good morning may please the court alice luster on behalf of the warden with the court's permission i would like to reserve five minutes of my time for a bottle i will think your honor the question before this court is whether or not a retrospective hearing on petitioners competence is feasible in answering this question in the oval case this court looked to the existence of expert witnesses who testified at trial as well as experts who had subsequently examined the petitioner and submitted declarations regarding his competence moreover medical records psychiatric reports and jail records that had been submitted at trial the court found that they were still available new evidence could be more detailed is there new evidence in this case we don't know your honor ok you didn't make a record that there was any new evidence no your honor ok because we were we were asked by the district court and we think in this case however indications are from the records that were presented at trial and that have subsequently been presented in support of this hearing that there might very well be additional evidence for example the report of dr courts found at trial he made what the district court criticised as a basically a one sentence statement that taylor was competent and the court criticised it because he was not asked to determine competence and that one sentence was not sufficient to support a finding that there was evidence to make such a determination however we would submit that in a hearing on remain and that dr hertz fung it seems highly unlikely would have made a statement of competence if he did not have records and document talked about in a hearing  falling so i cannot say specifically however i would have his records i'm confused about this because it seemed that you were criticizing the district court for cutting off your opportunity to present such evidence of witness availability to testify but if you didn't try to find out if they could testify and offer anything then how can you criticize the court for not letting you submit evidence you don't have we got as our position that the evidence needs to be submitted to the state court in an actual here's your question about that guess why why wouldn't the competency hearing be in front of the district court this is a pretty had put case if the district court would be entitled to take evidence we've got some previous case law where the district court actually held a competency hearing why would it have to go back to state court the under certainly there are cases where this court and district court in other jurisdictions have held the hearings themselves but i think under a little and another more recent case that i discovered this weekend that neither party side of the stanley case from two thousand and eleven that this court has in fact it seems to be moving more towards sending them back to the state courts which even prior to the supreme court and it is there a threshold question of whether the competency hearing is feasible and aren't there are several cases in which the supreme court or our court has made that determination not ask the state court to make that threshold determination that's currently under the district courts have and this court has upheld decisions by the district courts determining whether it's feasible however the we submit that the feasibility determination is best made by the court who will be doing the hearing we're talking about this practice is what i wanted to know the question whether there was a process terms of the types of evidence that appears to be available and yet found that it was not feasible for the two reasons stated in the order are that there were the elapsed which evaluates this defendant for purposes of a mitigation defense and says in one sentence he appears to understand the nature of the proceedings against him district court says there's no the district judge looked at the age of the case and looked at the contemporaneous evidence which was to say the report of dr h and the reports of the two testifying witnesses was there any other contemporaneous evidence that the there any other contemporaneous evidence before the district judge that he ignored in terms of an assessment no your honor because the district judge looked at the factors we've identified court and why why why is that when the judge looks at facts and weighs them and reaches a conclusion why isn't your review for abuse of discretion do you have any ninth circuit case that says under this circumstance we reviewed it over you know you got other than just the general review on hey b s is denote a review of a district court's decision and was a trooper yet but when the judge made factual determinations your honor he did not take these the court factors into account correctly because he appears to require that there have been a contemporaneous medical record fully evaluating petitioners competency and that is not required  because there's not but i believe it's that the excerpts of record page thirteen year on are where they it in addition to noting the time he said quote no contemporaneous medical records fully evaluating petitioner's competency it was a vast specifically referenced that i'm sorry if you say that was required he did not specifically that that was required but that was the that was that factor in addition to the time with the two factors that he referenced but it's not a factor that he's entitled to take into account for example had there been a contemporaneous record fully evaluating of this defendant's competency that would have weighed heavily on your side of the scale now you don't have one t determination finding that he was competent it'll have all of these witnesses who are submitting declarations at the time that it was being considered whether there could be a competency hearing so there were many witnesses who seem to have had a recollection of the defendant at the time of trial you have just told us earlier that you don't have any idea whether you have any such witnesses here but we know at least your honor from what we did present in court that there is every indication that several significant witnesses are still alive that the records but if they're all that being alive doesn't mean they have enough recollection of thirty years ago to testify in any meaningful way but they need to ask them whether they remember anything and certainly your honor if we if we had had that that might i have been right what stopped you from from submitting declarations just like they didn't owe it all it sounds like there were six or so declarations from people thing we could testify as a defendant  mature and i think to that extent another problem another prong of i think where the district court erred is ties in with that in that in this case in the petition itself in support of their petition hundred ninety six i believe declaration of a dr george woods going to his competency which shows that taylor himself is relying on retrospective assessment presumably based on all of the same things that we would look at under went back to the heller think terrance case doesn't involve making out the absence of his competency his case involved making out the question of whether there were sufficient indications before the trial judge to have a sewer sponte competency hearing so i'm not sure what this declaration that gets admitted has any real why it has any relevance to this case then the relevance it has your honor is that taylor himself is putting forth an district court's determination that is who is plan to competency hearing is required would it certainly could yes your honor how could it do you mean we would say to a district judge even though the record or trial judge in your case even though the record is clear doesn't suggest incompetency i've now got an expert from thirty years ago who thinks he wasn't and therefore you should have sue a sponsor you had a competency hearing that's what your position is no your honor our position is that the state should have the opportunity to  can say is that you put your right your side is that when the district court directed further briefing it asked it instructed the parties to brief the fuse ability citing language from a little bit if the record contains sufficient information and typically the cases that have involved this and looked at feasibility have looked at what is currently in the record commission to retire early on a related question certainly a think the most recent case that was cited as supplemental authority and does indicate and as the u s supreme court has said these are difficult cases to do i guess i'm only asking you really think you're going to get a different result if you go back to state we may very well not to because this case very much like odal has extensive medical evidence in the record from about a whole half of all those declarations so the minute from people who it was sixteen years old who said i remember it here's here's what's going on we don't have that here and your honor and if we go back to the state court and we don't have that in these witnesses come in and cannot remember the state court will presumably find him not competent or will find that it is not fact feasible once all the evidence is presented and then the district court's order granting the writ takes place what's the district court's job here on this re ospective here so you seem to be suggesting that the court should in the absence of any strong current evidence of competency of retrospective competency nonetheless sent it back for the state court to conduct that inquiry in our case you seem to suggest it's the district court's job to conduct a preliminary inquiry about whether or not a retrospective competency hearing is feasible what's your view on that what is the done then the district court's job at most is to simply review and determine if records exist the rainiest records of from the time exist and it is not contrary to least some of our cases where we say no on the court's got to look at the age of the case and the records and determine whether or not i mean you seem to be taking a position at once having found an absence of competency or i find that the judge should have held the hearing in the absence of in the absence of any real evidence or any real evidence in the record that shows that the incentives the district court's job is to send it back envision if for example it has been even just two years since a trial and it's determined that no hearing there was something that occurred that should have raised raised a doubt and that hearing should have been held but that a review of the record indicates that the defendant in that case had never ever been evaluated had never been assessed had never been tested had never been hospitalized had never prior to the trial had anyone say anything that caused them to think that he had any mental health issues in that case the district court certainly could say there are no contemporary there appear to be no contemporaneous medical records on which an assessment could be made but your view is that if there is any record then the district court abuses if it least assuming an abuse of discretion standard the distributive uses its discretion by not sending it back to the state court to make the initial determination directly in the record through testimony or through reports or indirectly in the record in which might constitute new evidence as you're asking about and in the terms of eight an expert referring to so how could it be an abuse of discretion not to i think the abuse of discretion that we think occurred here your honor is because of the voluminous nature of the records and the court the district court seeming focus on the fact that there was no competent no decide it in the district court well and you know we would not dispute that this court case law certainly allows the district court to make that we think it is better made in those in the trial court that is going to actually conduct the hearing we think that's the but i'm sorry a different question so yes as page twenty seven of taylor's brief taylor describes changes and medication that happened after dr horton surveying did his of his examination so the revenue says that taylor started taking household all anti psychotic medication and i don't know how to say these things and ikhwan an anti depressant you didn't have a response that i could see in your reply brief to that do you agree that those medication changes happened here and i have no indication they did not so if he would change his medication then how do we know that dr horton vang's evaluation was still valid and your on a that would be why we would have a hearing to let dr hertz fun and that assessment into his consideration but do you even know if dr hart's vang is competent himself at this point we don't but even if he is not your honor based experts routinely rely on records of other experts and testing of other experts all the time in making assessments and there's no reason to think that a an expert such as taylor did with dr woods later could not go back look at those records look at dr hearts funks records his notes the things that went into his assessment that taylor was competent at the time then factor in the later addition of medicine and make a determination  district court said that you needed to brief whether it would be feasible to have a hearing or what the remedy should be why didn't you submit something saying we have an expert who can reconstruct this and explain why these medications made no difference if you didn't offer any such evidence to the district court then well how is it an abuse of discretion for the district court to think that it's not possible and your honor the only thing i can say is is clearly given the district court statement in its final order and this court's concerned we may have misinterpreted what the district court was asking us for as i indicated what the district court's order on the briefing was to tell it what was in the record and be as you keep talking about voluminous records what fluid this records are there we've got you have the testimony of the two experts at trial from which the district court concluded that a reasonable question arose as to mr taylor's competency in a finding you don't challenge on appeal so the trial testimony surely doesn't establish competency and you have dr interest report whatever voluminous records are there we've got your honor we know from the record  have in front of us are dr h is reported in the trial testimony of the two experts correct except that all of the expert reports and if you look in the attachments they talk about this long list of large numbers of documents that they reviewed but we would those be hard where are they those documents they would be with the experts presumably taylor also has them i've never run across a capital case yet that did that company or for the district judge but all the district judge had in front of him was the report and to travel experts testimony right except that the i believe the testimony itself refers to what documents were reviewed doesn't mean anyone still has them or that the building didn't burn down or i mean we have no idea it's been thirty years whether those documents still exist but i think your honor in the absence of any any indication that they aren't that they don't exist we should have the opportunity to have a hearing and present and that's all the state is asking for is an opportunity to go back to the state court bring in these documents and proceed and if in fact the court is if in fact the court cannot conduct a hearing then this the district court's order takes place the writ issues and the state will have to proceed with a new trial with a current competency finding which would involve necessitate much of the same review that would be involved in a retrospective finding and i see down to my rebuttal time if the rest thank you good morning your honor scully woodruff on behalf of f l e freddy retailer i'm going to focus my argument on two somewhat distinct questions the first as i believe all of you have honed in on is whose determination who which court makes the determination of feasibility and that there is as counsel has conceded there is not a single case that anybody has located anywhere in this country that has said that the state court has to make that determination and quite frankly that's counter intuitive because if a state court made the determination it is still concerning a federal due process claim that would ultimately need to be reviewed viewed by the district court in this well he may be counter intuitive but we've we've said cases back to state court well in the past have we not i think the only case that i'm aware of that sent it back to the state court for the feasibility determination in the first place was the odal case which was a completely different procedural posture sure but whether the procedural posture is different or not if it were if if you shouldn't send back the federal constitutional problem to the state court and odorless wrong no no of course course that i thought as if that's what feasibility retrospective competency hearing that's not a constitutional issue anymore i don't necessarily find the state determining physically in the first place to be a constitutional issue my point is that that's certainly not required in this case the district court specifically asked for this issue to be briefed in the district court specifically said i am going to be making the determination this threshold determination of whether or not it is feasible in this case and i had ma factual findings that it is not and i determined that it is not well because if i were going to rephrase the states or game it it would be gee we didn't understand that the district court wanted us to make a record on this we thought the district court only wanted us to argue from the existing record before it and we ought to have the opportunity to make a record so i guess my question is why shouldn't we send it back to the district court to let them attempt to make a record because they had that opportunity and as your owners have all pointed out they have not quelled to any place you saw an address my question my question is they said they study order from the district judge we didn't interpret that as thinking that we could bring forth we could make a record we thought we were stuck with the record i know i understand but counsel's error in interpreted in order doesn't make all right what is not in her because that's not what the court said the court said i am remain i am deferring a remedy and tell the parties meeting confer and decide on a briefing because evidence in the record from eighteen years before odal had contemporary had new evidence and old evidence it specifically says that in the case and that is what judge chen was saying he was looking for i'm looking to determine give me what information is out there and i'm going to make the determination of whether or not it's feasible and he had every right to do that and my point about whether or not you could remain to the state court in total recall that that determination was never made at the district court in the first place the district court in oh did not find that there was any paper error in the first place and so this court reversed that finding and then made the threshold to terminations that the state court can make the first feasibility determination do you  retrospective determination issue or they somehow distinguish i mean it's a good question most of the pay question cases have both aspects determined so for example the newest case in the california supreme court the wro case that the vast majority of the opinion goes through the paper error as did our quote why there was pain error why there was all of this evidence that should have led a reasonable jurist to determine that there should have been a competency hearing in the first place but then they go to the remedy and the law at the leave is undisputed in this entire country that there is that threshold determination of whether or not a retrospective competency hearing is feasible that's a threat i guess and i'm be obscure or a question i'm just wondering whether it may be easier to reconstruct the record in a paper context where the only question is understanding what you understand in the precise question as opposed to no indication according to the district court in that case that he had been tried while incompetent he being the defendant the second circuit reversed the district court and said no no we find what is now being called paid air we believe that th that time should have determined that there was a reasonable doubt about whether or not this defendant was was competent and therefore suspended proceedings and held a full blown evidentiary hearing on his competence the supreme court affirmed that aspect of of the seven circuits decision establishing what is now commonly referred to as page error and then the court went further and said we have been asked the state in that case i believe illinois the state in that case is asking us ended for a retrospective competency hearing and our view is no because at this point nobody can see nobody can observe the defendant because it was six years ago nobody can evaluate and provide evidence about whether or not he was competent six years ago and so no we are saying that you can't can't do that and that was six years ago as opposed to thirty almost thirty three years ago in that single sentence and a six page report is sufficient in fact quite the opposite the torah's case was similar there was a mental health evaluation where there was a belief as a single sentence that referenced something about competency in the court said no that is not sufficient so that's one too is that dr horton one sentence doesn't specifically address competency not only was he not engaged in retained to do a competency of evaluation which we all know has very specific things that the court is looking for but all of that dr hart's bank says is something to the effect of that i believe he could stand trial that could mean that he's not going to flip out during would bring forth the expert who's whose declaration a report you submitted to the district court who said i don't think he was competent at the time and could they bring in dr h s report to say well here's some contemporaneous evidence that he was that i mean it is it is a good question one that state has not offered any evidence that the expert that taylor hired twenty years ago to evaluate his competency is even available today again that it's your burden see i'm going back to a real hearing now let's assume some court we're going to hold a competency hearing presumably you'd have to come in and discharge your initial burden to show that your client wasn't competent time right exactly ok and then they come back and say well we've got this piece of paper and her with the actually have the doctor or anything else and he said gee i observed him at the time and he seems to understand what's going on and there's no reason why he couldn't stand trial on the basis of research just assume the expert report you have in the record and that could a trial judge find that your client was compet i honestly do not know the answer to that i would i would guess like any trial court would have to weigh the evidence and would have to determine the credibility of the two experts and dr horn spang if he is alive as well into his ninety's i don't know if he has a lot i don't i don't either but i'm guess i'm saying it's not impossible to you because you have to demonstrate that your client wasn't competent at the time so you have to do it you have to recreate the record retrospect which is what we're saying is so so i actually we cannot do that that it  would be constitutionally unfair to put that burden on mr taylor at this point thirty three years later when the state has not met its threshold burden of showing that it is even remotely feasible that you are relying on california law for the proposition that it's the state's burden to show feasibility i believe that the federal precedent the supreme court precedent is that it does not violate constitutional all norms to if that if a state requires the defendant to prove it i'm confident see but you think it's the state's burden here to prove that a competency hearing would be feasible correct and what are you relying on for that on point by the way than the total case in the mcmurtry case had a competency evaluation done four months prior to trial and this court held that that was not sufficient there was both new and old evidence in this court said a f i believe that there are other cases perhaps cited in our brief that do establish that it's the state's burden to us to prove feasibility understander to review issue  ninth circuit law that's helpful in other words how do we review the judge's determination in this case that a retrospective hearing shouldn't be hell yeah absolutely your honor as i believe not off the top of my head i'm would be certainly happy to look at that and and brief it if you're on it would like i can't think of anything off the top of my head what at what i say i think probably what distinguishes this case is is it's not so much the ramp remedy as much as the deferral of a remedy right in this case the district court granted the writ conditional essentially conditionally upon the state showing that it was feasible to determine whether or not he was actually competent or incompetent at the time of trial and when the state failed to meet its burden that the district court established for it by not coming up with any evidence in the record or not coming up with any new evidence to show that any of the witnesses that they're speculating about are available to provide meaningful testimony the district court said no this was a this was now a constitutional violation that cannot be cured by looking back thirty three years ago to determine whether or not he was actually substantively deprived of due process because he was tribal incompetent so i'm not i'm not sure i'm answering your question in that respect  specific remedy but this in another itself is is a constitutional violation it sort of brings me back to my what i thought was going to be my first point which is it's not it's not prohibited to let the state make the feasibility determination by a long shot but if the state in this case were to determine that it was feasible and then to hold a retrospective competency hearing that enough itself would then create a new federal claim because then taylor would say wait now again i don't but you could you could exhaust  almost surely would it mean a california supreme court as i read their precedents and if you lost it come back to the district court so constitutional claim when we send cases back for retrial new constitutional claims may be created all the time certainly is certainly but again there is not a single case anywhere in this country that says that the district court can't make that determination in the first place and the district court is the court that had the claim and the district court said as a matter of constitutional due conclusion was he was competent and the courts because it's only it's too brief that's not i'm not sure what makes an actual the use of his his adjuster course determination  competency conclusion has to be longer i'm not sure where that came from because i haven't seen any so holding you can refer me to one so i doubt the district court did not say that that sentence was too short the district court  that the person is the the doctor did not say he was competent the doctors said he could stand trial which is not an evaluation of competency which as we all know it requires a rational understanding of the nature and the proceedings against him and the ability to assist in his defense dr horse funk said none none of that and you read his entire report he did not ever ask it in his report it doesn't say anything about him asking taylor about the proceedings asking taylor under that circumstance what would should the district court do i think the district court was well well well within its discretion if not mandated by supreme court precedents to say that was not sufficient what the one step further and say what if dr horn spang report said i was evaluated to determine whether or not he could claim an insanity defense at the time of the crime which is what he was retained for and by the way i think he is competent i asked him all of these questions and i think he is competent to stand trial that report and that analysis was conducted at earliest four months and as late as six months before trial and the mcmurtry case from this court says for four months a competency evaluation conducted four months prior to the trial is not sufficient to determine that a retrospective competency hearing is feasible so under your hypothetical even if that was the evidence in front of the district court in this case the district court and the state has not come remotely close to showing how the district court has abused its just discretion and looking at all of those factors the clayton factors at the mcmurtry factors that this court has said and wasn't in that case was the judge who were the judge judge if you will was reviewing a real hearing to determine whether it was wonder could possibly reconstruct competency at the trial judge who tried the mcmurtry criminal case was the judge who have held the evidentiary hearing thirteen years later at that evidentiary hearing and there were i believe at least two of the doctors who had evaluated mcmurtry prior to trial testified at the retrospective competency hearing both of mcmurtry as lawyers testified at the competency hearing you know i guess my point is i'm not sure there's any evidence in this case that the state could do better than it did in the state could have come up with a declaration that said i as a medical expert can review dr horowitz vang's notes his report and i am of the opinion that i could give an opinion about his competency it could have come up with declarations from the attorneys to say i could give meaningful testimony about this retrospectively they could have done anything they did nothing they they offered nothing to the district court other than their speculation that maybe some of these people might still be alive and maybe some of these people are not senile and maybe some of these people well they didn't meet their burden and now they're coming to this court to say that the district court committed some error when the just a quick committed no error i don't believe as i was sitting there that i heard thirty years ago on this record at least not much suggestion that your client got or unfair trial of the absence of competency in other words no suggestion that there's evidence of innocence or that he didn't do it because of an error the trial court made thirty years ago you know in effect this conviction is going to be set aside state says well that we were in only addressed forgive me i can remember precise i didn't take up your other arguments and i believe it was through exactly i believe we address three claims so we had a sort of a convoluted process where we first addressed guilt phase record base over thirty eight claims in the in the case and the district court has only resolved three of them so it's not just that somebody is going to be set free and to put a marker that the state is being given the opportunity to retry i don't know there's pretty pretty basic evidence laws that prior testimony is admissible i soon that to write and i assume that they would try to come up with new evidence and of course he would have to go through a competency hearing to determine sure that he's competent to stand trial  don't i cannot answer the question let me ask the question differently let's assume he was incompetent back then but he's competent today they could retry him using the old transcript could they not and that your honor i just i honestly i don't know the answer that i have here on federal hate b s i don't know about state criminal procedure or whether or not that's possible that doesn't strike me as particularly fair but i would imagine yes for witnesses who are dead and unavailable to me  very briefly in response to questions regarding the any other cases in this circuit about the standard of proof well it was a case that came up in some discussion over the weekend so i apologize it's not been briefed by either party but stanley versus cullen six thirty three f third eight fifty two which is a two thousand and eleven case from the circuit and although it does not talk about what the standard of review is for the  for determination of peace ability the court did no we see no reason why this case why in this case the state court is not as well qualified as the district court to determine whether it would be feasible but it was an abuse of discretion  so therefore so it's better for it must be a discretionary decision correct yes your honor so that in that case the court this court did find that the state court it's at least as reasonable for the state court to do it and again i apologize that we missed that case in in the briefing the with regard to dr h make want to make it clear because taylor seems as did we think the district court to be conflating we are not saying that doctor ages determine his statement that taylor he found taylor competent is the be all end all all we are saying is that is a knock off together with the other evidence and the references to records that were made by the various experts in this case to warrant a hearing on competence and as was noted earlier if this case goes back as we're asking you to to the to give the state a chance to avoid setting aside what would other in all other respects be presumptively a valid judgment on a very brutal murder if the state court finds that it cannot  arguments and or penalty phase on the other arguments they presented well you see it's presumptively valid but they have a rather wide ranging attack against it that the district court found that unnecessary to get to so why should we if we think if we think there's a question about compensation why should we tell the district court to finish up the entire record on this before we send it back well that would certainly be and then we would be forty years from tr right back to the district court we would be forty years away but the competency hearing would be time and the but the district court taylor is not going to lose a chance to challenge this and if the state court on the other hand finds that it is not possible it is not feasible once they get it or that they determine that he it was incompetent at the time of trial the ready issues and we are at the point of then having to proceed with a new trial with a trick competency determination as your honor observed just a few minutes ago essentially do you have reason to think the three court would come to a different determination on feasibility yes your honor we do i mean we think that just the existence of dr ages opinion and even if not fleshed out in terms of his report which is totally reasonable given that that was not what he was assigned to do he added that he n but yes we think that there is reason to suspect that it might be feasible and we certainly all we are asking for is the chance to do that and i see my time is done or th