Reply Brief — Paul C. Bolin, Petitioner v. Ron Broomfield, Warden

No. 21-7794

CAPITAL CASE

In the

Supreme Court of the United States

PAUL C. BOLIN,

Petitioner,

v.

RON BROOMFIELD,

Warden of San Quentin State Prison,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY TO BRIEF IN OPPOSITION

HEATHER E. WILLIAMS

Federal Defender

BRIAN ABBINGTON

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, California 95814

Telephone: (916) 498-6666

Email: brian_abbington@fd.org

*ROBERT D. BACON

Counsel of Record*

484 Lake Park Avenue, PMB 110

Oakland, California 94610

Telephone: (510) 834-6219

Email: bacon2254@aol.com

Counsel for Petitioner

PAUL C. BOLIN

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................... ii

TABLE OF AUTHORITIES ........................................................................................ iii

I.

INTRODUCTION ................................................................................................... 1

II. IT WOULD BE UNREASONABLE FOR A HABEAS COURT

TO CONCLUDE THAT A CRIME IS SO AGGRAVATED THAT

NO MITIGATION COULD RESULT IN A LIFE VERDICT................................ 2

III. THE STRICKLAND PREJUDICE STANDARD REQUIRES

ONLY A REASONABLE LIKELIHOOD OF A DIFFERENT

RESULT, NOT A CERTAINTY OR NEAR-CERTAINTY .................................... 6

1.

The 9th Circuit Stated and Applied A Standard

Inconsistent With This Court’s Precedent ..................................................... 6

2.

One Example: Mr. Bolin’s Honorable,

Effective, But Disabling Service in The Navy .............................................. 11

3.

All The Prejudice Must Be Considered......................................................... 13

CONCLUSION............................................................................................................. 14

*****

ii

TABLE OF AUTHORITIES

Federal Cases

Page(s)

Abdul-Kabir v. Quarterman,

550 U.S. 233 (2007) .......................................................................................... 7, 10

Andrus v. Texas

140 S. Ct. 1875 .................................................................................................... 3, 7

Andrus v. Texas

142 S. Ct. 1866 ........................................................................................................ 3

Bolin v. Davis,

13 F.4th 797 (9th Cir. 2021) .......................................................................... passim

Brumfield v. Cain,

576 U.S. 305 (2015) ................................................................................................ 9

Canales v. Lumpkin,

No. 20-7065, 2022 WL 2347581 (June 30, 2022) ................................................... 6

Clark v. Thaler,

673 F.3d 410 (5th Cir. 2012) .................................................................................. 2

Eddings v. Oklahoma,

455 U.S. 104 (1982) ................................................................................................ 7

Lesko v. Secretary,

34 F.4th 211 (3d Cir. 2022) .................................................................................... 3

Miller-El v. Cockrell,

537 U.S. 322 (2003) ................................................................................................ 8

Nunes v. Mueller,

350 F.3d 1045 (9th Cir. 2003) ................................................................................ 9

Porter v. McCollum,

558 U.S. 30 (2009) ........................................................................................ 2, 8, 12

Reis-Campos v. Biter,

832 F.3d 968 (9th Cir. 2016) .................................................................................. 9

Rompilla v. Beard,

545 U.S. 374 (2005) ............................................................................................ 7, 8

Sears v. Upton,

561 U.S. 945 (2010) .............................................................................................. 10

Shinn v. Martinez Ramirez,

142 S. Ct. 1718 (2022) ............................................................................................ 6

iii

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................. 3, 6, 7, 10

Wellons v. Hall,

558 U.S. 220 (2010) ................................................................................................ 9

Wiggins v. Smith,

539 U.S. 510 (2003) ........................................................................................ 3, 5, 7

Williams v. Taylor,

529 U.S. 362 (2000) ................................................................................ 3, 7, 10, 13

Wong v. Belmontes,

558 U.S. 15 (2009) ................................................................................................ 11

Woodson v. North Carolina,

428 U.S. 280 (1976) ................................................................................................ 9

Yarborough v. Gentry,

540 U.S. 1 (2003) .................................................................................................... 8

Federal Statutes

28 U.S.C. § 2254(d) .................................................................................................. 8, 9

28 U.S.C. § 2254(d)(1) .................................................................................................. 8

Rules

Rules Governing § 2254, R. 2(a) .................................................................................. 1

*****

iv

I.

INTRODUCTION

Paul Bolin’s certiorari petition 1 presents important issues concerning the

prejudice to a client when counsel fail to adequately perform one of the most

important responsibilities any lawyer is ever called upon to exercise: investigating

and preparing the case for their client’s life.

This case is not unique. The issues Mr. Bolin presents arise frequently, and

state and federal habeas courts have repeatedly strayed from this Court’s precedent

and from the realities of capital trial litigation. The problem is widespread, and no

authority other than this Court can direct lower courts to adhere to traditional Sixth

Amendment prejudice standards. A grant of certiorari would not be a mere exercise

in error correction, although the decision of the court below is erroneous on multiple

levels.

The record in this case provides a firm foundation for the Court to address

these general issues about the standard of prejudice. The 9th Circuit’s assumption

that the performance of Mr. Bolin’s trial attorneys was deficient, was manifestly

supported by the evidence before the state court. Bolin v. Davis, 13 F.4th 797, 810

(9th Cir. 2021), reprinted at 1App. 1; Petn. 2-3.

The available mitigation was

powerful, had Mr. Bolin’s counsel put minimally adequate time and effort into looking

for it prior to the guilty verdict. Unlike the small amount of mitigating evidence the

jury actually heard, readily available evidence directly explained why Mr. Bolin killed

1 The petition names the warden of San Quentin State Prison as the respondent.

Mr. Bolin has been

transferred to the California Medical Facility, so Jennifer Benavidez, the acting warden of the latter

institution, is now the appropriate respondent. See Rule 2(a), Rules Governing Section 2254 Cases.

1

two men, and explained it in a mitigating manner. Petn. 8-12, 28-30. As in Porter v.

McCollum, 558 U.S. 30, 44 (2009), “there exists too much mitigating evidence that

was not presented to now be ignored.”

II.

IT WOULD BE UNREASONABLE FOR A HABEAS COURT

TO CONCLUDE THAT A CRIME IS SO AGGRAVATED THAT

NO MITIGATION COULD RESULT IN A LIFE VERDICT

This is one of a growing number of cases in which courts of appeals have held

that a state habeas court could reasonably conclude that the mere facts of the crime

of conviction, or the strength of the aggravating evidence more generally, rules out

any substantial probability of a life verdict. 2 Petn. 16-18. This conclusion is, as a

matter of both fact and law, not reasonable.

Respondent attempts to characterize this as a case-specific holding unworthy

of this Court’s attention, BIO 8, 13-14, 16, but the problem is much deeper and more

common, so a grant of certiorari is called for. The 9th Circuit’s language cannot

reasonably bear the benign and case-specific interpretation respondent gives it at

BIO 16.

And while attempting to recast the 9th Circuit’s holding, respondent

acknowledges a circuit split. Respondent recognizes that Clark v. Thaler, 673 F.3d

410, 424 (5th Cir. 2012), holding that it is “virtually impossible” to show prejudice,

imposes a strict standard that cannot similarly be softened. BIO 16 n.3. The circuit

2 Respondent questions the phrase “rules out,” BIO 8, but it means the same thing as the phrase

respondent uses: that, because of the strength of the aggravating evidence, the petitioner “failed to

show” prejudice. Ibid.

2

split exists, no matter how the 9th Circuit opinion in this case is interpreted. Petn.

16-18. 3

Empirical analysis of hundreds of jury verdicts for life across decades shows

that murders so aggravated that any amount of mitigation would be futile simply do

not exist. Petn. 18-20. Yet the 9th Circuit, and other courts, repeatedly conclude that

it would be reasonable to identify the single case before them—looked at in isolation—

as a member of that empty set, the one exception that disproves the rule. Petn.

16-18. But other courts—including other panels of the 9th Circuit—recognize that

Williams v. Taylor, 529 U.S. 362, 367-68, 397-98 (2000), holds that it is not reasonable

for a habeas court to view any capital case in this manner.

Petn. 16; see also

Andrus v. Texas, 140 S. Ct. 1875, 1887 n.7 (2020) (Andrus I), where the majority

faulted the dissenting justices for ruling out penalty phase prejudice based on the

aggravating evidence. 4

The 9th Circuit in this case superimposed a new standard that, as a practical

matter, supplants the one set forth in this Court’s precedent from Strickland v.

Washington, 466 U.S. 668, 694 (1984), through Andrus. By this view, the weighing

contemplated by Strickland, id. at 695, and Wiggins v. Smith, 539 U.S. 510, 534

(2003), becomes superfluous if the crime appears sufficiently aggravated in the

subjective view of a habeas court.

3 More recently than the petition, the 3d Circuit held by a divided vote that a habeas court may

reasonably find the strength of the aggravating evidence to be “fatal” to any showing of prejudice from

deficient mitigation investigation. Lesko v. Secretary, 34 F.4th 211, 248 (3d Cir. 2022).

4 The denial of certiorari when Andrus returned to this Court, Andrus v. Texas, 142 S. Ct. 1866 (2022),

does not call into question the Court’s holdings in Andrus I.

3

The violence of Mr. Bolin’s crimes, like the erroneous reasoning of the 9th

Circuit in this case, is not an outlier.

Both occur with depressing frequency.

Mr. Bolin’s crimes cannot reasonably be perceived as the single most aggravated case

in decades. This Court knows from its own experience that Mr. Bolin’s crimes were

not “‘uniquely cruel and unjustified’ … even by the standards of other capital cases,”

BIO 13, quoting 13 F.4th at 822 [emphasis added], and that it would be unreasonable

for a state habeas court to so perceive them. Every murder that is charged capitally

is “cruel and unjustified” and evokes outrage. Few result in judgments of death, even

fewer when defense trial counsel adequately perform their duty of investigation.

Respondent asserts that the difference between death verdicts and life verdicts

is “the strategic decisions of trial counsel.” BIO 17. Respondent puts the cart before

the horse. The issue of prejudice arises here only because Mr. Bolin’s counsel did not

know enough about their client to make strategic decisions worthy of deference. Petn.

2-12. The death verdict against Mr. Bolin was not based on the jury’s weighing of the

available mitigation against the aggravation. Because of the deficient performance,

there were figuratively just a few light feathers on Mr. Bolin’s side of the scale, and

the prosecutor told the jury so. 3ER 754-55. 5 The jury heard for two weeks about

Mr. Bolin the killer and for two hours about Mr. Bolin the family man, with nothing

to connect the two.

The jury did not know that available mitigating evidence

explained the murders. Petn. 8-12.

5 The reference is to the excerpts of record submitted to the 9th Circuit.

are printed in the lower right corner of the excerpt pages.

4

The excerpt page numbers

The 9th Circuit’s reasoning leads to a Catch-22.

Explanatory mitigating

evidence makes a murder look less aggravated, by placing it in context. But the 9th

Circuit appears content to view the crime in the light most favorable to the

prosecution, 13 F.4th at 801-02, 822; BIO 1-2, and through that lens conclude that

any mitigation would not matter to a reasonable factfinder.

This is not hypothetical. The downward spiral of Mr. Bolin’s life that led to the

homicides is outlined at Petn. 10-12. The homicides can be understood in the context

of the life history the jury did not know about because counsel did not know about it.

Even someone who perceived the homicides as the 9th Circuit did, when viewing them

only in isolation, would be unreasonable to maintain the same impression after

learning the mitigation case proffered on habeas. A reasonable prejudice inquiry

takes the circumstances of the crime into account, but does so by “reweigh[ing] the

evidence in aggravation against the totality of available mitigating evidence.”

Wiggins, 539 U.S. at 534.

More generally, respondent focuses on the presentation of evidence to the jury.

BIO 14, 17. Respondent overlooks one of the most fundamental principles of the

mitigation enterprise: it requires a level of investigation commensurate with what is

at stake.

“[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.”

5

Strickland, 466 U.S. at 690-91. The presentation of evidence in this case fell short

because counsel’s investigation was abysmally inadequate.

The Court recently denied certiorari in Canales v. Lumpkin, No. 20-7065,

2022 WL 2347581 (June 30, 2022), cited at Petn. 19, 25, 28. Canales may have been

a weak candidate for certiorari review after Shinn v. Martinez Ramirez, 142 S. Ct.

1718 (2022), because in Canales the mitigating evidence was never presented in state

court. See 2022 WL 2347581 at 4 n.2 (Sotomayor, J., dissenting). By contrast,

Mr. Bolin’s petition squarely presents the issue. The available mitigating evidence

was presented on state habeas, and the state court unreasonably concluded that it

did not establish even a prima facie case of prejudicial ineffective assistance.

Certiorari should be granted.

III.

THE STRICKLAND PREJUDICE STANDARD REQUIRES

ONLY A REASONABLE LIKELIHOOD OF A DIFFERENT

RESULT, NOT A CERTAINTY OR NEAR-CERTAINTY

1. The 9th Circuit Stated and Applied A Standard

Inconsistent With This Court’s Precedent

Like the 9th Circuit, respondent demands too much of Mr. Bolin in order to

demonstrate prejudice, more than this Court’s precedent demands. There is simply

no warrant in the “reasonable probability” standard of Strickland, 466 U.S. at 694,

and its progeny, for the 9th Circuit—or any habeas court—to demand “compelling”

mitigation, evidence that does not merely make a more favorable result reasonably

probable, but compels it. The 9th Circuit’s multiple references to “compelling,” even

“inevitably compelling,” evidence are cited at Petn. 21. The 9th Circuit’s opinion

simply will not bear the benign reading respondent gives it at BIO 18. Respondent

6

has no basis for deciding that a correct statement of the Strickland standard is the

9th Circuit’s “core holding,” ibid., but the court’s multiple statements of an erroneous

standard are not. And respondent’s own demand for “highly persuasive mitigation

evidence,” ibid., and “powerful” evidence, id. at 20, is itself an unreasonable

application of Strickland.

Respondent argues there was no prejudice because there are factual

differences between this case and Rompilla v. Beard, 545 U.S. 374 (2005), Wiggins,

and Williams. BIO 14-15. This Court has “never before equated what was sufficient

in Wiggins with what is necessary to establish prejudice.” Andrus I, 140 S. Ct. at

1886 n.6. Decontextualized elements of the aggravating or mitigating facts in other

cases do not establish a safe harbor in which a state habeas court’s assessment of the

evidence before it, and the probable effect of that evidence on a jury, is necessarily

reasonable. This is because capital sentencing must be “individualized.” Eddings v.

Oklahoma, 455 U.S. 104, 105 (1982). The task is to insure that a jury has an

opportunity to make a “reasoned moral response to the defendant’s background,

character, and crime.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 252 (2007)

(emphasis added). Courts regularly assess the factual similarity of precedent when

deciding questions of law, but that analysis is wholly inappropriate to review of

prejudice at an individual capital sentencing.

Respondent errs by stating that review of prejudice must be “doubly

deferential.” BIO 9. On the question of prejudice, there is at most one level of

deference: to the state habeas court. There is no second level of deference because

7

there is no other decisionmaker to defer to. “Double deference” refers to review of the

state court’s assessment of counsel’s strategic choices. E.g., Yarborough v. Gentry,

540 U.S. 1, 6 (2003). That issue is not presented here because counsel’s inadequate

investigation left them in no position to make strategic choices entitled to deference.

While using the language of deference, respondent—like the 9th Circuit—is

insufficiently deferential to the decisionmaker who really matters, a jury. Neither a

state habeas court’s assessment of the evidence, or a federal habeas court’s

assessment of the evidence, ultimately matters. The assessment of prejudice on

habeas demands a greater level of judicial humility than the 9th Circuit was willing

to undertake. “[A]lthough we suppose it is possible that a jury could have heard [the

mitigation proffered on habeas] and still have decided on the death penalty, that is

not the test.” Rompilla, supra, 545 U.S. at 393. Respondent refers to the “relative

weakness” of the mitigation evidence proffered on habeas, BIO 14 (“relative” to

what?), but the decision whether it was strong or weak belonged to a jury that

actually heard it, not to a habeas court, either state or federal. Porter, 558 U.S. at

43. A habeas court that arrogates that decision to itself is not reasonably applying

Rompilla. See 28 U.S.C. § 2254(d)(1).

The references to reasonableness in 28 U.S.C. § 2254(d) have substantive

content. Deference is not abdication. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A “reasonable” habeas court is one that understands the dynamics of mitigation

discussed by the Court in cases such as Rompilla and Porter. Conversely, a habeas

court that is blinded by the details of how the murder was committed and so cannot

8

clearly see “the possibility of compassionate or mitigating factors stemming from the

diverse frailties of humankind,” Woodson v. North Carolina, 428 U.S. 280, 304 (1976),

is not reasonably applying this Court’s precedent and is undeserving of deference.

Respondent never identifies the nature of the state court decision being

reviewed here. Mr. Bolin’s state habeas petition was denied under California’s prima

facie case standard by which a state habeas court resolves factual questions in the

petitioner’s favor. Petn. 12-13, 24 n.8. Under § 2254(d), a federal habeas court looks

to state law requirements in reviewing denial of a claim without a hearing. Brumfield

v. Cain, 576 U.S. 305, 320-21 (2015). It cannot deny the petition on the ground that

the state court might reasonably have resolved questions of fact against the

petitioner, because the California Supreme Court has indicated that is not what it

does. Reis-Campos v. Biter, 832 F.3d 968, 973 (9th Cir. 2016); Nunes v. Mueller, 350

F.3d 1045, 1054-56 (9th Cir. 2003). The state court decided that Mr. Bolin did not

present even a prima facie case that his claims had merit; that is the decision a

federal court must test for reasonableness. The state court did not allow full fact

development, so it would be impossible and erroneous for a federal court to decide

whether, if the state court had done so, whatever decision the state court might have

made on a full record would have been reasonable. See Wellons v. Hall, 558 U.S. 220,

223 (2010).

Contrary to this principle, the 9th Circuit hypothesized adverse inferences and

rebuttal, nowhere in the record, that might have followed from the presentation of an

adequate case in mitigation. 13 F.4th at 814-21. Not only are those hypotheses

9

inconsistent with Strickland’s focus on the likelihood of a different result, not the

same result, they are also inconsistent with the standard the state court used to deny

Mr. Bolin’s habeas petition, a standard that focuses on his allegations alone without

entertaining the possibility of contradiction not already in the record.

In a related error, the 9th Circuit overlooked this Court’s recognition in cases

such as Williams, 529 U.S. at 396-97, and Sears v. Upton, 561 U.S. 945, 951 (2010),

that mitigation evidence may persuade a factfinder although it is not uniformly

favorable to the defendant. When evidence is “double-edged,” a reasonable habeas

court recognizes that the jury may find either “edge” to be more persuasive, so there

is a reasonable probability of a different result. Petn. 24; see also Abdul-Kabir, supra,

550 U.S. at 255, 260 a jury must have an opportunity “to give … meaningful,

mitigating effect” to “double-edged” evidence). A court that treats “double-edged” as

a synonym for “unpersuasive,” as respondent does at BIO 19, is not reasonably

applying this Court’s precedent.

The aggravating inferences the 9th Circuit speculated that the jury might

draw from the mitigating evidence, 13 F.4th 814-21 & BIO 11-13, add little if

anything to the facts of the capital crime that the 9th Circuit found to have such

extraordinary aggravating power. By contrast, the jury was given nothing from

which to suspect the existence of the mitigating and explanatory inferences from the

evidence proffered on habeas. A reasonable habeas court could not conclude that both

“edges” of the supposedly double-edged evidence weigh equally in the prejudice

balance.

10

The 9th Circuit instead relied on the vastly different Wong v. Belmontes, 558

U.S. 15 (2009), where the problem was that mitigation might open the door to

evidence of another murder the jury didn’t know about. 13 F.4th 819, 820, 821; see

BIO 12. There was no comparable negative lurking in the wings in this case, and a

habeas court would be unreasonable to equate this case to Belmontes. Petn. 22.

2. One Example: Mr. Bolin’s Honorable,

Effective, But Disabling Service in The Navy

Mr. Bolin’s daughter testified before the jury:

Q:

Before that was your dad not in the house all the time?

A:

No. He was working – either working or in Vietnam.

Q:

Was he in the Navy while you were a young child?

A:

Yes.

Q:

At about the time that you were seven years old,

did something happen between yourself and your mother?

A:

She had abandoned us. …

Q:

Your dad was in the Navy at the time?

A:

Yes. (3ER 694.)

His younger sister testified:

Q:

When Paul was about 16 or 17, he joined the Navy;

is that right?

A:

Yes.

…

Q:

And after joining the Navy, some years later Paul went

to Vietnam?

A:

Yes. (3ER 721-22.)

That is everything that the jury knew about Mr. Bolin’s service in the Navy.

They did not know—because Mr. Bolin’s trial counsel did not know—about his

glowing evaluations from his commanding officers and his promotion to E-6. 2App.

11

398-406. They did not hear about his combat experience and ensuing post-traumatic

stress disorder. 2App. 404-06, 411-13, 430-31; 3ER 832-34, 845-47; 4ER 870-71, 947,

952. They did not hear about his shipboard back injury, which abruptly ended his

service after nine years and left him with a lifetime of pain. 2App. 407; 3ER 832, 847,

4ER 868-69. They heard nothing about his occupational exposure to neurotoxins,

working below decks as an engineman. 2App. 382-83, 399, 426. See generally Petn.

6-7, 27-28. Of particular importance, the jury did not know the web of connections

between his combat experience, his neurotoxin exposure, and his back injury—all of

which occurred in the Navy—and the crimes for which the jury had convicted him.

Petn. 10-12.

Without citing the most relevant precedent of this Court, Porter v. McCollum,

supra, the 9th Circuit said that a state habeas court could reasonably see no

difference between what the jury heard and what they should have heard about his

military service, so Mr. Bolin was not prejudiced. 13 F.4th 819-20; BIO 12. The 9th

Circuit held that it would be reasonable for the state court to analyze this evidence

in the same way that the Court said was unreasonable in Porter, 558 U.S. at 40-44.

The fact of service in the Navy in Vietnam, without any explanation, was not

inherently mitigating to a jury in 1990 that had just found Mr. Bolin guilty of two

murders. Indeed, the brief mention of his service, without details, invited jurors to

speculate inaccurately that something adverse in his service record was being hidden

from them, or else to superficially compare Mr. Bolin negatively to veterans who live

productive, crime-free lives after discharge.

12

The mitigation case must be “viewed as a whole.” Williams, 529 U.S. at 399;

Petn. 29. Mr. Bolin was also similarly prejudiced by the jury’s lack of knowledge of

the details of other mitigating aspects of his life history, even if they had some

superficial awareness of a few general themes. Cf. Petn. 27-30 with BIO 3-4.

3. All The Prejudice Must Be Considered

Prejudice from counsel’s deficient performance, in this case and others, is not

limited to available evidence the jury never heard. Two examples:

Respondent fails to mention an additional form of prejudice that harmed

Mr. Bolin because his counsel’s investigation was too late, as well as being too little.

His counsel made decisions about how to question prospective jurors, and about which

jurors to accept or challenge, with no plan for a penalty-phase defense theory. See

2ER 412, 434-37, 474. Not having done the investigation necessary to identify themes

for the penalty phase, they were unable to select jurors with an eye toward their

potential receptiveness to the intended case in mitigation, even if counsel wanted to.

When counsel began investigating potential penalty-phase evidence, the chosen

jurors had already found Mr. Bolin guilty. It was too late to reconsider decisions

made during voir dire. Petn. 13 n.6.

The fact that Mr. Bolin did not receive adequate mental health evaluation until

ten years after the offenses, BIO 5, 12, is a direct and prejudicial artifact of his trial

counsel’s deficient performance, but respondent holds it against Mr. Bolin and cites

it as a reason that he cannot demonstrate prejudice. See also Petn. 23.

13

A reasonable habeas court applying this Court’s precedent would take all this

prejudice into account. The 9th Circuit did not, and concluded that the state habeas

court need not do so, either. Certiorari should be granted.

*****

CONCLUSION

The petition for a writ of certiorari should be granted, and the judgment of the

9th Circuit Court of Appeals should be reversed.

DATED: July 12, 2022.

Respectfully submitted,

HEATHER E. WILLIAMS

Federal Defender

BRIAN ABBINGTON

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, California 95814

Telephone: (916) 498-6666

Email: brian_abbington@fd.org

*ROBERT D. BACON

Counsel of Record*

484 Lake Park Avenue, PMB 110

Oakland, California 94610

Telephone: (510) 834-6219

Email: bacon2254@aol.com

Counsel for Petitioner

PAUL C. BOLIN

14