clearly this is a bizarre case and mr tree you had issues related to mental health there were competency concerns at the trial and what not and what happened was on his original appeal  denied the petition of successive we're not there yet i'm not there yet ok i'm not there yet so then but you're absolutely correct so then what happened is mr true takes his claims to the district court and the district court has a concern about mr tree competency in appoints the federal hoped tender to represent him the federal public defender then raises this claim that's before the court relating to the ineffective assistance of counsel with the sanity trial and the federal public defender then raises this claim in the superior court the appellate court and the california supreme court california supreme court denies the this petition with the citation to clarke as we are familiar with from the previous argument and but the pages that are cited the pinpoint site and that clarke are to the bar second or successive petitions there's two points related to that that are that are important to the story the first is that that was not a ruling on the merits that was not in of the merits of the california supreme court the last court state court that reviewed this made a reasoned decision a clerk procedural bar and so they never decided the last court that issued a reason decision never decided the merits of this case so therefore this court to review is de novo the second is that there was no second or successive bar the california supreme court simply was wrong about it is the only true opportunity mr mr tree you had to raise off the record he b s claim let me ask you this this is a case i believe where he represented himself in his first saviors by the state respect i want to understand you're going to hear my understanding is that martinez there's not apply in a pro se situation where there's no constitutional right to defense you agree with that i don't believe so there and the reason is in converses bill the united states supreme court says the federal court must ascertain whether state purported procedural bars been applied correctly and i just don't see how if we're going to honor with regard to counsel you're kind of dancing around well you know there's been a lot of issues about clarke and so she had the cases but the state has since adopt the statutes that embodied this and i think the statutes apply equally and it's pretty clear i believe that that bar applies so i am having trouble understanding how your client if we sent it back could get martinez really because he represented himself at this initial pay vs proceeding abi honest i have not i don't really but the bottom line is he's not entitled under the sixth amendment to have a lawyer represent him in a collateral proceeding he chose to represent himself i understand martina's to apply only in a true i see can't have an i c against himself kenny well i don't think well first of all he didn't choose to represent himself he had a poet counsel who filed the wendy brief and then the court gives you an opportunity gives the pro per appellant an opportunity to file briefs in just labels one of this briefs that say hey b s and then he files these two identical petitions in the california supreme court treats one of them as a petition for review from the hague b s but if we look at what really happened here he only had appellate issues  occurrence when martinez arises is when there's been a pro per hevia filing and then you get appointed counsel or you have some counsel and they want to file an ineffective assistance of counsel claim that wasn't raised the first time around and they then become procedur and to me that's right on par with what happened here although you want to save you time counsel you're in the plan entirely up to you i will save the rest of my time ok thank you started representing petitioner and we still have no evidence whatsoever to support petitioners claim that he met that standard for insanity specifically he said at the sentencing that's not credible either so candlelight i'm i'm interested in your argument prejudice under strickland but i would first like you do address this issue to the court to district court proceeded directly to the merits in this case without considering whether there was a procedural bar that had any impact on our review of the case do we look at the procedural bar issue ourselves first before we get to the strickland and prejudice issue i don't think it matters your honor what order this court goes and i mean what i would say is that the procedural bar applies and it doesn't matter whether the state court was right or wrong in applying the procedural bar at this time that snot the tast matters whether it was independent adequate and this court in the supreme court of said that it is and if the procedural bar applies and it was not home is that the in the case we don't we need to get the prejudice said that the a t p a applies to the last state court decision on the merits every time this comes up the parties brief it and actually in the fox case which but  minute on this issue of procedural default has the ninth circuit has this court to determine whether california success who bar is an independent and adequate state ground  know this court in bennett has found california's timeliness bar has addressed the timeliness bar but i'm i'm not sure that this quarter's address the success of our i thought that it did your  now going to the merits there seems to be some disagreement based on the supplemental authority that we received last month as to whether we review this claim what our position is without any authority the supreme court said that and it said so therefore the last reasoned decision on the merits from state court isn't titled stuff  of string than was violated here you're not conceding that prejudice was found right right i don't recall the phrasing of the question but i would say the performance was deficient which is a prong one that's a he asked you whether the counsel was you know it performance was deficient yes i just want to be sure i understand you're talking about the first prong as opposed to that prejudice prompted that's a whole different issue and that was the intent of mike not to get yeah yeah that's correct or oh ok right ok so w could not appreciate the nature quality of his act or he could not appreciate right from wrong it's not just he's a strange person which unfortunately he is he has to fit into that category always spoken highly of you defender representing him in fact two of the three experts who examined him for competency said that he does not have a serious mental disorder and i thought one didn't reach that issue at all to what could true need to if there was anything was there any discovery done on that issue to your knowledge in the case to my not mental condition to my no draw there was no discovery but independent of discovery we love nothing in there about a request from a health expert again you could be sure that if there was any evidence you you would soon appoint the federal public defenders very thorough and  i question my colleagues and i thank you very much i counsel him a little rebuttal time i'm interested in don't want is up your time here but i want you to tell me what authority do you rely upon for the proposition that you could go back even at this point when you previous no evidence on prejudice and have a new shot at producing such evidence i am going to answer that and related to that to the the if i could your initial question about martinez and i apologize for not having the had the answer at the first go around but i'm pages eleven twelve eleven to twelve of martina's it says that a prisoner asserting an ineffective assistance account of trial counsel claim in state postscript indiction proceedings needs an effective attorney therefore the absence of an attorney in the initial post conviction proceeding can constitute cause for procedural default that is why we could go back on murkiness the i thought martino's only applied to those states that prohibit applied in california cases although i don't have them cited but i know that they have martinez has certainly been used in california cases how do you go back we don't know why there is nothing despite the nice accolades for the federal public defender's office federal public defender's office was appointed at the eleventh hour by the district court we don't know what happened there's nothing in the record that indicates whether there was ever any attempt to have him evaluated what we do know is that his attorney  numerous physical ailments and he's on numerous medications which can cause neuro cognitive deficit and mental and mental health issues and they should be explored further to this day that has never happened he made his allegations of why just the fact that he's seven years old with no prior mental health history nope prior criminal thing i'm sorry no prior criminal history and he inexplicably stabs his doctor he's been going to for fourteen years we had a good relationship led to his involvement in the stabbing and he should have an opportunity to now have some funding and an ability to have an evaluation and let's find out whether he's insane or not all we need is