chief judge coleman please the court my name is rachel troutman i'd like to reserve seven minutes for a bottle please that's fine and you may proceed thank you your honor john carter's competency has been at the forefront of this case from the very beginning and the last time we were before this court was after the district court found mr carter to be incompetent mr carter was incompetent at the time of his trial and the house supreme court made an unreasonable determination of the facts in light of the evidence in the state court record when it found otherwise one important factor to remember here is that competency is fluid so mr carter had to competency hearings initially as the supreme court stated in drop however even when a defendant is competent at the commencement of trial a trial court must always be alert a change that would render the accused unable to meet the standards of competence to stand trial that's what happened here mr carter deteriorated over time and you can see his deterioration from the record it's clear to one argument is that is his conduct was still pretty clearly problematic as of this second competency hearing and a lot of the great shift or decline or spiraling down in this his behavior because so much of this existed two weeks before think well that's kind of the issue your honor is that initially in those first two competency hearings he wasn't competent the trial judge was  it we meet this standard at that point probably that the standard that's so high under the a p a that he should have been found incompetent perhaps not but beyond that when you look at the evidence that happened after that second hearing first let's you know take into consideration the information from before that hearing as mr carter was suicidal that he was so suicidal that the the prosecution refused to unshackle him either by his hands or his feet because he attempt suicide so many different times he after that so you suicidal mean you're incompetent no your honor but it is under the u s supreme court case law an indicator of competence and that is not the only thing that mr carter had indicated aware of how how extreme his suicidal ideation and his attempts were and the record evidence demonstrating that even the prosecutor this isn't just the defense counsel bringing it to the attention to the court it's the deputy and the prosecution that refused to on shackle him because of the danger to both mr carter and to his counsel so that's partly homicidal as of his disorder sidle yes your honor that is another in dangerous because the issue about what happens at trial as i take it i take it the big thing there is when he attacks the judge but my question there is when i read the record as you know outrageous as that was it seemed to be quite purposive that is if you read it the judge says i want you to sit down and be quiet and you don't have to do anything but and he says to the judge effectively so if i act out then i don't have to go back in the courtroom the judge says yes and so he acts up which seems you know it's not nice it's not pleasant but it seems quite purposive in a way that suggests competency right he tells him if you do x you'll get why he says i want y and so he does whether that suggest competency i i were at least doesn't suggest incompetency or irrationality right we might not want to do it it might seem to be a bad practice hallucinatory it is not bizarre in that sense is that what we're member of the standard your honor is that he had to have the sufficient president present ability to consult with his lawyer with a reasonable degree of rational understanding so it is not just whether he seem like he had a mental disorder but when you look at the record especially during that proceeding you'll see that the judges repeatedly and struck to him like we will look into your desire to not be present in the courtroom just sit here for this few days the few minutes of testimony for the state witnesses and he said i don't want to and they go back and forth and it's like a child i don't want to i don't want to and his attorney is instructing him just stay here and we will get you where you need to be they ask him repeatedly if you understands yes and then he goes back to i don't want to but what am i right that he says like if i act up in or something like get restricted and then they won't take me over there yes your honor you are absolutely right but that alone that's an irrational action it is irrational for  defendant who is is standing in front of the judge who's going to decide whether he lives or dies to attack him that is that is an irrational behavior and that is not the only thing his desire to be absent from trial is an irrational behavior that th supreme court has recognized as an irrational behavior indicative incompetence but in addition to that he after that we saw that he had the inability to control his behavior in order to come back into the call of the court room on march eighteenth the court started session with defense counsel telling the court that mr carter didn't want to return and this is a quote from tribal council after talking to some of the deputies he's having a hard time controlling himself in the jury room and it would be best for him to remain there mr carter was alone in the jury  and he couldn't control his own behavior and have to be brought back into the courtroom on march nineteenth attorney consolidating brought had to bring sean a candy bar in order to get him to even agree to sit with him and he still couldn't promise that he would be able to control himself to come back into the courtroom on march twentieth court started with defense counsel telling the court that sean wants to come in for the last day that he wants to be unshackled but even the deputies recognize that he could not control his own behavior suicidal or homicidal and they would not  unshackle him even by his feet they asked defense counsel to waive the right to be protected from their own client and defense counsel wouldn't do it despite knowing that it would be better for their client to be seated in the courtroom when the jury was going to decide whether he lives or dies th wouldn't wait they didn't trust their own client enough that he wouldn't attack them in the middle of the court proceedings the prosecutor told the court quote his behavior has been very impulsive and he has acted up we've heard him people have complained that he's hollered in the back and this is in volume nine of the appendix page thirty one fifty six and again this is when he is a lone back in the pettit jury room with just the deputies guarding him he can't even control his own behavior to the point that the people in the courthouse are hearing him he wanted to kill his own attorney so that they couldn't risk on tackling him things in the jury room did you do things in the jury room owners that would use a good control themselves even in the jury what we know is what just what the record reveals which is what trial counsel was telling the court was simply that they couldn't things in the jury room the yelling and screaming is the only thing that we can tell from the record is what he did his behavior before the second competency hearing also supports a finding especially when the court had had his behavior from before the second competency hearing adding to the two deterioration afterwards it's unreasonable that anybody could not be found that he would have required at least a third competency hearing the again the court denied even though his counsel asked for the prosecution the deputy in the court denied mr carter the ability to be unshackled because of his extreme the attempt on to kill himself and then in a suppression hearing again the defense counsel asked for mr carter to be uncuffed and the deputy wouldn't even allow him to and even be loosened in order for him to be able to reach the table mr carter had a family history of schizophrenia and though i recognize the court can consider it that is his diagnosis today and he the court and that the experts knew that mr carter was hallucinating and had heard voices even as a juvenile he reported things such as the fact that he was seeing flies or mosquitoes in his cell that a cat was running across the floor and he saw snow falling and rain falling and his cell and he reported hearing the devil's voice it was reported to the experts yes around and then again back to evidence that beyond that second competency hearing once the court started once a year started in the middle of why dear mr carter interrupts proceedings in the middle of his own defense attorneys question to yell out i'm missing my lunch that is a bizarre behavior that's  irrational behavior that he couldn't even make it through opening statements and he again and drops his own defense counsel in front of the jury to say excuse me what i have to go through this trial can i just plead guilty to it and i think one thing that's important is that we should look at the fact that the trial court never accepted his guilty plea and if mr carter was competent enough to withstand these competency here to to stand trial then why wasn't he competent enough to plead guilty when you say he would never accept his guilty plea i mean did he do anything other than what you just indicated they filed a motion mr carter did not file any motions on his own he repeated multiple times to the court i want to plead guilty i want to plead guilty i want to plead guilty and he had indicated to the experts that he wanted to plead guilty because he wanted to die and that his desire to die again is an indicator if it's irrational behavior and cases that that hold that  obviously from the point of view of the defense attorney and the point of view of the court and most people you know wanting to plead guilty in a death case wanting to get the death penalty would seem irrational but other cases that hold that the that indicator of his incompetence but importantly what the court says in papers robertson is that these cases they necessitate a detailed discussion of the conduct at trial and the evidence touching upon the question of the competence so it is an indicator but the cater but not definitive right and addition to that is drop versus missouri i think we had the same situation in drovers as missouri where the the not only was the the petitioners suicide attempts evidence that the court considered for incompetence but also the fact that he wanted to be absent from trial that is irrational behavior for a defendant was cases in which experts said the person is one of the two cases your honor i believe it was definitely and again if it would have stopped there then then that would be our case would not be as strong however after that second competency hearing is when all of these irrational behaviors ramped up again you could see the deterioration so initially you had these suicide attempts and these are undisputed nobody this isn't a fact that that the you know the warden is disputing that mr carter had actual suicide attempts and the the state brought it out during the trial that mr carter didn't want to be at his trial the indicators that the experts knew yes but beyond that his irrational behavior in the courtroom lunging at his trial judge bursting out in the middle of what deer bursting out in the middle of closing arguments the fact that he couldn't control himself back in the so that's what this court has to do as is look at all of that evidence that is in the record in front of that and it was in the record in front of the you house supreme court and when you look at it and together there is no reasonable argument that the house supreme court gave proper weight to that undisputed and again it's undisputed evidence that's in the record the real times and you said gave proper weight is that you know a lot of times in different areas of the law we talk about they gave you and you wait or something but isn't obviously this court has to determine whether the supreme court unreasonably determine the facts in light of that in light of the evidence that was in the state court record and reasonable as opposed to gave undue you were improper weight i'm saying aren't those rather different standards well the case law that they could the supreme court was applying that was in paper says robinson that is one of the holdings as well as the trial court has to give proper weight that's one of the cases that the highest court was supposed to apply in analyzing the evidence that was before it and when you look at the record evidence it's clear that the the trial court and the ohio supreme court did not give proper weight they didn't even cite those as factors in their determination and their analysis of whether he was competent trial and the how supreme court in its opinion they specifically said quote the only indications in the record that raised a question of competence to stand trial one some evidence indicates he attempted suicide while waiting trial two he was unwilling to attend court hearings and three there were sometimes apparent disagreements with counsel they didn't cite it as well before ed put right it's not an advocate correct your honor this was observable behavior by shawn carter observable behavior that the trial court saw and that the house supreme court could read in the record and applying the case law it should have known that these were indicators of incompetence but beyond  smoothly after that but that is not obviously the remedy for a person who is incompetent to stand trial and it is a remedy for that and that is the remedy that was imposed it was not intended as a remedy for disruption but you can have disruption and become absolutely your characterization though to say that that was a remedy for incompetence it was intended  disruption yes your honor mr mr carter was disrupting the proceedings but the reason he was disrupting the proceedings were because of his incompetence and there's also two expert witnesses that say not  that point your honor before this behavior deteriorated yes they said that if there were two out of the three witnesses said that he was competent to stand trial how do we know i guess this gets to the cross how do we know it's deterioration rather than continuation well we don't happened afterwards but if the if the state courts reasoning if they reasonably thought that this was a continuation of what had previously been evaluated that would be reasonable and has to be unreasonable for them to think that this is continuation rather than deterioration they would have to have considered it your honor in order to come to that conclusion and if we apply i mean you're basically saying that when these things happened they should have they should have inquired further what i'm saying is that these are indicators of incompetence right but if the if comparable indicators had not been sufficient to show experts that he was incompetent then you it would be hard to say that  the judge was required continually to ask the same question of the experts right i mean so there's a difference between continuation of these red flags and  escalation yes yes your honor i can see your argument if it's one i have a trouble seeing your argument it's the other if are for me to see your how your argument even holds together if it's just the same symptoms the same red flags are the same indicators whatever you trial court's findings in in y it to determined that mr carter was competent and the court determined that that mr carter was capable of acting in a rational manner and assisting in his own defense if he wishes to the the ohio trial court at what stage what are you citing from this is the second after the seven second hearing yes after the second hearing so let me just ask you one thing to be clear a couple of time you said they didn't consider this is the they they are the trial judge at trial or that at some point you seem to say well the ohio supreme court didn't write a nuffin its opinion are you saying that are you talking about the trial judge this court's review is  supreme court's opinion and in the house supreme court's opinion so they are referring to are the justices ok with it as i guess their review of the ad and of course there's a lot of law that they don't have to cite everything and write everything down if they're  result is not unreasonable correct that is true your honor however in wilson versus sellars the supreme court has stated that you know you can take what the court says as reasoning for its opinion and assume those are the court the reasons for the court's opinion we don't have to read further and assume that it's addressed all the other issues and determine otherwise but the trial court's findings at that point after the second hearing they determine that mr carter was capable of acting in a rational manner and assisting in his own defense if he wishes to supreme court in noting that that was the trial court's opinion at that point and the second at the after the second hearing at that point mr carter's behavior indicated that he was not able to act in have supreme court failed to do that it's as if if we started after that that second competency hearing and we only examine those facts going forward those indications that mr carter should have at the least had a third competency hearing because he was not behaving in a rational manner and in a manner that he was assisting his counsel maybe this leads into your second argument that they were ineffective and not presenting conviction record that anthony consult consul dane said that the only way you get mr carter to basically allow them in the room was to bribe him with the candy bar and that it was his opinion that this is his client was not working with him would  him and he was not rationally capable of doing so and that it was a product of mental illness the attorneys were the ones who were dealing with him up front and they were the ones who could have alerted the trial court further to that deterioration was they were alerting the court in order to basically make sure the record was clear that mr carter his removal from the courthouse from the courtroom was because of his behavior not because there was any violation of his constitutional rights every day they would check in with him and then on the record the trial court would have they would tell the trial court no he still doesn't want to be here and in doing that they would inevitably say he can't control himself still he can't behave himself in here so they were making a little bit of a record without meaning to however they could have they knew better than they were the ones who had eyes on mr carter they were the ones who could hear him and see him interact with the others and they had a duty to their client to bring it forward your honour's at this point i see th carter's hallucinations and reports of hallucinations were no lingering and so he was operating from the standpoint that mr carter was trying to avoid death by faking crazy something that an expert absolutely but it would be irrational for a person who wants to be executed as he's trying to die and he's telling everybody else he wants to die to then fake crazy in order to avoid dying so that it would if they would this one did not and similarly i dr palumbo didn't have all of the information and a lot of that information didn't come to light until afterwards mr carter was not cooperative he wasn't he didn't even with his own mitigation psychologist he wasn't participating so even though he participated difference between yes i'm sorry explain the difference between us so rose going skiing didn't have more information than al korn for example no your honor mr king creditor dumped had access to palumbo absolutely yes they all had access to the same information dr wright that king ends up saying well yes he's incompetent but it's a very close call it's close call that language in particular is with regard to the mental illness whether he was slipping into an access one mental disorder when you look at that testimony it was not he was unequivocal when he talked about mr carter was unable to rationally assist his counsel so the close call language is not with regard to whether he could rationally assist his counsel which is required in order for him to be tried if the support of your full rebuttal thank  determined that the state courts did not unreasonably determine that carter was competent to stand for trial or when they apply the standards of strickland to determine that his counsel had not rendered ineffective assistance now before i turn to the claims that have be n certified for this court's review i'd like to spend a minute just framing where we are here in the in the framework and each of the claims has been presented to the state courts for adjudication on the merits and so this is an issue that was briefly united states supreme court discussed the three claims as well as looking at the ohio supreme court and the ohio court of appeals decisions on each of the three claims and second just as a quick corollary to that point because we're reviewing these claims under twenty two fifty four d the courts review is limited to the record that was before the state court under pinhole suranne so some of the records that my colleague cited at least in the briefs are not to be considered by this court  and so turning to each of the claims and recognizing that much of this previous argument was focused on the first issue about whether the trial court reasonably determined that carter was competent to stand trial as well as the ohio courts supreme courts affirming that opinion it was a reasonable determination to find that he was competent to stand for trial and the claim that's presented to this i think it's fairly divided into two separate subplots so first is the question of whether the actual determination following the two competency hearings whether that was a reasonable determination and second is the question about whether the trial court should have held a begin with that and i would point the court for this entire claim to the case of franklin versus bradshaw where very similar claims were raised by the petitioner there and what the court said on the sue a spontaneous argument is that reports as well as what was testified to at the two competency hearings and as well as what the trial court was able to observe i think that any argument that there was additional bizarre behavior becomes it falls away we're guarding his his activity which the trial court characterizes lunging at the court i think that's probably one of the stronger pieces of evidence that they rely on but i think when you look at what occurred in the record and if you turn to that in chambers colloquy as as the court was sort of referring to earlier it comes across as if carter is deliberately choosing not to be there he says over and over i don't want to be here i don't want to be here i don't want to be here and then he asks the court if i act do i have to be here and it's showing a clear thought process and a rational decision making to to remove himself from the courtroom and that sort of behavior that he doesn't want to participate in the trial is also wreckage is reflected in what the experts had said that he was a difficult client that he was an uncooperative client and as the as the district court as well as the state courts recognized a difficult client is a is a far cry from a client who is unable to assist in his own defense or anything in the record about why he didn't want to be in the courtroom there were a couple of theories i believe it was in polumbo report where when carter says that he doesn't want to be at the trial and specifically why he may be seeking the penalty the death penalty he seems to him seems to read that as a desire not to face the family due to the heinous actions of his under of the underlying crime and that's how at least one of the experts characterizes it and so again because the experts had that information because the experts had that in their reports as well as in their testimony before the court this  all information that was before the trial court one other factor that my colleague brought up is the the idea that attorney consol dean had to bribe carter with candy bars to get him to participate well again the fact that he supposedly would participate after receiving the candy bar shows that he was intentionally choosing not to cooperate but that under circumstances under certain certain circumstances he might be able to and so it again reflects a rational thought process not an inability to participate in his defense and so the final point though that i would make related to whether the trial court help held a third competency hearing is that under the sander the court needs to look at whether it was a reasonable decision not to i think there would likely be some question as to whether a holding a hearing is a do you want to question i think here it's probably a d two question because we're looking at what facts were for the trial court that might have required to help hold an additional hearing and i would point the court to another case that was cited in the briefs and that's cowan's versus bagley where the court said and i quote here when virtually everything is potentially relevant and nothing is dispositive reasonable minds occasionally may come to different conclusions about whether to hold  competency hearing and when so here when the question is whether the state courts reasonably or on reasonably looked at the facts and decided to hold or not to hold an additional competency hearing this quotation indicates that well there's a lot of factors that may or may not play into a trial court's decision and here as i've suggested where the the trial court held to competency hearings heard from three separate expert witnesses heard from two of those witnesses that there was no question that carter was competent to stand trial and heard from the third witness that the that any psychosis or any mental issue was so subtle as to be a close call the trial court was well within its province to determine at both competency hearing that he was competent to stand trial and when observing cars behavior following the second competency hearing up to and including the last day of trial in the medication phase that nothing new that part that nothing that carter did was new behavior or bizarre behavior outside of the determination that the trial court had already made and so  if the court has any further questions about the competency issue i would i would move on to the questions about the ineffective assistance of counsel and i think on both of the news claims the state courts reasonably determined that his counsel had not rendered ineffective assistance and again set forth where we are in the at the framework the strickland analysis is a question under twenty two fifty four d one and  proceeding such as this this court's review is doubly deferential so that the ultimate question is whether the state courts application of the standard was objective and reasonable and looking at what counsel did first during the competency phase they investigated his history they had a significant number of records that were provided to dr king and they presented an expert this expert stood up and told the court about carter's upbringing about his history they they referenced his dr king reference carter's mental issues and so all of the evidence that the court needed was present in king's report and of course as well as in the state's experts be helpful or necessary during the competency phase and that's when it came up during the during the competency hearings the court had offered funding and the court and his attorney decided that it wouldn't be this is hypothesizing of course but perhaps he was concerned that the m r i would reveal something that didn't that he didn't want provided to the court if there was an organic brain damage perhaps that would undermine how would no organic brain damage hurt his case perhaps when it came somewhere in the breeze and did i found it puzzling short well i think the argument would be that  defense theory would be that it shows that the symptoms and so on are not faking or milling around you can't you can't fake the m r i presumably they want the m r i or they might want the m i to show that but if it didn't wouldn't it undermine that not need i mean it's neither confirmatory nor fatal but you know sometimes you don't want to ask a question when you don't know the answer and i think that's ultimately if there's if there was a strategic decision behind it it would be that they didn't want to poke a sleep maybe you can help me along that i mean if it's if it's neutral you know if it's not like there was strategy so i think attitude of avoiding something that might help the other side isn't much of a strategy if the thing that you don't want doesn't help the other side but i think when you look at what their what they were trying to show incompetency as well as what i expect at the time they were trying to show in mitigation was that he did have some mental issues and i think that's there's no dispute that there was some mental some mental issues in his history in his past  where the m r i could hurt that is if it definitively showed that there was nothing harmful in his in his organic in the m r i then that could be used by the other side undermine its competency in mitigation case so whether it was a good or effective strategy i'm not pining on but it was apparently a strategy that his counsel chose because there was you know there's during in the record there is a discussion between the court the expert witness dr king and the attorney as to whether it would be necessary for the competency and the counsel declined that at the time  any mental issues were likely because of physical issues and i think the other side the prosecution would likely want to suggest that well if there is nothing physical there certainly nothing mental i think would be the argument  but what i would want to suggest is that counsel had a mitigation strategy developing from the beginning of the trial it hired a mitigation expert early on in the process and so it was it was certainly thinking about mitigation at least early on in the trial and again i would it may not have been an effective strategy but it was certainly the strategy that the counsel was pursuing but aside from that turning back to what coun did during the competency hearing he presented his own expert and this expert was able to show his history in his background in his in his mental issues and while this expert testified that carter may have been incompetent 's no psychosis or competent i don't know if it's i don't think it's a direct correlation i think a psychosis can create incompetency but i don't know if the converse is true i don't think that witnesses it determined that there was no competency to begin with and in addition at at the competency hearing the trial counsel conducted a very adequate cross examination of the state's expert witnesses and in doing so they brought out carter's uncooperative miss with his attorneys and when we're looking at the competency test under drove up he really hangs his hat on the side that  he was able to cooperate and so in cross examining the state's expert witnesses they they did an effective job in demonstrating his lack of cooperation now of course as the district court in the state courts recognized the lack of cooperation is not the same thing as the inability to cooperation or to cooperate but his counsel did what they needed to do and did their duty to present this information to the court and so there was simply no deficient performance when it comes to the strickland test one point i do want to address is that carter argues several times in his brief and it came up in my colleague's time up here that there was what they frame as a dissent or  a mental psychosis and i do they can't point to anything in the record that shows that beyond what they have characterized as bizarre behavior there was actually any mental issues that were developing during this  time and so without providing any record citation to this point the court has no basis on which to find that there was an unreasonable determination of the facts or an unreasonable application of the law by the state courts and to support that counsel his attorney reported back to the trial court several times throughout the trial while carter was in a separate room and each time he came in he suggested that there might have been hesitancy to participate that he wanted to come back in but he wanted to be unshackled but he never suggested that there was any  significant mental issue that was that was limiting his ability to cooperate rather than carter's continuing to not be cooperative as he had been throughout the process and so for all these  reasons there was no a reasonable determination that his counsel had rendered ineffective assistance during the competency hearing and next i'll turn to the question of whether they rendered ineffective assistance during the mitigation phase and just to treat this briefly there the council again did their duty and did what they needed to do to show carter's background and history to the jury they effectively prepared a mitigation case and they effectively presented that case to the jury they hired an independent psychologist who had treated him while he was a child and they hired a mitigation specialist who was able to reflect similar themes to the jury they presented a substantial amount of evidence and each of those witnesses had significant record material on which to rely and so on like many of the cases where defense counsel renders ineffective assistance during a mitigation case by not conducting investigation through the council did conduct an investigation and did present substantial evidence to the jury and for this reason i think it's unfair to characterize it as simply  mercy and what was presented to the jury was a pretty standard mitigation case in a capital case and that was that his history and his background had then he had trouble growing up he came from a difficult home he had a difficult fostering process a difficult adoption process his mother some extended family certainly had schizophrenia he had he had an emotional afaik that was  flat he had never and as the mitigation expert sanjay mcpherson said he had never learned the boundaries of acceptable behavior and he did not have a normal capacity to think or to feel and while these are unfortunate and sad circumstances they were the facts that were presented to the jury and so it was not simply a plea for mercy which as they correctly say is not a viable strategy under ohio law it was in fact a plea for a defendant's life based on the circumstances in which he found himself and finally i think i would say that it's simply incorrect to say that his and this is from the brief that it was ineffective assistance to present his anti social personality to the jury as a mitigation evidence and i think that would be under this court's precedent anti social personality disorder is not a categorical type of evidence that i that necessarily hurts or necessarily helps the defendant and that's because under ohio law it's recognized as a permissible mitigate other mitigating factor under the statutory mitigating factors and this court has actually recognized in another case that failure to present it when it when anti social personality is on the record can be ineffective assistance that is from a case this wasn't cited in the briefs but the a verse is sheldon in the citation is seven sixty five f third six fifteen and as for the second factor that i just recited that failure to present it can be ineffective assistance aspires ascites another case called william v anderson and that's were that were also a sixer case that's where that information comes from and so taking all of this into consideration the district court was right so hold that there was no ineffective assistance or that the s as far as whether anti social personality disorder is per se ineffective assistance of counsel we've cited lots of cases in our brief but that doesn't even necessarily have to be the issue here she what dr macpherson said to the jury was that mr carter was a quote psychopathic character who was unable to understand pain and doesn't have the ability to know what other people are thinking nor does he care there is no amount of mitigation that can bring somebody back from that and the idea that getting somebody tested for organic brain damage in order to not rule out a mental disorder is it is an unreasonable argument because that is not how you test for mental disorder he could have shown that he had zero organic brain damage and he could still be schizo frantic as he is now one thing i'd like to point out to this court with regard to that organic brain damage argument is that yes we  have raised these issues below yes the state court ruled on carter's claim that the trial counsel were ineffective for failing to get that m r i but what's important is the trial court nor the court of appeals they never granted the funding to actually get that testing and they thought they had no ability they said they had no they didn't have the authority to do so so that factor puts this case in a brownfield versus cain kind of scenario and are you saying that but they did not have funding for an r o psych evaluation or the m r i evaluation and they asked would have given the funding for it but the post conviction court would not do that for act and then the court of appeals court also didn't so without ever granting him the funding they denied the claim on the merits and that is why this claim in particular puts it in a brumfield vs kane kind of scenario where it was an unreasonable determination of the facts because they never gave him the funding in order to actually have that testing conducted and that's why we've asked this court to remand the case on that claim the ineffective assistance of mitigation counsel or remanded back to the district court so that the court will actually consider the m r i and the nurse like  that was done that shows that he does in fact have organic brain damage when was an m r i done in federal district court your honor the district court wouldn't consider it because of penn holster came out many years after the trial i believe the testing was done in two thousand and six your honor which was six years yes roughly six or seven years but he had had no head injuries and between the time of trial and the time of the testing so we can assume that the brain was  the same so the idea that the m r i wouldn't have been helpful in light of the mitigation strategy that they didn't pursue it's and i'm reasonable argument and this court should remand back down to the district court to consider that evidence of the m r i because he should have been granted the funding for that m r i to begin with moving it to the just two addresses that feel that that would not be that he should be should have been granted it up the post conviction then that's not an ineffective assistance claim that's unreasonable determination on state hey b s is that the way you would couch it no your honor it was it was ineffective assistance of trial counsel for failing to have an m r i done then impose conviction counsel raise that argument so the claim is exhausted they asked for the funding in order to get the testing done to show that prejudice is the state's the nihil of that an independent ground of attack and if so would you characterize it we have addressed this issue in our brief your honor let me just briefly see if essentially that the issue comes down to a twenty two fifty four d t question and whether the trial court's denial or i'm sorry the the state court denial of that claim is an unreasonable denial on the on the facts that were before it because essentially they didn't have the understand if you're saying it goes to prejudice them have a trouble seeing how it goes to whether it was a reasonable determination that is what the u s supreme court said in brumfield versus cain that the the issue there was an atkins claim and the attorneys were not given the funding in state court in order to to hire the atkins experts and then the court denied it on the merits of a postcondition hearing and so the u s supreme court and bromfield said that it was unreasonable for them to deny this adkins claim on the basis that he couldn't meet his burden when they never gave in the hearing or the funding in order to meet that claim to begin with but my opponent points to some of the evidence in the records and to indicate that mr carter was in fact acting rationally at times the idea that he acted up in court in front of the judge the person who was going to determine whether he would live or die and then also that he was able to be bribed with candy bars those are in fact irrational behaviors but even if we put them on the side of that is something that is a rate that is not an irrational behavior that doesn't all of the evidence and the record does not have to be that he was incompetent the evidence in front of this court in front of the state court could have been that it was mixed that there was evidence in favor of finding him competent but there was more evidence in the record demonstrating that mr carter was incompetent that the state courts never even considered when you said the state courts never even considered you mean they didn't put it in their opinion meaning it well yes  honor they didn't cite it in their opinion and we can assume under wilson vs sellers that what they said were those three factors that they determined competence by that that's what they meant but also as the district court pointed out that the trial the supreme court never really addressed anything beyond the second competency hearing never addressed the fact that he lunged at the judge that he was not able to control his behavior to come back into court that he had such a time of homicidal ideation that they couldn't shackle his feet that he couldn't control his behavior in the jury room they didn't address all of those things and considering whether shankar was in fact incompetent and ask about broomfield the killing of my right as it's given in your brief the that was an atkins claim raised be right i don't know but for analysis of the next question that that was all right to do ok for the trial worry with the rest of the argument and i know your honor because the allegation was that it was ineffective assistance for trial counsel to do it with t fail to get that m r i testing and so in order to meet that claim post conviction counsel for an indigent client asked the court for funding for that testing and the court denied funding and then denied the claim it's not unreasonable to request before the trial court then the post and diction failure to get it was also not a problem was also not a violation the question to determine whether it was correct not to do it you have to have the evidence in order to make that determination and they never got the evidence is my point the trial court was going to allow them to do that m r i testing there was no harm for them to do that m r i testing the requested the m r i testing and the only reason they didn't do it was because it wasn't relevant to competency but it would have been relevant to mitigation and there was no reason for them to forego that testing so the claim was ineffective assistance of counsel trial counsel for failing to take advantage of that m r i testing and determine whether shankar had bring to my question is that what happened but contrary to your argument if you assume that what happened before the trial court was not constitutionally problematic then the denial of the m r i at the post conviction would also not be problematic that would be true i think we're talking in circles if the and i think that's my fault  if my my point is if the m r i results were to show that mr carter had organic brain damage that would have been presented in mitigation and it would have been way more mitigating than calling him a psychopath so if trial counsel failed to do that when they could have done that then that was deficient performance on their part that is the claim that was raised in the post can be that circular in terms of you may disagree with this but assuming  asking for the m r i to come out good might come out bad and that's why they didn't ask for it the fact that ultimately it came out good which they could know wouldn't affect it wouldn't affect the logic of that now you say it was so irrational not to ask for it that they lose period but i don't see how you can depend on the outcome afterwards the outcome is merely the prejudice th apologies for not making that's only prejudice then i guess your understanding ok thank you your honors the case and you've done a tremendous service to mr carter to our criminal justice system at large and certainly appreciate your advocacy today through us certainly appreciate your advocacy on behalf of the state case from my perspective very well argued today and we appreciate it but th