadvantage he was complaining

about were unconstitutional.

But when you looked at his complaint, what

he said was this -- the reason those procedures are

unconstitutional is because the decisionmaker was

personally biased against me, which is less a complaint

about the procedures and more a complaint about the

merits of that adjudication.

you credit that, and say, Okay, we are -- fine, that's

what happened, the adjudication was biased against you,

that necessarily implies the invalidity of the judgment

reached by that procedure.

And if you believe it, if

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CHIEF JUSTICE ROBERTS:

Necessarily implies

or conclusively establishes? MR. OWEN:

I think necessarily -- with bias,

perhaps that would be conclusively established, because

I think there is no harmlessness test there.

think that at least in an adjudication, there wouldn't

be.

Court needs to continue embracing in order to find

that -Â

But I

But I think "necessarily implies" is all that the

JUSTICE SOTOMAYOR:

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the Brady violation?

is that more akin to your claim?

Is that a "necessarily implies" or

MR. OWEN:

What would you do with

For a couple of reasons, Your First is this.

Honor, it is not akin to our claim.

Brady is a trial right.

that it arises at trial, because sometimes it arises

at -- a discovery that makes a Brady claim colorable

arises after trial.

certain evidence when you go to trial so that you can

use it in an attempt to get the jury to find you not

guilty.

And I don't mean necessarily

But Brady is a right to have

And therefore, if that right is violated, if

you don't get that evidence and it is discovered later

that you were denied this stuff that you needed to have

a fair trial, that implies the invalidity of the trial 16 Alderson Reporting Company

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judgment, the judgment that results in the custody. In our case, the judgment that we are

challenging, the judgment of the Court of Criminal

Appeals denying us DNA testing, which does not in the

same way demonstrate or necessarily imply that the

custody judgment in our case is legally invalid -Â

JUSTICE KAGAN:

Mr. Owen, could I take you

back to Rooker-Feldman with that as the premise?

said that what you are attacking is the judgment.

You I

read your complaint as having an important strand where

you were not attacking the judicial judgment, but

instead were attacking actions of the prosecutor's

office, independent of any judgment of the State courts.

Are you abandoning that part of your

complaint, or are you continuing to maintain it?

Because certainly, if you talk about the judgment alone,

it at least gets you into Rooker-Feldman territory,

whereas if you talk about the prosecutor, it does not.

MR. OWEN:

I think, Your Honor, that we are

in the territory of talking about the judgment.

for the reasons I've described earlier that that does

not lead inexorably to a Rooker-Feldman bar.

I think

But I think that the nature of our claim,

which follows from Osborne, what we understood the Court

to be recognizing in Osborne, or acknowledging in 17 Alderson Reporting Company

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Osborne, is that the State's administration of its DNA

testing scheme is where a due process violation might

theoretically arise, depending on how it's administered.

So I think -Â

JUSTICE SCALIA:

understand the argument you are making.

challenging the constitutionality of the Texas statute?

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MR. OWEN:

I don't -- I don't Are you

As interpreted in our case, or as

construed, I think is the right -- is the better word. JUSTICE SCALIA:

Why "as construed"?

mean, it's their statute.

your brief that -- that they gave it an arbitrary and

capricious interpretation.

want to interpret it.

State statutes because the State Supreme Court

interpreted it strangely.

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I mean, you say somewhere in

It's up to them how they

We don't -- we don't reinterpret

It seems to me you are either challenging the statute or -- or you don't belong here. MR. OWEN:

I think, Your Honor, we are

challenging the statute.

Court of Criminal Appeals says, here is what the default

provision means, that is the same thing, for the

purposes of this Court's review, as if the legislature

had written that in.

And I think once the Texas

JUSTICE SCALIA:

Okay.

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Just so long as we

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are clear about that.

MR. OWEN:

Yes, sir.

That's what we are

challenging.

I certainly agree if we were saying they

got it wrong on their own terms, that would be a

Rooker-Feldman bar, because we couldn't bring that

claim. JUSTICE BREYER:

I assume that this whole

case focuses on paragraph 33 of your complaint; is that

right? MR. OWEN:

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There's been a lot -- yes, but --

I mean, I think there's been a lot of -Â

JUSTICE BREYER:

MR. OWEN:

What is the "but"?

I think there has been a lot of

discussion about the allegations in the complaint,

particularly those paragraphs.

missing the larger point, which is this:

earlier, I think that the Federal rules permit

complaints to be notice of pleading.

amendment.

As we said

They permit

They permit development of the issues. JUSTICE BREYER:

I think that is maybe

What's -- look, 33 says the

District Attorney has violated my rights under the law

by refusing to give me the DNA evidence, so make them do

it.

That's how I read 33.

MR. OWEN:

That's the relief that we are 19

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asking for, Your Honor. JUSTICE BREYER:

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But not the relief.

your complaint. You explain why you think it violates

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Federal law for them not to do it.

it.

That's

You ask them to do

Is there anything else to this case? MR. OWEN:

I think there is the

constitutionality of the statute, because that is the

basis on which the DNA -Â

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JUSTICE BREYER: entitled to the relief.

MR. OWEN:

JUSTICE BREYER:

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But that's why you are

All right.

Yes.

Is there anything else in

the case that you want? MR. OWEN:

No.

We're not asking -- no.

mean, I think -Â

JUSTICE BREYER:

MR. OWEN:

You want the DNA evidence?

That's correct.

We don't -- we

are not asking this court, the Federal District Court,

to release Mr. Skinner from custody.

them to accelerate the release date on his sentence, for

which there is none.

the status of his custody.

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We are not asking

We are not asking them to modify

All of those things which are at the core of habeas corpus, as this Court has interpreted that 20 Alderson Reporting Company

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phrase, none of those are requested by us. CHIEF JUSTICE ROBERTS:

Well, you say in -足

the rest of paragraph 33 is that you want the biological

evidence because by refusing to turn it over, he

prevented you from gaining access to exculpatory

evidence that could demonstrate he is not guilty of

capital murder, which is usually what we -- what habeas

corpus is for:

are in prison for.

To show you are not guilty of what you

MR. OWEN:

I think ordinarily, Your Honor,

if that -- if we knew today that this evidence in fact

was exculpatory, if they had already done the testing

and they mailed us a report that says it's excluded your

guy, then we wouldn't file a 1983 action.

clemency or we would file a State habeas petition.

would do something where the court would have the power

to protect -足 JUSTICE BREYER:

You didn't agree with what

the Chief Justice just said, did you?

were nodding your head.

I noticed you

He says -足

MR. OWEN:

JUSTICE BREYER:

No. I mean, would you agree

with that?

But I -- but do you agree with that.

We would seek

I guess there is nothing left of this case.

MR. OWEN:

No, Your Honor. 21

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I think that -足

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I think that "necessarily implies," as the Court

interpreted that phrase in Dotson, means somewhere down

the road you may come back to court and you may attempt

to undo your custody, and that's not enough to put this

case into habeas. CHIEF JUSTICE ROBERTS:

I understand.

But

did I understand you to say that you -- different cases

where people are seeking the DNA evidence might come out

differently under Heck.

In other words, if it's the

type of DNA evidence that could conclusively establish

he's innocent.

somebody else's, you know, DNA and that's what's

necessary for the conviction.

I mean, there are types like that.

It's

And there's other types of DNA evidence that

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doesn't.

the crime and it turns out that it's not him that was in

the room.

not mean he was innocent.

that has to go under habeas, but in the latter it

doesn't?

I mean, it just happens to be on the scene of

He was somewhere else, and it might or might

MR. OWEN:

In the former case, you say

I think when we are seeking

access to evidence which has never been tested for

testing, that could be brought under 1983.

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I think if the evidence has been tested and test results exist and are known and are exculpatory, 22 Alderson Reporting Company

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that's a different case and that's probably habeas.

Because then it's the fact that the results are known

and we know they are exculpatory.

imply that there's something about the judgment that

could be undone. JUSTICE GINSBURG:

That does necessarily

Mr. Owen, you are putting

your case into our decisions about the line between 1983

and habeas.

anything about that and you looked at what was presented

But if nobody -- if you didn't know

here in the civil case, it seems as though you are

splitting your claim; that is, you want discovery, and

if the discovery is favorable, then you ask for relief

from the conviction. So it's quite unlike I'm complaining about

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prison conditions.

Here, the whole purpose of your

seeking this discovery is so that you will be able, if

it turns out to be in your favor, to apply for habeas. MR. OWEN:

The whole -- I agree, Your Honor,

that the whole purpose for seeking this evidence and

pursuing this lawsuit is so that Mr. Skinner can have a

meaningful opportunity to pursue the liberty interest he

has under State law in trying to secure release based on

innocence.

leads inexorably to the idea that this lawsuit, which

is -Â

That is correct.

But I don't think that

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JUSTICE GINSBURG:

Could you have sought

habeas, is it 1983, the exclusive relief, or could you

have sought habeas relief? MR. OWEN:

I think, Your Honor, that since

our allegation is that the Court Of Criminal Appeals

decision denying us DNA testing, which is not the

judgment that results in Mr. Skinner's custody, is the

problem.

legal theory.

That's the bad, invalid judgment from our

That could not have been brought in a habeas

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corpus proceeding, because I think that the relief that

a Federal habeas court would have available to itself

would be limited to release, to accelerating release or

changing custody status.

power in the Federal habeas court under that statute to

say, even though this will not affect the judgment as to

which you are in custody, I'm going to act on this way

in order for this person to do that or the other thing.

I think that it wouldn't be available in habeas, Your

Honor.

I don't think that there is

JUSTICE SCALIA:

Couldn't a habeas court say

the conviction was invalid because of the failure to

turn over this -- this DNA evidence, which was relevant

to the defense and which was unconstitutionally denied?

Why wouldn't that be a basis for setting aside the 24 Alderson Reporting Company

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conviction? MR. OWEN:

Your Honor, this Court has never

said, as -- I know the Court's aware of this; I want to

make sure I'm clear on that -- this Court has never said

that it would be a constitutional basis for habeas

relief if you could demonstrate that, factually, you

were not guilty. So that is the claim that would have to be

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brought in such a Federal habeas.

It is not presently

available because this Court has never held that.

think, given the constraints of the Federal habeas

statute and the requirement of clearly established

Federal law from this Court before a prisoner could get

relief, that's a necessary prerequisite for us seeking

that relief.

Your Honor.

And I'm sorry.

And I

I hope that is responsive,

The problem, I think, with just going to

Federal court and saying, give us discovery, I think

it's the same problem as described earlier with the

Brady framework.

If we knew today -Â

JUSTICE SCALIA:

I'll tell you what the

problem is.

The problem is Rooker-Feldman.

all of these things don't make much sense.

wouldn't happen because you had the opportunity to raise

that in the State court, and now you are retrying what 25 Alderson Reporting Company

That's why I mean, it

Official - Subject to Final Review

the State court did decide. MR. OWEN:

I think to the extent, Your

Honor, that the question goes to the opportunity that we

had to raise this issue in the State court, that's a

preclusion issue, and there may be preclusion issues

back in the district court.

over whether or not this claim should have been raised

in the State court.

We may have a dog fight

But that's not the Rooker-Feldman question,

9 10

as I understand it.

is:

were asking the Federal court to review the Criminal

Court of Appeals' authoritative construction of the

statute.

15 16

I think the Rooker-Feldman question

What are we asking the Federal court to review?

JUSTICE SCALIA:

MR. OWEN:

JUSTICE SCALIA:

20 21 22 23 24 25

But, but that would be an

obstacle to habeas.

Yes. Because in habeas you would

be seeking to set aside the State court judgment. MR. OWEN:

That's right.

Okay?

Habeas would be

our only route -Â JUSTICE SCALIA:

That's why it's so

unrealistic to handle it that way, it seems to me. MR. OWEN:

Well, Your Honor, I think -- I'm

not sure I agree that it's unrealistic. 26 Alderson Reporting Company

I mean, I think

Official - Subject to Final Review

that over time the courts who are wrestling with this

issue in the wake of Osborne will identify what aspects

of a State's statute and construction of such statutes

violate due process or don't. JUSTICE KENNEDY:

Why isn't a correct

formulation of your answer to Justice Scalia to say what

we are seeking is a determination that the State court's

judgment, the State court's decisions, State court's

order was a violation of due process?

that -Â MR. OWEN:

11 12

If you say

That's a much simpler answer,

Your Honor, I will adopt that answer.

JUSTICE KENNEDY:

MR. OWEN:

But that's Rooker.

That's not -- no, Your Honor, I

think, again, that's where we started and I'm not trying

to bring us back full circle, but I think that our

understanding of Rooker-Feldman is that that is not one

of the things that the Rooker-Feldman doctrine

prohibits.

recent years, in the Exxon case and elsewhere, that

lower courts have been reading Rooker-Feldman too

broadly.

remainder of my time?

And of course, this Court has emphasized in

Mr. Chief Justice, if I may reserve the

CHIEF JUSTICE ROBERTS:

Mr. Coleman? 27 Alderson Reporting Company

Thank you, Mr. Owen.

Official - Subject to Final Review

ORAL ARGUMENT OF GREGORY S. COLEMAN

ON BEHALF OF THE RESPONDENT

3 4

MR. COLEMAN:

Roberts, and may it please the Court: To decide this case the Court only needs to

5 6

make two stops.

complaint.

Good morning, Chief Justice

First is paragraph 33 of Mr. Skinner's

That complaint, that statement of his

complaint clearly alleges against Ms. Skinner -- Miss

Switzer herself that she has withheld and the word he

uses, exculpatory evidence, and violates his due process

rights through that.

CHIEF JUSTICE ROBERTS:

He says exculpatory

evidence that could demonstrate that he is not guilty.

There is a lot of exculpatory evidence that might imply,

necessarily imply guilt, but there is a lot of

exculpatory evidence that simply is helpful and doesn't

mean it will demonstrate.

MR. COLEMAN:

He says it could. There are two points in

response to that, Chief Justice Roberts, and the first

is that this is the classic statement of a Brady claim.

When you file a Brady claim, you don't know exactly what

it is and whether it will definitely be exculpatory or

not, you have learned information that makes you think

that it would be -Â 28 Alderson Reporting Company

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JUSTICE SOTOMAYOR:

Substantive right in

Brady was to have that material at trial, so that is the

substantive constitutional right.

right that's been identified in Osborne is the liberty

interest created by State law.

after the conviction.

not comparable.

And that only happens

So it's not quite the same.

MR. COLEMAN:

Here the substantive

It's

I'm not saying that legally

that there isn't some difference to be made from

Osborne.

you can bring a Brady claim.

language of the text of his complaint is a Brady

allegation, and at page 19, footnote 6 of his own brief,

he acknowledges that Brady claims have to be brought in

habeas.

Osborne rejected the substantive claim that What I'm saying is the

And is left simply arguing that one, that I

can describe to the Court a different theory of my

complaint, or that regardless of how I describe the

complaint, I can break out the discovery aspects of that

complaint and do it under 1983 and not in habeas.

part of the problem with that -Â

JUSTICE SCALIA:

And

To -- to -- to win a Brady

claim in habeas, wouldn't you -- you have to show not

just that it was withheld, but that it was, indeed,

exculpatory, and could have affected the outcome of the 29 Alderson Reporting Company

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trial.

No? MR. COLEMAN:

Yes.

But that claim -- that

showing is to be made, if at all, in habeas; and he has

the opportunity -Â JUSTICE SCALIA:

But he doesn't have to make

that showing here.

distinguishes this case from habeas.

would have to show that indeed it would justify a

different outcome in the trial, whereas here, he says I

I mean, that's what he says In habeas you

don't have to show that, I just want the evidence. MR. COLEMAN:

There is some ambiguity.

I'm

not sure I fully understand what you mean by here.

has alleged that that's what he is going to prove.

What

he -- what he says in his brief and what he stands

before the Court today and says I'm going to show are -Â

are different things. JUSTICE SCALIA:

That's what he is going to

do with it.

need to show that in order to be entitled to -- to the

relief I'm asking for.

that in habeas.

But he doesn't -- he doesn't say that I

MR. COLEMAN:

Whereas he would have to say

I disagree; with respect to

the relief that he is ultimately seeking, the question

is, if you are saying that the 1983 suit is simply a

retrying of the article 64 proceeding, than I -- I would 30 Alderson Reporting Company

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have to concede that article 64 does not require the

same showing as habeas claims. JUSTICE ALITO:

But part of the -

Well, aren't -- aren't

the -- the exculpatory nature of the evidence and its

materiality elements of the Brady claim itself? MR. COLEMAN:

Well, as the Court and your

concurring opinion in Osborne made clear, that -- that

exculpatory is really defined as demonstrating that you

were innocent and that it's material. JUSTICE BREYER:

I agree think that sounds

like -- I would interpret his complaint is what he wants

is the DNA.

doesn't know that till he gets it.

He thinks it's going to be exculpatory.

So look at Dotson.

Dotson says that you go

into habeas if winning -- i.e., getting the DNA -- would

necessarily spell speedier release.

I'm reading to you from Justice Scalia's concurrence

where he quotes my majority with great praise.

(Laughter.)

MR. COLEMAN:

End of the matter.

Justice Scalia -- Justice

Scalia also makes the point at the end of his Dotson

concurrence that the question -- the real question is

whether you could make out this type of claim or this -

make out this type of proceeding in habeas.

Prieser and Heck - 31 Alderson Reporting Company

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Official - Subject to Final Review

JUSTICE BREYER:

No, not whether you -- what

he's worried about -- he can speak for himself but as I

read the concurrence, he was worried that if you win and

take 1983 away, all kinds of things will be stuffed into

habeas, which don't belong there.

true and correct criticism, but whether it is or not, he

has agreed, indeed nine members or seven members or

something of the Court agreed, that the test I read to

you is the test.

And that may be a

And now, if that's the test, getting the DNA

10 11

does not necessarily spell speedier release; it all

depends on what the -- on what that DNA shows.

isn't that end of the matter? MR. COLEMAN:

So why

Because I disagree that the

two words "necessarily implies" are in fact sort of the

end of the battle and the end of the test. As Justice Ginsburg noted earlier in the

17 18

argument, the Court has dealt with these issues in a -Â

in a variety of cases, most of them being prison

disciplinary or parole-type proceedings.

cases the Court is trying to define the outer bounds,

ultimately of what we're going to say Prieser/Heck

required to be brought in habeas, and what may be

brought.

first; Prieser and Heck make -Â

And in those

A couple of boundaries on those rules at

32 Alderson Reporting Company

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JUSTICE KAGAN:

Mr. Coleman, if you could

answer Justice Breyer's question, because there are two

phrases, necessarily imply the invalidity of the

conviction and necessarily spell speedier release; and

either you think that your case fits one of those or

both of those standards, or you are asking us to abandon

that standard. MR. COLEMAN:

8 9

true.

I don't think that that's

I think that what the Court has always

recognized, an article 64 proceeding is a motion in the

criminal case.

motion, it is a motion in the criminal case.

If you look at the docket number on the

What necessarily implies has always been

used for is defining the outer bounds of the rule in

terms of prison disciplinary proceedings, parole, other

things outside the criminal case itself. This is an attack on the -- the criminal

17 18

proceeding.

criminal case itself.

20 21 22 23 24 25

This is a post-conviction motion in the It's like a rule 6 -Â

JUSTICE KENNEDY:

Filed in the -- in the

court of conviction? MR. COLEMAN:

It's not in the court of

conviction, it's under the docket number of the case. JUSTICE BREYER:

So that's a totally

different area, because in Dotson when -- I think what 33 Alderson Reporting Company

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we did do was go through every of these -- every one of

the prior cases, and they did involve for the most part

the attack as you say on prison procedure.

cases where the attack on the proceeding would have

restored good time credits, there it was shortening the

-- the length of confinement.

And those

In those cases where there was a general

7 8

attack on procedures, but the procedure would simply be

carried on better later, like parole, there wasn't.

You

suddenly focused me on a whole new set of areas.

in the case law is this different rule that the rule we

just said has nothing to do with it, if it's in the

case?

should I read to show that you were right on that?

Where

That's basically what you are arguing; what

MR. COLEMAN:

I think Prieser and Heck both

stand for the fundamental proposition that Congress set

up habeas as a means of allowing collateral attacks.

Nowhere else does Congress specifically permit

collateral attacks on criminal proceedings.

Prieser and Heck say, what we allow from that is, those

things that may be brought in habeas should be brought

in habeas because the congressional intent behind the

habeas statute is that we expect the safeguards that

Congress has put in place to respect comity and

federalism interests as well as other interests. 34 Alderson Reporting Company

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JUSTICE KAGAN:

But how could this be

brought in habeas?

If Mr. Skinner wants this evidence

and -- and we say you file a habeas petition, what would

that habeas petition look like? MR. COLEMAN:

Well, the habeas petition -Â

we know it can be brought in habeas because one, he has

already brought it.

on ineffective assistance of counsel that is -- as a

matter of argument indistinguishable from the no-fault

He brought a habeas petition based

arguments that he is making here, the complaints against

the no-fault aspect of the article 64 proceeding. He can bring that.

Many courts -- this

Court has never fully said that you can, but many courts

do allow actual innocence-type claims to go forward, and

so he can bring an ineffective assistance habeas, he can

do an actual innocence habeas, and he can do discovery

as part of that habeas; and when he does that, when he

does that Congress says, you must respect those criminal

proceedings.

exhaustion.

You must show deference, you must require

JUSTICE SOTOMAYOR:

Mr. Coleman, the habeas

statute says, 2254(a), a Federal court can entertain a

habeas petition only on the ground that the petitioner

is in custody in violation of Federal law.

Tell me how he can write a complaint that 35 Alderson Reporting Company

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says the violation, due process violation of access to

DNA, means that this defendant is in custody in

violation of Federal law as opposed to having had a

statutory right improperly denied him.

he write that complaint to get into habeas? MR. COLEMAN:

Tell me how does

Well he -- he's stood before

the Court today and explained how he would write that

complaint, and as I mentioned to Justice Kagan -足 JUSTICE SOTOMAYOR:

Why is he in custody

in -- in violation of Federal law?

improper -足 MR. COLEMAN:

Because of the

Because he believed that he

received ineffective assistance of counsel, and that he

can make -足 JUSTICE SOTOMAYOR:

But that's not his claim

here.

improperly under State law in violation of Federal -足

the Federal Constitution.

His claim here is that he was denied DNA evidence

MR. COLEMAN:

That's correct and the -- the

last part of my answer to Justice Kagan I think is the

answer to your question, and that is if you make out

either an ineffective assistance claim or an actual

innocence type claim, the congressional intent that you

observe and show deference and exhaustion and all those

things, require that to be given to every step of the 36 Alderson Reporting Company

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process.

JUSTICE BREYER:

MR. COLEMAN:

In the particular -Â

But the moment you file the

complaint through discovery, through every substantive

aspect of that, what Mr. Skinner wants to do is say, I

want to engage in artful pleading, and so I'm going to

make attacks; today they are on DNA evidence, tomorrow

they may be a Brady claim, next week it may be a claim

against procedures used in State habeas; but as long as

I don't expressly ask that my custody be undone, I -- I

expect those claims to be allowed to go forward in 1983

without any of the protections of habeas, and then -Â

then if it looks after a year that they are going pretty

well, then I will flip it over to habeas and go forward

with my habeas.

16 17 18

JUSTICE BREYER:

I see your point.

But I

want to go back to try to understand this. And we have the Dotson point, and you said

there are two other cases, Prieser and Heck.

So what

Dotson says about Prieser is that the plaintiff there

wanted the shortening of his term of confinement.

wanted good time credits to be restored.

it then, the shortening of the term of confinement is

what made it proper in habeas.

hadn't been for that, if it hadn't attacked the duration

And as we read

But we added that if it

37 Alderson Reporting Company

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of the physical confinement, it wouldn't be habeas; it

would be 1983. In Heck, the same thing.

They were

establishing the basis for a damages claim that

necessarily demonstrated the invalidity of the

conviction.

Where that was not so, even if successful, it would not

demonstrate the invalidity of any outstanding criminal

judgment.

Where that was so, there would be habeas.

The action should be allowed to proceed in

1983.

So as we read those two cases, they stood for the

exact principle I described. Now you want, perfectly fairly, to say, but

12 13

we didn't read them correctly, or we shouldn't have read

them as exclusively to say what I've just read.

Fine.

What is it, in your opinion, precisely, that

15 16

we should have the principle of distinguishing the one

1983 from habeas corpus if we were to abandon as an

exclusive test what we said and I just read you in those

three cases:

contrary approach?

Dotson, Prieser, Heck?

MR. COLEMAN:

What's your

I think the approach is if

these things may be properly made the subject of a

habeas corpus claim, then congressional intent and the

habeas statute require that it be brought in habeas.

think that -Â 38 Alderson Reporting Company

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JUSTICE GINSBURG:

Then you are -- you are

asking for a modification of the Wilkinson-Dotson

formula, because the formula is, I think, quite clear.

It says, "would necessarily demonstrate the invalidity

of the conviction or the sentence."

necessarily demonstrate.

us it may not demonstrate it at all.

It may demonstrate

that my client was, in fact, guilty.

So it wouldn't

necessarily demonstrate the invalidity of the

Wouldn't

And the Petitioner is telling

conviction. And I think that -- to get -- to say that

11 12

you should prevail, you would have to say:

were wrong in using that formula, because here we have a

Petitioner who says, I'm not claiming that what I'm

seeking would demonstrate the invalidity of the

conviction.

MR. COLEMAN:

Court, you

I disagree with that,

Justice Ginsburg.

the court is wrong.

"necessarily implies" is not a magic words test that is

the sort of complete and ultimate statement of the

Prieser-Heck rule, but rather -Â

I don't think that we are saying that What I think I'm saying is that

JUSTICE GINSBURG:

So you are asking for

something in addition.

You say:

Court, don't just look

at the words in Wilkinson v. Dotson. 39 Alderson Reporting Company

This is a

Official - Subject to Final Review

different case, as I suggested originally.

not involve parole.

case is the conviction and sentence.

MR. COLEMAN:

This does

The ultimate destination in this

I think that that is correct,

in the sense that if you look at Dotson, which was -Â

involved a specific claim for process -- which is not

what they are asking for.

relief, not process.

They are asking for actual

But you look at those types of cases.

9 10

Whether it's Heck, it's a civil case that went about

attacking it, these cases on the periphery of what goes

in and out of Heck, the "necessary implied" language, I

think, is a good descriptor for what is at -- was at the

periphery.

But when you attack the core of the criminal

proceeding itself, what his rule is simply -- is an

attempt to take the two words or the phrase from Dotson

and turn it back on itself and say -- says that under

Heck, I can attack motions in the criminal proceedings

themselves, in the State habeas itself, as long as I

stop short of asking for that ultimate that we read.

So Heck said the case is about avoiding

article pleading, but now what he wants to turn into is,

is a rule that encourages artful pleading and -Â

JUSTICE SCALIA:

Maybe -- maybe we need -- I

40 Alderson Reporting Company

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mean, we've never had a case like this and it's

conceivable to -- to me that we have to expand what we

said in Heck and Prieser.

what we ought to say is what you propose:

That the test

is whether it could be brought in habeas.

You say it

could be brought in habeas by claiming ineffective

assistance of counsel, but you would lose that -- that

habeas.

I'm not sure, however, that

You can bring anything in habeas.

I mean,

you can file a habeas petition.

could possibly win in habeas.

habeas with this claim because you couldn't show that it

would have affected the outcome. MR. COLEMAN:

I assume you mean you You couldn't win in

Isn't that so?

Well, as you noted in your

concurrence in Dotson, the question is not whether you

win, but whether you could.

it's properly the subject of habeas, then Congress has

demanded that all of the safeguards and protections for

habeas be in place.

And the question is, if

And that -Â

JUSTICE KENNEDY:

Well -- well, that doesn't

quite give us the added formulation that some of the

questions suggest we need, if we were going to adhere to

Dotson and still rule for you.

slightly different qualification.

what it is.

There has to be some

41 Alderson Reporting Company

I'm not quite sure

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MR. COLEMAN:

Well, I'm not sure exactly

what you are angling for there.

But at the end of the

day, I think that there is also a misunderstanding about

what article 64 is. Skinner treats article 64 as simply:

asked for evidence, and I get evidence.

And you denied

me the DNA.

as I mentioned, filed in the criminal case itself, that

says:

What article 64 actually is, it's a motion,

Judge, I want a ruling that if this additional

DNA evidence were known at the time of trial, then I

probably would not have been convicted. And the process for obtaining that ruling is

12 13

to make an initial threshold showing that suggests the

materiality of the DNA evidence.

threshold, then you move on to testing, and you get a

hearing and an ultimate determination.

If you get over that

But there are really only two results in

17 18

article 64.

have been convicted.

a ruling that you probably would not have been

convicted.

goes to the core of the conviction itself.

One is a ruling that you probably would not Or two, I reject your request for

And that's what he got.

JUSTICE BREYER:

It is a motion that

But if -- in Heck itself,

you said a 1983 action, where it is, even if successful,

will not demonstrate the invalidity of any outstanding 42 Alderson Reporting Company

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criminal judgment.

proceed.

A 1983 action should be allowed to

Now, I take it what you are suggesting is we

3 4

say that sentence is wrong or overstated; that there is

another circumstance.

MR. COLEMAN:

Well -

JUSTICE BREYER:

Even though it will not

demonstrate that the judgment was wrong, it still should

not be allowed in 1983 if it is, quote, "related to" the

criminal case itself.

are proposing.

Something like that is what you

MR. COLEMAN:

JUSTICE BREYER:

Say what it is, then.

JUSTICE SCALIA:

What about where its only

14 15

What about -- where it -

what it is.

purpose is to demonstrate -- is to be able to

demonstrate the invalidity of the judgment?

MR. COLEMAN:

Well, ultimately, the only

reason it can be brought is to demonstrate

the invalidity of -

JUSTICE BREYER:

It's part of a process

where you hope to demonstrate.

A motion, let's say, to examine police files?

24 25

Say

MR. COLEMAN:

Can you bring in habeas?

You could bring a claim in

habeas, alleging, for instance, Brady. 43 Alderson Reporting Company

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JUSTICE BREYER:

No, no.

This isn't Brady.

What you say is, I have a right under criminal law here

that everybody has that I can go back and take

depositions of the -- you have a reason for doing it.

You want to take their depositions because you want to

show that something wasn't followed.

habeas? MR. COLEMAN:

8 9 10

Can you do that in

If you are alleging some

underlying constitutional invalidity of your conviction and you need to -Â JUSTICE BREYER:

Does a federal law -- is

there a federal statute that -- you can't say yet

whether it's invalid.

to get the information that will help us make that

decision.

that right.

We don't know.

We think there is a law that entitles us to Can you bring that in habeas or not? MR. COLEMAN:

What we want is

The discovery provisions of

habeas allow you to seek that as part of your habeas

claim, and when you do that, all the safeguards and

protections of habeas apply. JUSTICE SOTOMAYOR:

So that means FOIA

requests, where your only purpose is to seek out the

police files because you are hoping, just like you are

in DNA testing, that those files will show exculpatory

material.

Then FOIA requests have to be brought in 44 Alderson Reporting Company

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habeas as well. MR. COLEMAN:

2 3

I think FOIA is different.

I -- FOIA -足

JUSTICE SOTOMAYOR:

MR. COLEMAN:

for it.

You can ask for it.

I can ask

Chief Justice Roberts can ask for it. JUSTICE KAGAN:

Where -足

Well, take the case,

Mr. Coleman -- I think there was one recently in the

Fifth Circuit where a prisoner asked for appellate slip

opinions.

opinions so I can write a better habeas petition.

12 13 14

And the prisoner said I want these slip

Did that also have to be bought -- brought as part of a habeas case or can that be brought in 1983? MR. COLEMAN:

I don't know the specifics of

that claim, but -- but I would tend to think if -- if a

person generally had access to slip opinions, then -足

JUSTICE KAGAN:

No, he said he didn't have

enough access to slip opinions and he needed more slip

opinions in order to be able to obtain a quicker release

from prison via habeas.

MR. COLEMAN:

JUSTICE KAGAN:

MR. COLEMAN:

24 25

brought as a habeas.

I -- I would say no. No what?

But -足

No what?

That that would not have to be

But, again, this is different.

JUSTICE KAGAN:

Why is that different?

45 Alderson Reporting Company

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MR. COLEMAN:

Excuse me?

JUSTICE KAGAN:

Why -- why is that

different?

Both the -- the -- the prisoner is seeking a

tool that he hopes will lead to a quicker release,

although it has no certainty at all of doing so. MR. COLEMAN:

I think because there is no

rights specific to him -- for instance, if I seek DNA

evidence, it's because I want to attack my conviction.

And there is no other reason to do it.

If I want slip

opinions, it may be that I want to read them, it may be

for -- and the general public has access to slip

opinions the same way the general public - JUSTICE BREYER:

The library.

I want to use

the prison library, same example.

prison library 9:00 to 3:00, because that's when I work

on my efforts to upset my conviction.

it's the same as Justice Kagan -

MR. COLEMAN:

JUSTICE BREYER:

I want to use the

Now -- I mean,

That's a condition - -- provided.

What about

that?

MR. COLEMAN:

just a prison condition.

those types of things can be brought in 1983.

24 25

That's a condition -- that's The Court has always said that

But -- but what we are talking about here really is ultimately if you are convicted in one county 46 Alderson Reporting Company

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but you are serving time in a different part of the

State, you bring your habeas claim and then at the same

time you bring a 1983 suit, you ask for discovery and

say I don't want -- and this could be DNA, it could be

some other Brady materials, it could be attacked.

You say I want to litigate the first half of

my claim out here without any of the protections of

habeas, and then if it turns out, well, I'm going to

just move them over and use them in my habeas, that -Â

without any of the protections -- that is what Prieser

and Heck were ultimately trying to stop.

Heck said we -- the only time we really

allow these types of collateral attacks -- and -- and

Heck cites Rooker for this very proposition.

JUSTICE KENNEDY:

I -- I was going to ask if

you have a few moments to address the Rooker argument.

What -- what is your response to Petitioner's counsel's

explanation of why there is no Rooker here?

MR. COLEMAN:

There -- there is a way.

When -- when the court said in Osborne you should use

these State statutes and you may -- you might have a

procedural due process, the court was not saying we are

going to create out of hole cloth an entirely new

category of procedural due process.

You do it like you do any other procedural 47 Alderson Reporting Company

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due process.

If you go into the system and you -- you

file -- and again litigation is different from an

administrative procedure, which is what Dotson was

about.

if somebody says, well, there is this prong that you

can't meet and you thing it violates due process, you

have an obligation to raise it then, and then you have

an opportunity, if the court rules against you, to file

a cert petition.

You are in litigation and you are in court.

And

And if you don't do that, what we do know is

10 11

from this very limited area, the one thing that you

can't do is file a Federal 1983 lawsuit saying, I think

that what the State court did is arbitrary and

capricious.

And, so, Skinner is asking you to create a

1983 lawsuit that is always Rooker-Feldman barred and

always preclusion barred, because you are asking the

Court to declare that the State courts violated your -Â

the constitutional rights in the way they went about it.

And -- and so he's asking you to create a category of

1983 suits that runs exactly contrary to Rooker-Feldman

and exactly contrary to what Heck said is this

overriding interest in ensuring that these types of

collateral attacks are brought, if at all, in habeas and

not through generalized 1983 lawsuits that don't provide 48 Alderson Reporting Company

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any of the protections that Congress has insisted by

statute be applied in these types of suits. JUSTICE GINSBURG:

So, then, can you give us

your best modified statement of Wilkinson against

Dotson?

fit that type of case, would necessarily demonstrate the

invalidity of the conviction. It's given here that this evidence would not

8 9

I think you were telling us that that formula

necessarily demonstrate the invalidity of the

conviction, nonetheless, you say it falls on the habeas

side of the line.

modification of the Wilkinson v. Dotson formula, and

I -- and if you could say what that would be, and what

that precise modification would be?

That does require you to ask for a

MR. COLEMAN:

Well, first, I don't believe

the Court has ever acknowledged the existence of a cause

of action for discovery separate and apart from the

merits of what you are seeking to do. The merits of what he is seeking to do is to

19 20

attack his custody.

That is something that can and

should be brought in habeas, and the Court should not,

for many reasons, create a cause of action that -- whose

sole purpose is to run counter to Rooker-Feldman and

whose sole purpose is to avoid the protections of

habeas. 49 Alderson Reporting Company

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Again, this is not an expansion of habeas.

It's simply a recognition that he has a claim that he

can bring in habeas, it -- it probably is an a loser and

we think it certainly would be a loser, but the question

is, can he bring it and if he can, it should be subject

to these types of things.

recognize what he is trying to do, this is fundamentally

a question or a -- he is seeking to invalidate his

conviction and that it comfortably fits within the

And at the end when you

policy choices that the Court has made all -足

CHIEF JUSTICE ROBERTS:

MR. COLEMAN:

CHIEF JUSTICE ROBERTS:

So -- so the -足

-- the way. -- Justice

Ginsburg's question I think is an important one.

you going to argue that you fit within -- this case fits

within "necessarily implies" or is there another

formulation that you think we should have? MR. COLEMAN:

Are

We think given the nature of

the Article 64 proceeding, which is itself an attack on

the conviction, it is a request that the Court declare

that the conviction is probably invalid, that because

that is what he is attacking, he is saying the result

that is -足

CHIEF JUSTICE ROBERTS:

MR. COLEMAN:

No, but just -足

-- that -- that we do fit 50

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within the "necessarily implies," because any proper

attack on an Article 64 ruling is an attack, but that

within the broader context, if the Court feels a need to

rule on the cases in criminal proceedings, then -- then

it should recognize it should be brought in habeas.

JUSTICE KENNEDY:

But -- if I could have

just one minute -- then if you do not file an article -Â

in a State court at all and you just go to 1983, you are

back under Heck and you haven't given us a qualification

that works under Heck.

CHIEF JUSTICE ROBERTS:

MR. COLEMAN:

Briefly.

Very, very briefly?

If the -Â

if the only claim you brought, you say, I'm -- I can

never meet article 64, because it says only applies to

convictions after January 1, 2000.

that, I think it's unconstitutional.

lawsuit, and you say I think that provision is

unconstitutional.

that that prong is unconstitutional but let me go back

and have process. CHIEF JUSTICE ROBERTS:

MR. COLEMAN:

CHIEF JUSTICE ROBERTS:

You file a 1983

That is really Dotson saying, rule

I -- I can't meet

Thank you, counsel.

That's Dotson, not this case. Mr. Owen, take five

minutes -- or you have five minutes. JUSTICE SOTOMAYOR:

Mr. Owen, I know I am

51 Alderson Reporting Company

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pushing you, but I really would like a clear statement

of what the procedural due process violation which you

are claiming occurred here is?

REBUTTAL ARGUMENT BY ROBERT C. OWEN

ON BEHALF OF THE PETITIONER MR. OWEN:

Your Honor, our -- our claim is

that in its construction of the statute in the Texas

Court of Criminal Appeals construed the statute to

completely foreclose any prisoner who could have sought

DNA testing prior to trial but did not from seeking

testing under the post conviction statute.

JUSTICE SOTOMAYOR:

MR. OWEN:

JUSTICE SOTOMAYOR:

You are not -足

-- that speaks too broadly.

through.

Article 64 on its face, right?

That is -足

Then let me follow this

You are not attacking the constitutionality of

MR. OWEN:

Or are you?

Your Honor, this -- this came up

as we were preparing for our presentation, and I think

there's -- there's -- here's what I would like to say.

We are not suggesting that Article 64 -- that there's no

way to interpret Article 64, that the Court could have

chosen to -- to construe the statute that would always

be unconstitutional in every case.

24 25

JUSTICE SCALIA: way it construed it.

That's what -足

We chose to construe it the

You -- you can't attack the way -足 52

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the way the State Supreme Court construed its statute.

MR. OWEN:

JUSTICE SCALIA:

That's right, Your Honor. You are attacking the

statute.

JUSTICE SOTOMAYOR:

that's -- this is where I have difficulty.

failing to acknowledge Petitioner's ineffective

assistance of counsel claim, that that was the court's

error?

MR. OWEN:

JUSTICE SOTOMAYOR:

Are you saying -- and

No, Your Honor.

That by

Our claim -Â

That that was a good

enough excuse to excuse the fact that he didn't do

DNA -- DNA testing at the time of trial?

what the statute says.

present at the time and -- meaning if that actual test

that you are seeking was available at the time of trial,

or you don't prove that you couldn't have done it for a

good reason.

in applying this that was unconstitutional?

You can't get it if it was

So what is it exactly that the court did

MR. OWEN:

Because that's

Your Honor, I think it's not the

specific question to whether in our case they didn't

consider our ineffective assistance of counsel

arguments.

exception to its rule.

interpreted this as a blanket prescription on seeking

It's that it made no provision for any In other words, that it

53 Alderson Reporting Company

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testing for anybody who didn't seek it prior to trial. JUSTICE SOTOMAYOR:

Wait a minute.

That's

what the statute says.

The statute gives the conditions

under which a Petitioner can seek DNA evidence, and it

said you didn't meet those conditions.

to figure out what you are arguing was the procedural

due process violation in their application of those

items.

challenging it as applied, but as applied how?

I'm still trying

So are you challenging it facially or are you

MR. OWEN:

Once the Court of Criminal

Appeals construed the statute, that's what the statute

means and we are challenging that.

courts -Â JUSTICE SOTOMAYOR:

14 15 16 17 18 19 20

If that's what the

And so what do you

think -Â MR. OWEN:

And that's what Your Honor

described as facial. JUSTICE SOTOMAYOR:

What is it about what

they said it means that is unconstitutional? MR. OWEN:

That it is not -- that it is not

admit of any exception and it doesn't have any

references to the purposes of the statute, the reasoning

the testing might not have been sought in a particular

case or the fact, particularly in our case, Mr. Skinner

at the time of his trial this -- the post-conviction DNA 54 Alderson Reporting Company

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testing statute was still six years in the future.

to the extent the Court of Criminal Appeals portrayed

Mr. Skinner as making a choice, that's not accurate,

because he didn't make the choice. JUSTICE SOTOMAYOR:

I'm not even sure what

that argument ties to, because I thought what the court

said was, this DNA testing was available then.

could have gotten it.

chose not to, and so that disqualifies you from seeking

You

Strategically your trial attorney

it now.

I'm not quite sure what the date of the

statute's passage, whether it makes any difference,

because -- because why? MR. OWEN:

I -- I have always felt it was

intuitively, especially unfair to accuse him of laying

behind a log when there was no log to lie behind.

that is not our point in responding to your question,

Your Honor.

exception that they crafted in construing the statute or

the statute as construed sweeps too broadly.

exception sweeps too broadly.

But

Our point is simply that we think the

The

Now, the Court may not necessarily, we may

not prevail on that eventually.

litigate that and I think that we will fight that out in

the district court.

We are going to

But the question -Â

JUSTICE KAGAN:

So, Mr. Owen, if I

55 Alderson Reporting Company

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understand you correctly in how this understanding of

the claim relates to the Rooker-Feldman doctrine, what

you are saying is that the statute as construed was

unconstitutional?

MR. OWEN:

Yes.

JUSTICE KAGAN:

bounds of the Rooker-Feldman doctrine?

MR. OWEN:

JUSTICE KAGAN:

And that falls outside the

Yes, Your Honor. Whereas, if you were saying

that the statute, that the application of the statute in

this particular case was wrongful, that would not fall

outside of the Rooker-Feldman doctrine; is that right?

MR. OWEN:

That's right, Your Honor, and the

comment that was made during Respondent's arguments

about -- he says we are challenging, in his words, the

way the State court went about applying the law to Mr.

Skinner, that's not what we were challenging.

challenging the statute as construed.

19 20 21 22

JUSTICE SCALIA:

We are

Thank you, counsel.

The

case is submitted. (Whereupon at 11:04 a.m., the case in the above-entitled matter was submitted.)

23 24 25 56 Alderson Reporting Company

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A abandon 33:6 38:17 abandoning 17:14 able 23:16 43:16 45:19 above-entitled 1:13 56:22 Absolutely 8:2 absurdities 8:7 accelerate 20:21 accelerating 24:13 accept 5:22 access 3:13 4:7,9 6:18 7:7,14,25 11:12 13:12 21:5 22:22 36:1 45:16,18 46:11 accurate 55:3 accuse 55:14 acknowledge 53:7 acknowledged 49:16 acknowledges 29:14 acknowledging 17:25 act 3:15 24:17 action 21:14 38:9 42:24 43:1 49:17,22 actions 12:17 17:12 actual 13:18 35:14,16 36:22 40:7 53:15 added37:24 41:21 addition 39:24 additional 42:9 address 12:20

47:16 adhere 41:22 adjudication 15:21,23 16:6 administered 18:3 administration 18:1 administrative 48:3 admit 54:21 adopt 13:1 27:12 adopted5:2 adverb 13:22 adversary 12:16 affect 7:11 24:16 agree 9:14 12:21 12:23 19:3 21:18,22,24 23:18 26:25 31:10 agreed32:7,8 akin 16:12,14 Alaska 10:24 11:1 ALITO 7:24 8:3 8:5,11,15 31:3 allegation 24:5 29:13 allegations 12:19 19:14 alleged7:9 30:13 alleges 28:9 alleging 15:11 43:25 44:8 allow34:20 35:14 44:18 47:13 allowed37:11 38:9 43:1,9 allowing 34:17 ambiguity 30:11 amendment 19:19

angling 42:2 answer7:17 14:14 27:6,11 27:12 33:2 36:20,21 answered3:16 anybody 54:1 apart 49:17 Appeals 9:5,24 10:8,17 17:4 18:21 24:5 26:13 52:8 54:11 55:2 APPEARANC... 1:16 appellate 45:9 application 9:23 10:2 54:7 56:10 applied49:2 54:9 54:9 applies 6:15 51:14 apply 23:17 44:20 applying 53:19 56:16 Appointed1:17 approach 38:20 38:21 appropriate 6:25 arbitrary 9:7 10:14 11:19 18:12 48:13 area 33:25 48:11 areas 34:10 argue 4:6 50:15 argued5:5 arguing 29:16 34:13 54:6 argument 1:14 2:2,5,8 3:4,7 4:14 5:12 8:6 11:13 18:6 28:1 32:18 35:9

47:16 52:4 55:6 arguments 8:25 35:10 53:23 56:14 arisen8:20 arises 16:16,16 16:18 armed5:7 arose 9:5 artful 37:6 40:24 article 30:25 31:1 33:10 35:11 40:23 42:4,5,7,18 50:19 51:2,7,14 52:16,20,21 aside 24:25 26:19 asked5:16 42:6 45:9 asking 13:1 14:22 20:1,15 20:19,20,22 26:11,12 30:20 33:6 39:2,23 40:7,7,21 48:15 48:17,20 asks 6:15 7:7 aspect 35:11 37:5 aspects 27:2 29:19 assistance 35:8 35:15 36:13,22 41:7 53:8,22 assume 19:7 41:10 attack 3:19 5:15 5:15,17 6:8 12:18 33:17 34:3,4,8 40:15 40:19 46:8 49:20 50:19 51:2,2 52:25

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attacked37:25 47:5 attacking 17:9 17:11,12 40:11 50:22 52:15 53:3 attacks 34:17,19 37:7 47:13 48:24 attempt 16:20 22:3 40:17 attorney 1:6 9:19 19:21 55:8 Austin 1:17,19 authoritative 26:13 authoritatively 10:7 available 24:12 24:19 25:10 53:16 55:7 avoid 49:24 avoiding 40:22 aware 25:3 a.m 1:15 3:2 56:21 B back 5:7 17:8 22:3 26:6 27:16 37:17 40:18 44:3 51:9,19 bad 24:8 bar 9:21 17:22 19:5 barred9:20 48:16,17 based23:22 35:7 basically 34:13 basis 4:4 11:12 12:11 20:9 24:25 25:5 38:4 battle 32:16 behalf 1:18,19 2:4,7,10 3:8

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28:2 52:5 believe 15:21 49:15 believed36:12 believes 9:16 belong 18:18 32:5 best 49:4 better7:17 18:9 34:9 45:11 bias 16:3 biased15:19,23 biological 21:3 blanket 53:25 bought 45:12 boundaries 32:24 bounds 32:21 33:14 56:7 Brady 16:11,15 16:17,18 25:20 28:21,22 29:2 29:11,12,14,22 31:5 37:8 43:25 44:1 47:5 break 29:19 BREYER 19:7 19:12,20 20:2 20:10,13,17 21:18,22 31:10 32:1 33:24 37:2 37:16 42:23 43:7,13,21 44:1 44:11 46:13,19 Breyer's 33:2 brief 9:3 13:7 18:12 29:13 30:14 briefly 51:11,12 bring 12:16 13:18 19:5 27:16 29:11 35:12,15 41:9 43:22,24 44:16

47:2,3 50:3,5 broader51:3 broadly 27:22 52:13 55:19,20 brought 3:14,20 22:23 24:10 25:9 29:14 32:23,24 34:21 34:21 35:2,6,7 35:7 38:24 41:5 41:6 43:19 44:25 45:12,13 45:24 46:23 48:24 49:21 51:5,13 bunch11:18

14:4,6,8,15,16 14:17 22:7 32:19,21 34:2,4 34:7 37:19 38:10,19 40:9 40:11 51:4 category 47:24 48:20 cause 49:16,22 cert 48:9 certain 16:19 certainly 17:16 19:3 50:4 certainty 46:5 challenge 10:2 challenging 10:15,17 17:3 C 18:7,17,20 19:3 C 1:17 2:1,3,9 54:8,9,12 56:15 3:1,7 52:4 56:17,18 capital 21:7 chance 7:6,22 capricious 10:14 changing 24:14 18:13 48:14 Chief 3:3,9 7:8 carried34:9 11:23 13:20 case 3:4 4:6,15 14:10,22,25 5:9 6:1,10,24 15:3 16:1 21:2 7:1 8:6,20,24 21:19 22:6 9:17,18 10:19 27:22,24 28:3 10:25 11:21 28:13,20 45:6 15:5 17:2,6 50:11,13,24 18:8 19:8 20:6 51:11,21,23 20:14 21:23 choice 55:3,4 22:5,18 23:1,7 choices 50:10 23:10 27:20 chops 11:18 28:5 30:7 33:5 chose 52:24 55:9 33:11,12,16,19 chosen52:22 33:23 34:11,13 circle 27:16 40:1,3,10,22 Circuit 3:16 5:5 41:1 42:8 43:10 45:9 45:7,13 49:6 circuits 13:2,3 50:15 51:22 circumstance 52:23 53:21 43:5 54:24,24 56:11 circumstances 56:20,21 9:25 13:6 cases 4:4 5:1,24

cites 47:14 civil 3:15 7:6 23:10 40:10 claim 3:13,18 7:6 7:10,11,21,22 8:8 11:9,10,11 12:4,11 13:9 15:5 16:12,14 16:17 17:23 19:6 23:11 25:8 26:7 28:21,22 29:10,11,23 30:2 31:5,23 36:15,16,22,23 37:8,8 38:4,23 40:6 41:12 43:24 44:19 45:15 47:2,7 50:2 51:13 52:6 53:8,10 56:2 claiming 39:14 41:6 52:3 claims 9:23 10:1 10:2,6,6,10 13:18 29:14 31:2 35:14 37:11 clarify 6:13 class 11:15 classic 28:21 classification 10:20 clear 19:1 25:4 31:7 39:3 52:1 clearly 3:21 25:12 28:9 clemency 21:15 client 39:8 cloth 47:23 Coleman 1:19 2:6 27:25 28:1 28:3,19 29:8 30:2,11,22 31:6 31:20 32:14

58 Alderson Reporting Company

33:1,8,22 34:15 35:5,21 36:6,12 36:19 37:3 38:21 39:17 40:4 41:14 42:1 43:6,12,18,24 44:8,17 45:2,5 45:8,14,21,23 46:1,6,18,21 47:19 49:15 50:12,18,25 51:12,22 collateral 3:19 34:17,19 47:13 48:24 collaterally 12:18 colorable 16:17 Columbia 9:20 9:22,24 10:8 come 5:7 22:3,8 comfortably 50:9 comity 34:24 comment 56:14 comparable 29:7 compels 4:21 complain 12:9 complained5:3 complaining 15:14 23:14 complaint 15:16 15:19,20 17:10 17:15 19:8,14 20:3 28:7,8,9 29:12,18,19,20 31:11 35:25 36:5,8 37:4 complaints 19:18 35:10 complete 39:21 completely 52:9 concede 31:1 conceivable 41:2 conceivably 3:18

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concerning 12:19 conclude 5:9 conclusion 4:22 conclusive 13:24 conclusively 14:11 16:2,4 22:10 concurrence 31:17,22 32:3 41:15 concurring 31:7 condition 46:18 46:21,22 conditions 23:15 54:3,5 confinement 34:6 37:21,23 38:1 Congress 34:16 34:18,24 35:18 41:17 49:1 congressional 34:22 36:23 38:23 consider53:22 considered11:24 Constitution 10:9 36:18 constitutional 9:4 25:5 29:3 44:9 48:19 constitutionality 18:7 20:8 52:15 constraints 25:11 construction 26:13 27:3 52:7 construe 52:22 52:24 construed10:7 10:18 18:9,10 52:8,25 53:1 54:11 55:19 56:3,18

construing 55:18 context 51:3 continue 16:8 continuing 17:15 contours 3:25 contrary 38:20 48:21,22 convict 15:13 convicted11:16 42:11,19,21 46:25 conviction 4:3,6 4:11,15 7:5 8:1 22:13 23:13 24:22 25:1 29:6 33:4,21,23 38:6 39:5,10,16 40:3 42:22 44:9 46:8 46:16 49:7,10 50:9,20,21 52:11 convictions 12:18 51:15 core 5:10 20:24 40:15 42:22 corpus 20:25 21:8 24:11 38:17,23 correct 9:8,10,12 20:18 23:23 27:5 32:6 36:19 40:4 correctly 38:13 56:1 counsel 35:8 36:13 41:7 51:21 53:8,22 56:19 counsel's 47:17 counter49:23 county 46:25 couple 12:24 16:13 32:24 course 27:19

court 1:1,14,18 3:10,11,14,22 3:23 4:8,10,25 5:6,7,25 6:15 6:25 7:20 8:21 9:5,15,24 10:1 10:4,8,9,17 12:5,9,11 13:1 13:5 14:3,8,17 14:18 15:10 16:8 17:3,24 18:15,21 20:19 20:19,25 21:16 22:1,3 24:5,12 24:15,21 25:2,4 25:10,13,18,25 26:1,4,6,8,11 26:12,13,19 27:19 28:4,5 29:17 30:15 31:6 32:8,18,21 33:9,21,22 35:13,22 36:7 39:12,19,24 46:22 47:20,22 48:4,8,13,18 49:16,21 50:10 50:20 51:3,8 52:8,21 53:1,18 54:10 55:2,6,21 55:24 56:16 courts 3:12 12:17 17:13 27:1,21 35:12,13 48:18 54:13 court's 5:22,23 9:14 12:7 18:23 25:3 27:7,8,8 53:8 covered15:6 crafted55:18 create 47:23 48:15,20 49:22 created10:19

13:11 29:5 credit 15:22 credits 34:5 37:22 crime 22:16 criminal 9:5 10:17 17:3 18:21 24:5 26:12 33:11,12 33:16,17,19 34:19 35:18 38:8 40:15,19 42:8 43:1,10 44:2 51:4 52:8 54:10 55:2 critical 13:20 criticism32:6 criticisms 12:16 custody 14:20 17:1,6 20:20,23 22:4 24:7,14,17 35:24 36:2,9 37:10 49:20

36:2 defense 24:24 deference 35:19 36:24 define 32:21 defined31:8 defining 33:14 definitely 28:23 demanded41:18 demonstrate 15:4 17:5 21:6 25:6 28:14,18 38:8 39:4,6,7,7 39:9,15 42:25 43:8,16,17,19 43:22 49:6,9 demonstrated 6:23 38:5 demonstrates 14:19,19 15:1 demonstrating 31:8 demonstration 7:3 D denied16:24 D 3:1 24:24 36:4,16 damages 38:4 42:6 date 20:21 55:10 deny 8:3 15:12 day 42:3 15:12 deal 8:16 denying 9:7 dealt 32:18 11:12,12 17:4 decide 6:1,5 26:1 24:6 28:5 depending 18:3 decision 3:12 depends 32:12 5:18 9:6 12:3 depositions 44:4 24:6 44:15 44:5 decisionmaker describe 29:17 15:18 29:18 decisions 3:21 described17:21 23:7 27:8 25:19 38:11 declaration 4:25 54:17 declare 48:18 describing 3:24 50:20 descriptor 40:13 default 18:21 destination 4:18 defendant 15:10

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4:18 40:2 determination 27:7 42:16 develop 8:25 development 19:19 die 7:20 difference 11:8,8 29:9 55:11 different 10:24 13:2 22:7 23:1 29:17 30:9,16 33:25 34:11 40:1 41:24 45:2 45:24,25 46:3 47:1 48:2 differently 22:9 difficult 13:22 difficulty 53:6 disadvantage 15:14 disagree 30:22 32:14 39:17 disciplinary 15:13 32:20 33:15 disconnects 7:8 discovered16:23 discovery 4:17 12:19 13:6,12 16:17 23:11,12 23:16 25:18 29:19 35:16 37:4 44:17 47:3 49:17 discussion 19:14 dismissed8:23 disputes 12:20 disqualifies 55:9 distinction 4:14 4:21 distinguishable 4:4 distinguishes

30:7 distinguishing 38:16 district 1:6,7 4:8 8:21 9:20,22,24 10:7 19:21 20:19 26:6 55:24 DNA 3:14 5:14 7:15,25 10:18 11:16 13:10,16 17:4 18:1 19:22 20:9,17 22:8,10 22:12,14 24:6 24:23 31:12,15 32:10,12 36:2 36:16 37:7 42:7 42:10,14 44:24 46:7 47:4 52:10 53:13,13 54:4 54:25 55:7 docket 33:11,23 doctrine 9:4 27:18 56:2,7,12 documents 13:14 dog 26:6 doing 11:22 44:4 46:5 Dotson 3:22 4:11 4:22,23 14:18 22:2 31:14,14 31:21 33:25 37:18,20 38:19 39:25 40:5,17 41:15,23 48:3 49:5,12 51:18 51:22 due 9:8 11:9,10 11:24,25 12:4 12:19 18:2 27:4 27:9 28:11 36:1 47:22,24 48:1,6 52:2 54:7 duration37:25

D.C 1:10 E E 2:1 3:1,1 earlier17:21 19:17 25:19 32:17 early 8:23 Edwards 14:5 15:8,9 efforts 46:16 either12:20 18:17 33:5 36:22 elements 11:1 31:5 eligibility 4:2,17 else's 22:12 embracing 16:8 emergence 8:5 emphasized 27:19 enacted11:14 encourages 40:24 engage 37:6 ensuring 48:23 enter7:23 entered5:25 entertain 35:22 entirely 47:23 entitled20:11 30:19 entitles 44:15 error 53:9 especially 3:22 55:14 ESQ 1:17,19 2:3 2:6,9 essentially 8:24 11:14 establish15:4,6 22:10 established16:4 25:12

establishes 14:12 16:2 establishing 38:4 eventually 55:22 everybody 10:20 44:3 evidence 3:14 4:7 6:18 7:7,15 7:25 11:17 13:3 13:19 16:19,23 19:22 20:17 21:4,6,11 22:8 22:10,14,22,24 23:19 24:23 28:11,14,15,17 30:10 31:4 35:2 36:16 37:7 42:6 42:6,10,14 46:8 49:8 54:4 ex 5:3 exact 38:11 exactly 28:22 42:1 48:21,22 53:18 examine 43:23 example 13:12 14:18 15:5,9 46:14 exception 53:24 54:21 55:18,20 excluded21:13 exclusive 24:2 38:18 exclusively 38:14 exculpatory 21:5 21:12 22:25 23:3 28:11,13 28:15,17,23 29:25 31:4,8,12 44:24 excuse 46:1 53:12,12 execution 7:2,13

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exhaustion 35:20 36:24 exist 22:25 existence 13:9 13:16,17 49:16 expand 41:2 expansion 14:23 50:1 expect 34:23 37:11 expected5:7 experience 12:25 explain 9:3 20:4 explained36:7 explanation 47:18 expressly 11:23 37:10 extent 11:19 26:2 55:2 Exxon 27:20 F face 52:16 facial 54:17 facially 54:8 fact 5:6 8:22 14:7 21:11 23:2 32:15 39:8 53:12 54:24 facto 5:4 factor 5:18 facts 10:3 11:20 factually 25:6 failing 53:7 failure 7:14 24:22 fair 16:25 fairly 38:12 fall 56:11 falls 10:20 49:10 56:6 faults 10:18 favor 5:8 23:17

Official - Subject to Final Review

favorable 23:12 federal 3:14,18 9:4,8 11:12 12:9,11 15:10 19:17 20:5,19 24:12,15 25:9 25:11,13,18 26:11,12 35:22 35:24 36:3,10 36:17,18 44:11 44:12 48:12 federalism34:25 feels 51:3 Feldman 9:17 10:4,10 felt 55:13 Fifth 3:16 45:9 fight 26:6 55:23 figure 54:6 file 13:13 21:14 21:15 28:22 35:3 37:3 41:10 48:2,8,12 51:7 51:16 filed9:22 33:20 42:8 files 43:23 44:23 44:24 find 16:8,20 finds 7:20,21 fine 15:22 38:14 finish14:14 first 3:4 12:24 16:14 28:6,20 32:25 47:6 49:15 fit 49:6 50:15,25 fits 33:5 50:9,15 five 51:23,24 flip 37:14 Florida 14:8 focused34:10 focuses 19:8 FOIA 44:21,25

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24:3,10,12,15 24:19,21 25:5,9 25:11 26:16,18 26:20 29:15,20 29:23 30:3,7,7 30:21 31:2,15 31:24 32:5,23 34:17,21,22,23 35:2,3,4,5,6,7 35:15,16,17,21 35:23 36:5 37:9 37:12,14,15,24 38:1,6,17,23 38:24,24 40:20 41:5,6,8,9,10 41:11,12,17,19 43:22,25 44:7 44:16,18,18,20 45:1,11,13,20 45:24 47:2,8,9 48:24 49:10,21 49:25 50:1,3 51:5 half 47:6 handle 26:23 happen12:21 G 25:24 G 3:1 happened15:23 gaining 21:5 happens 22:15 general 13:12 29:5 34:7 46:11,12 harm 7:9,12,14 generalized harmlessness 48:25 16:5 generally 45:16 head 21:20 getting 6:18 hear 3:3 5:25 10:22 11:5 hearing 42:16 31:15 32:10 hearings 3:17 Ginsburg 4:1,5 Heck 3:25 4:10 4:13,24 23:6 13:21 14:4,23 24:1 32:17 39:1 15:7 22:9 31:25 H 39:18,23 49:3 32:25 34:15,20 Ginsburg's 50:14 habeas 3:20 5:10 37:19 38:3,19 give 15:5 19:22 8:8 20:25 21:7 40:10,12,19,22 25:18 41:21 21:15 22:5,19 41:3 42:23 49:3 23:1,8,17 24:2 61 Alderson Reporting Company

47:11,12,14 48:22 51:9,10 held 25:10 help 44:14 helpful 28:17 HENRY1:3 Hill 14:5,7 hole 47:23 Honor 4:20 6:11 6:23 7:16 8:4 8:14 9:13 10:16 11:8 12:1,24 14:2,13 15:2,9 16:14 17:19 18:19 20:1 21:10,25 23:18 24:4,20 25:2,16 26:3,24 27:12 27:14 52:6,17 53:2,10,20 54:16 55:17 56:8,13 hook 13:14,16 hope 25:15 43:22 hopes 46:4 hoping 44:23 I idea 23:24 identified29:4 identify 27:2 illustration 8:6 implied40:12 implies 13:21,23 14:3,11,17,23 15:3,24 16:1,7 16:11,25 22:1 32:15 33:13 39:20 50:16 51:1 imply 4:9 6:2 17:5 23:4 28:15 28:16 33:3 important 17:10 50:14

Official - Subject to Final Review

improper36:11 improperly 36:4 36:17 independent 17:13 indistinguisha... 35:9 ineffective 35:8 35:15 36:13,22 41:6 53:7,22 inexorably 17:22 23:24 information 28:24 44:14 initial 42:13 inmates 11:15,15 11:18 innocence 11:21 13:18 15:6 23:23 35:16 36:23 innocence-type 35:14 innocent 22:11 22:18 31:9 insisted49:1 instance 43:25 46:7 intent 34:22 36:23 38:23 interest 13:10 23:21 29:5 48:23 interested7:25 interests 34:25 34:25 interpret 18:14 31:11 52:21 interpretation 18:13 interpreted18:8 18:16 20:25 22:2 53:25 interprets 11:17

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62 Alderson Reporting Company

Official - Subject to Final Review

magic 39:20 mailed21:13 maintain 17:15 majority 31:18 making 18:6 35:10 55:3 material 29:2 31:9 44:25 materiality 31:5 42:14 materials 47:5 matter1:13 31:16 32:13 35:9 56:22 mean 5:17 12:6 13:22 14:11 15:4 16:15 18:11,11 19:11 20:16 21:22 22:11,15,18 25:23 26:25 28:18 30:6,12 41:1,9,10 46:16 meaning 53:15 meaningful 23:21 means 6:18,19 6:20 14:3 18:22 22:2 34:17 36:2 44:21 54:12,19 meet 48:6 51:14 51:15 54:5 members 32:7,7 mentioned36:8 42:8 merits 6:6,17,17 6:24 15:21 49:18,19 minute 51:7 54:2 minutes 51:24,24 missing 19:16 misunderstand... 42:3 model 4:22

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Alderson Reporting Company

P P 3:1 page 2:2 9:2 29:13 paragraph 10:5 14:9 19:8 21:3 28:6 paragraphs 19:15 parole 4:2,2,16 4:25 5:1 15:12 33:15 34:9 40:2 parole-type 32:20 part 17:14 29:21 31:2 34:2 35:17 36:20 43:21 44:18 45:13 47:1 particular37:2 54:23 56:11 particularly 19:15 54:24 passage 55:11 path 8:7 people 22:8 perfectly 38:12 periphery 40:11 40:14 permit 19:17,18 19:19 34:18 permitted8:21 person 24:18 45:16 personally 15:19 petition 21:15 35:3,4,5,7,23 41:10 45:11 48:9 petitioner1:4,18 2:4,10 3:8 35:23 39:6,14 52:5 54:4 Petitioner's

Official - Subject to Final Review

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64 Alderson Reporting Company

Official - Subject to Final Review

references 54:22 refusing 19:22 21:4 regarding 9:6 regardless 29:18 reinterpret 18:14 reject 42:19 rejected12:4 29:10 related43:9 relates 56:2 release 20:20,21 23:22 24:13,13 31:16 32:11 33:4 45:19 46:4 relevant 24:23 relief 4:7 5:24 6:1 7:5 19:25 20:2,11 23:12 24:2,3,11 25:6 25:14,15 30:20 30:23 40:8 remainder27:23 remand 3:23 remember7:12 removed3:19 repeated4:11 report 21:13 reports 13:13 request 42:19 50:20 requested21:1 requests 44:22 44:25 require 31:1 35:19 36:25 38:24 49:11 required32:23 requirement 9:21 25:12 reserve 27:22 respect 7:9 30:22 34:24 35:18 Respondent 1:20

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Scalia 18:5,10,25 24:21 25:21 26:15,18,22 27:6 29:22 30:5 30:17 31:20,21 40:25 43:15 52:24 53:3 56:19 Scalia's 31:17 scene 22:15 scheme 18:2 school 9:19 section 13:5 secure 23:22 see 4:21 6:9 14:6 37:16 seek 4:17 5:8 21:14 44:18,22 46:7 54:1,4 seeking 4:7,25 5:24 6:2 22:8 22:21 23:16,19 25:14 26:19 S 27:7 30:23 S 1:19 2:1,6 3:1 39:15 46:3 28:1 49:18,19 50:8 safeguards 52:10 53:16,25 34:23 41:18 55:9 44:19 seeks 3:13 saying 19:3 sense 25:23 40:5 25:18 29:8,11 sent 5:3 30:24 39:18,19 sentence 4:3,15 47:22 48:12 5:15,18 6:7,8 50:22 51:18 7:12,15 20:21 53:5 56:3,9 39:5 40:3 43:4 says 4:24 10:5 sentences 5:9 18:21 19:20 separate 49:17 21:13,20 28:13 serving 47:1 28:18 30:6,9,14 set 3:18 26:19 30:15 31:14 34:10,16 35:18,22 36:1 setting 24:25 37:20 39:4,14 seven 32:7 40:18 42:9 48:5 short 40:21 51:14 53:14 shortening 34:5 54:3 56:15 65

Alderson Reporting Company

37:21,23 show21:8 29:23 30:8,10,15,19 34:14 35:19 36:24 41:12 44:6,24 showing 30:3,6 31:2 42:13 shows 32:12 side 49:11 sides 9:1 simpler27:11 simply 28:17 29:16 30:24 34:8 40:16 42:5 50:2 55:17 sir 19:2 situation 10:21 six 13:2 55:1 Sixth 5:5 Skinner1:3 3:5 7:20 20:20 23:20 28:9 35:2 37:5 42:5 48:15 54:24 55:3 56:17 Skinner's 7:2 9:8 10:21 24:7 28:6 slightly 41:24 slip 45:9,10,16 45:18,18 46:9 46:11 sole 49:23,24 somebody 22:12 48:5 sorry 10:12,13 11:2 12:14 25:15 sort 8:22 32:15 39:21 sorts 12:19 SOTOMAYOR 10:13,23 11:3 12:13,15 16:10

Official - Subject to Final Review

29:1 35:21 36:9 36:15 44:21 45:4 51:25 52:12,14 53:5 53:11 54:2,14 54:18 55:5 sought 24:1,3 52:9 54:23 sounds 31:10 speak 32:2 speaks 52:13 specific 11:20 40:6 46:7 53:21 specifically 34:18 specifics 45:14 speedier31:16 32:11 33:4 spell 31:16 32:11 33:4 splitting 23:11 squared3:21 squeezed8:15 stage 3:18 8:23 stand 34:16 standard 6:15 7:18 33:7 standards 33:6 stands 30:14 started27:15 State 9:6 11:11 12:5 13:10,17 17:13 18:15,15 21:15 23:22 25:25 26:1,4,8 26:19 27:7,8,8 29:5 36:17 37:9 40:20 47:2,21 48:13,18 51:8 53:1 56:16 statement 28:8 28:21 39:21 49:4 52:1 States 1:1,14

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term 37:21,23 terms 19:4 33:15 territory 17:17 17:20 test 16:5 22:25 32:8,9,10,16 38:18 39:20 41:4 53:15 tested13:19 22:22,24 testing 3:14 4:8 5:15 10:18,21 10:22 11:22 13:10,17 17:4 18:2 21:12 22:23 24:6 42:15 44:24 52:10,11 53:13 54:1,23 55:1,7 Texas 1:8,17,19 10:18 11:7,13 11:13 13:10,11 18:7,20 52:7 text 29:12 Thank 27:24 51:21 56:19 theoretically 18:3 theory 24:9 29:17 T thing 18:22 24:18 T 2:1,1 38:3 48:6,11 take 17:7 32:4 things 7:19 20:24 40:17 43:3 44:3 25:23 27:18 44:5 45:7 51:23 30:16 32:4 talk 17:16,18 33:16 34:21 talking 17:20 36:25 38:22 46:24 46:23 50:6 tee 9:12 think 5:21,23 tell 5:14 10:23 6:11,14,22,23 25:21 35:25 6:25 7:2,18,19 36:4 8:18,19 9:9,13 telling 6:7 39:6 9:15 11:2,7,8 49:5 12:7 13:8,25 tend 45:15 66

Alderson Reporting Company

14:1,21,24,24 15:8,8,12 16:3 16:5,6,7 17:19 17:20,23 18:4,9 18:19,20 19:11 19:13,15,17 20:4,7,16 21:10 21:25 22:1,21 22:24 23:23 24:4,11,14,19 25:11,17,18 26:2,10,24,25 27:15,16 28:24 31:10 33:5,8,9 33:25 34:15 36:20 38:21,25 39:3,11,18,19 40:4,13 42:3 44:15 45:2,8,15 46:6 48:12 49:5 50:4,14,17,18 51:16,17 52:18 53:20 54:15 55:17,23 thinks 31:12 thought 9:11 10:25 55:6 three 38:19 threshold 8:24 42:13,15 ties 55:6 till 31:13 time 3:20 9:3 13:2 27:1,23 34:5 37:22 42:10 47:1,3,12 53:13,15,16 54:25 today 3:11 21:11 25:20 30:15 36:7 37:7 tomorrow37:7 tool 46:4 totally 33:24

Official - Subject to Final Review

touch 4:3,6 treats 42:5 trial 10:22 16:15 16:16,18,19,25 16:25 29:2 30:1 30:9 42:10 52:10 53:13,16 54:1,25 55:8 tried12:5,8 true 4:20 32:6 33:9 try 12:10 37:17 trying 9:20 13:5 23:22 27:15 32:21 47:11 50:7 54:5 turn 21:4 24:23 40:18,23 turned9:6 turns 13:9 22:16 23:17 47:8 twice 14:8 two 7:19 14:8 28:6,19 32:15 33:2 37:19 38:10 40:17 42:17,19 type 4:14 22:10 31:23,24 36:23 49:6 types 22:11,14 40:9 46:23 47:13 48:23 49:2 50:6 U ultimate 7:4 39:21 40:2,21 42:16 ultimately 7:4 30:23 31:24 32:22 43:18 46:25 47:11 uncertainty 14:2 unconstitutional

10:8 15:15,18 51:16,18,19 52:23 53:19 54:19 56:4 unconstitution... 24:24 underlying 14:20 44:9 understand 4:13 11:9 18:6 22:6 22:7 26:10 30:12 37:17 56:1 understanding 27:17 56:1 understood 6:12 17:24 undo 22:4 undone 23:5 37:10 unfair55:14 United1:1,14 unrealistic 26:23 26:25 unreasonable 9:7 unsuccessful 9:18 unusual 5:23 upheld 10:25 upset 46:16 use 5:1 16:20 46:13,14 47:9 47:20 uses 14:18 28:11 usually 21:7 V v 1:5 3:5,22 39:25 49:12 validity 6:3 variety 32:19 verb 13:23 view3:17 4:23 6:9

violate 27:4 violated16:22 19:21 48:18 violates 10:9 20:4 28:11 48:6 violation 5:4 16:11 18:2 27:9 35:24 36:1,1,3 36:10,17 52:2 54:7 W W 1:3 Wait 54:2 waiver9:21 wake 27:2 want 5:12,13 18:14 20:14,17 21:3 23:11 25:3 30:10 37:6,17 38:12 42:9 44:5 44:5,13 45:10 46:8,9,10,13 46:14 47:4,6 wanted37:21,22 wants 7:25 31:11 35:2 37:5 40:23 Washington 1:10 wasn't 34:9 44:6 way 11:18 13:22 17:5 24:17 26:23 46:12 47:19 48:19 50:12 52:21,25 52:25 53:1 56:16 Wednesday 1:11 week 37:8 went 10:4 40:10 48:19 56:16 we're 5:24 20:15 32:22 we've 41:1 wholesale 10:19 Wilkinson 3:22

4:2 39:25 49:4 49:12 Wilkinson-Dot... 39:2 win 4:8 29:22 32:3 41:11,11 41:16 winning 31:15 withheld 28:10 29:24 won4:8 word 14:1,6,18 18:9 28:10 words 15:11 22:9 32:15 39:20,25 40:17 53:24 56:15 work 46:15 works 51:10 world 7:24 worried32:2,3 wouldn't 16:6 21:14 24:19,25 25:24 29:23 38:1 39:5,8 wrestling 27:1 write 35:25 36:5 36:7 45:11 written18:24 wrong 9:9,12 19:4 39:13,19 43:4,8 wrongful 56:11 wrongfully 11:16

1 1 51:15 10:02 1:15 3:2 11:04 56:21 13 1:11 18 9:2 19 29:13 1983 4:18 8:7,16 12:17 13:5 15:5 21:14 22:23 23:7 24:2 29:20 30:24 32:4 37:11 38:2,10 38:17 42:24 43:1,9 45:13 46:23 47:3 48:12,16,21,25 51:8,16 2 2000 51:15 2010 1:11 2254(a) 35:22 28 2:7 3 3 2:4 3:00 46:15 31ST 1:7 33 19:8,20,24 21:3 28:6 5 52 2:10

Y year 37:13 years 27:20 55:1 yellow9:3

6 6 29:13 33:19 64 30:25 31:1 33:10 35:11 42:4,5,7,18 50:19 51:2,14 52:16,20,21

0 09-9000 1:5 3:4

9 9:00 46:15

X x 1:2,9

67 Alderson Reporting Company