please the court my name is david anthony i represent the petitioner jimmy todd kirk c in this appeal i would like to reserve six minutes for a bottle if i may this case was originally a capital case where the most important piece of evidence relating to the proceedings a supplemental competency report which reverse the opinion of the examining psychiatry list was offered by the trial court and then was placed into the record by the trial court and represented that it came from the expert mr kirk said at the hearing he thought so quickly confirmed that that indeed was his opinion and that was his signature on the report if not the favorite or your honor there are two hearings i think that the court may be referring to the two thousand and six evidentiary hearing where dr master testified i believe i mean i nine report stating that mr kirk c was incompetent and at the same time he attempted to adopt the supplemental competency report which was the june twenty second one thousand nine hundred nine report but on the basis of that testimony we then had factual fine by the i guess it was the nevada state courts that that was in fact his opinion and that there was no overreaching by the trial judge in obtaining that opinion so it isn't your burden on havey is to convince us by clear and convincing evidence that that's the court finding of fact is the ruin you judge gage this factual findings were that dr master testified that mr kirk c was incompetent that was at the hearing he was forced to try to reconcile those two opinions i'm not sure you're addressing the mystery of the me i'm trying to figure out how i get over the ed tough standard with regard to the deference we must give to state court findings of fact i think that one way we get over the edge standard is that i've argued in my brief that the state court's decision here was contrary to clearly established federal law in what way because the state court imposed a harmless error finding into its decision about whether judge wayman was biased and in other wait wait wait forgive me judge tom and then ask you about what the doctor said let's assume for a moment that the trial court heard but what ultimately came out if i understand correctly is that judge dr master said you know what's in this report what's in this opinion is my opinion i think this is correct under the circumstances how could there be prejudice getting back to the ed concern again well let's talk about prejudice because i want to address that in one in one package first of all we have a claim of judicial bias that's one of the claims that's claim to in the petition as to the claim of judicial bias it's my contention that it doesn't matter it doesn't matter what dr masters alternate opinion was it's my contention that a judge who would take an expert opinion would go back and would participate one of an item and if i understand the record correctly the judge asked the parties including defense counsel whether it would be all right for him to contact dr massey next record i'm not sure if he asked but he could but i've seen it in open court said this is what i like to do any objection if i recall correctly if that's correct and he did that and it came back and nobody objected to it and then later on the doctor confirm the accuracy of what the judge did isn't doesn't really put him in the role of a shri or what whatever his personal view he is effectively writing down what the doctor ultimately confirms is his professional opinion that correct what we don't really know we don't know you you may not know but you have the burden to show do you not that the trial judge's actions were so prejudiced and so biased that it affected the outcome of the case and that correct under at well i don't think it's correct about whether it affected the outcome of the case i don't think that's and i think that is to the claim of judicial bias it does not matter whether or not the contact with dr master affected his ultimate outcome how can you explain that i mean what do you say how is the judge by just by simply doing what he did that he's biased against your client by contacting an expert off the record on a material the most material question in the case and by participating in the offer ship of the supplemental competency report we have a judge who has crossed the line and has made himself almost a fact witness here he's and it's adopting almost he's adopting an adversarial sta looks like that his gauge for competency was whether or not based on his review of mr kirk see the fact that he wanted to have the death penalty  imposed upon him that was it that was his criteria it seems like it was suicidal did make sense reflected poor judgment but he didn't address the standard you know elements for competency and whether or not he could assist counsel whether or not he you know can make a decision right from wrong i mean so i think there was some discussion about that that's when the judge said i'm going to contact him i think it was does anybody have any objections there was no objections he contacted the doctor i'm not endorsing the practice in fact it's questionable but were way down the line here and we're we're limited with respect to our review and so well the question is how in light of those additional facts does that show bias by the court because apparently later dr master testified yes that was my opinion and yes that's my signature i ended up signing off on on they when basically when pressed let me address the first issue that the court mentions about the follow up i don't think that there was judicial bias because the court wanted the answers to the questions about competency that's not bias i'm not saying that  improper that's one trick can you explain what is the your argument with respect to bias the argument with respect to bias is that it wasn't a con a subsequent contact that occurred on the record and there was no evidence of what the nature of the contact was it was a contact that occurred off the record and during this contact whatever it was the judge offered the competency report finding in definitive terms that mr kirk see was competent to abandon that wasn't that the subject of the hearing that's why they had ultimately dr masters and the trial judge testified and on the basis of that record the nevada supreme court said the trial judge shouldn't have done it it should have been done on the record but we don't see any evidence here of bias and the doctor basically confirmed that that in fact was his supplemental of opinion in response to the court's questions that judge identified that the doctor had not answered the first time or i think one of the things that the court's been mentioning here is dr masters opinion so maybe i can talk about that a little bit you know what what i haven't heard from you is the answer to the question that i asked you and that is what evidence do you have to convince us that the nevada supreme court's factual finding that there was no bias is eroni is under a clear and convincing standard their finding that there was no bias was predicated on the assumption that there would only be bias if it affected dr masters conclusions i have always we have always argued that that is a question of prejudice that is not relevant to the question of bias it is not relevant whether or not what he did affected the outcome of the proceedings but that but didn't they specifically say we do not see any evidence of overreaching here in other words that the trial judge didn't browbeat the doctor into changing his opinion well we've got that finding do we not if you look at the record what you have is judge la dr master testifying they have no independent recollection they have no independent recollection of anything but they're sure that nothing wrong happened but don't you think that if the psychiatrist felt like the trial judge had leaned on him that even if he didn't recall specifically what the judge said he would have said well that's what i wrote but you know i did it because it was the judge on the phone who was asking me to do it i don't know why we would assume that but let me bring up a point here but i but you're not helping me i'm going to talk about being a man find out how under their constrictions of ed that i can get to the point you want me to get to to grant you relief so let's talk about the state court record ok in one nine hundred ninety three dr master testified at the first ever first post conviction evidentiary hearing he testified at that proceeding that mr kirk c was incompetent to be sentenced nobody including the nevada supreme court including any state court has ever acknowledged that uncontracted testimony from  fresher in his mind with the two thousand and six evidence you're hearing testimony where he's confronted he says the way i resolve the inconsistency i adopt the initial opinion that's what he testified to now when judge gates made his factual finding in the minute order which went into the findings of fact he said dr master testified that he was incompetent due to suicidal ideation but i find that i don't credit that because he obviously some finity against the death penalty that was the factual finding by joy why is it impermissible when you're trying to assess the credibility of an expert witness to decide the expert witnesses by it's not i permissible but the basis that you find him not credible should be have some basis in the record what basis if there was a problem mr anthony then under nevada law that's not evidence of incompetency  what state law is regarding suicidal ideation under drove the missouri suicidal ideation and an attempt at suicide creates a reasonable doubt as to competence i've been arguing since state court that there was a reasonable doubt as to mr curtseys incompetence because under drove up and attempted suicide is sufficient to trigger a competency hearing mr kurtz he didn't receive a competency hearing so i'm not concerned i don't i  was you know by both of the third character is who then prepared the reports that were submitted to the trial or mr kirk see receive the same value you know the ten minute evaluations from both of the cycle is the answer to my question yes they received examination the statue limitations you've cited martina's in one case but these are not martinis facts here help me with how you get past the limitations then the equitable tolling issues that you've raised the reason that the claims that are here on the appeal were found untimely is because the court said that there was an eighty eight gauge alay that occurred in one nine hundred ninety one one thousand nine hundred ninety two way before the existence of the statute of limitations somehow unconstitutional if it's retroactive in this case i would say yes but i don't think we need to go that far because it's not up to me it's up to the court in the court said in the patterson case that a person like mr kirk see who has a pending one i made a lot of alternative arguments about the timeliness and i want to make sure that i'm addressing the court's concern but i think they very easiest way to do it to to cut through this is to say that mr kurtz he had one full year just like patterson says he has one for under the statute even though the crime was pre in essence the clock started running again when ed was affective correct but it tolls under twenty two forty forty two i if he has a pending proceeding which he did for some period of time i guess the way the way that i looked at it was that the clock for him started ticking on january four of one nine hundred ninety seven when the better supreme court denied rehearing on his state and then that makes the march twenty one ninety seven federal petition timely but not the january twenty sixth one thousand and ninety eight petition i've cited to the court in my briefs the buffington case the buffington case is from the nevada supreme court where the nevada supreme court is saying what finality means under nevada state law no one has ever addressed buffington no one has ever disputed it buffington says that the case is not final until remitted are issues that was the same approach that florida had in lawrence v florida that was the same approach that texas had and consolidate the failure so the idea that remitted or can't be that way just isn't the case so good morning may please the court victuals he for the state attorney general and for the warden if i could address the statute of limitations issue first it's based on a complete misstatement of law if i could that initiate the beginning the running of the one years statute of limitations under the theory that you get the one year grace period so you don't suddenly start with the statue of limitations in the guy's done before he starts and we all agree that's fair that happened in this case when i filed the motion to dismiss in this case i noted that the one nine hundred ninety seven u s district court petition was timely had no problem with that case it's the one nine hundred ninety eight amended petition running and us the first petitions filed in march of one nine hundred ninety seven seventy six days of untold time had been used up there were two hundred eighty nine days pending a post conviction petition that tolls is pending until the court makes its decision not remitted or but when the decision is made denying that case that is seems to be the universal under my under my counting of the days what i don't understand about mr anthony's argument is he's saying that somehow as a matter of federal law that the j o c in this case the the ys trying to argue is that you wrap up all of the state post conviction stuff in the post conviction appeal and that defines finalmente if that's true then there's no pending of that that that somehow turns the believed in good faith i figured all that into my motion to dismiss and i think the district court judge followed that correctly on this eighty eight day issue it's surplusage if it would be a good argument as i point out in my brief except it doesn't go anywhere because it's complete surplusage because the timeline that i argued in the timeline that the judge followed in this case still complies with that book so i think that's that eighty eight day argument that somehow there was a pre at the time period that courtesy was required to follow is is a it's a red herring argument it doesn't matter the nine hundred ninety eight petition was late under ed but now if i could go back if i could return because the court seems to have a lot of interest in the competency report and i agree with the court i'm not here to defend judge layman but look at this from judge layman's standpoint there's a motion for competency file because the guy wants to plead guilty straight up to what used to be a capital case jurassic and v i have got to tell you back up just for a second these are some of the most respected psychiatry's in clark count and everybody in nevada knows these names dressed he comes back and says guys i've looked at him the guy's competent master comes back and with this report the judge gets the report holds that live hearing and says and i'm paraphrasing i don't have a clue what master just said in this report this judge is obligated under the constitution to apply drop the drop factors from one nine hundred seventy five or seventy six that was the controlling that layman would have been looking at he reads this report about suicidal ideation and clinical depression and he says you know what and again i'm paraphrasing i don't have a clue if i can't read the report i the report doesn't say anything about tr so he says on the record to the world in open court i am going to and you all know that you've reviewed the record i'm going to contact the doctor and find out the drug factors because he's obligated to do that and we cited case almost on all fours with this case where impropriety was not found notably in that case there were some suggestions made to us district courts on the better way to handle this issue which is do something on the record and i  absolutely agree the nevada supreme court was not happy with what laymen did and i think the u s district court below is not happy with what laymen did but the ultimate question is is that bias and that's how can we cause it goes to bias whether or not the judge was impartial because how can we be certain that the judge's contact with dr masters didn't influence dr coerced i was not and i'm again i'm paraphrasing from the from the from the the transcript but he said i was not something to the effect i was not coerced he did the judge didn't try to influence me those are my conclusions that is my signature that is my report that's how we know also and under at how are we to treat that is a finding of fact that is worthy of deference under epa the state courts made that made that finding a fact you've got the testimony that support we don't say that procedure was so outrageous i do not think the procedure is outrageous let me tell you what let me tell you the problem the lack of a link or a causal link between what the district court judge did in this case and bias because this is an important issue that you just said you don't think it's outrageous that's just your opinion i mean why isn't that just outrageous why is it now why is it not outrageous what he did first of all he announced it i think everybody can agree that the first master report did not address the drop standards you have a judge who is constitutionally obligated to apply those standards from the u s supreme court he announces in open court i don't understand this it doesn't address we all have obligations but we don't do it you know understand but he then he says in open court i'm going to contact the doctor and ask him about the drop factors you then get a report that comes back and says under the drop factors he's competent you then have master in one thousand nine hundred ninety three and in two thousand and six testify i submitted that report to the court he's asked in the tooth in the one nine hundred ninety three hearing by paddy erickson curtseys attorney at the time did you submit a report to a second report to judge layman answer let me address what i think is the heart of your issue judge could he have done a better yes could he have made a better record yes but the problem here on bias is based on currency standard every single time a district court judge at the state level or at the district court level or if it i don't know that it ever happened but if it ever happened that the u s supreme court found this court had made a mistake and was reversed it seems to me that currencies argument is every time a court makes a mistake you have to presume bias because the court didn't do it right and there is no such presumption of bias simply because a lower court makes a mistake and i think ultimately that's the argument here just a mistake it's the type of thing but look at it but it was a cult i think ultimately the argument is here that judge lehmann made a mistake therefore he's biased i think we know there was no outrageous conduct in addition to the constitutional duty that lehmann was trying to follow because master ultimately testified it was his signature there his conclusions it was his report position i think it was in the prior they made a factual determination that it was never conclusively determined who typed up this report but let's make let's let's make an assumption here let's assume that the judge does what he says he's going to do he calls master up and he says i don't know what you're i could tell me about your report i don't know what it means it doesn't address the drop factors let me tell you the factors i think you need to address under the u s supreme court decision he lays amount does the client understand factually what's going on here does he understand the proceeding can he sustain his defense master says yes the judge may and we don't know this but the judge may then have said all right i'm going to have my secretary type up a letter type report based on the drop standards i'm going to send it to you if you agree with it sign it if you don't don't sign mistake repeatedly but look the reality is in state court lawyers prepare orders for judges all the time that's essentially what happened here no although the roles are not that's not well but the ro i know i know what the nevada supreme court decided and i think that's the question is whether their determination was reasonable in light of this procedure that took place in at that time a death penalty case right under certain two more points i'd like to make that i think are right on point and i know it's ten years later and so it's less relevant but ten years later the f p p has curtsey reevaluated and d his reports in my se o are that we submitted schmidt again cannot find a lack of competency so now he's been evaluated three times to psychiatrists and a nurse like colleges he's been found competent his attorney testified at one of the two evidence or hearings and said i never had a belief that he was incompetent so now you've got two psychiatrists a psychologist and the trial attorney all saying we think he's competent if you compare these facts to the green case that we cited from the third circuit the facts are a little different but they're kind of surprisingly on point here and in that green case they suggested a better way that the court could have done it but ultimately they said you know what the fact that the court had communication with the court's own expert is not automatically grounds for overturning the conviction also keep in mind these are pretrial proceedings this is not as counsel says the ultimate issue in the case this is not evidence that goes to guilt this is not evidence that goes to the testimony of a witness at trial that under the state's burden this is a important issue but it's a collateral  pretrial issue dealing with something that is not going to be the issue at trial now we don't have a trial because the plea but this is a pretrial issue and i think that green case provides a whole lot of really nice guidance to the court in this case the doctors court appointed doctors or was one for the government and one for the i am i don't want to be i don't want to mislead you i am under the impression that these were the experts that were court appointed because of the motion that kirk c filed to have the evaluation done because this is a trial civil judge one thing you might want to consider if they disagree on the drug factors is simply send the guy to lakes crossing that's our mental hospital up in reno have him evaluated up there and the judge said essentially have a hearing i can't even make that determination at this point yet because i don't have to reports on the drop factors and i'm always going to get back to dr masters failure to report on the drug factors and again i think i think we've got to give judge layman a little bit of a break here he was new i know we i know you're uncomfortable the way he did this thing but his overriding concern in this kills the bias argument i think his overriding concern is to fulfill his constitutional duty under drobe to get a determination on whether or not this guy is competent and i think judge company evidence came out i could do that let's assume for a moment that they had gotten past all of that they were in the trial and the same experts were asked to testify and as part of a defense strategy that's part of the defense ok and let's just say that the judge and it had a question about the meaning of something and he said you know i i really don't understand what was said here say that say it was not for your ears it's a judge trial and the judge said he wanted to contact the doctor and do exactly what he did here is there any doubt in your mind that that would be a reversible er problematic because your your your scenario affects a defense that the defendant's trying to raise and that's scares me i would back up on that and but in is true th counsel and here you have something that goes to the heart of as a gift when at the time this was a capital case it was this person was going to be executed theoretically for the crime allegedly committed the one of the key determinations is whether the guy is competent the judge contacts the doctor one on one of the doctors on whose testimony he the judge relies on making the determination regarding whether all the constitutional protections have been given doesn't that i guess what i'm asking is is that almost structural it would it's it's not communication that is trial error according to the district court's order he did a harmless error analysis in this case we know that ultimately when you focus on the drug factors that master was supposed to focus on as a according to the district court judge in this case below he said that was proud i don't want to use the word probably he said it was arguable waiver of the issue because he didn't object at that point in time because he knew exactly what the judge was going to do and the judge said i'm going to talk to the guy and everybody in the courtroom is silent nobody says i meant it but if it's not waived and we go forward then aren't we looking at the standard of plain error and of course the third prong of that is whether there's a real injustice that's as we know it generally applies on directory yes as this is a deferential fax standard in this case under everyone to review in this on direct appeal you might do something different and argue that this this court is noted repeatedly that if and i don't how  i read from this court that have said if the if we had this case on direct appeal from a federal a federal conviction our analysis would be completely different and in fact it would be that's what congress intended abby you're absolutely competing let me address your issue they were let me address your issue as as to i'm going to answer your question directly the allegations been made here that layman authored the report let me let me suggest a different way to look at the facts the u s supreme court authored that supplemental report because layman quoted the drop factors the drop factors were in that report that was authored by the u s supreme court nobody made those factors and as far as your question is did master find him to be incompetent in his first report or when he started to retrench in his two thousand and six testimony it's a fascinating question but it's not just factual it's legal the answer is no he didn't because the second master deviates from the drop factors his testimony is irrelevant well another way so he did not i'm not talking about the procedure here in the procedure here is what you know of the focused on he clearly said in his first report dr master that he was not competent he thought he said that he wasn't dealing with the drug factor i understand that but the word not competent came out agreed i agree a judge saw that well instead of the judge going to a third separate you can't separate the law of drop and the facts in this case because layman's first report and the master's first report didn't address the factors in layman's said at the hearing and again i'm paraphrasing that first it didn't address the issue that the trial judge needed to have addressed yes absolutely and he was absolutely right in demanding a report that addressed the drug factors and that point layman was one hundred percent correct factual context he finds himself in a trial i mean it's pretty standard pretty standard stuff and you know i got to tell though we're all a little uncomfortable with the way layman handled this year more uncomfortable with it than i am i think well i certainly not going to give him credit like you do but i absolutely think and i'll close with this i'm over my time i think we have to give him credit for demanding that the of the drug factors and i would point out i'm closing schmidt made the exact same findings later he also ten years later could not find lack of competition is your bottom line i gather though from your your your  applied under an arrest thirty four seven twenty six a time as part in the second post conviction proceeding thank you very much ok thank you i'm not going to give judge layman credit is a new judge the second case that he did was also a capital case and that was recently vacated for judicial bias as well i cited to that in a statement of related cases that  what i would say is that you know once that report changed it affected all of the proceedings in this case at the point that that report came out counsel didn't wasn't an advocate any longer for his client he literally sat there in a capital case where there were negotiations to make this a second degree murder case and let him plead guilty to capital murder so he could get the state's assistance in securing the death penalty so it was a material issue and when it was discovered that judge lehmann authored this report there was a hearing with judge pro and with the attorney general where the attorney general acknowledged at the hearing in september of zero one that it was a material issue about the determination of competency because it totally affected the outcome of the proceedings counsel forgive me perhaps i don't recall correctly but i thought this bring court that indicated that it was that was it was inconclusive whether judge layman had quote the report quote i don't know i think did say that but at the same time saying they were just kidding i did i'm not saying they were kidding what i'm saying is they completely ignored a binding stipulation of the parties but but you realize we have to deal with those standards so how do we deal with it we've got the supreme court in the vet says that it's inconclusive whether the judge even with this so you're saying the case is over because the judge did this and he was overcome because the state courts applied harmless error when they should have applied structural air principles i don't need to overcome your isn't everything so your argument is that what well first of all you're assuming that the judge did this but it if he did you're saying that that is a structural error therefore you have to reverse their right since to me the ohio in one nine hundred twenty seven judicial bias has been clearly established as structural there but let me address the court's question too because i think i also have i am entitled to relief under an unreasonable determination of the facts because the when the nevada supreme court said those things they didn't acknowledge the binding stipulation of the parties that was read into the hearing at the two thousand and six hearing it said it was based upon our question document examiner who concluded that the suspect competency report did not originate from dr masters typing instrument and that it was consistent with having been produced on the trial judge's typing instrument i think it was unreasonable for the supreme court to say it was all inconclusive and not to acknowledge that there was a binding stipulation of the parties i think that was an error you know where you got about nine second just to wrap up i think that the statements of judge pro are very probative when he found out that this happened he said it was very disturbing no matter what the circumstances were and he urged the parties to negotiate in a case that speaks volumes to what happened here and how it affected the proceedings and why the first degree murder conviction is invalid ok thank you thank you very much the case just argued is the mid we will be adjourned until the morning