different legal doctrines i'd like to begin my argument day by the reviewing at least three of the parameters which limit our position as initial matter must be understood mr devo does not contend that there is a independent free standing claim state and federal courts regularly pay appointed lawyers for doing this and third mr voters not contend that habeas proceedings can be state indefinitely pending restoration of competence the issue remains there the question remains what happens investigation because it can only come from the mouth of the client and i can understand this might not be a concern for contention sounding surely in record based claims it is ineffective assistance of appellate counsel but that concern pronounced in paramount when one is dealing with claims that necessarily involve outside the record claims most specifically and most obviously with now in the case here i would like to direct the court's attention to page one twelve of judge presented during petitioners try well and therefore cumulative the nature and that's the problem is that it was repetitive of what happened before and if you look at pages three of five the three fifteen of our second amended writ we put forth ample material had appeared in the state pay vs file showing that mr avila had been repeatedly tested once by the t d c j psychiatrist or psychologist and their time by somebody that the state rick council had employed to see if he was comp and we knew that he was not with us becomes important is that often state habeas petitioners of people in prison have had nightmarish personal situations that may be especially in their youth that w made a lot of the same arguments and of course we were denied on post card denial in january of two thousand and sixteen on the section five bar so it's our position that's procedurally defaulted so before we get to the martinez trevino analysis first we have to establish what it was that sent and in less than a month later i think he would mind january of two thousand and nine and february from or on the days mr d'angelo will let me know but pretty quickly he was allowed to be restored to be competent for the trial then and we know this and there's several as mitigation would be double edged another judge might help think the jury was actually more dangerous than harping on all these problems he had like his abuse drug abuse and yes just cause i think that probably hits infinite regress them in this very pure on a lawyer mitigating evidence for the sources or this is in some detail at the trial they presented some live testimony of certain family members and his mother and another they had put through video testimony their health went from it in the travel to the trial in new york and what happened there was the family likely do so again that under those circumstances he should have moved to stay the heaviest proceedings just to get that necessary quantum information and then we really hard even i case like this one where the initial investigation was so good so independently interviewed devotes family members some this is much more thorough than many cases that you are the lawyer on isn't it oh yes and a neighbor's match very very thorough so because there's done here unfortunately there are still many death penalty cases across this country where there is very bad mitigation done but that's like so many things is largely a function of the facts of the case at issue this mystery of those case it is not a case where it was likely to be one at cases that this court deals with doesn't mean the necessarily it was the complete amount of mitigation that was available layered on top of that is the time to what is good mitigation and there's a sterile investigation i haven't heard with the good mitigation is other than speculation competent since then and so what are we supposed to do what are you asking us to do well we asked for and we were denied budget sparks funding to have them tested for competence at the time and their course we asked of that when we court to simply hold the appeal open pending restoration of competence for example in judge sparks's order granting the stay in the bay he put a very regular deadlines we had to update the court think it was every forty five days or something like that not that's right now what would we you write the opinion what do you want us to write what do you want us to order this what he wants to say i sure will be all the order we need just opinion in this court would be to say was that judge  dies so can you answer her question as i want to show him from the question directly i think a period of ten years in a case where someone's life is on the line literally and figuratively would not be solely excessive or compared to the same person and presumably the same psycho but medication he's not been on any now i don't know what all medications he's been on recently i mean we moved to stay in the bay after we are first the issue the fact what is the issue debate what did the issue is whether or not state havey is counsel was deficient for not moving to stay the state has proceedings when he knew that his client who've been reversed at least twice by the court of criminal appeals for his testimony around the state was talking about a very abstruse subject or even most lawyers will be for myself i'd be fraught for start dealing with this from are a lot i did not know about prison classification of stories about violence in the prison that's what fact that you have here somebody the expert peter of experts who had been reversed in at least two other cases is probably enough justification to get funding and were very clear enough on whether an exhausted issue aren't you limited to the state court record and that mr divel i would like to and i i understand where the court is going whether whether da is sensually cuts this claim at the knees mr krebs or presented oral argument and dava law and i think he's  very well suited and he will be back on rebuttal i think to address that and i'd certainly don't want to take his thunder because he pees put the lion's share of the shit here into working that claim i would like to address some of the questions that were raised with respect to what more could have been done in the investigation in this case the texas rules of professional conduct for attorneys explicitly say that a state hevia sitar any cannot simply rely on what the trial attorney did the state hey be a sitter needs to investigate the case from the ground up so albeit there are very very complimentary things being said about what mr weber did in the trial investigation this case for mitigation work when state habeas counsel comes into this case and we've cited in the record that his own mitigation expert that he hired to reinvestigate this case as he's ethically bound to do goes to the prison interviews mr de veau and comes to the conclusion it's impossible to communicate with mr devolve impossible to communicate with him for state habeas counsel then to continue to plunge forward and conduct a presumable reinvestigation of the case knowing full well that the client and i would i would equate this to an analogy imagine if you had a client who spoke only a foreign language spanish you had a state heaviest lawyer who spoke no spanish but every time that state gave us lawyer met his client at the prison did not bring an interpreter just let the client talk but  of touch on what you're saying judge owen we did ask for funding to have mr deval evaluated in our motion for stay that request for funding was denied to answer the ultimate question before us now it is not before but it is before in this claim in the sense of well this that you are making you know a very compelling compelling argument that stated his counsel wasn't you know didn't do a great job but how is that not an argument that state abuse counsel was ineffective which is not a recognized claim i'm just you tell me the label you want to put on this claim because i'm a hard time figuring out how it's not in effect of assistance of papers counsel you know it's an evolving doctrine clearly the supreme court rejected in a very discrete application we are seeking a very unique application in this case this is by all intent a first impression issue whether a defendant who is incompetent at his state hey be a stage and cannot assist his counsel whether that defendant is entitled to the benefit of counsel i understand that the supreme court has expressly limited counsel in the right to counsel to the trial court level but martinez is a doctrine which is evolving and it's being challenged and it's constantly losers has just limited in june it was limited and i knowledge but i think we can we can overcome to a certain extent that limitation because this ties back to what trial counsel did or failed to do when you have a defendant who cannot explain to his state habeas lawyer what my trial counsel and i discussed and what my trial counsel failed to do failed to pursue because at that moment that petitioner is incompetent then that is a residual impact that carries over because we can't articulate what more could have been done because as it stands this man is incompetent we don't know whether he's come in and out of competence throughout the time he's been in prison because we wanted an expert to evaluate him to get some sort of a barometer on where he is but we never got that far we'd like to go back and do that i mean it's the way you present it is unusual but it's often the case when these get to federal havey is that the trial counsel for the defendant is passed away sure that's not an unusual situation and there are that makes it difficult for federal havey is counsel to get the information they need to perhaps develop claims and that's not that's just reality to you doesn't create an additional claim because of that development but you still have the benefit of the client being there in this case not only has trial counsel passed away but for all intents and purposes the clients in a coma and can't communicate with you this is the single shot counsel passed away no no i'm making an analogy this didn't we have one of the two people just deal in the hypo we do we have the client but the client can't communicate judge no we have the trial counsel we do but to go back to simply say to the trial counsel did you do everything that you should have done on weekends yes i did you also appear where the defense has specifically struck to cancel not to do any mitigation shore and i do and they do a fine job of it so that's not always the case i think it there needs to be at least a communication a level of discourse between regrettably there isn't so i don't see how the state court valente clearly established supreme court law well it did in this respect and i know that ryan was brought up and that there is no there's no indefinite stay that could be considered and i understand that but i think that ryan is somewhat distinguishable because ryan dealt with a federal hevia stay ryan dealt with a case that had exhausted all state remedies was in federal hevia stage and counsel asked for a sta could be regained that is a pure record review because in federal hey b s we can't go outside the state record so that the judge made a very apt conclusion that i'm not going to indefinitely stay this because the attorney could review the case  situation we don't know if he's ever going to be confident you don't hack and we say that that the state court clearly erred or that cancel was ineffective for not asking for a study i mean that that's a stretch it seems to me it's a difficult situation and it's a unique evaluated the error by seems to spot you that all we can say to this court because we are not trained professionals is that when he arrived in prison in two thousand and ten t d c found him incompetent to assist his state habeas coun experts to examine him for where does that get you that's my want to get a barometer on how we presently is because if there's any prognosis that his competence could be restored then we might have an opportunity to go back to him and determine what should have  trial counsel in the wigan's investigation that state habeas counsel should have developed how much money will that cost judge we proposed in our exports a motion seventy five hundred dollars to have a competency evaluation done we were not we were not asking appeal funding issues that they don't involve a c e o where you can just straight appeal that we could judge we could i think at this at this juncture we found that the more compelling issue for this court was whether we could go back in the first place because the court did give us the opportunity to go back we did file a successor however it was summarily denied i have no further time i'll yield to the to the state thank you terrorizing just about every girlfriend wife you ever had assaulting his own mother and sister sexually molesting his own daughter just weeks before the capital murders in this case the assault let me ask you this is not the record i just want to know you have an answer saying the state were to prevail and he said of execution died are we going to have a a climb he's incompetent to be executed they'll be up to the petitioner but i think at this point one could assume so is tight think he's incompetent to be executed we don't have any reason to say one of the one way or the other we haven't evaluated evaluated him and we haven't seen any evidence recently regarding his current state so we would have a position on that at this point ok just wondered how much longer would you be less than ever this whole thing's a good point you're on  all to begin with but even if this court was to take up the issue whether martinez could apply to it and could apply in this this competency context it doesn't apply there either  counsel actually ask for an injunction of the status proceedings do that in confidence so even if martinez could apply here which it doesn't status council did all they could do that there is no right under state law or federal all too of think analog is and all of the appellate counsel issue that justice thomas discussed the reason martinez doesn't extend to those claims is because one reason is because with appellate counsel claims one court would have already while confident so under the rubric in the principles of dublin martina's that's already happened so the even the rationale wouldn't extend even if the court could take up this radical extension of mar competence because at this point and even in two thousand and nine when trial happened the path was pretty well worn about what the mitigation of estimation look like and that requires consultation with diffidence family you know health experts record  opinion records of schools and health spittles jails and prisons and that was all done here so that i think that the marginal benefit of the benefit of talking to the defendant there be very little benefit to be gained if a rule was to be credible and there's no no no there's no proof of any falsity in his testimony as to the funding issue what about the i asked this case that the supreme courts can decide which term but doesn't apply in a matter what i would say for a number  reasons one like i said the funding motion was not based on an icy claim and i assists is based on an icy claim under martino's so since fourteen is dishonest pie to due process claim which is what which claim the petitioner was asking for funding on diocese could not apply to the my to give more guidance just about the threshold level of which funding is warranted because here the court just like the the district or a master's degree did say i'm not going to give you funding in part because i think these claims are meritless are going to fail etc i think you can make clear whether or not funding it or under what circumstances funding is available to show cause and prejudice which i think there's somewhat of a lack president on that point but at this point that's not relevant for this claim because that claim is exhausted both the due process claim with regard to maryland and of ineffective assistance claim regarding maryland so like i said martinez would have no exception of application here because the claim is exhausted not on exhaustion rubric right exactly is that it's not a question of whether a claim has been rendered on exhausted through new evidence it's just on whether cause and prejudice can be shown and under what under what circumstances funding deference which means that it also does apply no new evidence can be presented to support it so although the initial reason to deny funding was based both on default and merits by the time just parts issued his opinion pete addressed only funding on that reason in the later choosing only to address the merits you know thing of support here is that we're on a good piece of discretion review and like i said the states the state courts alternative merits decision was an adequate ground on which  of state laws in this case and that decision is binding on the score in terms of federal law barefoot versus style is directly binding it's that his testimony was can you address the issue that they're the several of the concurrence regarding that in the state or court and whether that has any play in the joints so to speak sure so dr tunes the determination is debatable only with the showing of harm and prejudice and here are the three concurrent judges that apparently believe that his testimony is on miscible which apparently means that they thought there was air in the trial but they've agreed that there was no harm so i think that the fact they concurred although they might have disagreed as a matter of state law and in this ability i think the fact they concur actually supports the denial of the sea away because they agree that there is no harm like i said  disagreement was and we have to consider that with the ed deference the question is whether juries jurors could now disagree that was and reasonable for the state to reach the decision it does and there was disagreement reasonable disagreement the point of the state court so it's tough to show that it was unreasonable for the one side that came out the way it did i think mr the at the difference would apply to the claim and the fact that they all agree all judges are just judges agreed on the armstrong i think would show that it's not unreasonable devote set out to kill his ex girlfriend going to purcell and her parents if you will to do that but what he did do was he killed he killed another ex girlfriend two teenagers one of whom he apparently has some affection for an elderly woman  i think i heard the state say something with the answer the question does cost asked about the funding issue that's somewhat alarming i think with the state said was that if i file a motion for funding and set me an expert to help me out develop  case not follow a funding request as per the scheduling order and say these are the potential issues but i've never heard anything say that if i file funding request i happen to say this appears to me based on my initial review and meeting with the client to impinge on the process in a later turns out that is alternatively or in addition a sixth amendment claim that i'm somehow a stopped from using the expert's report or he gives me pursuant to the funding to them substantiate that alternative claim so i think just before the panel writes the opinion i think what the state just suggested is somewhat dangerous i don't know that a federal habeas lawyer when they get a case and do their initial review needs to be able to anticipate any potential legal theory or be stopped from using the expert funding for that purpose later on i would very dangerously cabin what the a b s were federal habeas lawyer can do based on how they happened to phrase the funding request or whatever will do it that's the ruling as now everyone will listen to a laundry list every potential legal theory to make sure they're not trapped by this  rule so i think that's a very precarious legal proposition no matter how estus you're not on the opposite that you shouldn't have to tell the district court that you need the funding for a particular reason of course and if you can't articulate in the court says no you don't need it for due process because due process for whatever reason he said that in the you really think you needed for ineffectiveness of counsel assistance of counsel that you don't need to go back to the district court cases that might then separately granulate or impinge on you know due process ineffective assistance with lawyers didn't do with regard to a i've never seen a case that says if you in your initial review say that it's due process and you get the funding then you use the saw report at the stake and then come back and say oh no you're stopped from using that it can't be considered that's not the reason the district court granted the funding what happens is the district corners in order says produce a c j twenty one and then you know the expert does has his job at the top of the order of the thing to decide but legal theories arise out of the factual basis so it just doesn't respond the question asked me before i sat down for whether or not there's ineffective assistance of the state havey as counsel there's no dispute there's not a free standing claim of ineffective excusing the procedural default so i don't think even the state would contend that under developed that there's now no requirement or ability to show a deficient performance by the state his counsel that deficient performance by the state his counsel has to be tethered to an underlying deficiency by the trial counsel but if it was done just as the underlying claim can't be ineffective assistance of counsel that's correct to be ineffective assistance of drop counsel right let me ask you a bigger a procedural question and the supreme court has criticized robust discussion today let's say we were to decide that some of these claims are debatable issue or c o n one or more of them and if that's the case we need to do that because of the law says and procedures specially in point in a case like this but practically speaking what more if we get to that point what more would you have to say you get a chance to fully brief the cia granted issues but what i mean how much more is there for you to say sure and discuss i think the far members have been the first miller all opinions all