morning and may it please the court enter kennedy on behalf of petitioner alan james williams and manner i intend to try to reserve two minutes for a bottle but we'll see how well that goes there really essentially two questions pending before this court right now the first williams properly exhausted his procedural competency argument in the state courts because i believe that mr williams is first claim is the claim on which the greatest violation of his rights did occur i would like to address that issue first if the court would indulge me briefly now i understand that the court is not granted a certificate of probability on that issue but i would just like to say a couple things on that the first being that while in miller l the court the supreme court said that you don't you can't reach the merits if you have been granted a certificate of appeal  and as the fifth circuit said in jordan versus epps recognizing this very court said that judges from its sister circuits are necessarily jurists of recent so i just can't see how you can how one could find that he did so the first being that his argument to the court to the state court satisfied the requirements for a claim of procedural incompetency and the second is that under this court's holding in one's purposes thompson the two issues procedural competency claims this pay claims he put the pay question before the court and then when you look at the second part of that test which is that it's put out the facts that support that claim he did so repeatedly repeatedly pointing out the fact that the question was one of all these people his attorneys the judge should have had substantial doubts as to his competency and that is the test of faith that's not the test of dusky that's not the argument exhausted the claim of procedural competency and then if you look at the district court's opinion it doesn't really address this issue at all although it says the two claims quote unquote differed that doesn't address the question of not what happened here he cited to the relevant federal issue and that's enough to exhaust but the other part of this issue is under this court's very opinion and one spring even if he hadn't argued the relevant factors of a procedural competency claim it was enough because the two issues were intertwined there's no way that one could put forth this claim if it was exclusively one of substantive competency that said mr williams was so incompetent that he couldn't be was that the procedural posture was different but the fact is that in saying that simply because the procedural posture was different that means that one very has no effect would be to essentially deprive one's bereaved any effect and if you look at this court's opinion in andrews that's not what is supposed to happen in andrews there were two very different concepts there'd have to do with the delay in carrying out an execution and whether it was an individual or collective right those were not issues of procedure on substantive competency in this case we're dealing with the same two questions i think flipped in a way that make it much more so that it questioning one question for the other and what the court said  argument to the state court that's the same as what happened here this one is has not every has not advanced any arguments and in fact he's simply saying that the question has always been one of procedural competency that there's s court frankly i think from the very outset when counsel was trying to capitulate on competency i think there should have been some sort of hearing which somebody which the court recognized no there the the i think there are a half a dozen times when it should have happened frankly it never happened but i think there were doubts at the time that he tried to waive competency i think there were doubts at the time of the police i think there were there were repeated doubts when every time that mr williams said you know i'm pleading guilty because i'm i'm i am guilty he immediately followed it up with but actually i'm doing this because they're breaking my fingers and the fact that his attorney made these equivocating statements to the court about if someone should come forward in the future and seek to challenge competency maybe this court would consider that i think were repeatedly the court should have had doubts throughout and i think the court did have doubts the court told mr wims you can't plead guilty with an asterisk that's an indication and the court told him at one point when he was trying to to plead guilty he said i'm not endorsing your views on this at all but the court knew that mr williams was in the s and how this works as a practical matter we we have lounsbury where the procedural exhausted the substantive appear and it isn't necessarily logical that asking for substance would exhaust the procedural and i don't know that there's two sides of an equal coin but if he makes a substantive challenge then on abs and he doesn't yet if you raise a substance and if you raise a substantive and they say well basically the answer is yes there was not a real substantive problem then does a evidence provided that there is no substantive claim my question is doesn't the procedural in it in effect pass out of existence because what are you going to say i mean that they should have had a hearing on something that they're now saying as a matter of law a claim didn't exist at all i don't think so because i think a substantive the ruling on substantive will be saying under the evidence that we have another evidence that they have which is evidence so they're saying under the scrutiny and that's one of the big differences between a substantive and a procedural challenge and receive no challenge you can bring in additional evidence correct on the procedural you know no i don't the the remedy in the case of the substantive claim is if you're correct that he lacks sufficient ability and competence then of course it would tip the verdict or the whatever proceeding correct yes but if he didn't lack it then you still think you would go back and have a hearing on whether there was a problem the supreme court  you raised a substantive challenge and you lose that thing that you still have a procedural challenge on the record that the trial judge should have had a hearing yes because i think the threshold for that is so much lower but then where does that get you because you've already determined that the person substantively what's competent to proceed with that is that that's only on the evidence that was available to hearing that evidence could have been felt much more no because the if we're looking at a procedural challenge we're looking at whether there was enough there that would see more or require action by the trial judge to have a hearing that's why we're looking at yes the only relief you initially are getting because the and the answer to that is no let's say the answer is no that there wasn't enough there that talking past each other in that you haven't really engaged with what would happen if you were to hear both claims and if if you were to hear both claims you could take the evidence that you had and you could potentially add more substantive procedural competency hearing but if on the primary point you've been determined to be competent and you're saying well no it's not moot what would happen wh the evidence available to them and if the evidence is exactly the same but when you have the same you'd say well it doesn't matter that substantively you can determine to be competent even on the same evidence that was available back then we were going to vacate your conviction but the point is that the thresholds are different that you know ok ok ok understand the thresholds are different because you don't want to acknowledge that there could be any different in other words you can win and get your conviction kicked out please the court mandy rose assistant attorney general for appellate rubber hers on the certify issue before this court is whether mr williams raised the same claim in federal court as he does in state court which is required for exhausting purposes and mr williams argued or noted in this case because counsel made a strategic choice to argue some sort of conference to the exclusion of procedural kamiski and both the first and the second issues are made abundantly clear in the state court briefing specifically mr  and the state's response in the state court briefing it's docket twenty one exhibit five the state specific lee said that mr williams does not argue that the state failed to comply with procedures in the competence the statute in ten point seven seven point sixty and that mr williams waived any such claim under state versus hedrick in mr williams reply brief again in the state court briefing which is a docket twenty one exhibit six mr williams does not cite verses robinson at all and in again this is his attorney said that this is not pro se pleadings mr williams attorney did not refute or deny in any way that he was not raising a procedural claim under ten point seventy seven point sixty nor did he disagree or refute in any way that citation to pate alone without more is not sufficient to exhaust a procedural competency klang and what he's essentially asking is that the court re between the lines and he says that regardless of how it's raised the court is on notice but nowhere in mr william state court briefing does he even reference the competency statute he does not use the words competency hearing in any regard he does not say that the court failed to inquire any of the terminology that is frequently considered a pate cl was not found anywhere in his state court briefing and his argument that the courts agree between the lines and it should be obvious that a claim was there ignores case law and exhaustion that if a claim is is just hinting within the briefing that he d adjudicate a procedural comp of the claim because he simply did not raise one it also ignores counsel's professional judgment as to which claims have more merit counsel is not expected to raise every conceivable claim on appeal and in this court case it makes sense that counsel would not have evaluation and these individuals had looked at mr williams for ten months the court had looked at i believe five different evaluations throughout this ten month period and the court has counsel before it saying i counsel essentially coached their client into how to appear competent before the court if all of that were true it's difficult to see how the court should have been on notice and had bonafide doubts about conference the when they essentially convinced the assent i guess you think on ethically as to how to appear competent before that court and there are statements that we are not contesting competency preventing them from having a hearing these arguments primarily to whether precursor procedural compensation i disagree with that and i think this course decision boy versus brown is a good indication that that is not what occurs in that case the court noted that the only claim that was raised before the court was a subset of competency claim and this was the reason that i submitted that supplemental authority if it was as mr williams claims and any time a petitioner raises a subset of planning a procedural claim is essentially required to be evaluated before a court can get to a subset of claim it would seem that in that case this court would have said even though you didn't raise the procedural compazine claim we're going to address it because we cannot possibly address a subset of claim without addressing the procedural clinton and that did not occur that makes sense that wouldn't comply with to the letter statute and inquire into conference in oregon argue that in this case the court didn't do that but the subset of argument is that regardless of whatever procedures were in place the ultimate result is incorrect the in the substantive competency claim you have whatever evidence the defendant now decides in front of you for it and the court were to determine that there is not substantive incompetence counsel says but you still could go back and find procedural incompetence and the remedy would then be a reversal of the conviction if i understood his argument correctly what is your actually competent the procedural claim is just with regards to procedures and doesn't really matter whether or not the petitioner was incompetent so and if the court determined that the parties at titian are was not co then it wouldn't matter what the trial court had done one way or the other correct and if the court determines that it was competent with that also century swallow of the procedural issue i think it would yes that the petitioner raised both claims in the court of appeals but due to oregon's rules attorneys there are faced with a dilemma having to say enough to exhaust and not saying so much to offend or even the rules and that's what led to the attorney case having to essentially drop the subset of competency claimed when he got to the supreme court and the oregon rules allow the supreme court to look back at the court of appeals briefing to see what was raised there additionally  different from all of these other cases that's correct so the procedural has to be there there was enough there that the judge should have asked for a new more now i also he also takes issue with the actual hearings as to its competency and they never addressed it so i think if they had considered both whether there should have been bonafide doubts and whether there actually was a competency issue and said there's there's no question as to his competency then i  oh he argued the facts and the law and put the court on notice of the issue i'm already out of time so i will but i would just say i would just like someone do you understand that mr williams has rights and can't just be passed along like every court has done to him along the way thank you thank you thank you both for the briefing and argument very interesting case he's just argue liam's reaches for it so i g