exercise that right at pretrial hearings held a pro second in six to solve in two thousand and seven a full month before his trial joel rhodes tried to revoke that right of self representation on the eve of trial there is no clearly established united states supreme court precedent giving him the right to do so it just record acknowledges that there is no such precedent given can there facts that he's talking about not a de wine identification of law or application of law and i guess i'm interested in your view about how the unreasonable determination of facts branch works is i thought the judge said you know if it had been time only i would've said this was reasonable but i don't know what the state judge would have done with this idea that mr r manipulative so so how do you think this whole part of the law well i i don't i don't think the two can be detached from do you want to after all roads have to prove his custody is in violation of the united states constitution that's twenty two fifty four eight so indeed in analyzing under d to there still has to be a clearly established constitutional right i believe that that must be found before you can determine whether in applying that clearly established right the court error made iranians findings of fact such as the clearly established right to the effective assistance of counsel under strickland v washington where are that the law is clearly established by the united states supreme court but it just took judge can make a reasonably term determinations of the facts and concluding that there was no deficient performance in a federal judge can then reverse so i think i think the error in the district on the trial are sufficient reasons to deny him the revocation of his right to self representation so could that but that's interesting thing that means that the judge said that for sure but sometimes when it happens with review of various fact findings that you don't know what the influence of one correct factor and then we'll just hypothesize i know you don't think this is the case but hypothesize one incorrect factor when you stir them all up you know would the trial judge had done the same thing when i understand that's what the district judge did but i don't think the e p a jurisprudence allows him to do that once you can find a valid both factual able legal basis in the record to uphold the state court you have to uphold the state court i think kerry could be record is quite clear on that i think marshall v rogers was quite clear on that in this situation i think you know you can't divorce the fact findings from again the clearly established whatever clearly established constitutional principle is out there let me ask you this mean obviously i understand it that testimony and another was that he improperly counseled with mr rhodes on whether or not he should testify so those are serious fairly serious allegation moreover when the case was reversed on on a separate and agro convinced the state courts that he was indigent and got appointed counsel the paternity case who was on the case for over a year and yet later on he has the funds to somehow retain attorney kovac be that as it may it's clear from the april two and six hearings that mr rhodes was talking to both attorneys keiser and kovac in the months preceding those hearings and getting advice from both of them he eventually fired keiser at those hearings but did not say judge now i intend to retain mr corvet as my trial counsel he did not do that he said all along i want to represent myself because i think i can do a better job and that was confirmed by attorney kaiser in his lengthy motion before those hearings which was i believe in the document eighteen in the district court record that march thirteenth motions by attorney keiser which details mr rhodes's understanding and knowledge and willingness and desire to represent himself and that is in fact confirmed by mr coe vacuum self at the full six hearing who said i don't think mr rhodes is playing games here i think he really does want to represent himself and he's in the teligent man even written a book and and a district judge this i read the opinion says that starts off fine there's nothing wrong with the courts granting rhodes's motion surely to kaiser certainly nothing that would be reachable that's authorized attorney called back to speak on his behalf what does that mean to you who i guess what it means to me is that i'm in jail and if there is any sort of pretrial conference and  pretrial proceeding that i don't need to be present i'm authorizing him to appear that's the way i read it i think that's the way it can reasonably be read i don't think it can be reasonably read as i hereby revoke the right to self representation i exercised twelve days admitted that was counsel bar other than that i think it's a discretionary decision i think you know again and again we get back to constitutional principles i think a judge cannot allow a hybrid representation of this sort but it's not constitutionally required to do so and i think again the district court i think was with you on that point the district court recognized no hybrid right that's correct and and i think when you kept right down to it that's really what was going on here i think and  may sixth letter is gives you an insight into what was really happening and it's consistent with mr rhodes and kovacs behavior from long before he fired attorney kaiser which was he was represented by kaiser but he was also getting advice and counsel from kovacs who really seemed to be acting more as a friend than as a routine lawyer and all and in the i'm a six letter this is after all of this happened after the judge  provide advice and counsel in vice and counsel for what for representing himself that's what this was all about all along sure in a perfect world of roads would would love to have had mr kovacs represent him but for couldn't and rhodes understood that and you have to maintain to his decision to represent himself until the eleventh hour when he got cold feet well and it's a strange record i have to say because kobe every time the court asks callback to say something call that in a sense says you know i could do this if i had more time and nobody ever follows that whether kovacs should have a road should have or the courts yet nobody ever says well how much time  talking about that i can't find an actual request for more time in this record even if we think there's no one in charge and that's appealing and roads was certainly sophisticated enough to himself at some point before trial until the that may third letter which really wasn't even a formal motion it was a request in a letter that was supposedly drafted by rhodes although it has all the earmarks of something that was drafted by kovacs but up until then there is this eleventh hour nature is is a compelling fact i think that supports the state courts here whether or not you buy the manipulation but i think the coyness of both these people does support finding manipulation a retrial on one of the kidnapping charges he should have been able to try that case the day after the april sixty he was so conversant with the facts as was rhodes why west here this why was he on able in my head and it might have been other cases it might have been so sure it was difficult for him to prepare but i think he had a grasp of what the state's case was sufficient to enable him to proceed to trial and i see you would like to save a bit from yes i would b clearly implores the state trial court that he wants to revoke his waiver of his right to counsel we believe the date should've been considered to be april eighteenth but that's not what the district court federal district disagree with the district court on that issue because the only thing he says in april eighteenth that's why i asked about filing appearances and so on he says he's authorized attorney called back to speak on his behalf but he knows to be ambiguous he isn't conversant in what exactly needs to be said to revoke the waiver also i think it has to be considered in tandem with his comments at the april sixth hearing in which he said at the end of that hearing that he wanted to retain an attorney callback so i did so and i understand that point in that we are talking here about retained counsel not about appointed counsel greg it's a bit of a difference but still in all up till and after even april the twenty fourth kodak is telling the state trial judge that he cannot in good conscience be prepared in time for the may seventh trial kovacs isn't he has not filed an appearance he hasn't in any way formally alerted the judge to his role in the case and i can't believe kovacs has been attorney for any length of time he doesn't have to ask for an extension of time it's argument that there is a presumption against waiver of counsel and that is that presumption still operate after something like the april six colloquy in which the court very thoroughly ask mr rhodes you know you have a right to counsel it's not a good idea not to do that goes to a whole routine that for read a contemplates in mr rhodes says i'm going to do it myself so so why is that presumption still in effect after that exchange well just to make clear argument we are arguing that he never did validly waive his right to counsel at the april sixth hearing because he made that comment and because the trial court did not delve into  the comment further by for example asking mr kovacs when can you be ready for trial by asking mr rhodes well it looks that like kovacs can't be ready do you still want to retain him even if that would mean  responsibility to guarantee that that waiver is valid so well i agree with you and i don't even disagree that i have been nice if all of those things have happened but the question before us is whether there's whether the state court a self that course was indulge every reasonable presumption against waiver so we believe this too that the first question of waiver it was the court's responsibility to delve further into  argues the district judge himself the federal district judge said this was beyond the eleventh hour this was the end of the day request and it was way too late in any trial judge would be within his or her rights to say you're just too late you you know that ship has sailed everywhere i say and why isn't that a low enough to say that the judge should not have granted the resting how one has to uphold what the state court did if there is you know an acceptable basis you know take putting all the deference that you need to put in in the rocker parenting is a deal one case it's not a d two  and the district court properly found that mr rhodes met that bird and now so that's the deference that is due to the state court i think just the language itself that it must be unreasonably determined i looks at the word on reasonable in the d two situations and the supreme court there says that it's a rigorous burden of proof i want to know why why the full pattern things starting with the allegation of ineffective assistance of counsel in the direct appeal mistake or it that washes out we all understand that moving through i think what appears to be the state trial judge n i think that the court that i think the district court was correct in that the fact that mr rhodes allege that kovacs was ineffective at the first trial really doesn't mean argument made by mr rhodes as counsel it's unclear what role mr rhodes played in developing that argument so i think it does it just doesn't seem relevant and the district court's finding which and the district court analyze that issue which it was required to do with this if the state is correct that the district court has to look for reasons to uphold the state courts decision it did that and it just found those reasons lacking but the problem is you know we certainly don't decide to novo looking at this record whether there was evidence to support the finding manipulation mr protest to convince us by clear and convincing evidence that this was an unreasonable inference to draw from the pattern of of action that was before the trial judge stand trial judge so court a lot of valid reasons to read discussing his difficulties preparing for trial in new witnesses that had been disclosed by the state new evidence that had been disclosed by the state that mr rose was claiming was think is significant given that the discovery was on computer disks many of it much of it mr rhodes is trying to prepare for a trial from the jail the computer had broken down in the jail and this issue was i would point out the trial court's comments at the april sixth hearing which were the hearing on a motion to withdraw by attorney kaiser and this was before there was any discussion of attorney kovacs there were before there was any discussion of a request to adjourn the trial court said what's the game now now other than the obvious to the court as to why you were doing this is there some real reason as to why you wanted to represent yourself and then mr rhodes asked him what's obvious and in the court responded the obvious to the court is that someone like you is trying to build in a record on appeal and if anybody doesn't recognize that then they haven't been around long enough to understand what's going on with that indicates is that before any of these issues arose the trial court had an assumption that mr rhodes was trying to play games while the big assumption was based on is not clear we this is the first thing he said of april sixth hearings the opening comments that the court made and i think this shows the tenor of of the attitude by the trial court throughout the proceedings and that's just  increased over as time went on and on and what the district court found was that you cannot separate the finding of gamesmanship from any other valid issue and i think this case is the analysis in this case should be similar to this court's analysis and carlson versus jus where the right issue is the right to counsel of choice and the time just record found  that the trial court incorrectly found that there had not been a breakdown in communication between defendant and his counsel therefore the district court should have allowed an adjournment to will bring in new counsel now there was decision it says that the it's finding of fact seems to be that there was gamesmanship and it seems to support that fact with two subsidiary well one characterization and suppose and then secondly at the bottom of that paragraph in the alternative apparently the court says piece o moreover on the repeat in effect the repeated altering of the position  romance because seconded it isn't i don't believe it's on considered a independent reason from the reason of gamesmanship and there's no issue supports gamesmanship it supports gamesmanship with has it that the seems to me the primary finding of fact in that paragraph is gamesmanship and that's what the district court found  district court was upset about this incapable of satisfying mutually exclusive requests well i think in the in the finding of of gamesmanship based on the timing is also incorrect by the state court because it could certainly be construed that this issue was brought to the trial court's attention just or could find that it did not say he had it found it assumed that the date was made that that was that although it did commented that the of six hearing attorney kovacs gave two reasons why he was not representing would not represent rhodes at the trial the first was in his words the financial but that's not all that important but what's more important is that i cannot ethically represent him as i cannot be prepared for trial but there was also a third reason that came out of that hearing if you look at mr kovacs comments at the about six hearing where he's vouching for m rhodes is ability to handle the trial mr mr corvet reveals it a dispute over strategy mr kovacs says mr rhodes wants to represent himself he believes he can win this at trial and then in the next page he says i believe this should be resolved short of trial i e we need to work out a plea bargain that simpson if it can strategic dispute mr rhodes challenge mr kovacs effectiveness after the first appeal believe me he would have challenged his effect from this after conviction in this case had this unprepared lawyer who disagreed with strategy represent disagreed with his strategy represented him at trial this court is bound by the