it is michael the horn number zero for day nine zero zero two mr travis and ms that and one thing to note because we're dealing not with a host of issues but with a discreet issue pertaining to the to the statute eight forty eight q we are probably going to confine the stay right on time with respect to the the typical or argument that we have made pleas back on january twelfth two thousand and six a member of this panel during the re argument panel reconsideration made it a statement  are wrong on this one we screwed up forever and i believe that those words opened back and you were twelve two thousand and six captured the essence of this case and sixth in that context i'm going to work backwards with you let's just assume for the moment that should have been done unmet much ten both sets of both counsel should not have been or both sets of counsel should not have been dismissed did not terminate the entire don't want to litigate before the district court but the problem is the person who did want to terminate it was your client mr michael who wrote to the court at the beginning of april so i don't know what you know i don't want  appeal taken i understand that but we're talking about two different times when mr michael said that at the the record with respect to the march two thousand it's very clear that the driving force at least in my view the driving force was that mr michael for whatever reason want dismissed on march ten they appealed and he's saying i don't even want i don't want any appeal taken so it looks like he's saying whatever it could have been what could have been done in the interim that wasn't done or that's lost as an opportunity let's assume for just a moment that he did want to appeal at that time what could have been done before the appeal is that once the court entered the order and the sequence of the order was dismissed the unit dismissed mr mike excuse me dismissed then attorney caused a row and then after the attorneys were well if it was in one order but i was talking about the sequence of how things were done because i was that significant of us all in one order it's on pointing out to you is that the petition dismissed because they went hand in hand and his brain damaged mine well what exactly one year before that in i can find nothing in the nobody else or didn't think he got more than what he asked for my understanding is that mr michael never asked for mr perot attorney was there any statement by mr michael that hey you made him you made a mistake i only wanted the attorneys dismissed as far as i'm as far as the record there was nothing there but the the point right but i'm talking about something before the appeal before he has to go to appeal from the march tenth two thousand and four order he's got three options at the district court level option one  get back to merits review certainly it's going to be tried and it will be argued it's a reasonable period even though it's almost seventy years after it's over seven years if you if you made a rule fifty nine what i wanted is i wanted behavior unit over and done with i wanted them out of my life i was under the understanding that since they had drawn up and filed the hundred  six page petition that they had to go along that had to go along with the fishes i now understand after talking to my friend and lawyer mr caused a row that i can litigate that petition with mr cosco and i don't have to deal with the attorneys that i don't like i don't get along with whatever the underlying animosity was and therefore please reconsider your decision and please grant me relief but the interesting thing is after he moved with he had mischler move to withdraw his c b s petition in what two thousand and one did you ever vacillated any time before the district court dismissed the petition in march of two thousand and four i don't think so think i am unaware as i stand in front of you with any indication on the record that he did vacillate from that petition but at this point in time when he's moving t thousand and two a question was raised as i understand it by the commonwealth i'm off on the motion to dismiss on the basis that there was a conflict with respect to behave u s attorneys and one of two things would happen either the judge would have granted him relief in which case there would be no appeal or the judge would have denied really in which case the appeal would have period the file the motion for reconsideration was long since expired and during a time period when mr cox grove no longer had this attorney relationship with mr michael because he had been discharged which in our view clearly isn't violation of that section eight forty eight because the only indication is it in the record there seems to have been a bonding a brand for us and slated and that as opposed to saying get them out of my case i don't want them fire that he embraced me now judge and i think that he would have listened to judge cause row review of his underly a use for this petition he's shown that in four different way be shown that by writing city submitted on the riemann he's shown that when he testified as part of that rematch he's shown that by the fact all this happened the summer ten two thousand and seven as a panel knows mister  michael is well familiar with the address of this court and has never been hesitant about writing letters and then that's written a half years since he made the commitment to go forward and have merits review is not indicated anything very good but the problem you have is that i mean the delay in this case has been caused by the person saying he wants to dismiss all proceedings  his his capital case he wants counsel dismissed and later on he doesn't want mr cosgrove dismissed and obviously the first question that jumps to anyone's mind is is the person competent to make that call which he can make and he and found competent three times once on a state level and twice on the federal level and so at this point you know he is a lot of the the the  season is of his own making i question the question is if he was denied counsel for a short period of time was that something so critical that we should presume prejudice under the chronic case and i can't see anything that happened during that period of time that was negative to him in fact there was a positive an appeal was taken that he didn't even want to have taken but the appeal that was taken doesn't answer the like he got what he asked for on line a very narrow well i mean i just would ask you went through i mean went through every hoop known that i can think of to try to make sure this is what he really wanted to do wood this would have been history years ago i understand that you're on it and what i the only thing i can come down to what happened in execution again i was in this courtroom and then a panel of this core sad now that he is steadfast in wanting to go ahead with his twenty two fifty five we're entering a stag i were a man for marriage review marriage review took place the death verdict was set aside well the question here is the way to the only way that i can think of to get to the merits would be to try to proceed under rule sixty b and see what happens there but at this point where we hear from is that we'll get you back on person who's change his mind repeatedly and the concern that anyone has in a capital case is that you want always goes through the a b s procedure in federal court no federal court has heard the merits other hand if he wasn't competent that needed to be litigated just a nasty i mean really delve into this conduct any pursuit of a good period of time and nobody's try to settle that turns the whole doctrine a waiver on that there was a competent waiver given here and now the company changed their mind that doesn't make it any worse or any was valid and you know his expression now that he wants to live i mean don't recall that there's ever win in a capital off the top of my head i'd have to go take a look at that but if you wanted to do is there anything we can do with respect to the process what we expand the certificate of appeal ability or we just say we roll your way and connection with the a forty eight q issue which is what is before us now on the current certificate of appeal ability so the next thing that happens is you go back to district court and he would make the sixty b motion and is there anything that but the court doesn't have to hear it isn't that correct we're doing this without prejudice to a client under sixty billion like imply that we thought the district court should hear it or not that's strictly up to the district court i think we are in the first instance i agree and i and i and i'm not going to  something other than what the client a competent client by all the terminations so far but you might get him to do it i mean that is turning the whole notion of representation on its head and how can that be who are constitutional right have good an advocate as he could for his client and in order to do so you had to have his client be willing to agree with him ultimately cause crossing to have more sway with mr michael than anyone in the  mean you know that they're just they're just trying to do their job yeah well i understand  reasoning was because of the depression despair or whatever and he thought that perhaps he could get his client to go along with it with the appeal and turns out before he aware of the issue involving the happy couple when he was asking us if we can get to do something about it and we automatically relayed a communication to the district court in pointed  left that you know sex he went back for a competency hearing and then be asked one final time do you wish to go forward and my understanding is he said he wished to go forward so i don't know how he indicated that but there is a difference right to carry out in force our allies and then on hold for seven years in the think of a valid look at this point you've said something earlier which is you have just one certificate of a bill ability with one issue dealing with a with respect to the question you asked him off attorney about the stipulation when the stipulation was made at trial that there's aggravating factors and no mitigating that's automatic point i mean the issue only issue we've got that's the reason we don't we're not having the typical capital case or argument is we have one issue dealing with a forty eight as to whether there was a violation of that if there was was a during such a critical period that the prejudicial under chronic should be presumed it doesn't because as we said to you before even if there were a violation it doesn't seem as if there was any detriment that occurred to mr michael in fact he is the beneficiary of an appeal that was taken that he initially did not want to have happen and i just repeat myself that i think that the period of time where he was totally without counsel because mr cause row was this mess clearly in violation of the language of a forty eight once a point  into the case he was there for the duration unless what even if we agree with you what was the prejudice or the prejudice is that now we may or may not have one limited area that we can try to litigate in that say a rule sixty big which is i heard the con law they're not conceding that that's even though they lost the opportunity attorneys are the persons agent and he was saying at that point in time i don't want to go any further you know and we've been saying it for three years i think he was saying that with respect to the