i proceed your honor please read good morning to the court my name is gone maybe i'm representing my client which is some of the issue before this court as a petition to seize it is a narrow one you did you used to practice in california did i use the yeah well i'm this is beside the point i'm hearing a boston accent if you're right i'm i hate having to begin my augment correct in the court this is a new to the twenty five or so men my client being one of them who have exhausted all their appeals and all waiting for execution in california death row the issue is the effect of an appointment by the state court for stay calm and see purposes upon the federal appointment for state clemency purposes under eight hundred thirty five ninety nine to ask you what happened here so let's assume for a moment i don't think he did this that the district court had said i find that your state counsel is sufficient not just that you have of thirty five ninety nine congress a stablished an independent federal interest in state executions in the sense that he has ms he has a federally appointed counsel who is why you shouldn't proceed with this none of the reasons you give me for not proceeding as so counsel are all that persuasive to me under that circumstance would the district court have discretion to deny the application to the point the arizona if the day i think the district court now has discretion to deny it but the district that's not what he did yeah that's my that's my point so that's why i think this may be a procedural problem the district court said i don't have any power to appoint that's credible counsel because you're really there and judy act talks about appointing more than one counsel when necessary you filed an application that said i really can't handle this it's not my cup of tea you know i'm a missile partitioner there are other people much more expert in clemency and you also said and i think i want to pursue further abs proceedings but i'm running out of you know well  given all that shouldn't a district court look at all of that and say ok i need to make a determination of the circumstance what the weather additional council is needed this report never did that right well to district court instructed me or at least suggested that i go over to mcallister street and ask the california supreme court you can let me just help let's assume that's not needed let's assume you don't have to go back to mcalester street but what should i guess i'm sufficient representation if he doesn't then you're entitled to point more people there you know as you determine that as a matter of fact you don't have to point where people their job is to make sure that this court's job is to make sure that that issue with the district court said was his state council that's presumptively good enough what i believe the court may be suggesting and and is that this is really an administrative matter more than anything else that someone has to step up administratively and say ok either the federal court controls this matter under thirty five ninety nine or this state you know so you're  misunderstanding ok then i question and that's because i'm probably not good for you know you're being clear it's probably my lack of understanding let's assume that the federal court controls yes let's assume that you just walked in and said gee i'd like another lawyer  the district court could well have said well tell me why present representation is insufficient correct that's correct ok the district court you went in and you gave reasons why you w the district court said i don't care about your reasons because you've also been appointed by the state i disagree with that for purposes of my question now what was the district or do doesn't have to go back and look at your application yes and say well you're right come and see counsel on the thirty five ninety nine that the existence of a state the mere existence of a state appointed procedure has no effect on that appointment and that the district court should exercise its discretion in what we should be to exercising what you should be doing i am not asking this court to hope to grant my request this is not the business of this particular court the business of this court as i see it is to tell the district court you were wrong in opinion is that the tennessee court doesn't have any perceived does not have any provision for this let's just narrative in your view understood dryness not just of the holding cell is really the question is whether or not the narrative at the beginning is part of the i'm not sure what's the difference without distinction of this things from without a difference but any way you choose to phrase it it has nothing to do with this case there were four separate opinions and harbors not one of them toyed with a lack of state process into what congress has guaranteed yeah and there's nothing in the statute that says anything about this no no there is not this is to a logics that a matter of first impression but this is but you but this is different and harvested in one way your application said i'm also into supporting further yes i just want to make one thing clear to this court i have been doing this down one way or another for thirty years my request is is not was not a casual one it's not something i just came up with and say gee it sure would be nice to have somebody else sit in on and next to me because i don't like my handing out i believe that i have had the privilege of listening to this court and was sitting to all the  interest of their clients through is no more fundamental interest in god's creation then human life i have to do everything i can to associate myself with people who can help me save my client's life my quiet has exhausted all those appeals his only hope of survival of the literal survive is that the governor of the state of california will grant him because that's what commons is all about it's not a real litigation and if i conflated the two in my in either my briefings or in my request to the dish to court to begin with i apologise and in my thirty years of experience i have come to the conclusion f the research in this matter thoroughly that i need co counsel in this matter to do the very best i can to save my client's life and that's what it amounts to the process in california supreme court does not allow for this it is a totally different process you don't set out a budget and say this is what i would like done in this is how much it's going to cost and this is how much the experts are going to pay that's not the way they work over there you simply do it and if you get compensated for it that's wonderful if you don't get compensated for it but well that's not so one of what the bottom line here is all i am asking for is an opportunity to go the california supreme court would not be able to appoint arizona federal public defender there is nothing in the procedure and it's not a statute it's just a court procedure that allows for this there's nothing in the court that allows for experts in clemency matters he simply states forty to eighty hours whatever that means and that is actually based upon the length of the record which i'm always at a loss to understand what the length of an appellate record has to do with a clemency matter ok is there a reason that if the appointment came from the california supreme court as opposed to the federal district court that the arizona federal public defender could not do the work i originally question that that whether the california supreme court would be willing to in effect appoint and out of state agency and i realize i didn't mention it in this augment because that would just be speculation on my part i don't i have no idea ok i'm just i'm just i know what hobson's us i know with thirty five ninety nine east as i'm not sure what's in the mind of the seven hundred people over there that's why i'm here so let me just understand your position then do you think that your request for appointment of co counsel triggers a new inquiry under a two of the statute yes i think it triggers an inquiry whether or not it's reasonably in this particular matter and reasonably necessary has been defined look at recently in a yes this first day or if it's an eight to inquiry that statute asks whether the defendant is or becomes financially unable to obtain adequate representation or investigative support so let's say we agree with you isn't the district court then going to basically be in the same position to say well you need to show me that you can't get adequate representation you're saying that adequate representation includes the point of co counsel go to the california supreme court if you can if they won't do it then obviously come back but until you've shown that you can't get it from them how have you met your burden under a well your honor the reason why i don't think that's even necessary it's not necessary or advisable simply because as i said congress has created this independent federal interest under the federal constitution and that is what i'm relying on and frankly miss the sam hill is going to miss the always on death row god only knows when the process is going to start and warrants are going to start to be signed i don't have the time or the luxury to be bouncing from court to court seeing when this eventually is figured out i want to get going now i can look at the statute allows you understand i completely understand i'm not questioning that i guess though if you're conceding though that a two is triggered then i guess i don't i don't see why the district court wouldn't be required to ask whether the california supreme court might be do we going to do this because just let's assume that the california supreme court had some standing reg that said well we're happy to point any out of state federal public defender who would want to help in clemency proceedings and so that revenue source was available it seems to me if you came and made the request straight away to the district court the district where it couldn't go at it all i can say about that your honor again it's speculative and i have all of us have waited for years for the california supreme court to act as if you act as you suggest it is not done so i felt that in order to protect my client's interests the federal pathway was the best way to take it and that's why i wanted this record and less the court has any further questions i thank you for your obvious attention and well let's hear from the other side and we've taken you over time but we will give you a chance to re may please the court rahman urbanski supervising deputy attorney general for the state both the state and federal systems in vision that mr sammy you know will have the benefit of counsel for purposes of clemency proceedings both the state and federal systems have rules and requirements for the appointment of that counsel the california supreme court has appointed mr need to represent mr sam iowa in clemency proceedings and for principles of comedy and federalism if there is a request for additional or different resources than the appropriate body to ask is the state court why that appointed him why did you i'm having difficulty with this case answering a very preliminary question why does the state care no one's asking the state to spend an additional penny all that mr naimi is asking is that his client have an additional set of counsel when he does the clemency proceedings what's your interest in preventing that your honor in terms of whether this comes out of the federal wallet or the state wallet your honour's correct california doesn't have an interest in that but when the request is rooted in a claim that what california is offering is some how an adequate that's a different story i'm not sure that's what is rooted in what is rooted in his federal statute has certain standards of adequacy and i'm not even to talk about what california does it may or may not be adequate help for the federal statute according to mr naimi the federal statute accordionist name you simply give them the right i don't see anything in the federal statute that is addressed to whether or not the california proceeding is proceedings are in compensation or ad so be sure in thirty five ninety nine congress is obviously concerned with a state inmates ability to obtain adequate representation even for purposes of a state clemency prop process and that's exactly what a two and subsection he gets you but go faster namely quit if you threw up his hands tomorrow and said i can't do this anymore district judge please appoint the recognized experts in this area  clarified that what eighty two covers is limited and it only applies it only provides for counsel when the state petitioner is on able to obtain adequate representation the supreme court observes that the intent behind my you left out the first word is financially unable yes your honor is different from an able certainly your honor but the state court also provides counsel under those very same circumstances and the intent behind the section is to ensure says the supreme court that an inmate isn't executed without meaningful as i read just as i read financially unable what that means is he can't pay for it it does not mean you can't get it from california for free but what harbison said talked about an inability to obtain adequate representation and that being the concern the intent behind thirty five or so wonder my hypothetical mr naimi quits he's too good a guy to quit but he's going to quit  and the federal court appoints the s p d as his federal counsel does the state under that circumstance have to appoint somebody new to be as clemency counsel or can it simply say gee the f b d's are already there and they're working under federal dime they're fine with us the state would appoint a new clemency council whether they appointed the arizona federal public defender is is possible i suppose but it wouldn't be compelled to do that see i'm still having a difficult time figuring out what the state interest is in him not having additional federal hate be as counsel i just i'm at a loss to figure out why the state of california cares how many lawyers he has if the state's not paying for the state doesn't have an interest in the financial aspect of it all whatsoever the what the state is concerned with is whether we're going to read into section thirty five ninety nine it kind of if if four people in private practice volunteered to help him you wouldn't have any problem with that would you no your honor so we have a federal agency who says i'm happy to help in no cost to the state all i want but my requirements are is that the federal court appoint me because i'm governed by federal law why is that any different from your standpoint the difference is that here what mr anemia saying is that i'm an adequate and there is a state court that has found him affidavit that says i don't have the time and money to do this well the appointment order that was issued in two thousand and two from the california supreme court specifically stated that mr niemi was appointed to prepare in addition to the state a g s process  petition well i know and he may have been perfectly adequate to do so in two thousand and two when he was young and had paying clients but now he's in a different circumstance where sit where you are seventeen years later and he says i'm not adequate anymore to do this i've been around the block several times i recognize that clemency is a highly specialized area i don't have the time and money so must he go to the state court first and make that pitch before he goes to the federal court yes your honor where the statute is that what states are provided you say then then you're reading that first lead in paragraph by justice stevens on her is going to say that's a conditional my holding that is to say that the fact that tennessee doesn't supply the council is necessary for the appointment of the federal n talked about in the event of a retrial now certainly in one circumstance of course that's not a subsequent proceeding as the supreme court noted but additionally the court noted that states are required to provide indigent with counsel for those purposes such that the eight to appointment would be in effect in operative for those purposes also the sixth circuit in iraq versus bell talked about a similar circumstance where you constitutionally required to provide clemency counsel no your honor it's a  function of the supreme court's practices and policies are done this far as i can tell there's no even there's no rule or regulation or statute to correct your honor and supreme court could decide tomorrow that it doesn't want to provide counsel it's a matter of  policies and practices that it has operated by for i don't even know how long but i believe it i just want to follow up on the question i posed to your opponent so your position is that he does need to first go to the california supreme court and put this request to them yes and if they say no we think mr niemi that is you are trying to say you're you're quite adequate still so we're not going to appoint you counsel then he can come back to the district court and and make the case that actually i'm i'm not out of court in the district court would make an independent determination as to whether that's true or not that would be a better case your honor yes if that that's exactly what's missing from we're going to be arguing in that case that the state determination was binding on the district court wouldn't let in the district court said it doesn't matter the state has an adequate procedure and so now you're saying go back to the state exhaust that procedure and that's not a bad argument but then you say that if you did the federal court would be bound by it and something the federal now you're saying there's no federal role in this at all the district court not only said that california provides adequate representation it also said there is just a dearth of information on the record before the district court from which to i don't see why the state is in any way or would be in any way harmed by the federal district court appointed as co counsel the federal public defender from arizona again your honor it would go back to the notions of comedy and federalism in other words the just this abstract notion of comedy but what you're doing here is of course making life much more difficult for mr naimi and therefore much more difficult for his client for no benefit except as a general sort of hand waving toward company is that correct your honor all right asking is that life doesn't have to be that much more difficult for mr niemi it's simply that the appropriate body to make the request for is the counters might make it much more difficult depending what the california court does a that's one more procedural step we have to go through and i expect that when he goes before the california supreme court you made argue that he's perfectly adequate all by himself your honor but the california supreme court is an entity that knows the clemency system in its state that knows w title that knows what agencies and resources are available to me that there's you know for there's no california statute there's no constitutional requirement this is entirely up to the discretion of us as it were almost to the minister to rule within the california supreme court and here we have a statute that's actually quite case that's correct your honor but here the state affords counsel and this might be a different case if mr niemi goes to the california supreme court makes a request makes a request for additional resources and the california supreme court says not so you think there's an competency example well there's a new trial example is merely to say listen there's no parade of horribles coming along here a new trial that's a different question well the court specifically said that the state is going to supply wanted under the statute for a new trial that's a different question that's all her business and i think it's saying that that there is a federal appointment for some purposes and where the state has affords counsel for particular purposes that informs the scope of the federal aid to appointment in this case what mr naimi is asking essentially is for the federal court to oversee the california supreme court and what it might provide and there hasn't there just hasn't been a showing of any need for that kind of oversight this is only based on an unsubstantiated argument of what the state court might not provide and that kind of a speculative request is inconsistent with well i won't take two minutes your honor all while i'm somewhat tempted to discuss the correlation between adequacy of maturity i i i am not going to do so this court fully understands the issues there is nothing i could possibly decision and that concludes our argument this morning now we're were adjourned i had thought there were going to be students here to talk to afterwards but they soon will disappeared