second motion to represent himself third motion again went back and referred to the previous motion saying i've asked for newcastle before please give me new counsel fourth motion again asked for a new counsel none of these motions  represent himself there's no complaint here that trial counsel have an obligation to bring these to the truck trial court's attention no complaint that there's something missing in the record that should have been included on the direct appeal file the claim is based on this very minimal record made in the trial court that a health council should recognize that there were they viable threat issue that and said no we would not have reversed on this record we find that the last two motions filed by mr louth be waived his request to represent himself and basically the question is is got three different things going on here that are circling around each other one is the standard under for other one is the standard under smith v robbins as to which refers back to strickland as to what constitutes ineffective assistance of help counsel and one is twenty two fifty four and williams from millions all the way recently through burke vs took law just a couple months ago as to what that standard every in view means for the district court looking back at what the state court did and for this court look at both what the district court did what the state court did and the bottom line is as in many cases that come through from the state court yes there are things in the record that you can argue both was but that's not enough for federal habeas relief that you can argue the record both ways it has to be clear that the state court you don't really determine the fact rules are going to be basically in those gaps we've done a general standard they have some discretion applying that general standard and here when you look to the ultimate standard which is threat a threat it involves something the next step beyond what you have in this case rather than all the post predicates it's all begin with you've had not just a request to represent yourself you've had the hearing and the question rather  the but in this case or the edwards cases on that record made at that hearing is it clear enough this person wants to represent themselves that issue that the state court believed that with this not being an issue resolved by the u s supreme court looking at the way missouri courts have addressed these types of issues that the missouri court would find this was the last two motions waive any pending request to represent himself and this trick or fail to give proper deference to the bill of the state court to make that finding that basis there wasn't really an issue here that would have t in missouri on appeal do you think you deserve a court of appeals was reasonable when they found that the failure to raise the for any issue by appellate counsel was trial strategy in light of the fact that counsel couldn't remember the decision making process i think there's a presumption that it's trial strategy and i think when the counsel doesn't remember that's not enough to overcome that presumption but refresh your memory trying to recall what she did what may have gone through a mind production remains that whatever was go through in mind she was comped and it's up to mr prosecutor prove that she was not competent and even if it i think and i think in this case it was a reasonably correct result i think as the as you go through miss caleb's deposition testimony i think the one that clear through mr cales deposition testimony is one she does not really recall what she was doing five years before she's been in the illinois several years and has only a vague memory of the specifics of missouri case law and she's basically being led by both on direct and cross examination by whatever you say as in the record in the record not trusting both sides to be accurately telling me what's in the record if the records what post convention counsel says maybe i missed something if it's what the state says it is maybe that's the you already know how the court feels going to rule the direct appeal they've already told you how the rule in the direct appeal i think basically hit a pro forma relief that i think it's clear that and that's why i think part of the reason why the think that's part of the problem that dealing with what the second prong of robins means when you're talking about a telltale song which is the pell council's not quite the same as trial counsel not quite the same the trial in a trial is normally one of the szell piece of evidence what would this witness that added to the overall record and that make the overall record begun and unclear as to what the result of trial be on the field is either a meritorious issue or it's not in their torts issue and here the court of appeals that based on the way that we're reading the direct appeal record and we're the ones who would have had to read the direct appeal record we don't want to new counsel ever and please not read me my new counsel but even those motions and call can bring to the court's attention at any point in time the only motion that you see here in the legal file that was actually ruled on pretrial by the trial court is the one that trial fell full noticed up for hearing which is the motion for blood testing beyond that everything else and all the pro se motions arc noticed up there is no ruling on those motions and the question here is is there clear authority as to what the proper procedure is to bring these motions to the trial court's attention and the normal rule of specially i think with judge because they just have that many files in front of them that here's today's case anything we need to do they know that you're over a month we'll give you a trial date in a month that shows up in front of the final judges assigned to no nobody says judge we've got five motions that we thought of hearings on this case there's things we still need to resolve and judge if it's not brought to the tension that there's something that needs to be ruled on they proceed that everyone is ready for trial and person was made about seven months after the case was filed judge white why would you isolate that you know can it become subsequently eclipse seven weeks later judge i'm sorry yes judge ok so why isolated why or why do we necessarily have to look at the one can't his request become equivocal when he subsequently asks for appointment of counsel well i think you have to look at all for the motions and say look none of these were ruled upon by the trial judge and i  if there's some systematic issue with the city of st louis the way they dress motions i'm not aware of any requirement at least in the case live looked at on cases where a client or where in the process a person or a represent persons brought a friend a motion where they've had the notice the motion i'm not aware of now it would be one thing if mr blouse he i believe fell some other motions other motions for appointment counsel and for fraud like discovery motions i can understand i mean i think the rule of law in that missouri as well if you're upset by counsel you're trying to file a motion for discovery or a motion to dismiss and that situation yet the court doesn't have to look at it but i don't know how motion you the trial court and i want to proceed proceed to represent myself about seven weeks into his charge and he said that in open court to the trial no he didn't judge she just filed paper motions and then not a science writer what point in any of these proceedings did any one lawyer or client make such a request in the presence of the trial judge from reading the record there's nothing on the record that had that happen judge orally now there is in more where the fifth circuit did fine and reasonable application of freida and strickland in the case where a defendant had filed a motion with the quarter letter actually asking for a number of successful that that's correct judge if you right of the missouri court of appeals saying we wouldn't give relief on this anyway how do you get prejudice and you know how is that determination on reasonable w issue because it's a structural defect so the so it's a stronger when you compare the two issues it's a stronger issue that's one reason why i think it's unreasonable because counsel had a much stronger issue she even included in the record an appeal to the co jury nullification what's your response to the question i presented proposed or posed to your own and what will happen if we affirm what's going to be the next step in state court well next step would be that mr glascock would have as a direct appeal read  relief i don't see i mean he's going to be bound to the record you know that was created in the trial court the fact that you know to be honest i mean there is no you know motion for new trial includes that issue so he'll be raised again it plainer it doesn't apply in  situation will be a structural error argument or so on when it goes back for a direct appeal argument will be that my counsel on appeal should have raised for education no his argument on direct appeal judge will be that i was know just to say hey it's you know the courts processing or whatever to lie on their own record that he ever presented this to the district to the trial court except that except in motion paper motions so he did actually file a motion a motion out signed it was notarized so it follows that i mean it you know he says yes i realize what you know i'm competent you know my age you know i understand what the you know the ranges of punishment are in this case  appeals was on on the ineffective assistance of counsel claim which again it would be a different standard of review because once that goes up direct appeal to this time if if you affirm the district court's opinion then you're dealing structural error at that point you're not dealing with whether your counsel is ineffective but you agree his request has to be unequivocal don't you i agree i agree the judge and i've already said the request wasn't unequivocal so i don't see how you get into two of which were after the request for to represent himself how can it be on reasonable for the misery court of appeals to say he didn't clearly and unequivocally seek to represent himself because the right to represent yourself as a fundamental right right away and find out what's you know what's on the fence councils you know what's on the defendant's mind and whether i'm to give you a new attorney or let you go on your own i mean that's i think that at the end of the day i think that's the the important thing to remember is as we're talking clearly to me as a trial strategy in any any you know i think it's unreasonable to say i'm going to pick this jury nullification issue over over a for other issue that's in the you know i think in the record he's situation at least as far as fred applies as far as calling up motions are not calling up motions or isn't it a little bit like phillips versus state judge you know i had that one year after remind me about because i don't well my understanding an ak a so there was a letter asking to waive in a subsequent motion for new counsel and they said no clear and unequivocal requests to represent yourself there was something about the case that  that is where we are those of though in those cases though they do they did not have to hold a hearing in that case that this isn't federal court as to what the district court will have done on a direct claim freydon district court is not necessarily what the state courts have to do that's the essence of what twenty fifty four currently says that have discretion to things like the difference even if there is the ultimate federal constitutional claim then the federal courts do until the u s supreme court resolves that issue and the u s supreme court has never addressed the issue of the what's required before you get to the hearing those here arguing that that there couldn't be a case out there where it's clear that the trial court was denying against tons  you the judges while mr polanski testified in the post conviction hearing that it did occur off the record the motion court who with the trial court on finding says no it didn't occur off the record he never mentioned it to me and that's the situation we've got the trial court had no without digging through the file to see this buried somewhere in the file this was in the file trial court and no way of knowing that you had these conflicting emotions pending no one asked the trial air because i think mr sharon and i think the master did also the same problem which is there are two different parts the plane air review in missouri which is one in this preserved for appeal if it's not preserved for peel the first question is is  to seeing this somewhere and these conflicting motions in the file to call up to be heard in your court of appeals that are read in the case law is no it doesn't and because the trial court doesn't have the obligation to store the record see what may be pending especially in light of these two competing motions apparently waiving the request approach go pro se in asking to have a new counsel appointed that the trial court didn't have to clarify those motions that we think