brain and various deficits interpret a low functioning would be of interest to a jury considering how to sentence petitioner that's a tab eight page fifty nine dollars petitioners brain is relevant to two claims which i'd like to argue before the court today the st is the substantive incompetence claim that petitioner was tried while he was incompetent the nd is ineffective assistance of counsel with respect to brain damage and other mental health issues and time permit address the question of whether the state's closing argument and the defense counsel's closing argument exhibit ineffective assistance of counsel for not objecting to one and for delivery the other with respect to dollars it stems from the ban against trials in absentia as quote a mentally incompetent defendant though physically present in the courtroom is in reality of ordered no opportunity to defend himself  again if petitioner was having absence seizures at the time of the trial quote it's certainly conceivable that he could zone out at a moment when there is critical testimony and missed that testimony in the charge below says the record establishes the petitioner suffered from severe depression and compensated with conduct that interfered with his ability to assist counsel and the record supports petitioners contention that he suffers from brain damage and it supports his contention that he suffers from edge but deference to give to that substantive competency claim correct but we have the district courts determination on hey b s review that although the question was close that  mr right he more is competent so that means you have to get over clear error review why do you believe that the district court's ruling on competence on the substan behavior in court and didn't give due credit to expert opinions and finally the lower court did not considered the affidavit of dr karen who was an epilepsy expert at footnote ninety two of our brief we present to the court and common sense argument that if a judge is conducting the noble review on the subject of competency claim that judge has to consider all considered the judge did not consider and melissa karen at document twenty four dash seven list all of her credentials she is a heavily credentialed epilepsy many seizures he had had during trial she would have to interview him for that that would be part of the evidentiary record but no we don't know how many he had during the trial and we know that from time some of are problematic keep reacted to what was going on in the draw he was in his though he was based at the end time that we're not making the allegation that he was absent the entire time we're making the allegation because of the seizures and other things but because of the siege what is your position that only absent is it your position that she did not consider this problem or that she didn't agree with you in the resolution of the problem she did not consider made by the district court right and she says among other things the following she says the record establishes that petition has suffered from severe depression right and compensated with conduct that interfered with his ability to  his counsel the record supports petition his contention that he suffers from brain the brain damaged possibly organic in arjun and it supports his contention that he suffers from absence seizures of brief duration the record establishes the attorneys were alert to the issue of competency and concerned about it they worried about it consciously assess the issue and determine grounds did not exist to support a request for competency they start on the review of the record the court assumes are you when though that petition it did suffer from a brief absence seizures at the trial and then nevertheless the court conclude based on what she characterizes as quote the now or not so the competency standard and the totality evidence that petitioner has not demonstrated his incompetence at the time of trial by a preponderance of the evidence so she obviously considered the seizure problem although she doesn't say and hiked ver the so when so said x y and c but is there any way to read this other than to suggest that the district court affidavit to a pleading and file it with the court which was i think almost a direct quote and so she wasn't going to consider it the stated argued that it wasn't part of the record in state court but in the wilson case before this court the state argued review of a competency claim all available evidence has to be considered and the care and affidavit was available the judge expressly didn't consider going back to even one seizure does not hold in feral that it would if it declined to address the issue in feral remember in feral the defendant in the courtroom was literally flopping on the floor from a that if you're absent due to a seizure that could be a competency issue and has exactly what drop says it once when you want our client in this case was not flopping on the floor in the court room he was flopping on the floor in the jail cell and the deputies reported to counsel and counsel reported to the court that he had had seizures that's not what they said he fel with his eyes rolling back in his head two times so but are you making the assumption that epileptic seizures are continuous and the adam in the jail cell he's obviously  counsel fut looked at the seizures that were excerpted from dr martell's interview and said where the seizures occurred that's exactly what he w is there any evidence from these trial counsel or from anybody else who was in the courtroom that he had them during the trial they didn't say he ever had any seizures so even though they knew he had to in the jail cell he indeed did court he was slumping in the chair and what dr karen says it is that when you have a seizure it's not just a seizure while you when you come out of it because you don't really know what's happened to you you don't really know what's going on was he adding seizures during this state collateral proceeds yes that's when dr martell stands will he meet in the in duration he would say from tend i believe he said ten to thirty seconds and he would try to arouse he would try to wake him up  sometimes he would wake up on his own have to ten seconds and be confused and try to make excuses for where he bent sometimes it takes three thousand and thirty seconds and he would try to wake him up so these were consistent throughout his about seizures during his long mental health treatment before the crime to the fact for our didn't on the front end nor didn't on the front end horrendous didn't on the front end and even grrr said boy i didn't see it i missed it i only focused on it after martell said that there were maybe eight instances of of that happening in the in the case so if it happened and it happened with regularity the only one at least among the mental health experts to discern the matter was more terror all right i have that right as far as you've gone but the dr karen sa i looked at the interrogation video right it was happening all over the interrogation video as well and also then when you get that information and you go back and you check with family members on the social background and history you discover seizures throughout his to the others on the mitigation side so you can at least get to part of that your what do you think was and this may not be a completely fair question because i know your argument focuses on the totality of mitigation  trial counsel didn't put on but of all the pieces of that that instead you highlight which do you think are the two or three most important i think the fact that they did not do anymore recognizing solves problems engage in abstract reasoning shift task and process sequentially engaged purposeful self control behavior and m the lawyers spoke to the experts and they had four of them and said ok tell us what you want what they were told was that he should do an m r i and  pet scan and then they proceeded to and schedule a schedule both and they accomplished only one was there anything that any of these four experts told the lawyers they ought to do that the lawyers did not do and if so where would i find that in this record tab eight page thirty four dollars the district court said the exports experts told council quote a ful you want to take some of your time or say things are of take a couple more minutes ok let's let me ask you then just about one other issue that speaking for myself concern me and that was the economy comment by the prosecutor in closing arguments to the jury quote he'll kill you and i'm not having to guess right you want to press that for a moment or two there's not much i can say about that other than i'm looking at three feet fine x prosecutors you can't say that you know you can say a former prosecutors from prison not in you were in the record and then says he will kill it and say it he yells that he will kill you that's just you can't even find cases that address that but it's so out of band let's assume all of that's true and you do not have to convince me speaking for myself that the conduct was absolutely wrong it was beyond the pale even if he could explode  the dangerousness he was not free to turn around and then say that the jury that he's going to get you guys having said that though explain to me case presented a lot of mitigating evidence this was an explicit split crime and that he shot his best friend for no apparent reason he then i mean the crime was was just insane he then took a lexus put a body in it drove around showed it to people and then he went and burned the body were people on train could see it his behavior was bizarre there's no question about it but if the state is right then they presented mental health evidence and so the balance could be there and this could push you over the ballots so i think that there's an easy prejudice argument there and one compassion i ask you one question to start up with where he ended sure if i can flip your argument around is this prosecutor still working for the state of georgia  understanding is that the prosecutor for henry county is now mr patel oh and this was mr floyd i don't know what he know not maybe not as the district attorney or we have i'm just asking if he's still around and still trying death penalty cases cases mixed up between this one of the one coming up in the later in the afternoon but is he is he the prosecutor who had this court condemned some of his conduct in a prior days before the sentencing proceedings in this case took place district court said by the cold record it's ambiguous to know whether he was talking to the jury the members of the jury themselves or that were generally the community because right before he said those comments he was talking about regimes future dangerousness and that he threatened to kill the district attorney he threatened to kill his heaping mr heem his girlfriend who was a witness in the case a jail guard he ran the cell block and he caused so much fear in his cell inmates that they slept on the floor and said of the bump because he wanted to use his bunk for his own personal items and so in that context that's where the state court said that it was a proper future dangerousness argument so i think i don't response in his closing argument would be fair to say would it not that crumbly took the prosecutor's remarks as being the most horrible things addressed to the jury individually and specifically rather than you a referring to mankind well i think your honor simply because mr crumbly spin the argument that way doesn't mean that the jurors would have necessarily believe that mr floyd the district attorney was talking to them and i'd like just to note that they're even if which we don't concede that there is but even if that was error there would be no prejudice in this case and i think wainwright shows that because in darden versus wainwright the prosecutor in that set in that case said that he wished that defending it mr darden had no face and that it was blown away with a shotgun and certainly if if that statement and didn't rise to the level of a constitutional deprivation of fair trial this comma in this case didn't especially because of the context except that here this is sort of a combination if you interpret it as being a comment directed to the jurors themselves it is a combination in permissible golden rule argument where you are essentially telling the jury to place themselves in the position of one side or the other or hear possible victims in the future which is problematic on a lot of fronts right well i think your honor given that point the defense lawyer would never have been allowed never have been allowed to tell the jurors put yourselves in the place of mr ryan's mother and if you were his mother or his father you would never want to see a child put to death so put yourselves in her position in his position and don't sentence their son to death that would have never been allowed because it would have been a blatant appeal to the wrong sort of things that a jury is supposed to consider if you interpret the comments here as directed to the jurors themselves it's to flip side of the coin well to that your honor i didn't i answer with respect to the golden rule argument that this court has addressed that in  e context and that was in response as secretary for their part in a correction of florida case in this court said that because the supreme court has not specifically relayed that such arguments are unconstitutional that it would be unreasonable for the state hey be a score to not grant relief and so i think that would also apply in this case i thought your strongest argument is that defense counsel obviously could say in the record decision not to object but to turn around saying here's our enemy here it's the state's our law that's why mr ford got up close to you and yelled at you that we know one thing for sure and that that is he most often was is responsible state these courts denial of is ineffective assistance claim is not objectively unreasonable and yes out agree that that would be the stronger argument are you suggesting that a prosecutor could turn to the jury let's assume he was referring to the jury and tell the jury that this guy's going to kill you no your honor i'm not suggesting that would be misconduct wouldn't it i'm not suggesting that i'm asking whether that would be misconduct you would certainly have to concede that he threatened to kill witness in the case he threatened to kill the prosecutor in the case she threatened to kill a guard in the case what's more they found dangerous weapons in a cell what's more they found in the cell a map suggesting a jail attempt all of which yields a fair argument about danger but you're not suggesting based on that you could tell the jury as well when there are threats to the prosecutor a witness and a guard that you could suggest to the jury that maybe they've got some exposure they've got something to worry about too well your honor i'm not necessarily saying that it wouldn't after he laid out these threats to the prosecutor to the witness to the guard he goes on to say quote this man is just mean ladies and gentlemen in just plain old country english he's mean he's cold hearted he's cold blooded and let me tell you something he'll kill you and i'm not having to guess you can look at the pictures again because i know you already have we know what he's capable of and we know what he's done that's the exact quote so your answer seems to me is even if it was error there's no prejudice or at least a state court determination was neither a reasonable nor contrary to law yes your honor that's exactly correct why don't you help us with the substantive carpet and see determination by the district judge yesterday and if i could please begin with answering  judge carnes question about whether any of the mental health experts address the length and time of the absent seizures and how long they can last so dr grrr in the state b s evidentiary hearing did address that matter he said that for a seizure to last for a long period of time in terms of hours that would be very rare and so that's what he said and he also added that these types of seizures even if you  become absent would it cause you to go and kill someone during one of those seizures and he said that in conjunction with the length of time but that latter point is relevant to the competency determination it may go to dangerousness or something else but the fact that you're not going to kill someone because of a seizure says nothing at all about whether or not you are able to rationally understand the proceedings and assist your counsel right honor that's correct and so thank you for bringing me back on point in and i think that addresses the district court's finding which was that even if mr ray heem had these other manifestations of mental illness because the competency standard is so narrow he couldn't meet that standard in this case he couldn't meet that burden and in this case as this district court laid out from the evidence that was before the state hey b s court mr regime's trial counsel met with mr heene numerous times they never thought that he was incompetent in their own interactions and they as in very in the very early parts of the representation had talked to their mental health expert no one had indicated to trial counsel that they thought that mr raheem was incompetent and with respect to the question that was asked earlier about what was in mr hames medical records about these absence seizures and so in his chart or ph heard hospital records it specifically says that there was no history of seizures or neurological problems and with respect to supporting the district court's decision the district court also took into account dr mark tells testimony and which case dr had explained that he was in his opinion not incompetent either and i can't remember if this was in the district court order specifically but i know dr martell did testify and support the district court's decision that mr rakeem all of his test that he had underwent in in conduct or in investigating his mental health by both the his trial counsel and his conviction counsel he generated valid results and that's because he was able to be oriented to time place and manner he was cooperative with all of his mental health expert and if he were incompetent he wouldn't be able to have his valid result mr all of says in part that the district court improperly failed to take into account the affidavit of dr karen can you talk to us about the share you honor with respect to to the affidavit of dr karen i know that this was not before the state k b s court because it was not submitted at the evidence cherry hearing with respect to the district court i think to go to go to that st point my this is my understanding of the way ed but works but you told me if you think i've got it wrong if if there is a merits a n a federal hate b s court is limited to the record generated before the state court and the federal court cannot hold an evidentiary hearing to supplement that record right that's correct so far so good ok if there is no state court adjudication of a claim or if the state court improperly applies a procedural bar then the general litany of ed but deferential standards don't kick in right yes you're on right so far yes run and that means that the federal hate be as court generally speaking the federal district court is not limited to the record generated in the state court proceeding because a state court never addressed and decided the merits of the claim and the district court was considering the substantive competency issue to novo is that correct as well well your honor in other words of mr if mr raheem had presented an affidavit for the  very st time at the federal district court would the federal district court have been obliged to consider it regardless of what awaited ultimately gave it would that have been the right thing to do the legally correct thing to do well your honor  whether the district court was up a lot i just to not look at that i'm not certain so i don't want to say the wrong answer but what i do know is that the district court wasn't in correct to limit itself to the state be a score and well that's my question i mean it doesn't it doesn't say that the answer is x or y but was the district court required and it may have considered the fact that it didn't say it it doesn't necessarily mean one thing or the other but as a general matter in a case like this one with this procedural history was the district court required to consider an affidavit that was in your view not part of the state court record i don't think the district court was required to be honor and the case in support of that answer would be lawrence because the same thing happened in lawrence where there was incompetency claim but there was an adjudication on ineffective assistance of counsel claim regarding counsel's alleged failure to raise the issue of competency in the district court in that case took the same corpus of evidence that was used to adjudicate that effective assistance claim and refused to consider new evidence that was presented or just wasn't given new evidence to consider well your honor whether it wasn't given new evidence i'm not certain on that but i do know that the district court denied an evidentiary hearing in that case ok so you don't i don't want to put words in your mouth the answer is that that this record was require or not required to provision of which provision of two to fifty four says that the district court is limited to the state court record at this point in time your honor at again i don't think the state or the district court was limited but i don't think the district court was required and those two things are dissidents to me i don't i don't think they're the same thing because if you have to if you if you i want to know what discretion if i guess what you're saying is the district court has discretion not to consider it and i'm asking you what that what legal principle that discretion is based on well your honor again i think that legal principle would go back to the question is whether this record errored in not considering the affidavit i don't think the district court erred your honor and again i think because the naik the competency standard is so narrow there was already irrespective of of dr carey not being mentioned in her order she assumed that he was having what dr kiran diagnosed him with so i think still she determined that mr heene was able to assist his counsel and he was able to understand the charges against him given that so your argument is even assuming or get wind of she was obliged to consider everything under the circumstances of this case it didn't matter because she accepted as a detail a picture of regular seizures lasting ten to thirty seconds with a frequency that would suggest that they occurred in the course of the trial itself that be pretty relevant stuff wouldn't do it can the district court just refused to look at that on the grounds that it was sort of a day late and a dollar short i don't think they are the district court can refuse to look at that but again here there was no evidence that mr ray he was experiencing seizures of that type at the time of his trial in and i would just like to add that here no one has that in order to definitively diagnose somebody with absence seizures they need to be subject to an examination where they had electrodes put on their head and then their brain wavelengths would be measured in the your own i can't recall so i don't want to meet mislead the court but i knew i know that in the record mr rahim had not been tested for epilepsy according to his charter ph for the hospital records but i mean even collaterally there's no indication it was best to try to resurrect yesterday that's what i mean there was yes a great deal of additional mental health expert testimony that came in collaterally that did not include any epileptic incompetency i'd like to go to the ineffective assistance of counsel claim here and i understand mr raheem is alleging that his trial counsel is in effect it with respect to the mental health investigation and i think the most efficient way to answer that question is that there would be no prejudice here and let me before you get to prejudice is there any word evidence here that any of the four psychologists psychiatr that they conducted every test that they were told to do so and the only test that they did not conduct was the pet scan and that was because mr raheem refused to partake in that examination and with risks and to move on to prejudice your honor the state the score reasonably found that there would be no prejudice in this case because the purpose for which mr rahim is using this organic brain damage evidence to show that he would be that he's impulsive that he's prone to violence and aggression and that he has difficulty planning the impulsivity portion was presented at trial with dr nord saying that m bit mitigating light that it can't be reconciled with the facts of the case and that's because mr iemma gauged in calculation and planning of work for a crime that took place over a ten hour period he fired the gun outside his window cor mr jenkins so that gun wouldn't jam and shot brandon in the gun to jam after he shot and killed brandon he took the keys for his house from his pocket and then he went to miss merriam hollis's house in earlier before he even picked up brandon they went to the kroger where they bought trash bags and that time mr jenkins knew that what the trash bags were in before is that if someone's in the house they were going to kill that person and that trash bag was going to be used for the cleanup and that's what he did and then afterwards he told mr jenkins that he killed miss hollis because she had promised to give him the lexus that she owned but it's not by the way this i didn't get this from any of the breeze but it's just a little piece of historical fact that i wonder what the answer is sure had he ever quote unquote paid her the eight thousand dollars for the lexus or that something that he came up with her had made up on his mind to you are that was he told he told some people that the reason he had killed her was because she had paid her eight thousand dollars as she refused to turn the lexus over to him did that ever happen or was that something he just was the state's theory that that was something he said because there was never any evidence to indicate whether any such contract took place between him and miss hollister that also going back to your argument on what the organic brain damage evidence might have shown might not it also have shown that he was just maybe not in the legal sense but in some other sense just crazy because if if and of course i know that there are two sides of the coin or you can be a complete sociopath and commit these murders and that's certainly one explanation but the other one is that if there is no real motive for them no real explanation for them and you have some of the other conduct that was at issue you start having some doubts about this person's mental state right and that and that's the argument that mr all one of the arguments of mr all of his making it brain evidence had been presented would have gone to show one side of that coin as opposed to the other what is your response to that possibility to get to that your honor my response would be that that was presented at trial although with not in the organic brain damage element it was presented as a psychiatric element that mystery him has borderline personality disorder and he suffers from clinic depression clinical depression and as part of his borderline personality disorder he embellishes things he tells stories and that's how he tries to look bigger to people than he actually is which is his false bravado so that was presented to the jury by trial counsel and the jury rejected that argument just because now he's putting in organic etiology instead of psychiatric one doesn't change the fact that there was mental health evidence presented at trial i have one question that just procedural in nature it goes back to chief judge carnes as question about whether or not there was evidence about seizures during trial ha long remind me how long was the trial phase of the case to guilt phase of the case your honor i know it was a believe it was about th so the trial was february th to th and that was the guilt and the sentencing phase was there a break between them as sometimes happens where they went straight into the guilt the sentencing phase they went straight into the sentencing phase your honor so about a week the state court took that into consideration as well so unless the court has any further questions but fudge said he did write yes your honor fights not during the trial but before the trial correct he said that some of the responses on there were consistent with what he saw but for the most part during trial occurred in this guy's life and everything that occurred in the case was pretrial up to the time they started the trial so that doesn't really help us a lot i mean they were appointed representing a long time before the trial correct and so we don't know when he observed the symptoms correctly we don't know when we don't know how often what we do know is that fudge tells us that oh yeah i saw that sometimes before the trial was that was the beginning the be conducted no such testing was conduct right but maybe have misapprehended this just help me i thought and if i have this wrong correct me that the state maybe is judged found as a fact that the lawyers for the defendant did everything that they mental health experts suggested they do and that they were never told to do something that they turn down do i have that right is that not what the state courts find you have that right and it's not supported by the record ok i thought also and we've got two cases in one marnham might be confusing of the case  that you did was awarded a pet scan but that's where i saw the note that scam was ever done correct by by the defendant collateral like ok i just wanted to be sure that i you know that that kind of puzzles me because i thought and again i may have just been reading selectively but i thought that you know heap some criticism on the trial counsel for the way they took him to get the pet scan and the fact that he did get it was their responsibility and that was the big deal they were they were deficient in not going with him to get the pets and and how can you be deficient not going with him to get the pet scan if it's not efficient to not get the pets came if they had not ordered the pet scan as you didn't order t might be to ask that if there was no pet scan detained in the state post conviction or district court proceedings how do you show prejudice from the failure to get the pet scan at now intentionally and voluntarily relinquish it under johnson these are all that that you know i'm going to say no to that but i like the why the question sounds that it was deficient that it was ineffective assistance of counsel to prong not to get the pet scan it's outside the wide range regional professional assistance not to come in there and there's a reason  down i want to come back again to the karen affidavit is there any case law out there that you can point us to that would say under circumstances like this it would be says that's necessarily reversible error if the court either because you have here the problem that you have to get over is that the court here says i'm quite prepared to accept and do except that he suffered from occasional seizures but based on the totality of the record i do not believe and do not find that he was not competent well that should be  judged expert karen says that paragraph seven epilepsy is a condition in which an individual is predisposed to recurrent seizures over the course of this trial necessary to attempt a positive positively identified the type of seizures mr reeves suffers his presentation on the video is consistent with the person suffering from either after cesar's for brief sex partial seizures delusional schizophrenia and had a psychotic process going on dr martineau was asked about that he said well there may have been a psychotic process going on question right then there should have been a competency evaluation