case number thirteen thirty seven forty two parents walter versus benny kelley oral argument not to exceed fifteen minutes per side mr bruce la pierre supervising attorney to be argued by law student morning morning your honor may please the court i would request three minutes for revival mr walters requested for self representation was wrongly denied by the trial judge as untimely the ohio court of appeals decision upholding that denial was also wrongful either because it rested on inadequate state law procedural grounds or because it was an objectively unreasonable application of federal constitutional law in either case this court should grant mr walters habeas petition and hold that his six minute right to self representation has been violated now the ohio court of appeals decision is best understood as resting on state law procedural grounds this is true for two reasons first the crux of the court's analysis ressa primarily on t state court decisions holder and cassano and a ninth circuit decision george which the court of appeals interpreted as creating a procedural bar to mr  walthers request for self representation second the court of appeal opinion does not appropriately or does not adequately discuss federal constitutional law it makes no reference to martinez nor does it reference the balancing test which is priem court in martinez stated was the appropriate test to balance the criminal defendants sixth amendment rights against the government's interest in the fish and law the court of appeals opinion begins on appropriately here on page two eight or page id number two eight a discussion of the sixth amendment to the us constitution and citations to two supreme court decisions for reta and mccann v adams that discussion of federal constitutional law is there to establish that the right to self representation exists and that that right is rooted in the sixth amendment but when we get to analyzing whether the request by mr walter was timely the discussion is entirely based on those two state court decisions and the ninth circuit decision and the discussion there is entirely focused on the date on which the request was made three days before trial on the eve of trial or four days before trial in those three cases the very next sentence in that opinion i think  hour on page two zero nine the court of appeal says mr walters request was on the fourth day of trial which was incorrect it was the third day of trial but mr walters request was on the fourth straight day of trial therefore the judge's decision  for on timeliness was was correct this suggests that the courts interpreted that state a body of state case law as creating a procedural bar to someone like mr walter at this point in the trial but we also have a recent case of state v hardmen which was mentioned in mr walters reply brief and in that case we ha we are concerned only with validations of federal constitutional law but i don't see how you can really draw much importance from a state court citation of state cases which seems to me pretty unremarkable i mean clearly that the court of appeals put it in the context of the sixth amendment ride in you know recognized that it was dealing with the federal right as well i mean i don't know i mean i guess m point would be back question would be a big deal so if your honor the big deal is that as the six circuit panel in the recent case of jones v bell recognized the timeliness issue under fred a martinez can be decided either under federal constitutional law or under a state procedure or rule states are free to set procedural rules on the tim of both yes your honor or both but here again your honor is correct that there are citations to federal constitutional law but if we look at the opinion those citations are there to establish that the right to suffer representation exists and that right  from federal constitutional law but then when you look at why it was untimely the citations are to state law and entirely to the moments when either before trial or on the of trial when it is untimely and as the sixth circuit bonk said in hill the only hard and fast rule that this court has said in time this in freddo was that several weeks before trial the a request must be must be heard or entertained for at a hearing must follow but the supreme court as a matter of federal constitutional law has never said that there is a procedural bar so an opinion that seems to suggest there is a procedural bar would be rooted in state procedural law the upshot of that your honor hopefully to fully answer your question is that this is now a decision that does not reach the merits of mr walters claim even though there may be a presumption on the merits looking at the opinion there simply we do not believe there is any evidence or it certainly anything beyond very weak evidence that it was decided on the merits the analysis itself on the timing this is fairfield concerned with the proposition that mr walters right to represent himself was not unlimited and depended on timing of his whether the standard review but i don't see how you jump from that to say this was a can this was a case based on a state procedural rule i mean the case itself doesn't really side in the state procedural rule it in terms of your honor you are again you are correct that there is some citation to federal constitutional law that is absolutely there's a citation at the beginning and also state case the decided off is talking about federal constitutional law and relying on federal law we also need to look at how the court of appeals in walter is interpreted in those cases and when we look at the explanations there and for two of those cases the parents radicals is entirely about the date before trial as making the case or making the request timely three days before trial is untimely on the eve of trial is  federal constitutional law because the night the court of appeals nor the trial judge conducts anything like the martinez balancing test where the trial judge should balance the interests of the criminal defendant today asking this court to hold that there must be an express finding on the record but there must be either on the record from the judge or evident on the face of the record itself that balancing occurs that the interests of the criminal defendant are outweighed by the interests of an efficient trial so for example your honor we can certainly concede that a request for self representation right before jury instructions come in and the jury's going to deliberate the trial judge  ot make any finding on the or may not make any finding on the record there the idea of disruption or delay is self evident here there is not mr walter is ready to proceed there is standby counsel there that is who are ready to serve as standby counsel there's simply no evidence of delay the only delay that occurs is on pages ten twelve and ten eighteen where we have the trial judge continually obstructing mr walters attempt to find out what are his constitutional rights here the judge is saying you cannot represent yourself the only issue here is whether or not you are being adequately represented rather than  the judge himself or on the record that there would have been undue delay or disruption and i think your original question about fred and martinez even if there is not an explicit demand on trial judges we do have record we know that we were in the third or fourth day of trial we know at least the trial judge would have known that it is inherently disruptive to have approached the defendant especially one charged with a finances that were as serious as those with which mr walter was charged i mean it is just possible that this trial perhaps likely that this trial judge was not only concerned about disruption but he was concerned about the harm to mr walter and i think that can be fairly inferred from the record given the point in trial which we were given the just given the overall circumstances your honor we believe looking at the record specifically from ten twelve to ten eighteen where the trial judge is repea mr alter he cannot ask questions he cannot represent himself indicates that the judge that was not none of what your honor has just said was on the judge's mind well at that point you can't allow a that is indeed disruptive to have two different people questioning witnesses one of whom is not a lawyer or your honor and if we were to take that i would worry that that would go too far and then any request for it to represent yourself after the start of trial would automatically be denied and this circuit's own precedent with more of a havilland would suggest that cannot be true all right thank you very much  please the court my name is marion reese and i represent the warden in this section i'd like to first of all address the saw for a prison to claim in two points the court brought out and one is in the hill v curtain this court said quote a trial judge may fear lee infer on the day of trial as the jurors are on their way to the courtroom that the defendant's last minute decision to represent himself would cause delay whether or not the defendant asks for a continuance so this court has already recognized the kind of questions that were asked here earlier secondly with regard to the harrington issue harrington says this and this court said it in jacksonville smith seven forty five the third to a six  when the federal claim was presented to the state court and in the absence of any indication or state law a procedural principle to the contrary so what happens but i think your opposing counsel draws a reasonable concern to the table what happens when you have someone in the midst of a trial and it becomes apparent to that defendant that the attorney representing him or her is absolutely blowing the case that there is a serious malfunction of justice because of that person's attorney is it your position that because it is in the midst of trial that the defendant is never never has the right or opportunity to step forward and say i can't be represented by this person i want to represent myself from now on your scase and we look to united states supreme court precedence there has never been a united states supreme court precedent that says that when a request is made on the third or fourth day of trial or indeed anything other than quote weeks before trial that a sixth amendment right is denied and so in light of that under kerry v muscle laden the this court cannot find the oak court of appeals decision on reasonable and in addition the trial judge addressed that issue he said to the two offended i think you're getting good representation here you do not have the right to control what questions are asked and some of the things the defendant was asking were for two people to stand up in front of young witness tray and for defendant however it was the attorneys a role to make that decision make that call and see how that was going to happen and i guess i guess under that analysis if the attorney absolutely failed to do the job  and we have a kind of ineffective assistance afterwards and that's the remedy and that's that would be our position you're ours that never spoken about circumstances during trial in which my or might not be we know timely this is a basis xander stand if there's no supreme court precedent addressing the issue of when what point during trial might it be timely or  timely to allow a defendant to exercise the right of self representation and i mean i would assume that it would vary depending on the nature of the bidding upon the defendant in question and the trial court knowledge of that defendant is observed throughout the procedure made astley may depend on a lot of different things and i know an ohio reviews these cases for an abuse of discretion and federal federal law and even the score to contrary to or an unreasonable application of supreme court precedent i would beat my sladen and the district court so found and we would ask the court to affirm the district court  is limited to arguing in federal he'd be a score what was argued in the state court and in presenting on the same legal and factual theory and that's more on the money and the first thing petitioner argued the sole basis that was was that tree saw a psychologist for a year rather than a psychiatry wrist and the ohio court of appeals rejected the insufficient evidence was sufficient in ridgway that the person saw a psychologist and in fact saw them for four months whereas in this case trey saw a psychologist one hour a week for a full year and trey's mother said tree suffered he suffered he his grades went down he was afraid to go out after or after this and so he did experience serious physical harm what do you do closely what do you implication from their language can you draw except that the child the court the child with the court said that the child was following his father and that and i believe and certainly the court said he is in proximity to the shootings casings are found outside the garage as well and in fact to the court of appeals found that the shooter was shooting from outside the garage but what with the court of appeals decision said was that trey got out of the corps after his father that he was following his father and his father went into the garage and that that's supported by the record that part is supported by the record and then when trey heard shots then he duc around the side of the house so and the district court based on that found the record is replete with evidence of severe adverse consequences on a very young child so that was one theory that petitioner argued the second theory of insufficient evidence into the same in state court under the same assignment of error was of the state failed to prove petitioner acted knowingly that state failed to prove front of his son from the man's son and that was testimony of williams so that gets to the knowingly element he knew trey was there and that was the only thing that had been argued in the court of appeals was that he thought tree not no evidence he knew trait was there there was evidence that in addition the ohio court of appeals rejected that argument because it again trey was in proximity to w deference to the trier of facts determination in a will if if when viewed in the light most favorable to the prosecution there's enough evidence to enable any reasonable trier of fact to find that petitioner acted supreme or anything close to it and no your honor i do not believe so quite quite that directly but the supreme court has also not said that a denial may rest on the fact that the defendant is being adequately represented or that the lawyer is either good or bad the right rests in the criminal defendant not in his attorney to assert that right