where mr o daniels retained counsel became gravely ill and hospitalized on the eve of trial now the point of contention in this case and mr i w mesereau daniel smith's he should prevail or are to one is that he sufficiently informed the course on two occasions that his constitutional right to choice of counsel was being violated those words were not used but the words that he won with that he sufficiently informed the court and he being through an attorney he was required to use not someone he retained but someone he was familiar with mr bruno had represented him at the arraignment in this case and had represented him in a domestic case in a you know the worst case right the st was he said that the system is unfair to him because mr martin no because of mr martin knows health this bruno also said the court was aware of the facts relating to this now there is that's very important as to statement what was he what was he asking well what's what's important and what the court knew what that meaning was from the history in this case and that's the important thing the court knew because there was a history that had gone on here so the court was aware that there was an initial adjournment granted because of mr martin it was health and mr martin o had recovered these flare ups happen you recover he was granted an adjournment the people were then granted to a germ and subsequent to that just for witnesses taking vacation during that period of time by the way through the whole summer mr martin was perfectly capable bruno said well no i don't have enough time to prepare you know and again that's that's why it's very important understand where this request and objection is coming from the request an objection is coming from pro se he's in conflict with mr bruno over this request that's very clear when it's initially requested there is mr bruno saying to the court well he wants me to make this but i'm i'm telling you i'm ready to go forward with this trial judge and i'm explaining to him that judge you're going to have to effectively say you're going to have to grant this because there are these standards and goals in other words that the trial has to go through but i'm making it because he's insisting but what what was the reason offered for not going to trial that day or going to trial on the schedule sec as of that day mr bruno in the st case october th is saying well i can be prepared  time to prepare now this is after a rejection has been made on the basis of mr martin oh isn't here so you deal with the with the cards you're dealt but this is the significant thing at that point this is what the chief judge of new york court of appeals in dissent relied and said it was unequivocal and beyond doubt that the judge was on notice at this point that he was raising a an objection to violation of his choice of counsel mr bruno read to the couper in new york statute that protects the the choice of counsel and that statute says that in the case and in this specific instance very specific to this proceeding of choice of counsel now chief judge alluded to that but he said even if you don't say this connection he says the salient point is my understanding has been that the the the point raised to the court was the question whether more time is needed so what is it that converts that into as you say clear notice to the court that the objection was being if the attorney is physically incapacitated then the court must grant must stay the proceeding until notice is given and there's thirty days after this notice for the appointment of counsel if all that has nothing to do with an extension of time to prepare for a case that has to do with protecting the right to keep your lawyer or if if your lawyer physically incapacitated in that lawyer cannot proceed support of the proposition that there is a if there's a law that requires giving thirty days he's been asking we don't have enough time and there's a statute that says they were counsel has incapacity you have to give thirty days yes well there are two different subjects and so you can't reconcile the two that actually what he has said are two different bases and what the point is to hear that hits exactly clearly established federal federal law and it's in the main case or i'm sorry in the palps no in the main case in which the supreme court says a court has an unfair and affirmative circumvent sent order to circumvent or dilute the constitutional right of choice of counsel and also an affirmative obligation to respect and preserve that constitutional right counsel the context in which the reference was made to that statute was to support an application for more time to prepare as we need we want more time to prepare and there's a statute addressing th circumstance where counsel has become you know it says that the court must give thirty days well i would respectfully disagree i would say that they deal with two different subject matters and it does dovetail with again what happened initially with respect to the initial saying there has been a german because of mr martin o's health and i see i just want to move now to the alternative ground and that is that certainly it's submitted that there were it wasn't enough before this before this court said to this court that triggered a duty to inquire as to what was if if i  argue that it was clear at that point but if you if there's any question that it triggers a duty to inquire and that's clearly established federal law and i rely on the supreme court's decision in martell and i'm going to quote t know well there's just satisfaction there is a complaint going on and there's no question there's a complaint why did he even make that motion initially initially and then the specific reason at least that's repeated by mr bruno is mr martin knows health there's dissatisfaction here and so it's triggering this duty to inquire and it's clearly established federal law that that as we know goes through so many multiple different areas but here i'm good morning your honour's may please the court matthew keller for the people in this case were here to determine a very narrow issue and that's whether the new york court of appeals reasonably rejected petitioners counsel of choice claim the district court correctly denied the written this case for two principal reasons the clearly established supreme court law applicable here is the rule from the morris be sloppy case where when the right to counsel of choice is implicated the denial a correct argument here was there was never a clear request for the absolute your honor that was my nd point if that's the court's concern i'm happy to address that st there clearly was never an invocation of the right to counsel at all here and the important  point is not whether petitioners position here on what the nature of the request was was reasonable it was it was it the only reasonable interpretation of the record now certainly it's our position that it was clear from the record that the basis for the adjournment requests both of them was for more time for bruno to prepare but even if the court disagrees with that it that certainly is not an unreasonable reading of this record judge of all you asked about the invocation of three hundred and twenty one and what exactly was said and i think that a that's a very important point here because that is certainly the most important citation to the record that petitioner keeps stressing he cites the statute notes that it's  a civil statute but then what he says right after that is very telling he says quote and this is that the petitioners sealed appendix at page eighty one dollars my client in requesting further time to prepare request me to make that motion so you know it's clear that he was not invoking that statute for a time to get a different counsel or time from our no to return it was it was he was using whatever tools were it is the spousal to give bruno more time to prepare in any event the court shouldn't be looking at what the purpose and legislative history of a state statutes just states that it is on hey b s review as the court is aware state law is is just simply not relevant it's what the th amendment requires had to do with the deprivation of a right to counsel in the context of recorded statements of a client the holding of that case is completely in opposite to the case here martell is is not even a th amendment case it's a statutory case about the right to death penalty counsel in federal prosecutions but if i can i just want to address my st point briefly because even if the court found that the only reasonable reading of this record was an invocation of the right to  counsel of choice position or still would not make a th amendment claim and certainly wouldn't show that the court of appeals decision was a violation of clearly established federal law there was no justifiable request for a delay here in denying  request on october th the court went into a well reasoned explanation as to why he was denying it you're saying that even the if even if it had been clearly stated to the trial judge the defendant wants a new lawyer i'm sorry that he wants a new lawyer and that's why we need more time to get a new lawyer you're saying that you would still be no judge of on not exactly what i'm saying is even if the court was on notice here that that there was some dissatisfaction by petitioner as to bruno representing him and there wasn't i'm just moving on now in the alternative and slappy in march the march the slappy case it was very clear that the defendant there was dissatisfied with his counsel there were two trials and at almost every opportunity the defendant there stood up and said this man is not my lawyer mr goldfine is my lawyer hotchkiss is not my lawyer their request was clear as can be and the court still said that only in the basis of a an reason an reason an arbitrary insistence on why several you know reasoned explanation as to why use the nine it there's no motions before me there's no discovery applications before me i haven't heard anything about we need more time for witness preparation o preparation of expert reports he's getting is basically giving the the lawyer things he can say to to grant this application silence again the petitioners there through all of this not only does he never express disapproval with bruno coming as appearing as his lawyer during those two appearances this had been going on for months and i think there are two final important fact that i'd like to put before the court even apart from these two appearances  as we know the morrow was was not on well for the pendency in this entire proceeding it's really important number one that he was the one who st requested to the judge in his april two thousand and ten adjournment request i understand this is going along i understand it's getting a little bit on reasonable i'm happy to help the court find substitute counsel just let me know very important there and nd bruno never during the pendency of the trial or even afterwards ever said i didn't want bruno was my lawyer after the verdict after his his risk of going to trial was unsuccessful for the st time bruno and martin also made affidavits in support of their motion to set aside the verdict they say the court should have granted the at the application for an adjournment no and no affidavit from bruno saying i mean excuse me no affidavit from petitioner saying i didn't want to know as my lawyer in fact the argument was never raised at the trial level that i'm i right you get twenty years right he got he got twenty years and it was a lot of the senses were run consecutively and they all ended up to twenty and i write that he rejected the offer of six months  not exactly around of the offer was i believe for six or seven months but that was only if the defendant was accepted into a very rigorous diversion program that they used up in clinton county at the time there was no guarantee in the in the plea offer that he would be five months i'm sorry that's the even the safer program even safer program that's correct there was no and apparently the qualifications to get into that program were quite stringent and in light of the nature of the charges here it wasn't guaranteed that he would be able to meet those requirements he didn't get it would be seven years correct your honor i believe that's my understanding and that would have been set forth at the october th conference one thing about that conference because i know you know in addition to the reliance on twenty one the other half of the petitioners argument is the statement that the system is being unfair to me because of more nose health now on by its that's a very ambiguous statement you know the mark in the legal system has nothing to do with the state of my health but when viewed in context it becomes completely clear that that is not a request from our know as attorney this is a case where at least three weeks prior to that the court had sent a letter to martin  saying you should find a substitute this is been going on for a while and granted you previous requests think i want to go forward on the th in response to that martin wrote back the same day and said i gotcha i contacted bruno to be the attorney and i've advised petitioner of this so the record is clear that at least from september st petitioner was aware that there would be a likely substitute trial at no point from then until the october  conference is the is there any indication in the record that he objected to bruno being his attorney and this is despite bruno's representation at the conference that they had several discussions about the plea offer that they had that he had been essentially acting as petitioners lawyer for the previous three weeks and in the absence of any suggestion in the record that petitioner was unhappy with with bruno is his lawyer we never even get to the first i think it's important to say you know there are no magic words to invoking the concept constitutional right of choice of counsel particularly where we're dealing with a situation that effectively this is a pro se motion he wouldn't know what the right words were to use he would say something that in his gut is wrong so he said in his gut i submit words that had to do with i can't go to trial i'm being stopped from going to unfair because of martin knows health and so it's not about time to prepare because of martin o's health marc knows health is is martin was not there he's my attorney he's i can't have him why can't that be ready say because mark knows health i have to go to trial with a lawyer who doesn't have the time to prepare a minute well actually makes i mean let's let's say that that's another interpretation doesn't it then vo even though it's we can't say let's say we can't say what interpretation but doesn't it at least to me to meet the threshold that the court house to inquire what do you mean  question and i say under those circumstances under clearly established federal law the court has the duty to ask what do you mean and it didn't i submit that there's a lot of facts here and what he meant and the court actually knew what he meant because of the history he meant why aren't you granting the extent of the german again like you did the st time when he was ill and you said you gave time here why is it that  you gave the people an extension of time for something less significant why is it that you didn't say to me i'm the i'm the person who decides who represents me why didn't you tell me i have to choose the lawyer and not go to martin no to be the one to arrange for another lawyer and i'm just told about that and i'm supposed to live with that thank you thank you book thank you we'll reserve decision the appeal of the united